IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120019975 


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, setting aside her Article 15, dated 25 August 2011, and restoring her rank/grade to staff sergeant (SSG)/E-6.

2.  The applicant states:

	a.  She was reduced to sergeant (SGT)/E-5 on 25 August 2011 as a result of punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  The reduction was carried out by a command that was subject to racial discrimination and equal opportunity (EO) complaints.  Her complaint directly affected the relief and discharge of a first sergeant (1SG).  She filed an Article 138, UCMJ, complaint against her commander that never reached the Ohio Assistant Adjutant General (ATAG) and the commander discharged her from the Active Guard Reserve (AGR) Program without processing her complaint.

	b.  The inspector general (IG) will attest that the battalion commander erroneously discharged her [in 2012] due to his false statements and that he had a personal grudge against her.  After she was discharged, the State ATAG reinstated her AGR affiliation due to what he called "noise" and verifiable false accusations.  She has been subjected to harassment, stalking, and racial discrimination that was found viable though the EO [office].

	c.  The recruiting command had a history of misconduct and unfair practices. The northeast region sergeant major (SGM) had 10 recruiters relieved for 


inappropriate relationships with female applicants.  Multiple recruiters were found guilty of submitting false documents, drug abuse, and the 1SG was found guilty of misuse of official time, failure to obey an order and/or regulation, and he was a lead conspirator in the lack of attention in her fight of racial conflict.  Instead of being reprimanded, he was promoted to SGM.

	d.  Her Article 15 resulted in a reduction in rank and it suggested she violated a battalion domicile to duty policy, when in fact she did the complete opposite. The policy states incidental stops can be made in conjunction with official business.  She had her stops preapproved by her immediate supervisor.

	e.  She was given an additional 28 days of maternity leave by her command after her 42 days of regular maternity leave because she was suffering from post-partum depression.  Her newborn had separation anxiety and nursing issues.  She was given permission to make stops to nurse her daughter while in the field.  Upon returning from maternity leave, she made stops within a 2-mile radius of her duty assignment.  She was charged with violation of the domicile to work policy for no other reason than spite and personal dislike.

	f.  In 2012, another Article 15 was brought against her under another false pretense.  When she demanded a trial by court-martial, she was discharged without the court-martial ever convening.  She has evidence that the same commander who reduced her for violating the battalion policy has unauthorized music, documents, and pictures on his government computer.  This is a violation of Army Regulation 25-2 (Information Assurance) and Department of Defense (DOD) Instruction 5000.64 (Accountability and Management of DOD Equipment and Other Accountable Property).

3.  The applicant provides:

* two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ), dated 22 August 2011 and 9 March 2012
* ten memoranda, dated between 1 October 2009 and 3 October 2012
* four pages, undated, listing allegations of wrongdoing in Company D, Recruiting Company, Ohio Army National Guard (OHARNG)
* three DA Forms 4856 (Developmental Counseling Form), dated between 4 April and 12 July 2012

CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, on 17 November 2007, the applicant enlisted in the OHARNG in the rank of SGT and in military occupational specialty (MOS) 42A (Human Resource Specialist).
2.  On 1 November 2008, she was ordered to active duty as a member of the AGR.  She was assigned to the OHARNG Recruiting and Retention (R&R) Battalion, Columbus, OH, in MOS 79T (R&R Noncommissioned Officer (NCO)), and with duty at the Green Road Recruiting Office, Highland Hills, OH.  She was promoted to SSG on 10 December 2009.

3.  On 22 August 2011, she was informed by the OHARNG R&R Battalion commander that she was being considered for nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ, for failing to obey a lawful regulation by wrongfully using her government vehicle for personal use on or about 9 May 2011.

4.  The DA Form 2627 shows that after consulting with legal counsel the applicant declined a trial by court-martial, requested a closed hearing, did not request a person speak on her behalf, and did not present matters in her defense or mitigation.

5.  On 25 August 2011, the imposing commander, after considering all matters presented in the applicant's defense, imposed the NJP directing the applicant's reduction to SGT/E-5 and forfeiture of 1 month's pay to be split between the months of October and November 2011.  He also directed the DA Form 2627 be filed in the performance section of her Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

6.  The applicant appealed the imposed punishment and stated she understood that unlawfully using her government vehicle was punishable by the UCMJ but she believed her reduction in rank and the proposed loss of wages was extreme.

7.  On 28 September 2011, the Ohio State Deputy ATAG, Brigadier General MEM, granted her partial relief.  Her reduction to SGT was retained and the forfeiture of 1 month's pay was suspended for 180 days.  She was subsequently reduced to SGT/E-5 with a date of rank of 25 August 2011.

8.  In 2012, she was released from the AGR program.  She is currently assigned to the 237th Support Battalion, OHARNG, Youngstown, OH, in MOS 42A.

9.  The applicant provides a list detailing allegations of wrongdoing against various members of Company D, Cleveland Recruiting Company, OHARNG, from October 2005 to1 December 2010, with findings and recommendations.



10.  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 states 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.

11.  Paragraph 3-28 of this regulation describes the setting side and restoration actions.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering the evidence.  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 offense.  She was afforded the opportunity to present any mitigating issues at that time.  The punishment imposed was reduction to SGT and forfeiture of 1 month's pay.

2.  The Army Board for Correction of Military Records (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 evidence exists which demonstrates error or injustice to a degree justifying removal of the Article 15.  The applicant was provided a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels.  

3.  Further, although the applicant contends the IG will attest that the battalion commander erroneously discharged her and that he had a personal grudge against her, she provides no IG findings that support her contention.

4.  She appealed the Article 15 and at that time was afforded the opportunity to present any mitigating issues to her next higher commander.  The Ohio State Deputy ATAD upheld her reduction to SGT and suspended the forfeiture of pay for 180 days.

5.  Notwithstanding the applicant's contention that she was improperly discharged from the AGR program by her battalion commander in 2012 and the unit had a history of misconduct and unfair practices, this does not negate the NJP she received on 25 August 2011 as a result of the Article 15. 

6.  The applicant acknowledged she violated the UCMJ and she was accordingly punished.  Her punishment included a reduction of one grade.  She did not provide convincing evidence that shows the Article 15 is untrue or inaccurate, or the reduction in rank was improper.  Her dissatisfaction with the outcome of the Article 15 does not invalidate it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore her rank.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120019975



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ABCMR Record of Proceedings (cont)                                         AR20120019975



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