IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20110014614 


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, in effect, the following:

	a.  overturn of the court-martial and resolution in her favor by removal of the DD Form 2329 (Record of Trial by Summary Court-Martial) from her records,

	b.  restoration of grade of sergeant (SGT)/E-5 with all due back pay,

	c.  consideration by a medical evaluation board (MEB),

	d.  change to item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to read "physical disability" instead of "misconduct (serious offense)," and

	e.  forgiveness of a selective reenlistment bonus debt owed to the government.

2.  She states that in May 2009 while deployed to Iraq she was approached by Private (PV2) R____ who tried to kiss her, but she pushed him away.  The next morning, PV2 R____ left for Camp Taji and shortly after his departure he started emailing her on the personal email account she shares with her husband.  At first the email seemed to be harmless as he was venting about the chain of command, the deployment, and things of this nature.  When the email escalated in which PV2 R____ professed his love for her, she and her husband decided to seek guidance from the Equal Opportunity (EO) Office.

3.  She states she approached First Sergeant (1SG) S____ and asked him to keep everything confidential because she knew she had the right to restricted/unrestricted reporting of the incident.  Everything became a huge mess and she was denied the right to file a sexual harassment/assault complaint with the EO Office.  The EO representative stated that this was a case of stalking, not sexual harassment/assault.  Once PV2 R____ and the 1SG of Company E found out she had reported the incident, rumors were started that she and PV2 R____ had slept together on two occasions.  PV2 R____ was informed that his punishment would be less with an adultery charge than if he were charged with sexual harassment/assault.

4.  She states several career breaking events took place during the following 2 months.  A formal investigation was initiated and the allegation of adultery was unfounded, but the harassment charges were never investigated.  She was administered nonjudicial punishment (NJP) for having an inappropriate relationship with PV2 R____.  She appealed the NJP because the offenses for which she was charged were not true.  She requested trial by summary court-martial because it was abundantly clear that the battalion commander would not tolerate a sexual assault charge in his command.

5.  She states the firing pin was removed from her weapon by her 1SG without her knowledge prior to a flight into a dangerous area.  The aircraft was fired upon that night and she had no way to defend herself.  She believes this was extremely poor leadership and was done as retaliation for asking to file a sexual harassment complaint.

6.  She states that during the trial many Soldiers were interviewed/manipulated in hopes of finding someone who would say she was not a good Soldier.  She had never received a negative counseling in 10+ years in U.S. Army.  All five of her noncommissioned officer evaluation reports (NCOER's) and academic evaluations were either outstanding or above average.  She was also charged with violating Article 92 of the Uniform Code of Military Justice (UCMJ).  She requested clemency after her trial by court-martial which was denied by the brigade commander within 24 hours of her request.  She was reduced to the grade of specialist (SPC)/E-4 and she was recommended for another NJP less than 12 hours after her trial, but the legal office stopped the action.

7.  She states her company commander later informed her that she was being recommended for separation for a pattern of misconduct under the provisions Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b.  After pointing out that she did not have a pattern of misconduct, the reason was changed to paragraph 14-12c, misconduct (serious offense).  The company commander and 1SG informed her that it was not their decision to separate her from the military, they had been directed by higher ranking officials to make it happen.  She believes the push to separate her from the Army was due to the Congressional inquiry that her parents filed following the removal of the firing pin incident that could have ended her life.

8.  She also states she wants to address email that was sent to her parents from Major General (MG) B____ which stated she was threatening other Soldiers and threatening to commit suicide.  The email was a complete fabrication.  She was called in by her chain of command and was placed on suicide watch for the night.  The next day she was command-referred to the mental health clinic for an assessment.  The examining psychologist noted that her command did not have grounds for a command-directed referral and they were in violation of Department of Defense (DOD) directives.  The physician called the violation the "Whistle Blowers Act," so the applicant agreed to see the doctor at the mental health clinic to clear her name.  The doctor who had originally given her a clean bill of health received email from the brigade legal counsel who asked her to reevaluate the applicant's condition.  The doctor was informed that if she did not change her previous recommendation about her mental status, the legal office would be forced to take other legal actions against the applicant.

