IN THE CASE OF:	   

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140016523 


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, removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 July 2013, from her Official Military Personnel File (OMPF).  

2.  She states:

	a.  The document is untrue because the nonjudicial punishment (NJP) is based on inaccurate information.  Specifically, the allegation that she was disrespectful toward First Sergeant (1SG) L_______ is incorrect.  She did not refuse to come in and sign her hand receipt.  She politely stated she needed to find childcare for the children under her supervision before she could come in.  Further, at that time she was on speakerphone.  Had she been told she was on speakerphone, she would have asked to be taken off.  She believes 1SG L_______ violated her right to privacy and exposed her comments to misinterpretation by others who were not fully aware of the facts surrounding the incident.  Finally, she did not make any threats to go to the Inspector General (IG) or mention the possibility of going to the IG when she spoke with 1SG L_______.  

	b.  She told Captain (CPT) J______, her supervisor, that she was coming in.  CPT J______ and the platoon sergeant also knew the reason for her absence from formation.  There was no disrespect on her part, and she did not refuse to speak with 1SG L_______.  She maintained her composure and was respectful at all times during their conversations; she believes this was observed by CPT J______.  Unfortunately, she was unable to obtain a statement from CPT J______ corroborating her account because he refused to be involved.  It is her belief that CPT J______ disagreed with the statements made by 1SG L_______ and Command Sergeant Major (CSM) U_____, but he felt pressured by the command to pursue the NJP.  Despite her inability to secure a statement from CPT J______, she believes sworn statements regarding the incident reveal inconsistencies with regard to what the parties heard and cast doubt on the strength of the evidence supporting the NJP.  

	c.  CSM U_____ stated in the Article 15 hearing that she had an attitude problem because she wrote her name on her hand receipt but did not sign it.  She can assure the Board that her failure to sign the document was not due to any attitude problem but was a simple error.  When she wrote her name on the hand receipt, she was in the midst of speaking with the supply sergeant about the importance of component hand receipts.  She simply failed to sign because it slipped her mind, and the supply sergeant did not ask her to sign before filing the paperwork.  This incident was just a simple mistake that could have happened to anyone.  At the time she did not realize her mistake, nor did she realize that it would be used to support NJP.  

	d.  It is her belief that the statements made in support of the NJP are untrue and unjust.  She accepted the NJP based on the advice of her attorney without truly understanding the consequences.  If she could take it back, she would have requested a trial and refused the NJP.  Her position has always been that she was not disrespectful toward the 1SG ________ and that she does not have an attitude problem.  She has served honorably in the Army for over 15 years, and this was her first negative action.  She hopes her statements and exemplary military record will be taken into consideration.  

3.  She provides documents identified in a table of contents.  

CONSIDERATION OF EVIDENCE:

1.  Following a period of service in the Texas Army National Guard, on 22 June 2001, the applicant enlisted in the Regular Army (RA).  She has continued her RA service through reenlistments, and she was promoted to sergeant first class (SFC)/pay grade E-7, effective 1 December 2011.  During the period in question she was performing principal duty as a senior supply sergeant.  

2.  The restricted portion of the applicant's OMPF contains a DA Form 2627 showing that, on 16 July 2013, her battalion commander informed her she was considering whether she should be punished under Article 15, UCMJ, for:

* on or about 28 June 2013, being disrespectful in language toward 1SG L_______ by saying to him "I will not be coming in to sign the hand receipt" or words to that effect
* on or about 28 June 2013, willfully disobeying a lawful order from 1SG L_______ to sign her hand receipt

3.  The applicant acknowledged that she had been afforded the opportunity to consult with counsel and that she understood her rights.  She did not demand trial by court-martial and requested an open hearing and a person to speak on her behalf.  She indicated matters in defense, extenuation, and/or mitigation would be presented in person.  

