BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130018518 


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 her rank/pay grade of specialist (SPC)/E-4 be restored and that she be reimbursed all back pay and deductions that were made as a result of erroneously reported absence without leave (AWOL) and lost Central Issuing Facility (CIF) equipment.  She also requests a personal appearance hearing.

2.  The applicant states, in effect, that:

* she was never AWOL
* the Article 15 she received under the Uniform Code of Military Justice (UCMJ) was improperly processed
* she spent 9 days in solitary confinement in the Bell County Jail, Belmont TX and was not paid due to being in an AWOL status 
* she was charged for missing CIF equipment which she turned in
* her meal deductions continued despite being on a special diet
* she was homeless when she was discharged from the Army as a result of erroneous AWOL charges, CIF charges, and meal deductions

3.  The applicant provides various medical records, pay records, AWOL documents, several self-authored statements, and internet articles.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 January 2009.

2.  A review of her Defense Finance and Accounting Service (DFAS) record shows that she was erroneously reported AWOL for the following periods; however, this debt was subsequently cancelled:

* 6 to 13 January 2012
* 18 to 19 January 2012

3.  Her disciplinary record shows:

	a.  In an Article 15 proceeding, the applicant was found guilty of one specification of being AWOL under Article 86 of the UCMJ; one specification of insubordinate conduct toward a noncommissioned officer under Article 91; one specification of failing to obey an order under Article 92; and one specification of willfully disobeying a commissioned officer under Article 90.  As a result of these proceedings, her battalion commander imposed punishment of reduction to PV1/E-1, a forfeiture of pay for 2 months, and restriction for 30 days.  However, the battalion commander suspended the reduction for 6 months and the forfeiture of pay for 4 months (as recorded in Army Board for Correction of Military Records (ABCMR) Case number AR20120022965 and as reported by the Command Judge Advocate, 89th Military Police (MP) Brigade).

	b.  After appeal, she accepted nonjudicial punishment under the provisions of Article 15, UCMJ and the previous suspended punishment was vacated.  She was subsequently reduced to PV/E-1 with a forfeiture of pay, effective 24 May 2012.

	c.  On 31 May 2012, the unit first sergeant ordered the applicant to come with him to the orderly room.  Instead she disobeyed the order and ran into a highly trafficked street endangering herself and her fellow Soldiers who attempted to stop her.  From there she ran into the Post Exchange where she opened a package of Mach 3 razors and threatened to cut herself.  This conduct was found to be in violation of Articles 80, 91, and 121 of the UCMJ, as recorded in ABCMR Case number AR20120022965 and reported by the Command Judge Advocate, 89th MP Brigade.

4.  On 30 July 2012, an informal PEB convened and found that the applicant's medical conditions of anxiety disorder and cervicalgia prevented her from performing the duties required of her grade and military specialty and determined she was physically unfit.  She was rated under the VA Schedule for Rating Disabilities and granted a combined rating of 70 percent.  The PEB recommended permanent retirement.  The DA Form 199 (PEB Proceedings) listed her rank/grade as private (PV2)/E-2.

5.  Orders 262-0196, issued by Headquarters, III Corps, Fort Hood, dated
18 September 2012, ordered her retirement effective 26 September 2012 and placement on the Retired List in the rank/grade of PV1/E-1, effective 
27 September 2012. 

6.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that she was medically retired due to a permanent disability on 
26 September 2012.  She completed 3 years, 8 months, and 12 days of net active service with no lost time.

7.  The applicant provides:

	a.  Various pay documents which include pay inquiries and duty status changes which show the applicant was erroneously reported AWOL on two separate occasions and her attempts to resolve this error.  She provides Leave and Earning Statements (LES) which show she received no pay for August 2011, and January, February, June, July, and September 2012.  These documents list deductions for meals, housing debt, tuition debt, status debt, miscellaneous debt, UCMJ, travel pay debt, and Army Air Force Exchange Service (AAFES) debt.

	b.  Page 2 of a DA Form 2627 (Record of Proceeding Under Article 15, UCMJ) issued to the applicant while assigned to the 44th Chemical Company, 2nd Chemical Battalion, Fort Hood, TX shows the applicant's appeal of her punishment was denied by Colonel MTZ, 48th Chemical Brigade.  The reviewing Judge Advocate was Captain (CPT) MH, a person the applicant contends was not her commander and she was never properly informed of her rights or the appeal process.

	c.  Numerous Developmental Counseling Forms, Disapproval of Continued Pretrial Confinement memorandum, and an Acknowledgement of Rights Advisement sheet.

	d.  Medical documents related to her Medical Review Board (MEB), various medical appointment documents, and physical profiles.  Included is a memorandum issued by the U.S. Army Medical Department Activity, Fort Hood, TX, dated 2 April 2012, which states the applicant "would benefit from continuing a low sodium, no pork diet for her medical condition."  The applicant indicated that she had a special dietary restriction because of her religious beliefs and was on a no salt, no pork, kosher diet that required she only eat certain meats that were not provided in the Army Dining Facility.  The applicant did not provide a copy of her request for or denial for separate rations and her Enlisted Record Brief, dated 24 May 2012, shows she has no religious preference.