9.  She states she knows that the staff members of the Army Board for Correction of Military Records (ABCMR) are well educated and intelligent people and hopes they can see that the entire issued was handled inappropriately.  Her DD Form 214 lists her character of service as honorable, but it also states that she has a serious offense under paragraph 14-12c.  This is unheard of and is now causing her and her family hardship.  The government informed her that she has to repay a bonus she received in the amount of $18,000.00 because of the assigned separation code (JKQ) and the narrative reason for her separation.  

10.  She states that also, while being "chaptered out" of the Army, she went through a separation physical and the physician found that a large amount of blood and protein were being released from her kidneys.  Medical professionals recommended that she be sent to Germany for a kidney biopsy, but the command denied the recommendation and stated she could wait until she redeployed.  She is now diagnosed with having stage II kidney disease, which would obviously prevent her from returning to active duty and she understands this.  She wants this matter investigated in a fair and impartial manner and wants the narrative reason for her separation to be appropriately changed.  She should have gone before an MEB when her kidney problem was first diagnosed.  If the MEB finds her to be physically disabled, her debt would be forgiven and recoupment of the debt would stop.  She feels her chain of command mistreated her and she was not afforded the proper rights as a Soldier.  She and her family have suffered greatly by the negligence of her superiors
11.  The applicant provides 26 documents as listed in the attached table of contents.

CONSIDERATION OF EVIDENCE:

1.  After having a break in service, she enlisted in the Regular Army on 28 October 2003.  She served in military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  The highest grade she attained while serving on active duty was SGT/E-5.

2.  Her record contains a DA Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus).  It explained the conditions under which continued entitlement to unpaid installments of the bonus may be terminated and unearned portions of advanced bonus payments recouped.  It states:

I, [Applicant, social security number], understand that I am getting a selective reenlistment bonus for my reenlistment in MOS 92F for a period of 6 years.  I agree to complete this period of service.  I have been advised and understand that if I do not complete the full period of service, or if I do not remain technically qualified in MOS 92F, I will not get any more installments of the bonus and I will have to pay back as much of the bonus as I already received for the unexpired part of the period of obligated service.

3.  Her record contains a copy of Orders 062-003, dated 3 March 2009, which shows her reporting date to Iraq as 20 April 2009.

4.  On 4 June 2009, the EO Advisor, Headquarters, 172nd Infantry Brigade, Forward Operating Base (FOB) Kalsu, Iraq, prepared a memorandum for record.

	a.  This document states the applicant reported to his office on 4 June 2009 after receiving a direct order from her 1SG to do so.  She began to tell him that she wanted to file an informal sexual harassment complaint against a Soldier in her unit who was stationed at Camp Taji, Iraq.

	b.  The EO Advisor stated the applicant told him numerous stories that were not related to sexual harassment.  She stated that a male private in her unit had sent her email which her husband found.  The EO Advisor read the email and determined that she did not have a sexual harassment complaint but rather a possible stalking case.  He told her the issue would best be handled at the company level.

	c.  The applicant went on to the tell the EO Advisor that she was being punished for coming forward since the unit wanted to move her to FOB Taji, Iraq, immediately.  He states he informed her 1SG about the situation and he agreed to leave her at FOB Kalsu for 48 hours until her 1SG from Camp Taji arrived.  The EO Advisor then asked her what she wanted him to do about the situation.  She stated all she wanted was for the Soldier to leave her alone and she wanted someone to call her husband and tell him she was not cheating.  He then advised her that an investigation had been initiated at Camp Taji and based on the findings, the proof her husband needed would be there.

5.  On 8 June 2009, the applicant was given a "no contact" order not to be within 100 feet of PV2 R____ and not to have any contact with him whatsoever.  On the same day, her command appointed an investigating officer (IO) pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  He was appointed to investigate the suspected inappropriate relationship and unwanted sexual advances in Company E, 2nd Battalion, 227th Aviation Regiment.

6.  On 9 June 2009, the applicant provided a statement to the EO Advisor, Headquarters, 1st Air Cavalry Brigade, Camp Taji, Iraq.

	a.  In this statement, she informed the advisor that PV2 R____ tried to kiss her, but she brushed off his advances.  She also provided this information to her 1SG at FOB Kalsu, but he said no sexual assault had actually taken place since she pushed away PV2 R____'s advances.

	b.  The EO Advisor was made aware of a pending investigation and indicated to the applicant that she would take her EO complaint after the investigation had been completed.  The EO Advisor stated she felt it was in the best interest of the applicant and the brigade because if there were any evidence in the open investigation that was not in the applicant's favor she could be charged with lying to a commissioned officer in the formal EO complaint.

