IN THE CASE OF:	  

		BOARD DATE:  28 August 2012

		DOCKET NUMBER:  AR20110025101 


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 correction of her military records by restoring her rank to sergeant first class, pay grade E-7 based on the punishment being too harsh.

2.  The applicant states she was convicted by a summary court-martial of knowingly submitting a falsified document, resulting in her reduction to staff sergeant, pay grade E-6.  She contends that the summary court-martial was unjust and has caused, in addition to her loss in pay grade, a revocation of her security clearance, cancellation of military schools, non-receipt of awards for achievement, suspension of all favorable actions, as well as stress on herself and her family.  She asks the board to consider the following points:

	a.  On 14 July 2010, when she was counseled concerning the violations and recommendation for action under the Uniform Code of Military Justice (UCMJ), she denied the alleged charges.  She requested to take a lie detector and to have a handwriting expert examine the forged documents.  Her request was denied at the discretion of the commander.

	b.  On 15 July 2010 and on numerous subsequent dates, she requested advice from an attorney, but was denied until the charges were preferred.  She also requested advice from the battalion commander but was never afforded an opportunity to speak with him.

	c.  On approximately 30 August 2010, she retained a civilian attorney in preparation for what she believed to be a forthcoming summary court-martial.  She anticipated the charges would be for forgery related to documents pertaining to her application for Warrant Officer Candidate School.

	d.  On 10 September 2010, her attorney spoke with trial counsel to ascertain why this matter was not being addressed via a letter of reprimand and was informed that the command wanted to take her rank away.  The applicant infers from this response that the command had already judged her as guilty.

	e.  On or about 14 September 2010, she discussed with her attorney that she suspected that another person had made the false changes to the document.  She wanted her attorney to seek out and speak with that person.

	f.  On 28 September 2010, her attorney interviewed a chief warrant officer two (CW2) who was involved in this matter.  The CW2 stated he had a copy of the applicant's warrant officer packet because he was mentoring her.  As a warrant officer, he was aware that she needed to be able to do sit-ups.  He saw that the new profile with a new date in March 2010, as requested by the Warrant Officer School, still had a "no" in the box for sit-ups.  Believing that the warrant officer at the school had some sort of issue with the applicant, and knowing that she was physically able to perform sit-ups, he took it upon himself to alter the documents.  He did not ask the applicant, nor did he receive any instruction or request from the applicant to alter the documents.  The applicant had logged into her Army Knowledge Online (AKO) account but was attending to her daughter, when the warrant officer scanned in the altered documents without her knowledge.  He attached the altered documents to her email and sent it to the Warrant Officer School.  Later, in July 2010, the warrant officer at the school contacted the applicant's deputy brigade commander about some apparent discrepancies in the profiles, who, in turn contacted the CW2 to have the applicant get an updated profile.  At that time, the CW2 did not tell the applicant what he had done.  The applicant had no knowledge of the problem until she learned of the discrepancies from the Warrant Officer School.

	g.  On 6 October 2010, the summary court-martial convened, without any mechanical recording equipment.  The summary court-martial officer issued no written rulings.  When the CW2 (the applicant's mentor) began to testify as to what he had done, the trial counsel stopped the testimony and advised that he needed to be read his rights.  After being read his rights, the CW2 was asked if he waived them.  When the CW2 declined to waive his rights, the testimony was stopped.  The applicant does not believe it was proper for the trial counsel to instruct the summary court-martial officer on decisions because he is supposed to be a disinterested party between the accused and the government.

	h.  The applicant's attorney requested that what the CW2 wanted to say was necessary to the applicant's defense and needed to be heard.  The attorney requested a continuance; however, the trial counsel stated that this was not unusual and that the matter could proceed without hearing further from the CW2.

