BOARD DATE:	  22 May 2012 

		DOCKET NUMBER:  AR20110010655 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement into the Active Guard Reserve (AGR) for the purpose of retiring as a sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6. 

2.  The applicant states she was reduced to SSG/E-6 as a result of conviction by a summary court-martial.  She appealed her punishment but after nearly a year, her appeal was denied.  She is now submitting additional evidence to support her contention that the court-martial convening authority was not authorized to reside over her court-martial.  She also states:

* She believes the evidence was not beyond a reasonable doubt and the justification used to convict her was one-sided
* The court-martial convening authority was not authorized to preside over her court-martial 
* She received her entire packet less than 24 hours before the hearing; if she had had sufficient time, she would have been able to get legal counsel to help with her evidence and the hearing
* She believes she was railroaded with a process that provided her no time to prepare or recourse; additionally, at the time she was under medical care
* She was given an assignment one level above the one she was reduced for in January 2010

3.  The applicant provides:

* Multiple DA Forms 2166-7 (Noncommissioned Officer Evaluation Report)
* Letter to her Member of Congress 
* Multiple emails with various individuals 
* Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement 
* Certificate to Return to Work/School
* Patient/Family Discharge Instructions
* Hospitalization Report/Narrative Summary
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Local Letter of Reprimand
* Iowa Army National Guard (IAARNG) Form 2627 (Record of Proceedings Under Chapter 29B.14, Code of Iowa)
* Letter of Concern
* DD Form 458 (Charge Sheet)

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service in the Regular Army (September 1990 to August 1999), the applicant enlisted in the IAARNG on 15 September 2000 and she held military occupational specialty 42A (Human Resources Specialist).

2.  She entered active duty in the AGR Program on 15 February 2001 and served in a variety of assignments within the IAARNG.  She attained the rank/grade of SFC/E-7 on 14 June 2005.  She was assigned to the 185th Combat Sustainment Support Battalion, 734th Regional Support Group.

3.  On 28 August 2008, she received a letter of concern from her company commander for various violations including failure to attend mandatory training, substandard job performance and poor attitude, dereliction of duties, missing suspense, and inefficiency. 

4.  On 7 November 2008, she received a second letter of concern from her officer in charge for various infractions including falsifying information, failing to meet suspense, dereliction of duties, and not living up to the standards required of her as a senior NCO.

5.  On 19 November 2008, the applicant's immediate commander notified her that he was considering whether she should be punished for misconduct (nonjudicial punishment under state laws) for multiple instances of dereliction of duties, disobeying lawful orders, and inefficiency.  It appears she elected trial by court-martial.

6.  On 21 November 2008, she received a letter of reprimand from her battalion commander for her attitude toward superiors and subordinates, insubordination, and dereliction of duties.

7.  Her record contains an extensive history of counseling by members of her chain of command for various infractions, including:

* Neglecting to report her whereabouts
* Dereliction of duties
* Poor judgment
* Failing to attend unit training
* Substandard performance
* Poor attitude
* Missing suspense

8.  On 17 December 2008, court-martial charges were preferred against her for:

* Charge 1, one specification of disobeying a lawful order and one specification of dereliction in the performance of her duties
* Charge 2, one specification of willfully disobeying orders and one specification of dereliction of duties (negligence and inefficiency)
* Charge 3, one specification of dereliction in the performance of her duties in that she falsely reported inaccurate information

9.  On 19 December 2008, at a preliminary proceeding, the summary court-martial gave the applicant a copy of the charge sheet.  He also informed her of the following:

* The fact that the charges had been referred to a summary court-martial for trial and date of referral
* The identity of the convening authority
* The name(s) of the accuser(s)
* The accused right to object to trial by summary court-martial
* The accused right to inspect allied papers and immediately available personnel records
* The names of the witnesses who could be called to testify and any documents or physical evidence which the summary court-martial expected to introduce as evidence
* The accused right to cross-examine witnesses and have the summary court-martial examine on behalf of the accused
* The accused right to call witnesses and produce evidence with the assistance of the summary court-martial if necessary
* That during the trial, the summary court-martial would not consider any matters, including statements previously made by her to the summary court-martial, unless admitted in accordance with the Military Rules of Evidence
* The accused right to testify on the merits or to remain silent, with the assurance that no adverse inference would be drawn by the court-martial from such silence
* If any findings of guilty were announced, her right to remain silent, to make an unsworn statement, oral or written or both, and to testify and to introduce evidence in extenuation or mitigation
* The maximum sentence which could be adjudicated if the accused was found guilty of the offense alleged
* The accused right to plead guilty or not guilty

10.  On 12 January 2009, after having been given a reasonable time to decide, she did not object to the trial by a court-martial and she was subsequently convicted by a summary court-martial of:

* Charge 1, one specification of disobeying a lawful order and one specification of dereliction in the performance of her duties
* Charge 2, one specification of willfully disobeying orders and one specification of dereliction of duties

The Court sentenced her to a reduction to SSG/E-6 and a forfeiture of $200.00 pay per month for 5 months. 