7.  She provided a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)).  This form shows a flag was initiated against the applicant on 10 June 2009 for adverse action.

8.  The applicant provided two sworn statements, dated 10 and 12 June 2009.  These documents show that while as a passenger on a helicopter traveling from FOB Kalsu to Camp Taji, the aircraft was fired upon.  There were a total of seven people on board which included the flight crew.  She later learned that her 1SG had removed the firing pin from her weapon on 3 June 2009 while she was seeing the chaplain.  She felt she should have been informed of his action prior to getting on the flight.  She was concerned that she would not have been able to protect herself or others if something happened.

9.  She also submitted a DA Form 4856 (Developmental Counseling Form), dated 11 June 2009.  This document shows she was counseled regarding initiation of the flagging action and its effects.

10.  She provided two copies of a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) with handwritten post-it notes attached.

	a.  The first DA Form 3881 has highlighted fields which were left blank.  The note she wrote alleges that she was asked to sign the incomplete form.

	b.  The second DA Form 3881, dated 14 June 2009 contains the missing information from the first copy.  The adhesive note claims the blank items on the form were completed after her signature was obtained.

11.  A memorandum, dated 16 June 2009, subject:  Legal Review of Investigation Adultery Allegations, shows the brigade judge advocate reviewed the informal investigation conducted by the IO.  He found it was conducted with due regard to the legal rights of all persons, there was also sufficient evidence to support the findings, and the recommendations were adequately supported.

12.  The applicant provided a memorandum, dated 17 June 2009, subject:  Army Regulation 15-6 Investigation of SGT [Applicant] and PV2 R____.  This document only contains the first two pages of the IO's report and shows that after interviewing and taking sworn statements from 12 Soldiers, the applicant, and PV2 R____, the IO concluded the following:

	a.  Facts:  The applicant was PV2 R____'s squad leader.  There was an unusually large amount of text messages and phone calls between the two of them.  She and PV2 R____ exchanged personal emails of an incriminating nature, although she told 1SG S____ that she never responded to any of his email.  Rumors existed that the applicant and PV2 R____ were having a sexual relationship which PV2 R____ admitted to on several occasions.  When the applicant was brought in for questioning, she refused to say anything.  Her 1SG witnessed the applicant standing in the doorway of PV2 R____'s quarters around 2330 hours on 21 May 2009.  Sergeant First Class (SFC) R____ gave a lawful order that all NCO's shall not socialize with their Soldiers unless the entire squad is present.

	b.  Findings:  The IO found that the applicant and PV2 R____ were guilty of fraternization.  The finding was based on the facts and frequency, nature, content, and methods of communication between the two of them found in email and phone records, PV2 R____'s statement, and the sworn statements of witnesses.

		(1)  PV2 R____ made no unwanted sexual advances toward the applicant and no EO complaint had been filed against PV2 R____ by the applicant.

		(2)  The applicant made a false statement when she told her 1SG she had never responded to any of PV2 R____'s email when the evidence showed she did.

		(3)  She and PV2 R____ disobeyed the lawful order given by SFC R____.

		(4)  The relationship was prejudicial to good order and conduct given that the applicant was PV2 R____'s squad leader and given the possible effects the relationship had on the applicant's husband and his ability to perform his military duties.

	c.  Recommendations:  The IO states, in part, the applicant should receive NJP or judicial punishment due to the fact that as an NCO she willfully involved herself in an inappropriate relationship of a possible sexual nature resulting in fraternization with her squad member.  In addition, she made a false statement to a senior NCO present as a witness to her statement, disobeyed a lawful order, and demonstrated conduct… (page(s) hereafter were not provided).

13.  She provided the following documents:

	a.  a bank statement for the period 1 March to 28 April 2009 which shows various purchases;

	b.  a listing of hotels and motels in Killeen, TX, with accompanying email which shows searches of the establishments' databases were performed concerning the applicant and PV2 R____'s possible stay.  The results indicated that neither the applicant's nor PV2 R____'s names appeared on the guest registers of any of the hotels or motels; and

	c.  copies of cell telephone records of the applicant and PV2 R____ showing they both sent and received messages and telephone calls from one another during the period in question.