	i.  The applicant testified at the summary court-martial, saying that she had sought and obtained a profile with a new date.  She never asked anyone and in particular, the CW2, to alter any documents.  She stated that she had logged into AKO and then left the building to take her daughter to the bathroom.  During this time the CW2 had her warrant officer packet and the updated items.  By the time she returned to the building, the CW2 told her that everything was taken care of; he had scanned the documents and sent the email to the Warrant Officer School.  On 8 July 2010, she contacted the Warrant Officer School and was informed there was a discrepancy with the profiles.  She told the school she was confused and was going on that day to the Troop Medical Center to get an updated profile.  She then contacted the CW2 about the discrepancy and was then told by the CW2 that he had changed the documents and that it was no big deal.  The CW2 said she should contact the deputy brigade commander so that the command would not be blindsided.  She obtained another profile and sent it to the Warrant Officer School.  She further testified that although it was not in good practice, she allowed others where she worked in the dining facility to frequently use her sign in and allowed others to work on the computer because she trusted those people and she trusted her CW2 mentor.

	j.  The summary court-martial found her guilty stating, in part, that she was responsible because she had allowed the CW2 access to her AKO account.  The applicant totally disagrees with the punishment because she did not have a hand in altering any documents.  She did not know and did not ask for the documents to be changed on her behalf.  She feels as if the punishment was prejudged.

3.  The applicant provides no additional documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's reduction to staff sergeant, pay grade 
E-6, be set aside and that she be restored to the rank of sergeant first class with her previous date of rank, retroactive to 6 October 2010 with all back pay and allowances.

2.  Counsel states that the applicant was the victim of a travesty of justice.  She was not afforded due process at the court-martial, the summary court-martial officer exhibited a bias and an inflexible attitude towards sentencing, a material variance was made to the charge over the objection of the accused, and the punishment was excessive.  The applicant is an outstanding Soldier and noncommissioned officer.  She understands that the Board does not have the authority to overturn her conviction, but requests that she be granted clemency and her rank of sergeant first class returned retroactively in the interest of justice and equity.  Counsel submits the following as facts of the case:

	a.  The applicant was charged with violation of Article 134, UCMJ, for wrongful use of a certain instrument purporting to be DA Form 3349 dated 10 May 2010 knowing the same to be false.

	b.  Counsel attempted to negotiate for a letter of reprimand or a general officer memorandum of reprimand (GOMOR) in lieu of the summary court-martial but was informed that he command expected more from a sergeant first class, pay grade E-7 and wanted to take rank from her.

	c.  The applicant testified at trial that after logging into AKO she had to take her daughter to the bathroom.  While she was gone, her mentor, a CW2, altered her profile and submitted it to the Warrant Officer School.  She had no knowledge of this event.

	d.  The CW2 attempted to testify at the summary court-martial that he had altered the profile without the applicant's knowledge, but was stopped because he had not been read his rights and subsequently declined to waive those rights.

	e.  Despite the fact that the government presented no evidence that the applicant used the altered profile knowing it to be false, the summary court-martial found her guilty and sentenced her to be reduced one rank from sergeant first class to staff sergeant.  In passing judgment, the summary court-martial officer acknowledged the CW2’s role in the commission of the offense and also the applicant's impressive military record.  As a repercussion of her conviction, her security clearance was suspended.  The CW2 subsequently received a GOMOR for altering the DD Form 3349 and making a false official statement by signing and dating the document.

3.  Counsel argues that it is apparent that the applicant was not punished for submitting a false statement; but rather, for allowing another person unfettered access to her AKO account.  The government does not have the luxury of crafting the charge as the court-martial progresses.  It must prove the elements of the offense charged beyond a reasonable doubt.  Because the applicant was not charged with altering a public document (Article 134), or as a principle (Article 77), the government was required to prove that she had submitted the document and that she knew it to be false.  Although one might reasonably infer that she knew of the submission of the DA Form 3349 because it came from her AKO account, there is no evidence presented by the government that she had been made aware the CW2 had altered the document.  Given that the elements of the offense had not been met and the applicant's supervisor recommended a letter of reprimand for the offense, the reduction in rank was excessive.

