BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160000908 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x____ ___x_____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160000908 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from her DD Form 214 the National Defense Service Medal and adding to her DD Form 214 the National Defense Service Medal (2nd Award). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to proceedings under Article 15, Uniform Code of Military Justice. _______________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. BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160000908 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: The applicant defers to counsel for submission of her request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect: a. correction of the applicant's DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) by setting aside the charge of assault; and b. correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 July 2002 to show she was awarded the National Defense Service Medal (NDSM) (2nd Award). 2. Counsel states, in effect: a. The applicant enlisted in the U.S. Army on 5 October 1995. After serving her initial 4-year enlistment, she reenlisted three more times. She had an exemplary career before the incident that resulted in her discharge in July 2002. During her career, she was awarded the Army Commendation Medal, the Army Achievement Medal (3rd Award), the NDSM, the Noncommissioned Officer (NCO) Professional Development Ribbon, the Army Service Ribbon, the Army Good Conduct Medal (2nd Award), and the Overseas Service Ribbon. She was consistently rated as "Meeting Standards" on her evaluation reports and was consistently chosen for leadership positions in her training courses. b. On 2 April 2002, she arrived at her quarters on Fort Lewis, Washington. She discovered that her husband had not yet prepared their child for day care. She was running late for duty and became upset that her husband had not prepared their child to go to day care. A verbal altercation ensued during which she, out of frustration, stated, "Sometimes I wish you were dead." c. Her spouse then went upstairs and retrieved her weapon, a 9mm handgun, from a safe. He shot himself in the leg with the weapon. At the time of the incident, he was on parole for a felony assault conviction in Utah and was not allowed to possess a firearm. If found to be in possession of a firearm, her spouse would have been forced to return to jail and face new charges that could have resulted in a new 15-year prison sentence. Realizing that he could go to prison if it became known that he was in possession of a firearm and shot himself, the couple decided to cover up the truth and tell investigators that the applicant was retrieving their son's vaccination records from the safe where the firearm was stored, that the firearm accidently fell from the safe, discharged, and shot her husband. d. Emergency personnel arrived and her spouse was transported to the hospital for medical treatment. Initially, the applicant and her spouse informed investigators that she went to the safe to get their child's vaccination records, and in the process dropped her handgun, which accidently discharged and shot her husband in the leg. Upon further questioning by investigators, she did not think the investigators believed their story, so, still in shock about what had happened and consumed with a desire to protect her husband from going to prison, she told investigators that she shot her husband in the leg. e. On 14 June 2002, she received punishment by her commander under Article 15 of the UCMJ for violating Article 128 (assault – shooting her husband); for violating Article 107 (making a false official statement – lying about having recently received the handgun used in the alleged assault from her father-in-law in an attempt to explain why it was not registered with post authorities); and for violating Article 92 (failure to obey a lawful general regulation – not registering her handgun with post authorities). f. On 10 July 2002, she was discharged from the Army with an under honorable conditions service characterization. The basis for the discharge was the conduct for which she received NJP. At the time of her discharge, she had completed almost 7 years of military service and waived her right to counsel and to a discharge board. Other than the NJP received for this isolated incident, she had no other derogatory information against her during her entire military career. g. After her discharge from the Army, she attended college to obtain a Bachelor's Degree in English Education. Upon graduation from college, she obtained employment as a school teacher in Utah. As part of her application process, the Utah Professional Practices Advisory Commission (UPPAC) conducted a background check on her and discovered her arrest for the incidents that occurred on 2 April 2002. She was required to appear before the commission to explain the incident. At the commission hearing, her spouse admitted to shooting himself in the leg and conspiring with his wife to cover up the incident to avoid going to prison. h. A set aside action should be exercised within a reasonable time after the initial action has occurred. A reasonable time is generally considered to be within 4 months of the initial action. However, under unusual circumstances, that time can be increased. In the present case, the circumstances are certainly unusual. The applicant took responsibility for something she did not do in order to protect her husband and to keep their family intact. Had she come forward immediately, or even within four months of the incident and told the truth, she risked having her husband taken away from their family and returned to prison for a lengthy period of time: she feared for the life of her husband if he returned to prison because he had previously been an informant while in prison