IN THE CASE OF:	  

		BOARD DATE:	   26 September 2013 

		DOCKET NUMBER:  AR20130000791 


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 reinstatement in the U.S. Army Reserve (USAR) and reinstatement of her rank/grade of staff sergeant (SSG)/E-6.

2.  The applicant states:

* she was discharged after following orders as an E-4 from her superior noncommissioned officers (NCO's), Sergeant First Class (SFC) S____ and SFC C____
* she was flagged for over 3 years as a result of the lack of judgment she exercised following the direction of her superiors
* one of her superiors was deemed "unethical" at her board hearing, yet he was allowed to retire over 2 years ago
* she requested two Congressional hearings and an Inspector General (IG) inquiry after going 3 years without receiving any noncommissioned officer evaluation reports (NCOER's)
* she received backdated NCOER's from NCO's and officers she had never met
* as a result of her actions, she has been retaliated against and discharged after 17 years of service
* another Soldier was retaliated against for merely assisting her through her dilemma
* she did not receive any form of counseling for the 2008 incident until she received a general officer memorandum of reprimand (GOMOR) in March 2012
* she continued to maintain a high level of esprit de corps during the time she was flagged without any support from her command
* she has been performing her training, hosting recruiting fairs, and speaking with Soldiers for the past 1 1/2 years
* she has maintained an excellent employment history with the Federal government 
* she has been punished excessively

3.  The applicant provides:

* self-authored statements
* Headquarters, 81st Regional Support Command, Orders 12-236-00031, dated 23 August 2012
* letter of support, dated 19 July 2012
* memorandum for record, dated 25 October 2011
* email
* IG letter, dated 22 August 2011
* Congressional correspondence
* Summarized Transcript of Administrative Separation Board Proceedings
* self-authored letter, dated 19 July 2012
* U.S. Coast Guard Performance Plan and Evaluation for the period 14 June 2009-31 March 2010
* U.S. Department of Housing and Urban Development (HUD) Performance Appraisal Evaluation for the period 1 October 2010-30 September 2011
* HUD 2012 Memorial Day Program of Events
* GOMOR acknowledgment and response
* 13th Judicial Circuit Court, Hillsborough County, FL, Notice of Hearing
* Aurora Loan Services Escrow Account Statement, dated 19 June2009
* Superior Court of Lowndes County, State of Georgia, Affidavit and Summons, dated 4 June 2009
* U.S. Census Bureau letter, dated 19 February 2010
* letter of recommendation, dated 8 July 2007
* Laurel Square Apartments character-reference letter, dated 23 August 2007
* NCOER's for the periods 1 February 2008-1 May 2008, 1 June 2008-1 September 2008, and 1 October 2008-30 September 2009
* DA Form 4856 (Developmental Counseling Form) for SFC S____ K____ (another Soldier) and response, dated 5 July 2012
* DA Form 705 (Army Physical Fitness Test Scorecard), dated 27 April 2012
* Army Reserve Medical Command (AR-MEDCOM) flag data/printout
* DA Form 2A (Personnel Qualification Record – Enlisted)

CONSIDERATION OF EVIDENCE:

1.  After completing prior Regular Army enlisted service in 1985, the applicant enlisted in the USAR on 21 December 2001 for a 6-year period.  She completed training and was awarded military occupational specialty 42A (Human Resource Specialist).

2.  The complete facts and circumstances pertaining to the applicant's discharge and GOMOR are unavailable.  The case is being considered using available records and the documents provided by the applicant.