4.  The restricted portion of her OMPF contains allied documents to the DA Form 2627 that include the following:

	a.  A DA Form 2823 (Sworn Statement), dated 28 June 2013, showing CPT B____ stated that, on the date of his statement, he had overheard a conversation between 1SG L_______ and the applicant.  He stated 1SG L_______ was informing the applicant of where she needed to be and she openly told him that she did not need to follow his orders.  CPT B____ further stated that she explicitly defied 1SG L_______ out loud for others to hear and that her actions were unbecoming of a noncommissioned officer (NCO) at any leadership level in the U.S. Army.  

	b.  A DA Form 2823, dated 1July 2013, showing First Lieutenant (1LT) L_____ stated that, on 28 June 2013, 1SG L_______ approached CPT J______ to have a conversation.  A few moments later, CPT J______ made a telephone call to the applicant to discuss getting a hand receipt signed.  CPT J______ had asked her numerous times to come in to sign her hand receipt, and after much push-back he handed the telephone to 1SG L_______ who explained the circumstances and told her she needed to come in and sign the hand receipt.  1SG L_______ had put the telephone on speakerphone to ensure those who were present could hear "the attitude being given."  At one point, the applicant stated she would not be coming in to sign the hand receipt and continued to "give attitude" to 1SG L_______.  On numerous occasions, 1SG L_______ had asked the applicant to "at ease the attitude," but this had very little effect.  The telephone was handed back to CPT J______ who explained to her that she would be disobeying a direct order from her rater if she did not come in.  

	c.  A DA Form 2823, dated 18 July 2013, shows 1SG L_______ stated that, on 28 June 2013, the applicant was contacted by CPT J______ to find out her whereabouts because she had not signed for equipment she had inventoried over 3 months earlier and she was not at close-out formation.  As CPT J______ was speaking to her, CPT B____ and 1LT L_____ were present.  CPT J______ informed her numerous times that she needed to come in.  He then, with a frustrated tone, told her to talk to the 1SG.  When he took the telephone from CPT J______, he could hear her speaking.  He informed her she was speaking to the 1SG and she stated she wanted to talk to Staff Sergeant (SSG) C______.  He told her SSG C_______ was not there, and that she could speak to him.  She said again that she didn't want to speak to him and he told her to "lose the attitude."  She stated she didn't have an attitude.  He later had to tell her numerous times to "at ease the attitude."  During the conversation, the applicant made a comment regarding the IG office.  She stated, in effect, "If I have to come in I will be going to IG on the command team and you are the First Sergeant.  That makes you part of the command team."  Her disrespectful tone made him believe she was attempting to intimidate or threaten him into revoking his earlier instructions.  He later counseled her and told her she had every right to use the IG, but not as a basis for intimidation.  

	d.  An undated statement from the applicant shows she stated that 1SG L_______ never told her "at ease," and she never told him she wasn't coming in.  She came in and signed the hand receipt which still had discrepancies.  She came back because her officer in charge (OIC) asked her to.  She was gone and she had her son and four other children with her.  She stated she had not signed the hand receipt earlier due to problems with a computer system.  She also stated that she did not know how two individuals believed they heard her tell 1SG L_______ she did not have to follow his rules.  She continued by describing her efforts to enforce command supply discipline and stated she believed she had been singled out after she had conducted an inspection of Headquarters and Headquarters Company (HHC) that the supply room failed.  

5.  On 22 July 2013, her battalion commander found her guilty of being disrespectful in language toward 1SG L_______ and not guilty of willfully disobeying a lawful order from 1SG L_______.  Her punishment consisted of a written reprimand and she was to prepare a letter of apology to 1SG L_______.  The battalion commander directed that the DA Form 2627 be filed in the performance section of her OMPF.  She was advised of her right to appeal within 5 calendar days, and she indicated she would appeal and submit additional matters.

6.  The allied documents in the restricted portion of her OMPF also include the following:

	a.  An undated, self-authored statement that appears to have been submitted to the appeal authority shows the applicant asked that the NJP be overturned on the basis that it was unfairly given, unwarranted, and retaliatory.  She stated – 
		(1)  She had inspected the HHC supply room and given it a failing grade.  She indicated that, as a result, the HHC Commander and 1SG L_______ had told her OIC, CPT J______, that she did not know how to do her job and that she should receive a poor noncommissioned officer evaluation report as a result.  