4.  Counsel argues that the applicant was denied the opportunity to present a defense at her summary court-martial based on the military judge's decision to deny a continuance to obtain evidence in support of her defense without justifiable reason.

	a.  Both the government and the defense were aware that the CW2 would confess to altering the profile.  It was also reasonable to assume that he would be read his rights and possibly invoke his rights.  The issue of testimonial immunity should have been proposed and dealt with prior to trial.  Notwithstanding that, the CW2’s refusal to testify without seeing counsel amounted to the unavailability of an essential witness.  There was no indication that a brief continuance would have substantially prejudiced the government.

	b.  The CW2 testimony was the key to the applicant's defense.  She vehemently denied submitting the falsified document, and averred she had no knowledge of its falsity until confronted by the Warrant Officer School.  The CW2 testified to making the changes to the physical profile, and had he been given the opportunity would have testified to submitting the false document unbeknownst to the applicant.  The CW2 testimony would have been admissible to disprove the allegations against the applicant, as well as corroborate the testimony of the applicant that she had no knowledge of the falsified document.

	c.  Counsel had requested the continuance immediately upon realizing that the CW2 was unavailable to testify.  Denial of this request amounted to a denial of due process by the government.

	d.  Counsel contends that there was no available substitute for the CW2’s testimony as he was the only person with personal knowledge of the physical profile being altered or submitted falsely.

	e.  Counsel contends that by granting a continuance, the witness would have had the opportunity to meet with counsel and explore his rights.  By not granting the continuance, the summary court-martial officer ensured the unavailability of the witness.




	f.  Counsel points out that there is no indication as to the length of the requested continuance; however, it is clear that the summary court-martial officer would not entertain a continuance of even a brief nature.  In light of the overwhelming importance of the testimony, almost any reasonable continuance would have been appropriate.

	g.  Counsel points out that the government did not assert any prejudice to a continuance, other than they were denied the opportunity to cross examine the witness.  Had the continuance been granted, the government would have had such opportunity.

	h.  Counsel states that aside from his requesting to reschedule the hearing due to his unavailability, there had been no previous continuances granted in this case.

	i.  There is nothing to indicate that the applicant's request for a continuance was not in good faith.

	j.  There was nothing to indicate that the applicant and her counsel were not diligent in obtaining the evidence necessary for her court-martial defense.

	k.  Counsel argues that the CW2 was a key witness to the applicant's defense because, without his testimony, the applicant had no evidence other than her own testimony that she did not submit the falsified document.  The CW2’s testimony would have completely vindicated the applicant.  The only reason given for denying the continuance by the hearing officer was his statement that a "continuance wouldn't change anything."  This assertion is blatantly in error and is evidence of a lack of impartially on the part of the summary court-martial officer.  The applicant was accused of wrongfully using a false document, yet the CW2 testified to falsifying the document.  Furthermore, he was about to testify prior to invoking his rights to submitting the documents himself unbeknownst to the applicant.  Had the continuance been granted, the CW2 would have had the opportunity to seek counsel and make the decision whether to testify or not.  It is not a stretch of the imagination to think that after meeting with counsel, the CW2 may have sought immunity for his testimony on the applicant's behalf.  Although the grant of testimonial immunity should have been explored by the defense prior to the trial, lack of such strategy should not work to such a profound detriment to the applicant.  As there is no reasonable justification for denying the request for a continuance, the summary court-martial's decision was clearly an abuse of discretion.