	e.  A Sworn Statement, completed by the applicant while hospitalized and medicated, dated 10 July 2012, shows her account of what happened to her Organizational Clothing and Individual Equipment (OCIE) submitted as part of an initial Financial Liability Investigation of Property Loss (FLIPL).  She stated that she was medically evacuated from Korea to Fort Benning, GA in June 2010.  She was cleared by cadre at the CIF in Korea, and she also cleared CIF at Fort Benning, GA.  She did not have any CIF when she departed Korea, upon her arrival at Fort Benning, GA, or upon arrival at Fort Hood, TX.  She contends that she was medically evacuated from Korea to the Warrior Transition Unit (WTU), Fort Benning, GA due to head, neck, and upper back injuries. 

	f.  Unsigned CIF documents issued by the Fort Hood, TX CIF on 
14 September 2012, which show on:

* 30 October 2009, no items were turned in at Fort Leonard Wood, MO
* 24 May 2010, no items were turned in at Camp Carroll, Korea Annexure
* 13 September 2013, one green barracks bag was turned in at Fort Hood, TX

	g.  A DD Form 200 (FLIPL) provided by the applicant shows in:

* Item 3 (Date Loss Discovered) – 20 August 2012
* Item 5 (Item Description) – Waist Pack (4295)(with a continuation sheet listing 37 additional items)
* item 8 (Total Cost) - $1,807.08
* Item 9 (Circumstances Under Which Property was Damaged) – “[The applicant] was assigned to Fort Hood on 4 September 2011.  During inprocessing it was found that CIF records still showed OCIE equipment assigned to [applicant] while she was stationed in Korea.  [The applicant] PCS'd from Korea to the WTU at Fort Benning, Georgia in June 2010.  She was not in possession of any OCIE when she arrived at Fort Hood.  The Supply section upon notification began to research this and started the FLIPL process.”
* Item 11 (Individual Completing blocks 1-10) – 44th Chemical Company, Fort Hood, TX
* Item 12 – indicates the Responsible Officer (Property Record Items) completed this section
* Item 12a (Negligence or Abuse Evident/Suspected) – “Yes“
* Item 13b (Comments/Rationale) – "SM has previously been issued TA-50 and has no documentation to show that she had previously turned in all government issued items.  SM remains responsible for property through moves and she should be held liable.”

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders).

9.  Army Regulation 735-5 prescribes the basic policies and procedures in accounting for Army property and sets the requirements for formal property 
accounting within the Army, which includes but is not limited to defining the Command Supply Discipline Program, its intent, and implementing procedures.  It specifies that commanders at all levels will ensure compliance with all policies and procedures prescribed by this regulation that apply at their level of command.  It prescribes the accounting procedures to be used when Department of the Army property is discovered lost, damaged, or destroyed through causes other than fair wear and tear.  It provides authorized methods to obtain relief from property responsibility and accountability.  It also prescribes the Department of the Army policy on such losses and financial liability.

	a.  Paragraph 14-27 states that commanders of active Army are responsible for initiating a FLIPL when property issued from a CIF becomes lost, damaged, or destroyed.

	b.  Paragraph 13-3 requires the initiation of a FLIPL under certain circumstances.  Sub-paragraph 13-3a(1) states that a FLIPL will be initiated when negligence or willful misconduct is suspected as the cause, and the individual does not admit liability and refuses to make voluntary reimbursement to the Government for the full value of the loss, less depreciation.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.

	a.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	b.  The regulation further provides that applicants do not have a right to a hearing before the ABCMR.  The director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her rank/pay grade of SPC/E-4 should be restored with reimbursement of all back pay including pay for deductions that were made as a result of erroneously reported AWOL and lost CIF equipment.

2.  The applicant also requested a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.  If the applicant is not satisfied with the results of the informal Board hearing, she may request reconsideration and provide new evidence that was not previously considered by the Board.

3.  The applicant contends that the Article 15 which resulted in her reduction was based on erroneous AWOL; however, the available evidence shows she was found guilty of the AWOL charge and she was found guilty of failing to obey an order, and willfully disobeying a commissioned officer.  In addition, she contends that she was denied due process but the record shows the applicant unsuccessfully appealed her Article 15 which clearly shows she was afforded the opportunity to plead her case.  As a result, absent any evidence of error or injustice related to her reduction in rank, there is insufficient evidence to support restoring her rank.

4.  In regard to reimbursement for her lost OCIE, the applicant has not provided sufficient evidence to a subsequent FLIPL investigation that determined she was negligent.  The available evidence shows the applicant's FLIPL was conducted in accordance with all applicable regulations and that all requirements of law and regulations were met.

5.  In regard to repayment for an erroneous AWOL, DFAS pay records show the applicant's AWOL for the period 6-13 January 2012 and 18 -19 January 2012 were cancelled.  It is presumed that the applicant's pay records were adjusted accordingly.

6.  The applicant contends she should be reimbursed for meal deductions because she had to follow a strict diet but there is no documentation to support either a religious or medical condition that prevented the applicant from using the installation dining facility.

7.  In view of the above, her 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)                                         AR20130018518



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ABCMR Record of Proceedings (cont)                                         AR20130018518



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