14.  At the request of the applicant, a delay in the Article 15 (Record of Proceedings under Article 15, UCMJ) hearing was granted until 29 June 2009.  On 29 June 2009, the applicant was administered NJP at the field-grade level for maintaining a prohibited relationship with PV2 R____ between 18 February and 30 April 2009.  This form shows she demanded a trial by court-martial.

15.  She provided a DD Form 458 (Charge Sheet), dated 1 July 2009.  She was charged as follows:

	a.  Charge I, specification I:  At or near Fort Hood, TX, between 18 February and 30 April 2009, did violate a lawful general regulation by wrongfully creating an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission by maintaining a prohibited relationship with a Soldier, PV2 R____.

	b.  Charge I, specification II:  At or near Camp Buerhang, Kuwait, between 1 and 30 May 2009, did violate a lawful general regulation by wrongfully creating an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission by maintaining a prohibited relationship with a Soldier, PV2 R____.

	c.  Charge II:  At FOB Kalsu, Iraq, on or about 3 June 2009, with intent to deceive, make an official statement to 1SG S____ that she never responded to PV2 R____'s email, which was totally false and was then known by the applicant to be false.

16.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows she pled not guilty to all offenses.  It further shows:

* she was found guilty of charge I – violation of Article 92 and specification I – for maintaining an inappropriate relationship with PV2 R____ between 18 February and 30 April 2009
* she was found not guilty of specification II of the same charge for the period 1 through 30 May 2009
* charge II – violation of Article 107 and its specification of knowingly giving a false official sworn statement were dismissed
* a copy of this document is also filed in the performance section of her official military personnel file (OMPF) of the interactive Personnel Electronic Records Management System (iPERMS)

17.  Her sentence was approved on 15 July 2009 and included:

* reduction to the grade of specialist (SPC)/E-4
* 14 days of restriction and extra duty

18.  The Chief, Administrative Law, Headquarters, 1st Cavalry Division, reviewed the court-martial and concluded:

	a.  the court-martial had jurisdiction over the accused and each offense as to which there was a finding of guilty which had not been disproved;

	b.  each specification as to which there was a finding of guilty which had not been disproved stated an offense;

	c.  the sentence was legal;

	d.  any allegations of error made by the accused were not prejudicial to the substantive rights of the accused; and

	e.  the record of trial for the summary court-martial did not require further legal review.

19.  The applicant's record contains two DA Forms 4856.

	a.  On 16 July 2009, she was counseled by her platoon sergeant for failing to provide timely notification of her appointment with Trial Defense Service (TDS), thus not being able to replace another Soldier on battalion guard duty.  This form also shows she failed to report to TDS as scheduled.

	b.  The applicant disagreed with the 16 July 2009 counseling and noted she did not miss the appointment but that TDS had called and denied her services or to see the chaplain.  She believed the counseling to be a repercussion of her court-martial.

	c.  On 17 July 2009, the applicant was notified by her company commander of his intent to separate her under the provisions of chapter 14 of Army Regulation 635-200.  She was scheduled for a mental health assessment and physical examination.

	d.  She disagreed with the separation action and stated she did nothing to warrant it.  She also believed the action was another repercussion of her court-martial.

20.  On 17 July 2009, her immediate commander requested that a mental health evaluation be performed on the applicant for the purpose of separation action under the provisions of chapter 14 of Army Regulation 635-200.  He wrote:

[The applicant] was convicted and found guilty of having an inappropriate relationship with a Soldier under her leadership.  [The applicant] showed blatant disregard to good order and discipline within the unit.  [The applicant] engaged in an inappropriate relationship with a Soldier, knowing she was wrong but continued anyways [sic].  [The applicant] often only hears what she wants to and is consequently unable to learn from mistakes, take advice, or receive criticism.  [The applicant's] conduct has and will continue to be a disruption within the unit.  Her actions hinder the mission and the unit's combat readiness.

21.  A memorandum, subject:  Cessation of Unit Watch for [Applicant], shows she was evaluated at the Combat Stress Clinic on 19 July 2009.  The psychologist stated the applicant denied having suicidal/homicidal thoughts and was considered no risk for harmful acts at the time.  He recommended that her firing pin be returned to her weapon.  She was noted to be psychiatrically fit for full duty and was released without limitations.