5.  Counsel argues that the applicant was found guilty of an offense for which she was not charged.  A specification is a plain, concise, and definitive statement of the essential facts constituting the offense charged.  A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication.  While minor changes to a charge or specification may be made after arraignment, these changes must be made on motion and only if the rights of the accused are not prejudiced.  Major changes to the charges or specifications may not be made over the objection of the accused without preferring the charges anew.  The charge the applicant was convicted of was not the same charge preferred against her.  The applicant was specifically charged with the wrongful use of a certain instrument while knowing such instrument to be false.  Accordingly, actual knowledge is required for a finding of guilty.  Although actual knowledge may be proven by circumstantial evidence, it is a stretch to attribute allowing someone access to your AKO account with knowingly facilitating the commission of an offense.  The summary court-martial officer's application of a lesser "mens rea" (guilty knowledge and willfulness) in convicting the applicant drastically affects the nature of the charge such that charges should have been dismissed or preferred anew.  The government could have drafted the Article 134 offense as a disorder or neglect to the good order, morale and discipline, but that is not the choice the government made.  The applicant was notified she was being charged with a crime that required actual knowledge; however, halfway through the court-martial, and after the government's case had concluded, the summary court-martial officer advised the applicant he would impute her negligent actions in managing her AKO account to her actual knowledge of the offense.  In essence, the summary court-martial officer found the applicant guilty of a dereliction of duty (Article 92) and not the Article 134 offense.  Over the objections of the applicant's counsel, the summary court-martial officer convicted the applicant of the charge without the government presenting any evidence, circumstantial or otherwise, that she had actual knowledge of the offense.

6.  Counsel contends that the applicant was convicted of a substantially different offense from the one in which she was charged and the government failed to prove each and every element of the charged offense beyond a reasonable doubt.  Therefore, the applicant was denied due process as a matter of law.  The summary court-martial officer never clarified his understanding of the elements of the offense during the trial and his obvious misunderstanding was not corrected by the trial counsel.  The summary court-martial officer's misunderstanding of the essential elements of the offense and the proof necessary for a finding of guilty amounts to a material variance in the specification.  As the evidence presented during the hearing does not support the specification for which the applicant was charged, the conviction cannot stand and the punishment should be set aside.

7.  Counsel states that a summary court martial is designed to thoroughly and impartially inquire into both sides of the matter and shall ensure that the interest of both the Government and the accused are safeguarded and that justice is done.  While a summary court-martial may adjudge any punishment not forbidden by the code, the allowable punishments for a Soldier above the grade of E-4 includes a reprimand, forfeiture of pay, and reduction in rank of one grade.  The punishment should fit the crime, and a court-martial officer's decision should be temperate and just in light of the offense.

8.  Counsel points out that the applicant enlisted in the Regular Army in 2001.  She has excelled and been promoted ahead of her peers.  Prior to the summary court-martial, she had achieved the rank of sergeant first class and was in the process of applying for a warrant officer appointment.  She had been awarded the following:

* Joint Service Commendation Medal
* Army Commendation Medal (2)
* Joint Service Achievement Medal
* Army Achievement Medal (8)
* Army Good Conduct Medal (3)
* Korea Defense Service Medal
* Afghanistan Campaign Medal with bronze service star
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (3)
* North Atlantic Treaty Organization Medal

9.  Counsel points out that at the time of sentencing, it was recommended that the applicant receive a letter of reprimand instead of a reduction in grade.  Her supervisor testified to his personal knowledge of the applicant and that based on his experience any offense was completely out of character.  Her supervisor further testified that the applicant clearly possessed rehabilitative potential.  In light of the above, the reduction in grade is grossly disproportionate to the offense and not necessary to achieve the goals of discipline.  Reducing the applicant in grade is excessive and throughout the period of her fight to restore her reputation and military career she has continued to perform her duties in an outstanding manner as evidenced by her most recent performance evaluations.





10.  Counsel provides copies of:

* DD Form 458 (Charge Sheet) dated 14 September 2010
* DA Form 3349 (Physical Profile, dated 11 March 2010
* DD Form 3349, dated 10 May 2010
* An 8-page personal statement of events surrounding the applicant's summary court-martial
* 38 hand-written pages that appear to be the applicant's defense counsel's record of trial notes
* Memorandum from CW2 [applicant's mentor] responding to his GOMOR dated, 7 February 2011
* Memorandum for Record, subject: Profile change, dated 28 November 2011
* Email communication between a CW4 from the Warrant Officer School and the applicant, dated 9 and 10 July 2010
* Enlisted Record Brief, dated 14 July 2010, pertaining to the applicant
* Eight memoranda/letters of support
* DA Form 2166-8 (NCO Evaluation Report) for the four report periods from 1 December 2007 through1 September 2011
* DD Form 2329 ( Record of Trial by Summary Court-Martial) dated             9 November 2010
* DA Form 4430 (Department of the Army Report of Result of Trial) dated    6 October 2010
* Memorandum, subject: Review by a Judge Advocate General, dated        2 November 2010
* Memorandum for the applicant, subject: Summary Court-Martial, dated    28 September 2010
* DA Form 2823 (Sworn Statement) dated 20 July 2010
* Defense Counsel Memorandum, subject: Request for Disapproval of Conviction/Clemency, dated 25 October 2010
* Applicant's Memorandum, subject: Request for Disapproval of Conviction or Clemency, dated 25 October 2010