11. On 8 February 2009, the convening authority (Commander, 734th Regional Support Group) ordered a reduced sentence in that he suspended the forfeiture of pay for a period of 5 months.  He also ordered the reduction executed and the applicant reassigned to a position commensurate with her reduced grade. 

12.  On 24 February 2009, Office of the Adjutant General, IAARNG, published official orders reducing her to SSG/E-6 effective 8 February 2009.  She was also reassigned to Camp Dodge Training Cite, Camp Dodge, IA.

13.  On 5 January 2011, the IAARNG Assistant Adjutant General denied her appeal that was based on her contention of insufficiency and denial of due process. 

14.  She ultimately retired on 30 April 2012 by reason of sufficient service for retirement and she was placed on the retired list in her retired grade of SSG/E-6 on 1 May 2012. 

15.  The applicant submitted:

* Multiple DA Forms 2166-7 throughout her career showing solid performance and potential 
* Medical statement 
* Letter to her Member of Congress wherein she blamed her chain of command for her mishaps and asking for help in resolving her rank issue
* Multiple email with various individuals inquiring about her appeal
* PDES Commander's Performance and Functional Statement, dated 9 February 2009 wherein her commander described her overall performance as sporadic
* Certificate to Return to Work/School , dated 7 January 2009, indicating no restrictions
* Patient/Family Discharge Instructions
* Hospitalization Report/Narrative Summary, dated 26 March 2009, showing a diagnosis of recurrent depression 

16.  An advisory opinion was obtained from the National Guard Bureau (NGB) in the processing of this case.  An NGB official recommended disapproval of the applicant's request and the State concurred with this recommendation.  The official stated: 

	a.  In accordance with the Iowa Code of Military Justice article 824.84, article 825.85 and upon review of the materials provided by the applicant, there is no evidence of error or injustice regarding her request.

	b.  She claims she was improperly reduced to the grade of E-6 due to an unauthorized summary court martial convening authority and evidence which did not prove her guilt "beyond a reasonable doubt."  She asserts a lack of due process to allow time to prepare for the court martial.  According to the record, she exercised her right to request a summary court martial and indicated that she had consulted with a judge advocate.  By doing so, she waived any issue she had with the conduct of non-judicial punishment proceedings.  The applicant was aware of the charges against her in November 2008 and exercised her rights to consult with counsel and to have an officer assist her in the court-martial proceeding.

	c.  The IAARNG memorandum, dated 5 January 2011 states, "The due process claims require more explanation.  Based on the information provided, it appears that the summary court martial was convened with the Government’s counsel present.  The Defendant was given the opportunity to consult with counsel…  The facts and circumstances, even if taken in the light most favorable to the Defendant do not show that she was denied substantial due process rights or that she was prejudiced by the practice in this summary court martial.  The second due process claim related to lack of impartiality.  The Defendant alleges that the summary court martial officer (SCMO) was familiar with the case and selected by the brigade level commander with the intent of tilting the playing field in favor of the command.  The procedures only allow a SCMO to be appointed by someone who is empowered to order a person to serve in that role.  The 734th Regional Support Group was the pool from which the convening authority could select a SCMO based on the command authority vested in him.  The second due process claim, relating to the lack of impartiality is likewise denied.  The sufficiency of the evidence claim is denied without further discussion...  The record provided for the undersigned’s review establishes sufficient evidence to prove the Defendant guilty, beyond a reasonable doubt, giving all appropriate deference to the SCMO and there is no showing that his decision neglected to consider these claims or that he clearly erred in finding that defense to be without merit..."

17.  She was provided with a copy of this advisory opinion but did not respond. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a senior NCO, appears to have failed in her responsibilities as a leader.  She was issued a letter of concern on two separate occasions pointing out some deficiencies in her attitude, job performance, and relationships with superiors and subordinates.  She also received a letter of reprimand.  

2.  Her substandard performance continued and her chain of command ultimately preferred court-martial charges against her.  She was provided with a copy of the court-martial charges on 19 December 2008.  She did not object to trial by the summary court-martial.  The proceedings were held on 12 January 2009 and on 20 January 2009 she was convicted her of two charges/specifications and acquitted of a third.  The convening authority approved the sentence on              8 February 2009.  She appealed her conviction, but the next higher commander denied her appeal. 

3.  The convening authority, a colonel and commander of the 734th Regional Support Group, had the authority to appoint an officer within a pool of officers to serve as the summary court-martial officer.  The command authority vested in him as a commander gave him the authority to do so.  The applicant's contention that the presiding officer did not have the authority to preside in her court-martial is without merit. 

4.  It appears all requirements of law and regulation were followed and her rights were fully protected throughout the proceedings.  In any case, the ABCMR does not reexamine issues of guilt or innocence under a court-martial.  This is the function of the convening authority and the next higher commander with appeal authority, and it cannot be upset by the ABCMR.  Furthermore, the applicant's case has already been adjudicated through the Army's legal system and the applicant's medical issues were addressed or could have been addressed during the court-martial and/or appeal process.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x______  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _x   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20110010655



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ABCMR Record of Proceedings (cont)                                         AR20110010655



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