and because of his actions as an informant, he was assaulted by other inmates before he was released on parole. i. In the present case, she requests only that portion of her NJP pertaining to her assaulting her husband (Article 128, UCMJ) be set aside and that the finding be changed from guilty to not guilty of that charge. She does not ask for any change in the amount of her fine, or to have the reduction in grade set aside. She continues to admit that she made a false official statement and that she violated Army regulations by not having the firearm involved in the case properly registered with post officials. j. She admits that she lied to investigators about the shooting that occurred in her post housing. She did so to protect her husband. At the time, she did inform a behavioral-health doctor what really happened. Her husband is now deceased and she wishes to correct this error. It would be a clear injustice to have her continue going through life with her military records showing that she committed an assault with a firearm against her husband, which she did not do. k. After departing the military service, she has been a very responsible and productive member of civilian society. She continued to care for her husband, who suffered from severe diabetes until he died from the effects of the disease. She returned to school where she obtained a Bachelor's Degree in English Education and has become a school teacher. In 2009, she obtained a Master's Degree in Education. In 2014, she received her endorsement to teach special education. She excelled with her studies, obtaining a 3.97 GPA during her undergraduate studies and a 4.0 GPA during her graduate studies. l. During her career as a teacher, she has been recognized as Teacher of the Month and as Employee of the Quarter. She currently works with "at risk" students. These are students who are in State custody and have specialized educational requirements or needs. She is currently seeking to obtain a Master's Degree in Mental Health Counseling. Once she obtains her degree, she will need to have another background check conducted in order to obtain licensure as a professional counselor in Utah. If the assault with a firearm charge remains in her military records, despite the fact that she did not shoot her husband, it may prohibit her from obtaining licensure as a counselor. m. It is clearly unjust to have the applicant continue to go through life with her military records showing she committed an assault with a firearm against her husband when she in fact did not do so. I therefore ask the Board to correct this clear injustice by setting aside the finding of guilty of assault in her NJP punishment action of 14 June 2002. n. Lastly, as the timing of these events show, she is also entitled to the award of a second NDSM due to her service in the Army after September 2001. 3. Counsel provides: * a self-authored letter from the applicant * DA Form 1059 (Service School Academic Evaluation Report), dated 23 June 2000 * DA Form 2166-7 (NCO Evaluation Report (NCOER)), with a through date of May 2001 * a record of her session with a psychiatrist, dated 8 April 2002 * DA Form 2627 (Record of Proceedings under Article 15 UCMJ), dated 14 June 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 July 2002 * bachelor's and master's degrees diplomas, dated 27 April 2006 and 30 November 2009, respectively * six letters of support CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 5 October 1995. She completed initial entry training and was awarded military occupational specialty (MOS) 95B (Military Police). 3. The applicant was promoted to the rank/grade of sergeant (SGT)/E-5 on 23 June 2000, following her completion of the Primary Leadership Development Course, and was reassigned to Fort Lewis, WA on or about July 2000. 4. An initial U.S. Army Criminal Investigation Command (CID) incident report, dated 3 April 2002, shows the applicant got into a verbal argument with her spouse while preparing for work and preparing their child for daycare. * she entered the closet of the master bedroom and grab a loaded Bulgarian Makarov 9mm semi-automatic pistol from a safe located in the closet * she fired two rounds at her husband, a round struck the hallway floor, just outside the bedroom, and the second round struck the anterior portion of her husband's right leg just above the knee * her husband said that at the time of the shooting, their child was in his arms; the child was not injured during the incident * she verbally admitted to threatening to kill her husband and shooting him in the leg; neither of them remember two rounds being fired 5. A Standard Form (SF) 600 (Medical Report), dated 8 April 2002, shows the applicant met with a behavioral-health psychiatrist who recorded the following observations from their discussion: * she and her husband were fighting over childcare issues * her spouse hit her with his fingers * she told her husband she wanted to leave him * he challenged her to go upstairs and get her gun, she said no * he went upstairs, and she heard a shot; she went upstairs and found him lying on the floor, holding the baby and shot in the leg * he was on parole and was afraid he would go to jail and begged her to say she shot him…he told her not to tell the truth right now as it would not help 6. The applicant's record shows an email dated 14 May 2002, in which her husband communicated with an officer who appears to be within her chain of command. Her husband stated, in effect: a. They were arguing because he did not have the bottles ready for her to take their child to daycare. It is also a requirement of daycare on the installation that they also provide the daycare attendant a copy of their child's immunization records; theirs were in the safe, and he did not have the combination. b. He was at fault for not having the bottles or the immunization records ready by the time she got home from physical training. She