22.  Her records contain a Report of Behavioral Health Evaluation, dated 20 July 2009.  The psychologist noted the following:

* behavior – normal
* level of alertness – fully alert
* level of orientation – fully oriented
* mood and affect – unremarkable
* thinking process – clear
* thought content – normal
* memory – good
* the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible

23.  The psychologist also provided the following diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition 
(DSM-IV):

* axis I – V62.89 phase of life problem (legal and disciplinary struggles with unit)
* axis II – V71.09 no diagnosis (cluster B personality disorder traits (which include antisocial, borderline, histrionic, and narcissistic))
* axis III – non-contributory (none reported)

24.  An email written by the prosecuting attorney to the psychologist shows he wrote, in part, the following:

	a.  He understood that the psychologist found the applicant fit for duty and further assessment was not necessary.  He asked if it were possible for him to review the applicant's case further.  Having observed the applicant on several occasions, he had significant lingering concerns about her mental health, as did her trial defense attorney.

	b.  His concern is that the applicant was convinced that her chain of command was constantly plotting against her.  She also appeared convinced that she could take down the entire system around her.  The applicant's grandiose vision of herself combined with the conviction that people are trying to destroy her was troubling.

	c.  He had read a few written statements from the applicant which make unsubstantiated and irrational claims.  If she really believed these things were happening to her, simple misconduct was more than likely not the issue.

	d.  As a prosecutor, he felt a moral obligation to ensure the applicant's behavior was not better addressed through mental health treatment or a more appropriate discharge than under the provisions of chapter 14.

25.  She provided copies of a series of email which were initiated by her parents to her chain of command and include responses from the Commanding General (CG), 1st Cavalry Division (Forward):

	a.  Her parents indicated they had been made aware of a sexual harassment situation followed by an instance of "sending a Soldier outside the wire" without a functioning weapon.  They felt the information needed to be reported up through her chain of command to the post commander.  They indicated they had already contacted a Representative in Congress, but believed someone at Fort Hood may be the appropriate contact.

	b.  The applicant's father stated, in part, that his daughter was treated unfairly and as if she were the perpetrator after she tried to file a sexual harassment complaint against PV2 R____.  She had been hazed by other Soldiers while in Iraq who took her clothes while she was in the shower and forced her to walk back to her living quarters wrapped in a towel.  He also indicated that the applicant's 1SG took the firing pin out of her weapon without her knowledge and she actually encountered fire from the enemy while flying in a helicopter.  The removal of the firing pin placed his daughter as well as the lives of others on board in jeopardy because she was led to believe she was covering the "3 o'clock position" during the flight.

	c.  The CG responded to the various email sent from her parents and indicated that she was convicted by court-martial and was offered NJP, which was her right.  Unfortunately, her performance had not improved since the disciplinary action.  As a result, she was being administratively separated from the service which included a medical examination and counseling as required.

	d.  The CG also stated the applicant had threatened herself and others and the command would ensure she was secure from enemy action and watch her closely.  He anticipated she would be back in the United States soon and out of the Army.  He also indicated he would deal with facts there and act accordingly.

26.  The applicant provided another email, dated 29 July 2009.  This message was written by her trial defense counselor to the NCO in charge of the TDS, 25th Brigade, 2nd Cavalry Division.

	a.  The email shows the applicant's command decided not to grant her a rehabilitative transfer and would proceed with the separation action under chapter 14 of Army Regulation 635-200.  The command indicated it would grant her an honorable discharge if she submitted a request.

	b.  The email also indicated that if the applicant wanted to proceed with a separation board, the prosecution would introduce new information that would make her look bad.  It also noted that the applicant had developed some medical problems for which she would be medically evacuated to Landstuhl Regional Medical Center to see a kidney specialist prior to her redeployment to Fort Hood, TX.

27.  Her military medical records are not available for review by the Board nor are the facts and circumstances surrounding her diagnosis of kidney disease.

28.  On 29 July 2009, the applicant was notified that her command was initiating action to separate her under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – commission of a serious offense.  He recommended issuance of a general discharge under honorable conditions.  The reasons cited for the separation action were:

* conviction by summary court-martial
* one violation of Article 92 of the UCMJ
* violation of a lawful general regulation (Army Regulation 600-20 (Army Command Policy), paragraph 4-14, for relationships between Soldiers of different ranks



29.  She was advised of her right to:

* counsel
* present evidence in her own behalf
* submit a conditional waiver to have her case heard by an administrative separation board
* request appearance before an administrative board
* submit a statement on her own behalf
* appearance before a board of officers

30.  The applicant acknowledged receipt of the notification and on 30 July 2009 she consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and the rights available to her.  The applicant:

	a.  acknowledged she understood she could encounter substantial prejudice in civilian life if a less than honorable discharge were issued to her,

	b.  voluntarily waived consideration of her case by an administrative separation board contingent upon receiving a characterization of service no less than honorable,

	c.  requested that the separation authority consider an alternative disposition in the form of a rehabilitative transfer under the provisions of paragraph 1-16 of Army Regulation 635-200, and

	d.  elected not to submit any statements on her own behalf.

