IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110012278 


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 to set aside her Article 15, dated 22 December 2006. 

2.  The applicant states the set aside and removal are based on:

* her diagnosis of post-traumatic stress disorder (PTSD)
* award of service-connected disability compensation by the Department of Veterans Affairs (VA)
* failure of her command to provide her with medical care when she clearly requested it
* lack of investigation into her reaction to medications
* new guidelines for prescribing the Mefloquine medication
* failure of the convening authority to grant her request and find her misconduct was mitigated by her condition and the lack of medical care
* If the current procedures were in place at the time of the alleged offense, then most likely there would not have been nonjudicial punishment (NJP), but rather medical care

3.  In a self-authored legal brief she states she received an Article 15 for adultery and making a false statement.  She adds:

* she was suffering from psychosis which resulted from taking a prescribed medication - Mefloquine
* she was prescribed this medication despite the manufacturer's warning
* the medication was prescribed in conjunction with Celexa, an anti-depressant
* the warning clearly states this medication is not to be prescribed to someone with a recent history of mental illness to include depression or adjustment disorder
* she never received the manufacturer's warning information
* she has G6PD (Glucose-6-Phosphate Dehydrogenase Deficiency, a red blood cell genetic disorder, anemia), and she is immune to malaria; she should not have been given any anti-malaria drug
* the Army healthcare providers were not familiar with the proper use of medicine, warnings, and precautions
* she lacked the required mental ability to form an intent to deceive
* she always maintained that during the alleged event, it was not corporal (CPL) WJB's face that she saw, but the face of the man who committed the sexual assault
* her flashback was a manifestation of psychosis from the medication she was taking
* her statement to the U.S. Army Criminal Investigation Command (CID) is close to that given to the Inspector General (IG)
* since there was never any investigation into her state of mind at the time of the alleged offense, there is no reason for the Board to deny this possibility
* she also made the same argument during her Article 15 hearing, with no luck
* the Article 15 was administered in December 2006; the new guidelines regarding the medication were put into place in February 2009
* she was being treated at Bagram Combat Stress Control prior to the incident and upon realizing she needed help, she asked for it
* Captain (CPT) JER (her immediate commander) had no idea she was being treated for an adjustment disorder with a depressed mood
* CPT JER had no idea of the medication she was taking or their side effects
* Prior to 29 June 2006, CPT JER was not aware of her non-deployable profile which was issued prior to her deployment
* She did not hide her condition from her chain of command
* She was diagnosed with PTSD while in the service by two competent military medical professionals
* She was awarded service-connected disability compensation by the VA at the rate of 30% - upgraded to 50% with one diagnosis made prior to the NJP and the second after the NJP

4.  The applicant provides:

* Individual Medical Readiness printout
* VA rating decision, dated 30 June 2008
* Office of the Surgeon General (OTSG) Updated Guidance on Use of Mefloquine for Malaria Prophylaxis, dated 2 February 2009
* Medical disposition memorandum, dated 2 March 2006
* self-authored medical fitness memorandum, dated 21 June 2006
* DA Form 3349 (Physical Profile), dated 10 March 2006
* Standard Form (SF) 600 (Chronological Record of Medical care), dated    3 August 2006
* Psychological Consultation Report, dated 8 August 2006
* Report of Mental Status Evaluation, dated 18 January 2007
* Email exchange with the Inspector General
* Medical article, titled: Mefloquine prescriptions in the presence of contraindications: prevalence among U.S. military personnel deployed to Afghanistan

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior active service in the Regular Army (RA) (July 1993 to July 1997), the applicant's records show she again enlisted in the RA for 3 years and 16 weeks in the rank/grade of private/E-2 on 27 October 2004.  She held occupational specialty 92Y (Unit Supply Specialist).  

3.  She was assigned to D Company, 37th Engineer Battalion, 20th Engineer Brigade, Fort Bragg, NC, and she was promoted to specialist (SPC)/E-4 on 1 December 2004.  She would later serve in Afghanistan with this unit from 11 March 2006 to 30 August 2006.