was supposed to be transferring to another unit that day and she was running late. His lack of responsibility made her very upset and she let him know it. She made the comment before they went upstairs that "if I get into trouble for being late you're going to wish I killed you." With that, she went upstairs and he, holding their child, followed seconds later in search of a bottle cap. c. In the bedroom, she was just opening the safe when he walked in. She kept her personally owned pistol and ammunition at the front of the safe where she could get to it easily if needed. While moving the ammunition to get to the immunization records in the safe, she knocked her pistol out of the front of the safe. She should have simply let it fall, but she fumbled for it and caught it. When she grasped the pistol, it discharged sending a round into the side of his right knee. 7. A DA Form 2627, dated 14 June 2002, shows the applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for: * violating Article 128, on or about 2 April 2002, for an assault upon her spouse by shooting him in the lower right thigh with a dangerous weapon likely to produce death or grieving bodily harm, to wit: a loaded firearm * violating Article 107, on or about 2 April 2002, for making a false official statement that she recently purchased a handgun it was mailed to her within 2 to 3 days of the incident * violating Article 92, on or about 1 December 2001 and 2 April 2002, for violating a lawful general regulation by wrongfully storing and possessing an unregistered firearm in her government quarters She did not appeal the findings made by the field grade officer imposing punishment. 8. The applicant’s commander notified her on 27 June 2002 that she was initiating separation actions against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for commission of a serious offense. As reasons for this action, the commander cited the applicant's NJP for violation of Articles 92, 107, and 128 under the UCMJ. The commander indicated she was recommending the applicant receive a general discharge. On the same date, the applicant acknowledged receipt of the notification memorandum, declined legal representation, and waived consideration of her case by an administrative separation board. She did not submit a statement in her own behalf and acknowledged that: * she could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge * if his discharge was less than honorable, she could make application to the Army Discharge Review Board (ADRB) or ABCMR for an upgrade * an act of consideration by the ADRB or the ABCMR did not imply that her discharge would be upgraded 9. The applicant's battalion commander recommend approval of her separation on 27 June 2002, under the provisions of Army Regulation 635-200, chapter 14-12(c), and recommended an under honorable conditions (general) discharge. 10. The separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12(c), for commission of a serious offense. The separation authority directed the applicant receive a General Discharge Certificate. 11. The applicant was discharged on 10 July 2002. Her DD Form 214 shows she completed 6 years, 9 months, and 6 days of net active service. Her narrative reason for separation was "misconduct." Item 18 (Remarks) of her DD Form 214 shows she was discharged to reenlist on 16 January 2001 and again on 28 March 2002. Although her final period of service was characterized as less than fully honorable, there is no evidence indicating her service during the period ending 28 March 2002 was less than fully honorable. 12. Counsel provides a statement from the applicant that reads: a. On the morning of April 2, 2002, she and her husband had a verbal argument leading to her husband being shot, which resulted in a punishment by her commander under Article 15, UCMJ for assault. She and her husband both told investigators it was an accidental shooting and that she shot him in the knee. This was a false statement and one that she sincerely regrets. The truth is her husband shot himself; she was not even on the same floor as he was. b. Before she called the police, her husband stopped her and told her she would have to say that she had accidentally shot him. She lied for him because he was currently on parole, and this incident would have sent him back to prison. At one point in the investigation, the CID agent obtained her psychiatric file in which she had disclosed the truth, because she thought it would be confidential. She was advised by her attorney to remain quiet throughout the rest of investigation. c. She kept this secret for her husband until he passed away in November 2010. However, between the years 2002 and 2010, he did tell a select few the truth, and they both told the truth when she was getting her teaching license for the state of Utah. She was called before the Utah Professional Practices Advisory Commission (UPPAC). The Utah State Office of Education would not have given her a teaching license if she had not proved to them that she did not shoot her husband. d. Since her discharge from the U.S. Army, she has earned two degrees. She earned a Bachelor of Science in English Education from Utah Valley University in 2006, and returned to school to earn a Master of Arts in Education/Curriculum and Instruction in 2009. She graduated from both universities with honors and maintained her status on the Dean's List. She used her education to become a licensed teacher in the state of Utah. She passed all requirements to be a highly qualified teacher and holds a level 2 license. Throughout the majority of her teaching career, she has worked with at-risk youth, and for the past four and a half years, she has taught adolescent youth in custody boys. e. She realizes it has been nearly five years since her husband passed away, which begs the question of why she waited until now to make this request. She is asking for this change now, because she is currently