IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120006125 


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 reconsideration of her earlier request for correction of her military records to show her nonjudicial punishment (NJP) was set aside, all rights and privileges were restored, the NJP was expunged from her record, and she was advanced to specialist/pay grade E-4.

2.  The applicant states she misunderstood the process and thought the Board would have asked her for additional information prior to making any decision.  She states that she elected not to demand trial by court-martial because she was told she would not receive regular punishment and she could get jail time.  She finds it interesting that the NJP is not filed in her records even though it had followed her to every company to which she was assigned.  It made her look like a bad Soldier.  She never got the chance to show what type of Soldier she really was.  At the time her health had begun to decline and she was going to different doctors.  It took more than 3 years to finally find out she was suffering from lupus.  She could not appeal the NJP sooner because of the time it took the doctors to diagnose her condition.  She contends that her Enlisted Record Briefs (ERBs) dated in 2009, 2010, and 2011 show she was not flagged and her reenlistment eligibility code did not preclude retention.  These forms also show that her rank was not changed to private first class (PFC) until 1 September 2009.  This only happened after she had pressed her chain of command about the issue.  She further contends that the only counseling she received was about her chapter action.  She was never given any counseling about her promotion status.  She believes the NJP was unjust.


3.  The applicant provides copies of:

* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated in December 2008 and January 2009
* ERB, dated 3 March 2009
* DA Form 4187 (Personnel Action), dated 11 August 2010
* Memorandum for Record, Family Care Plan, dated 19 January 2011
* Chronological Record of Medical Care, dated 20 January 2011
* DA Form 4856 (Developmental Counseling Form), dated 4 February 2011
* DA Form 4856, dated 4 March 2011
* ERB, dated 13 October 2010
* ERB, dated 28 April 2011

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110012657, on 3 January 2012.

2.  The applicant has submitted several new documents to support her previously stated arguments.  These documents should be considered by the Board as new evidence.

	a.  An ERB dated 3 March 2009, indicates that she was a private first class, pay grade E-3 with a date of rank of 22 January 2008, the date she entered active duty.  It also shows her reenlistment eligibility code as 10, indicating no prohibition at that time.  There is no entry indicating she was flagged for any reason.

	b.  A Memorandum for Record, Family Care Plan, dated 19 January 2011, shows it was written by the applicant and shows her signature.  She stated that she had an active family care plan but it had failed due to frequent implementation for early mornings and late evenings without proper notice.

	c.  A Chronological Record of Medical Care, dated 20 January 2011, shows she was evaluated by the Rheumatology Clinic and diagnosed with an undifferentiated connective tissue disease manifested by biphasic Raynaud's phenomena, cytopenias, arthralgias, arthritis, skin lesions of unclear etiology and autoantbodies.  All risks, benefits and alternatives were discussed, understood and accepted.  A civilian dermatologist biopsied her skin lesions and found them consistent with erythema multiforme.  She was recommended to see the military dermatologist prior to separation and to return to this clinic in 
3 months if she still had privileges to use the clinic.  Otherwise, she was recommended for evaluation by another rheumatologist and to undergo periodic laboratory testing.  Unrelated to the diagnosis above, she was also found to suffer frequent headaches and depressive symptoms (relatively mild) in the setting of multiple fibromyalgia.  She was also diagnosed with hypermobility syndrome, depression, primary hypersomina, and tension headaches.  She was released without limitations.

	d.  A DA Form 4856, dated 4 February 2011, indicates the applicant was counseled about her promotion status.  Her squad leader informed her that even though she was fully eligible for advancement to specialist, pay grade E-4, he was not recommending her for promotion because she needed to improve her performance of duty.  She initialed the block indicating she agreed with the counseling, but then stated that she should not have to be punished by not having her correct rank and not receiving back pay just because the paperwork was not submitted.  She had asked about her promotion since her arrival in the unit in 2009 and for 2 years she has had to deal with not being advanced.  This resulted in her going through financial management and having extra stress when she had her daughter a year earlier.  She stated that she was being separated mainly because she could not reenlist unless she was a specialist/pay grade E-4.

	e.  A DA Form 4856, dated 4 March 2011, states the applicant was informed she was flagged due to a family care plan.  She initialed the block indicating she agreed with the counseling, and then stated that she wished her rank and back pay issue would have been resolved before this issue came about.  That is also why she could not reenlist.

	f.  An ERB, dated 28 April 2011, indicating that she was a private first class/ pay grade E-3 with a date of rank of 1 September 2010.  It also shows she had held the rank of private/pay grade E-2 with a date of rank of 5 January 2009.  Her reenlistment eligibility code is shown as 9V, indicating she was prohibited to reenlist.  There is an entry indicating she was flagged on 18 January 2011.

3.  The original ROP determined that the applicant had been offered the opportunity to accept NJP for failure to go to her appointed place of duty.  She argued that her diagnosed medical condition, lupus, was the cause of her misconduct; however, she did not provide any supporting documentation.  The applicant's contention that she should have automatically been advanced to specialist, pay grade E-4, was found to have no merit because of her reduction to private, pay grade E-2 as a result of her NJP.  She was subsequently advanced back to private first class, pay grade E-3.  Furthermore, it was noted that there was insufficient evidence in the record to determine why the applicant had not been advanced to specialist at some point prior to her NJP, even though she had sufficient time in grade and service to qualify without a waiver.  Accordingly, her request was denied.

4.  The DA Form 2627 showing the applicant's NJP of 5 January 2009 provides the following:

	a.  The imposing commander found her guilty and she was reduced in rank to private/pay grade E-2.

	b.  The imposing commander lined through that part of the form indicating where the original DA Form 2627 was to be filed.

	c.  The applicant initialed the block indicating she did not intend to appeal the NJP.

5.  Army Regulation 27-10 (Military Justice) provides that the original DA Form 2627 for Soldiers E-4 and below who have been in the Army less than 3 years as of the date of the punishment imposed will be filed locally in NJP files and will be destroyed at the end of 2 years or on the Soldier’s transfer from the unit, whichever occurs first.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show her NJP was set aside, all rights and privileges were restored, the NJP was expunged from her record, and she was advanced to specialist/pay grade E-4.

2.  The evidence of record clearly shows the applicant accepted NJP and was reduced to pay grade E-2.  She elected not to appeal the NJP.  There is no evidence showing the NJP was filed in her Army Military Human Resources Record (AMHRR).  A review of her file confirmed that it is not currently on file.  Therefore, that portion of her request is moot.

3.  The governing regulation clearly states that NJP for Soldiers in the grade of 
E-4 and below, with less than 3 years of service, are to be filed in the local files only and then destroyed after 2 years, or when the Solder is reassigned.  Therefore, it is appropriate that the subject NJP is not filed in her AMHRR.

4.  The applicant has not provided any argument or sufficient documentary evidence to support her contention that the NJP should be set aside, or that any lost rights and privileges resulting from the NJP should be restored to her.
5.  The available evidence clearly shows the applicant was counseled in February 2011 regarding her advancement to specialist, pay grade E-4.  She was clearly informed that even though she was eligible for advancement without a waiver she was not being recommended due to the quality of her duty performance.  Furthermore, at the time she was flagged, mostly likely due to not having a viable family care plan.  There is no evidence of error or injustice with this action.

6.  The medical documentation provided by the applicant clearly shows that she suffered from several medical conditions.  However, there is no evidence showing that any of these conditions kept her from going to her appointed place of duty, which resulted in misconduct.  

7.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110012657, dated 3 January 2012.



      _______ _   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)                                         AR20120006125



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ABCMR Record of Proceedings (cont)                                         AR20120006125



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