4.  On 4 May 2005, she forged a Virginia court order and deceived a local credit union in Newport News, VA, to release a lawful lien on her bank account by faxing a forged document.  The Newport News Police Department declared her a fugitive and a warrant for arrest was issued against her by a Newport News, VA, court. 

5.  On 26 July 2005, subsequent to an arrest warrant, she was arrested by civil authorities in Newport News for the civilian/criminal charges of grand larceny by false pretense, forgery of a public document, money laundering, and obstruction of justice.  She was summoned to appear in the Newport News Circuit Court on 12 April 2006.  However, she failed to appear before the court.  She was later assigned a hearing date on 21 November 2006. 

6.  On 29 June 2006, CID agents of the Afghanistan Military Police Detachment were notified that the applicant reported to her company commander that she had been raped by CPL WJB.  Initial investigation established probable cause to believe CPL WJB may have committed the offense as alleged by the applicant; however, on 11 July 2006, she admitted she engaged in consensual sexual intercourse with CPL WJB.  Further investigation also revealed the applicant committed the offense of false swearing when she provided a false statement wherein she detailed being raped by CPL WJB.  CID referred the consensual sexual misconduct to the unit commander for appropriate action. 

7.  On 3 August 2006, at Forward Operating Base (FOB) Sharana, Afghanistan, she was convicted by a summary court-martial of:

* one specification of violating General Orders Number 1 by chambering a round on two separate occasions, on 22 June 2006
* one specification of attempted assault by walking toward CPT JER's location with a dangerous weapon (loaded firearm) on 22 June 2006 
* one specification of communicating a threat to kill CPT JER, on 22 June 2006 

8.  The court sentenced her to confinement for 30 days, a reduction to the rank/grade of private (PVT)/E-1, and a forfeiture of $1,108 pay.  The convening authority ultimately approved a modified sentence on 3 September 2006.

9.  On 21 November 2006, she was convicted by the Circuit Court for the City of Newport News and sentenced to incarceration with the Virginia Department of Corrections for 5 years, suspended with various stipulations.

10.  On 15 December 2006, her immediate commander notified her of his intent to consider whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ), for misconduct.  After consulting with counsel, she declined trial by a court-martial, requested a closed hearing, declined having anyone speak on her behalf, and elected to present matters in her defense.
11.  On 22 December 2006, at a closed hearing, she accepted NJP under the provisions of Article 15 of the UCMJ for:

* Violating General Order Number 1 by wrongfully engaging in sexual intercourse at FOB Sharana, Afghanistan
* Wrongfully having sexual intercourse with CPL WJB, a married man, while she was a married woman
* Wrongfully and unlawfully making a false statement while under oath that CPL WJB assaulted her

Her punishment consisted of a forfeiture of $636.00 pay per month for 2 months (suspended until 21 February 2007) and 45 days of restriction and extra duty. She appealed her punishment on the same date.

12.  On 4 January 2007, a military attorney opined the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disappropriate to the offense committed. 

13.  On 8 January 2007, after consideration of the all matters presented in her appeal, her battalion commander granted her appeal to the point where he stated that she provided no medical evidence as to claim of issues from medications.  He also stated he was aware of the issues presented with respect to child care and he had instructed the chain of command to reduce the impact of time away from [her] child while still fulfilling some extra duty. 

14.  On 12 June 2007, she again accepted NJP under the provisions of Article 15 of the UCMJ for falsifying an official statement, with intent to deceive, to obtain tuition assistance.  Her punishment consisted of extra duty for 45 days.  She appealed her punishment but her appeal was denied. 

15.  She was ultimately discharged on 17 September 2007 under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations) for misconduct - commission of a serious offense with an under other than honorable conditions discharge.  