pursuing a second Master's degree in Mental Health Counseling, and it will be easier for her to obtain licensure to practice counseling if the assault charge is removed from her record. She has experienced many things in her life that helps her to relate to other people. She believes that she will be a benefit to others, especially those dealing with significant loss and grief as she pursues this career path. Her end goal is to become a certified grief and trauma counselor and work with children and adolescents. f. She sincerely regrets lying about the shooting in 2002. That morning was full of confusion; she was in shock and terrified for her family. However, in hindsight, she should have told the truth no matter the consequences and trusted that things would have turned out for the best. One of her greatest regrets in life is how her military career ended. She is am truly sorry for the lies she told and how they affected her family, her unit, and herself. She knows she caused many difficulties and undo stress. She worked hard in her military career to earn sergeant stripes and she hated losing them. She said it was an absolute honor to serve her country. She takes full responsibility for her actions and only asks that the assault be removed from her record so she can freely pursue this new career path. 13. Counsel provides: a. A DA Form 1059, dated 23 June 2000, shows the applicant achieved course standards and completed the Primary Leadership Development Course (PLDC). b. A DA Form 2166-7, for the period covering June 2000 through May 2001, shows the applicant received all "Success" ratings, and a "Fully Capable" rating from her rater. Her senior rater evaluated her overall performance as "Successful – 2," and her overall potential for promotion and/or service in positions of greater responsibility as "Superior – 2." c. Copies of college degree certificates that shows the applicant completed a Bachelor's Degree in English Education on 27 April 2006 and a Master's Degree in Education on 13 November 2009. d. Six letters of support attesting to her character as a teacher, coworker, employee and friend. Two of the letter writers acknowledged that before he died, her husband stated he shot himself in leg on the day of the incident, and that they did not tell the truth to avoid his possible arrest. REFERENCES: 1. 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. a. It provides that 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. 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. b. Paragraph 3-28 describes the setting aside of punishment and restoration of any rights, privileges, or property affected by the portion of the punishment set aside are restored. (1) 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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all the findings in a particular case. (2) The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice. (3) Clear injustice means that there exists an un-waived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldiers. An example of a clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. (4) Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. (5) Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 2. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The NDSM is awarded for honorable active service for any period between: * 27 June 1950 and 27 July 1954 (Korea), both dates inclusive * 1 January 1961 and 14 August 1974 (Vietnam), both dates inclusive * 2 August 1990 and 30 November 1995 (Persian Gulf) * 11 September 2001 to a date to be determined (Global War on Terrorism) DISCUSSION: 1. Through counsel, the applicant requests the Board set aside that portion of her NJP that applies to her assault charge and award her the NDSM (2nd Award). Her request was carefully considered. 2. Counsel contends the applicant's husband shot himself, but the applicant took the blame in order to prevent her husband from going to jail. 3. The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question. These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations. 4. The evidence of record confirms the Article 15 imposing commander considered the evidence and determined the applicant committed the offense in question. 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 charged offense(s). 5. The evidence of record confirms the applicant was given the right to trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels. However, she waived her right to trial by court-martial and waived her right to an appeal. 6. The applicant did not provide evidence that clearly exonerates her of the charge of assault listed on her NJP, or that the imposing commander violated the UCMJ in anyway during the NJP proceedings. 7. The applicant provided a self-authored statement in which she contends she did not commit the offense, but covered it up to prevent her spouse from going back to jail. She provided no evidence that supports her contention that her spouse shot himself. In addition, the incident report shows she admitted to threatening to kill her husband, and shooting him in the leg. The incident report shows two shots were fired: one shot hit the hallway floor, and the second shot hit her husband's right leg. 8. Regulatory guidance prescribes that a Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 9. Counsel contends the applicant served a period of active service making her eligible for the NDSM (2nd Award). The applicant served on active duty from 5 October 1995 through 10 July 2002. The governing Army regulation provides that the NDSM is awarded for honorable active service. The evidence indicates the applicant did have honorable active service during two eligibility periods for the NDSM, the second being the period ending 28 March 2002. Her DD Form 214 shows only one award of the NDSM. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000908 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2