31.  On 30 July 2009, the battalion commander recommended her discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for commission of a serious offense.  He further recommended waiver of the rehabilitative transfer requirement.

32.  On the same day, the brigade commander recommended approval of the separation action.  He further recommended approval of her conditional waiver and her separation from the service with an Honorable Discharge Certificate.

33.  A memorandum, dated 30 July 2009, subject:  Request for Rehabilitative Transfer [Applicant], addressed to the CG, Multi-National Division-Baghdad, Iraq, shows the senior defense counsel for U.S. TDS, Camp Taji, submitted the request on behalf of the applicant.

	a.  He stated paragraph 1-16a of Army Regulation 635-200 states commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service.

	b.  The applicant was tried by a summary court-martial on 7 and 8 July 2009 after turning down NJP.  The court-martial found her guilty of one specification of fraternization and acquitted her of the remaining offenses.  The unit also took the applicant's firing pin on 8 July 2009 and had not returned it.

	c.  On 15 July 2009, the applicant was denied clemency by the summary court-martial convening authority.  After advising her that if she "messed up in the slightest bit" he would ensure that she was further punished within his scope.

	d.  On 16 July 2009, the applicant informed her platoon sergeant that she had a 0900 hours appointment with TDS and would not be able to replace another Soldier on guard duty.  She was counseled for failing to report her appointment earlier and was held by the platoon sergeant so that she would miss the appointment.

	e.  After refusing to allow her to attend her appointment, the platoon sergeant counseled her for failing to be at her appointed place of duty, which was the 0900 hours TDS appointment.  The senior defense counsel stated "the illogic of this counseling is pretty obvious."

	f.  After perceiving she was working in a hostile environment, she requested to see the Inspector General (IG).  Her platoon sergeant felt she was threatening his career and as a result, he recommend another UCMJ action against her.  It wasn't until she was refused her right to see the IG that she requested to see the chaplain.

	g.  Counsel stated he could not imagine a better scenario for a complaint of reprisal and retaliation by a Soldier for exercising their rights.  However, the applicant gave up and was done fighting.  The situation had degraded to a personal conflict between the applicant and her immediate supervisory leadership.

	h.  She informed counsel that she was told the 2nd Brigade Combat Team, 15th Brigade Support Battalion, 1st Cavalry Division, would accept her in the unit.  She asked that the CG allow her the opportunity to prove to a new chain of command that she is a Soldier worthy of remaining in the U.S. Army.

34.  On 31 July 2009, the separation authority disapproved her request for a rehabilitative transfer; however, he approved the request for a more favorable characterization of service.  He directed issuance of an honorable discharge.

35.  She was released from theater and was attached to a unit in Fort Hood, TX, for completion of her separation from the Army.

36.  Her DD Form 214 shows she was honorably discharged on 21 August 2009.  She completed 6 years, 11 months, and 28 days of active service and 5 years, 2 months, and 24 days of prior inactive service.  Item 28 of her DD Form 214 shows she was separated for "misconduct, (serious offense)."

37.  She provided several letters of support from various Soldiers, including her former battalion command sergeant major, the regimental chaplain, and a fellow NCO which show, in part:

* the applicant's diligence and motivation to mission accomplishment were unparalleled
* she was a reliable individual who consistently produced quality results
* her ever-present considerate attitude and congenial disposition were positive assets
* she approached problems intelligently and methodically
* the applicant had earned the respect of her peers and superiors by her professional conduct
* she never compromised her integrity, nor placed herself in compromising positions
* she upheld the Army Values and had never abused her authority as an NCO
* based on information from the trial, the entire event could have and should have been avoided
* the case began on a false accusation and should have never gone that far
* she refused to compromise her integrity or moral courage by allowing the charges to stand
* the applicant always took care of her Soldiers to the best of her ability
* by her 1SG's and company commander's own admission, they testified during the court-martial that she was and continued to be a good NCO
* she conducted her duties flawlessly in a combat environment
* the applicant was one of the finest NCO's he had the privilege of ever working with
* she worked with Soldiers in her office on a daily basis and never had a complaint filed against her

38.  She also provided copies of various awards, certificates, and her NCOER's.  These documents show she was recognized for meritorious achievement, service, and that she received mixed ratings of fully successful and among the best.