16.  She submitted:

	a.  Individual Medical Readiness printout that shows she was G6PD deficient effective 6 February 2006

	b.  VA rating decision, dated 30 June 2008, that shows she was awarded service-connected disability compensation for hysterectomy, seizure disorder, PTSD, tinnitus, and an abdomen scar, all effective 18 September 2007.
	c.  OTSG updated guidance on use of Mefloquine for Malaria Prophylaxis, dated 2 February 2009, wherein the SG states that Mefloquine has been used successfully to protect thousands of Soldiers against malaria.  However, this medication is contraindicated in some members who have certain medical conditions or are taking other medications.  The SG reminds healthcare officials to be cognizant of the proper use, contraindications, warnings, and precautions when prescribing this medication.

	d.  Medical disposition memorandum, dated 2 March 2006, wherein a physician requested the applicant undergo a medical evaluation to determine her deployability, treatment plan, and board action.  

	e.  A medical evaluation, dated 10 March 2006, wherein a physician indicated he evaluated the applicant and diagnosed her with an adjustment disorder with depressed mood.  She was issued a temporary profile that prohibited deployment.  The physician stated the applicant would need a further period of treatment on a weekly basis.  In connection with this evaluation, she was issued a temporary physical profile for an adjustment disorder with depressed mood.  This temporary profile was issued on 10 March 2006 and with expiration date of 6 April 2010, despite the indication that a temporary profile is limited to 3 months duration.

	f.  SF 600, dated 3 August 2006, wherein she was seen for various ailments subsequent to her alleged sexual assault.

	g.  Psychological Consultation Report, dated 8 August 2006, wherein she was administered a personality assessment inventory in an effort to aid in her treatment and diagnostic clarification.  She did not report any stress or suicidal ideation.  Her temper was within normal range and she was fairly well-controlled although she felt overwhelmed.  There was a reluctance to consider her problems had a psychological origin.  

	h.  A Report of Mental Status Evaluation, dated 18 January 2007, that shows she was diagnosed as having PTSD with an emotional or mental disorder of a psychiatric significance to warrant disposition through medical channels.   She was found mentally responsible and had the capacity to understand and participate in proceedings. 

	i.  An email exchange with an IG who recommended she seek help through the IG serving her in theater. 

	j.  A medical article, titled: Mefloquine prescriptions in the presence of contraindications: prevalence among U.S. military personnel deployed to Afghanistan.

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  

	b.  Paragraph 3-28 describes setting aside and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under 

Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  

	c.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a closed Article 15 hearing.  

2.  The evidence of record confirms the applicant violated the UCMJ and subsequently accepted NJP on 22 December 2006 for various infractions.  She appealed her punishment and the higher commander acted on her appeal.   Her NJP proceedings were conducted in accordance with law and regulation.  There 

is no evidence of record and the applicant provides insufficient evidence to show that the DA Form 2627 is untrue or unjust.  

3.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  

4.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal her punishment through the proper channels.  The evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander. 

5.  She contends that a specific medication - Mefloquine - was the cause of her problems.  Her claim lacks merit.  For example, at the time she forged a Virginia court order and deceived a local credit union in Newport News she was not under any medication.  Additionally, at the time she had consensual sex with another Soldier, there is no proof the medication caused her to lie and allege rape.  Similarly, when she forged the documents related to the tuition assistance, she was not under this medication.  Finally, a mental health evaluation found she was responsible for her actions and had the capacity to participate in proceedings.

6.  She had had significant interaction with the Army medical system, including multiple mental status evaluations prior to and after her NJP.  However, there are no mental status evaluations in her records that show she was unable to comprehend her actions or participate in administrative or disciplinary proceedings. 

7.  The nature of her extensive misconduct, from forgery, to falsifying documents, consensual sex, communicating a threat, attempted assault, and other misconduct, had no relation to any medical conditions she claims or medication prescribed.  The fact that the Surgeon General warned of side effects of a medication that was prescribed to her does not establish a correlation between this medication and her misconduct.  

8.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is none in her case.  


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)                                         AR20110012278



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012278



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1