3.  On 12 July 2008, an administrative separation board met to determine whether the applicant should be retained.  The board's findings are as follows:

* on or about 9 January 2008, the applicant signed and submitted a false lease agreement
* she submitted false documents totaling $18,102.50 to DFAS for payment on a property she owned but presented as a rental property in Tampa, FL, as follows –

Date (on or about)
Document(s)
Dollar Amount
9 January 2008
false voucher and rental receipt
$4,500.00
10 February 2008
false voucher and rental receipt
$2,250.00
10 March 2008
false voucher and rental receipt
$2,250.00
24 April 2008
false voucher and rental receipt
$2,250.00
5 May 2008
false rental receipt
$2,250.00
5 May 2008
false voucher 
$2,255.00
3 June 2008
false voucher and rental receipt
$2,255.00
10 July 2008
false voucher 
$2,362.50
11 July 2008
false rental receipt
$2,250.00
5 August 2008
false rental receipt
$2,250.00
8 August 2008
false voucher 
$2,255.00
4.  The administrative separation board recommended her separation due to a pattern of misconduct and issuance of a discharge under other than honorable conditions (UOTHC).

5.  A review of the applicant's NCOER's in question show:

	a.  The NCOER for the period 1 February 2008 through 1 May 2008 was digitally signed by all required parties in 2011 and added to her records on 28 October 2011.  The report shows she and all rating officials were assigned to the 7222nd Medical Support Unit, AR-MEDCOM, Tampa, FL.

	b.  The NCOER for the period 1 June 2008 through 1 September 2008 was digitally signed by all required parties in 2011 and added to her records on 28 October 2011.  The report shows she and all rating officials were assigned to the AR-MEDCOM, Pinellas Park, FL.

	c.  The NCOER for the period 1 October 2008 through 30 September 2009 was digitally signed by the rating officials.  The report was not signed by the applicant and was added to her records on 15 March 2012.  The report shows she and the rating officials were assigned to Headquarters and Headquarters Company, AR-MEDCOM, Pinellas Park, FL.

6.  On 22 August 2011, the IG provided a final response to the applicant in regard to her July 2011 inquiry concerning the status of her flagging action and backdated NCOER's since 2008.  She was advised that a thorough inquiry had been conducted and that she was flagged due to a pending adverse action.  She was further advised to complete her NCOER's for the past 3 years and forward them to the designated individual in her chain of command.

7.  Records indicate the applicant was issued a GOMOR on 29 February 2012 for fraudulent charges filed on travel vouchers; however, a copy of the GOMOR is not available.

8.  A letter from the applicant in response to the GOMOR, dated 15 March 2012, states:

* in mid-February 2006, she and her husband were notified he had cancer
* he died in their home in Tampa, FL, on 7 April 2006
* she attended counseling and was advised not to make any major decisions within the first year – she did everything she was advised not to do
* she resigned from her career of 14 years and put their home up for sale or rent
* in November 2006, she relocated to Valdosta, GA
* on 11 December 2006, her pet cat was killed just one day before her deceased husband's birthday, resulting in agonizing pain, devastation, and confusion for her
* in August 2007, she accepted a job with AR-MEDCOM in Tampa, FL
* there was never any thought of relocating back to the Tampa area or to her home which was still for sale and rented at the time
* she did not "[use] the money for [her] own purposes", she continued to pay the mortgage for her Valdosta, GA residence, but she resided in a hotel and received the authorized per diem because her home was outside the 50-mile radius of her assigned unit in FL
* in January 2007, she received notice that her tenants were moving out of the Tampa residence so she sought advice from two superior NCO's
* she informed them she would not be relocating and since she had been staying in a hotel for the last 6 months, she would like to stay in her Tampa residence because it was cheaper than the hotel
* she was told she could implement a lease and list her deceased husband as the landlord
* she contacted the Defense Finance and Accounting Service (DFAS) for guidance and was told they were uncertain
* she exercised a lack of judgment and created a lease for not more than 120 days
* she continued to pay her mortgages in Tampa, FL, and Valdosta, GA, throughout the time she was on active duty orders at AR-MEDCOM
* at no time did she "live in the house [she] owned in Tampa without paying the mortgage"; the house was not foreclosed on until 2010
* the dates in reference were not from January to August 2008
* she questions whether she was entitled to per diem given that her home of record (Valdosta, GA) was over a 50-mile radius from her unit while she was serving on temporary day-to-day and month-to-month orders to active duty

9.  On 19 July 2012, she provided written statements and requested clemency for her retention in the military.  She stated:

* the results were unfair and the recommended characterization of her separation was too harsh
* she admitted she exercised a lack of judgment and her choice of action was wrong
* she was a newly-promoted SSG/E-6 who sought assistance from her superiors
* there was total uncertainty and much confusion as it related to appendix O of the Joint Federal Travel Regulation which allows the Soldier to claim mortgage interest
* while assigned to AR-MEDCOM, she excelled in her duties and responsibilities and her NCOER's during that tenure were superior
* she never received support from her command throughout the 4-year ordeal and continued to ask the command to resolve the matter
* training and other opportunities were denied due to being flagged
* she never became bitter, disgruntled, or lacked esprit de corps as a Soldier
* she filed a Congressional inquiry in November 2010 and sought assistance from the IG in July 2011
* she loved the military and is a member of veterans organizations
* she had maintained an excellent employment record with the Federal government
* much time had passed – her past behavior had never happened before and would never happen again
* the unfortunate incident did not prevent her from gaining Federal employment and Federal Acquisition Certification to be a Contracting Officer Technical Representative

10.  Headquarters, 81st Regional Support Command, Fort Jackson, SC, Orders 12-236-00031, dated 23 August 2012, show the applicant was reduced in rank from SSG to private/E-1 effective 23 August 2012.

11.  The separation authority approved the applicant's separation.  Accordingly, she was discharged under other than honorable conditions on 28 August 2012 in the grade of E-1.

12.  In an undated advisory opinion, the Chief, Personnel Management Division, Office of the Deputy Chief of Staff, G-1, U.S. Army Reserve Command, recommended denial of the applicant's request.  The Chief, Personnel Management Division, stated:

	a.  The applicant failed to submit evidence showing an error or injustice.

	b.  By her own admission, she created documents that show she was paying rent when, in fact, she was requesting reimbursement for the purchase of a home.  Other than her statement, she has not provided any documentation to support her claim that she was misinformed about the requirements for housing and she has not presented any evidence of retaliation.  Contrary to her claims, the board determined her actions to be a deliberate act to defraud the U.S. Government; therefore, the punishment imposed was justified.

13.  On 17 June 2013, a copy of the advisory opinion was provided to the applicant.  She did not respond within the time frame given.

14.  The applicant provides record extracts, civilian employment records, court documents, Congressional correspondence, and numerous email messages showing her attempts to obtain her NCOER's and resolve the adverse action imposed against her.  She also provides a summarized transcript of her administrative separation board and a DA Form 4856 pertaining to another Soldier who provided assistance to her.  The DA Form 4856, dated 5 July 2012, shows SFC S____ K____ was counseled on her duty performance and working on the applicant's orders rather than following the orders of her supervisor.

15.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

16.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) prescribes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard and USAR.

	a.  When a Soldier is to be discharged with service characterized as under other than honorable conditions, the separation authority will direct immediate reduction to private/E-1 in accordance with Army Regulation 600-8-19, chapter 10.

	b.  Service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons  Such discharges must be supported by approved board findings and an approved board recommendation for discharge under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges reprisal after she exercised a lack of judgment after following the advice of two superior NCO's.

2.  The complete facts and circumstances pertaining to the applicant's discharge are unavailable; however, the records show she knowingly created a false lease agreement and submitted false receipts and vouchers to DFAS.

3.  Although the applicant alleges reprisal against herself and another Soldier, records show the IG conducted a thorough inquiry.  There is no evidence and the applicant does not provide any showing reprisal against herself or the other Soldier.  The IG advised the applicant of her flagging action and late NCOER's in question.  Further, the evidence shows the other Soldier was not retaliated against, but rather counseled on her lapsing duty performance.  Therefore, the issue of reprisal is without merit.

4.  While it is unclear why there was a delay in the applicant's separation after her administrative separation board, there were no errors or injustice found in her separation processing.  The available evidence shows she was properly and equitably discharged in accordance with governing regulations.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130000791



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ABCMR Record of Proceedings (cont)                                         AR20130000791



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