39.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for retention.  Chapter 5 addresses the issue of recoupment.  Paragraph 5-13 states that a Soldier who voluntarily or because of misconduct fails to complete obligated service for which a bonus was paid will refund a percent of the bonus equal to the percent of obligated service not performed.  The servicing finance office will perform recoupment of the portion of the bonus before the Soldier's discharge.

40.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury.  Rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation is an indication that the individual is fit.

41.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record.

42.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) shows in table 2-1 (Composition of the OMPF) that court-martial orders will be filed in the performance section of an individual's OMPF when there is an approved finding of guilty on at least one specification.  If charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, then all related orders will be transferred from the performance section to the restricted section of the OMPF.

43.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides, in part, the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Title 10, U.S. Code, section 1552, the law under which the ABCMR operates, prescribes that with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed, the ABCMR is limited to correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the UCMJ (Public Law 506, 81st Congress) or action on the sentence of a court-martial for purposes of clemency.

44.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the Record of Trial of Summary Court-Martial from her OMPF was carefully considered.

	a.  An investigation was conducted based on allegations of adultery.  The IO concluded the applicant and PV2 R____ were guilty of fraternization.  It was based on the facts and frequency, nature, content, and methods of communication between the two of them found in email and telephone records.  These findings were further corroborated in PV2 R____'s statement and the sworn statements of witnesses.

	b.  Charges were preferred against her and she consented to trial by court-martial.

	c.  The proceedings were reviewed by a judge advocate general official who found the court-martial to be legally sufficient.  The summary court-martial proceedings were filed in the performance section of her OMPF in accordance with the applicable regulation.

	d.  While the applicant was found guilty of only one of the two specifications of having an inappropriate relationship with PV2 R____, the Army has an interest in maintaining the integrity of its records for historical purposes.  The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.

	e.  In this case the court-martial order reflects the disposition of the charges preferred against the applicant.  Without this order, it could be falsely assumed that she was never tried for the charges.

	f.  There is no evidence in the available record and she did not provide sufficient evidence or a convincing argument that shows she was erroneously convicted.  Additionally, there is no evidence available to show the court-martial was unjust.  Therefore, the DD Form 2329 is properly filed and should not be removed from her record.  Further, this Board cannot overturn a court-martial conviction.

2.  Her request to change the narrative reason for discharge to show she was medically discharged was also considered.  The fact that the applicant may have developed stage II kidney disease while on active duty is not disputed.  However, there is no evidence that her kidney condition rendered her unfit for continued military service prior to her separation from active duty.  

3.  Additionally, she has not provided sufficient evidence and her record is absent of such evidence to show she had an unfitting medical condition, which is the primary requirement for disability processing.  As such, she would not have been referred to an MEB prior to her separation from active duty.

4.  The applicant, through her own misconduct and unsatisfactory performance, failed to complete her 6-year term of reenlistment.  Failure to complete the specified period requires recoupment of the unearned portion of a reenlistment bonus.  As a result, she is not entitled to cancellation of this debt.

5.  The applicant's DD Form 214 shows her rank/pay grade at the time of her discharge on 21 August 2009 was SPC/E-4 with an effective date of 15 July 2009.  Additionally, the evidence of record shows she was reduced to SPC/E-4 as a result of the summary court-martial.  Her record is absent of evidence and she has not provided sufficient evidence to show her rank/pay grade was restored to SGT/E-5 subsequent to her reduction or that her sentence to reduction to SPC/E-4 was unjust.  Therefore, she is not entitled to the relief requested.

6.  Notwithstanding the applicant's otherwise excellent overall record of service, the ABCMR governing regulation requires the applicant to carry the burden of proof by a preponderance of evidence.  The applicant did not provide sufficient evidence to show she was not given due process in any of the areas for which she has requested relief.

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 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)                                         AR20110014614



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ABCMR Record of Proceedings (cont)                                         AR20110014614



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