		(2)  There were problems with hand receipts, including errors on her own hand receipt that she believed prevented her from signing the document.  When she was called about hand receipts on 25 June, she noted the problems that needed to be addressed.  She documented the discrepancies as requested, brought them to the supply sergeant on 28 June, and was told to return on the following Monday.

		(3)  She had left post when CPT J______ called her and asked her to return to sign her hand receipt.  She was frustrated and upset by this and told CPT J______ as much.  She had already been told to come back on Monday, and returning was very inconvenient as she was in the company of five children.  After telling CPT J______ of her frustrations, she told him she would come in.  At that point, CPT J______ gave the telephone to 1SG L_______ who reiterated that she needed to come in.  

		(4)  She told 1SG L_______ she was extremely frustrated with his leadership and told him she felt she could not go to him with issues.  She also told him she believed he routinely spoke poorly of her to her OIC and others.  She stated that if these behaviors continued, she would seek assistance from the IG.  She was upset, and she had no doubt that her tone reflected that distress.  However, she did not say anything disrespectful toward 1SG L_______.  She told him the issues she felt she had with him.  She did not swear or curse at him, and she did not say anything out of malice.  She did not recall being told to be "at ease."  

		(5)  After the conversation, she returned to post to sign the hand receipt.  It still had errors, but she feared retaliation if she refused to sign.  Although her signature was not in accordance with regulation, she signed it, hoping this would resolve the situation.  

		(6)  She had read the statements from others who witnessed the dispute.  She did not believe they reflected the reality of the situation.  While she did not believe they were intentionally deceitful, any negative impressions may have resulted from a lack of complete background information.  

		(7)  The entire process had left her with few good options and virtually no opportunities for redress.  As an SFC, a decision to refuse the NJP and request a court-martial would have endangered her career.  Though she felt she would not receive an opportunity to be fairly heard, she felt she had no choice but to accept the NJP.  She had been told that the only way for the battalion commander to hear her side was to proceed with the Article 15 hearing.  Unfortunately, this proved naïve.  She believed most of the command was not willing to acknowledge that a 1SG could share some blame for an unfortunate and petty incident.   

	b.  Statements of support commend her leadership and professionalism.  

7.  On 30 July 2013, a reviewing staff judge advocate found the Article 15 proceedings were conducted in accordance with law and regulations and that the punishments imposed were neither unjust nor disproportionate to the offense committed.  

8.  On 30 July 2013, after consideration of all matters presented in the applicant's appeal, her brigade-level commander granted her appeal by directing that the DA Form 2627 be filed in the restricted portion of her OMPF and that her letter of reprimand be filed locally.  

9.  She provides:

	a.  A DA Form 4187, dated 7 August 2013, showing her intra-post transfer to a new unit was approved.

	b.  A memorandum, subject:  Letter of Reprimand, dated 21 October 2013, reprimanding her for being disrespectful in language toward 1SG L_______ on 28 June 2013.  

	c.  Three character statements from senior noncommissioned officers commending her for her duty performance, expertise, and leadership.  They all stated they were aware of the situation she experienced and they believed she should not have received punishment.  

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

11.  Army Regulation 27-10, paragraph 3-37a, states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a DA Form 2627, dated 22 July 2013, from her OMPF.  

2.  The applicant's battalion commander found there was sufficient evidence to show that she was guilty of being disrespectful in language toward 1SG L_______.  A reviewing judge advocate found that the Article 15 proceedings were conducted in accordance with the law and regulations and the punishment imposed was neither unjust nor disproportionate to the offense committed.  Although the appellate authority changed the imposing authority's filing decision, he did not overturn the imposing authority's finding of guilty.  The DA Form 2627 documenting her NJP and allied documents were properly filed in the restricted folder of her OMPF as directed by the appeal authority.  

3.  Army Regulation 27-10 states NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  There is no evidence of a clear injustice in this case.  In fact, other than the applicant's own statement, there is no documentary evidence indicating that the NJP she received was improperly imposed or retaliatory in nature.  In the absence of substantive evidence showing error or injustice in the imposition of the NJP there is an insufficient basis upon which to grant the 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)                                         AR20140016523



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ABCMR Record of Proceedings (cont)                                         AR20140016523



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