CONSIDERATION OF EVIDENCE:

1.  At the time of her application, the applicant was serving on active duty in the rank of staff sergeant, pay grade E-6.

2.  A review of the applicant's Official Military Personnel file (OMPF) revealed that the subject court-martial has not been filed therein.  Neither has any other document related to this action been placed in her OMPF.

3.  A review of the applicant's DA Forms 2166-8, as filed in her OMPF, clearly indicate that she was promoted to staff sergeant with a date of rank of                 1 November 2004.  She was promoted to sergeant first class with a date of rank of 1 December 2009.  She was demoted to staff sergeant with a date of rank of 
20 October 2010.

4.  The available evidence, as provided by the applicant's counsel shows:

	a.  DD Form 458 initiated on 16 February 2009 shows the applicant was charged with violation of Article 134 for wrongful use of a certain instrument knowing it to be false.

	b.  DA Form 3349, dated 11 March 2010 by two medical officers and the unit commander, indicates the applicant is not cleared to perform the 2-mile run or sit-ups.  A DA Form 3349, dated 11 March 2010 by two medical officers and 
10 May 2010 by the unit commander, indicates the applicant is only prohibited from performing the 2-mile run.  A comparison of these two forms shows that the form with the later date is a modified copy of the earlier form.

	c.  DA Form 4430, dated 6 October 2010, reports that the applicant was convicted by a summary court-martial of violation of Article 134 for presenting a false profile.  The sentence was reduction to the grade of E-6.

	d.  On 25 October 2010, both the applicant and her counsel wrote separate memoranda to the applicant's battalion commander requesting clemency.  Counsel's memorandum indicates that ten letters of support were attached.  Responses, if any, to these memoranda are not available for review.

	e.  On 2 November 2010, the Brigade Judge Advocate performed a legal review of the applicant's record of trial by summary court-martial.  He found that the court-martial had proper jurisdiction and that the charges were properly stated with an approved finding of guilty.  Defense counsel submitted one matter in extenuation and mitigation that was treated as an allegation of legal error.  Specifically, the summary court-martial should not have found her guilty because a CW2 had testified at trial that he had committed the offense that was charged.  The Brigade Judge Advocate found this issue to be without merit, stating that the Summary Court Officer is the final authority as to the weight or significance of the evidence and the credibility of the witnesses.  He may properly believe one witness and disbelieve several others whose testimony conflicts with the one.

5.  On 9 November 2010, a DD Form 2329 was completed and a copy furnished to the applicant.

6.  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.

7.  Under the UCMJ, the maximum punishment allowed for violation of Article 134 for presenting a false profile is a punitive discharge and confinement for 
3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her summary court-martial punishment was excessive and that her rank should be restored to sergeant first class, pay grade E-7.

2.  As counsel understands, any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to moderate the severity of the sentence imposed, if clemency is determined to be appropriate.

3.  In this case the applicant was found guilty of wrongful use of a certain instrument knowing it to be false.  This violation carries a maximum punishment under the UCMJ that includes a punitive discharge and confinement for a period up to 3 years.  In comparison, her trial by summary court-martial resulting in the loss of one pay grade does not seem to be excessive or too harsh.

4.  In view of the above, the applicant’s request should be denied.

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)                                         AR20110025101





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ABCMR Record of Proceedings (cont)                                         AR20110025101



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