BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20170006299 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ __x______ _____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20170006299 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. BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20170006299 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, correction of her records to set aside the nonjudicial punishment (NJP) she received under Article 15, Uniform Code of Military Justice (UCMJ), and reinstatement of her rank. 2. The applicant states she was subjected to the chaotic behavior of a senior noncommissioned officer (NCO) who was addicted to alcohol and drugs. She contends: a. She came forward to senior leadership on numerous occasions, telling them her concerns for her supervisor and requesting reassignment. b. She never sought to get the NCO into trouble, only to get her help and to be removed from the environment she created. She did not have anything to gain but everything to lose by telling the whole truth about what occurred. Had she not come forward, no one would be the wiser. c. She was assured by leadership that she would be protected and that she would receive leniency because she had done the right thing by coming forward. However, this was not the case. She has been charged with every detail listed in her voluntary statement and punished to the full extent allowed. d. The NCO in question did not make a statement and requested a lawyer. The NCO was removed from the hospital and allowed to retire. She, on the other hand, was immediately removed from her section, told not to contact the NCO, and assigned to work outside the scope of her practice. Nevertheless, she continued to maintain good order and discipline throughout the entire time. e. On 8 December 2016, the Troop Commander, Brooke Army Medical Center (BAMC), Joint Base San Antonio (JBSA), Fort Sam Houston, TX, imposed punishment in the form of a field grade Article 15. She was reduced from staff sergeant (SSG)/E-6 to sergeant (SGT)/E-5, given restriction, forfeiture of pay, and a letter of reprimand. f. Her appeal was denied on 24 January 2017. She was told that her punishment was lenient in that the restriction and half a month's pay for 2 months was suspended. She was also told that her appeal would most likely be denied because it looks bad on the command to overturn another commander's decision, such an action appears that the leadership is not unified. No one beside the Trial Defense Service lawyer would talk to her. g. She and her family have voluntarily given over 16 years of their lives in service to the U.S. Army. Her only request is that these years not be thrown away so easily. She has worked hard to serve her country as well as provide for her family. She is requesting the opportunity to continue her service until retirement eligibility on 9 August 2020. Finally, should her request be granted she would like to be reassigned outside her present command. 3. The applicant provides: * DA Form 2627 (Record of Proceedings under Article 15,UCMJ)) * email and supporting statements * Good Soldier Book – awards, performance evaluations, civilian training and education, family photos, and medical documents 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 is currently a sergeant serving on active duty at JBSA, Fort Sam Houston, TX. 3. A Responsibilities of Observers during Drug Testing memorandum, dated 29 March 2016, shows the applicant acknowledged she was responsible for controlling the urine collection process at all times and ensuring the specimen provided was not contaminated or altered. 4. A Report of Serious/Sensitive Incident, dated 27 April 2016, initiated by her company commander shows: a. On 27 April 2016, a chaplain approached the Alpha Company commander with a concern about the applicant and SFC C____. Allegedly, SFC C____ gave the applicant her prescribed Ritalin to lose weight; however the applicant had not taken the pills. There were also reports that SFC C____ had been using marijuana and other drugs while abusing alcohol. SFC C____ had also allegedly asked the applicant to alter her urinalysis specimen in the past, as the applicant was a Unit Prevention Leader (UPL) observer. The applicant stated, through the chaplain, that she was scared to come forward with this information due SFC C____ being her supervisor. b. The allegations had been communicated to the Criminal Investigation Division (CID) and both Soldiers were being interviewed. Legal was consulted and had recommended flagging both service members, a command directed urinalysis for SFC C____ (which was already completed), and starting either a 15-6 investigation or Commander's Inquiry based on workplace environment after the CID interviews have been completed. Alcohol was not stated to be a factor at this event. The Hospital Commander had been notified. The applicant had deployed and SFC C____ had not. 5. The applicant's sworn statement, dated 27 April 2017, states SFC C____ called her at 3 a.m. to ask if she had received a call for the urinalysis and to tell her that she was worried because she had "hit the bong" and did not know what to do. The applicant told her that "I don't know, let me think of something." She admits that she took her son's urine and placed it in a nasal spray bottle. Subsequently while performing her duties as an observer during the urinalysis, she gave the nasal spray bottle to SFC C____ who tried to pour it into the cup but it would not come out. At that point, the applicant states she observed SFC C____ urinate into the cup and then fill the cup with water from the toilet. She then escorted SFC C____ out of the latrine to turn in the sample. SFC C____ said that "she owed the applicant lunch." On 14 April 2016, the applicant informed SFC C____ that she was flagged for being overweight and that she was trying to lose weight. SFC C____ handed her three of her Ritalin pills which had helped her lose weight without trying. This exchange occurred on two other occasions; however, the applicant contends that she never took the pills. 6. On 29 November 2016, the Commander, Company A, Troop Command, BAMC, JBSA, Fort Sam Houston, TX, considered NJP against the applicant for the following misconduct: a. Between 28 March and 3 April 2016, she conspired with SFC C____ to commit an offense under the UCMJ by altering an urinalysis specimen. b. Between 28 March and 3 April 2016, she was derelict in the performance of her duties in that she willfully failed to report a violation of the urinalysis procedure to the commander or the UPL, as was her duty to do. c. On 29 March 2016, with intent to deceive, she signed a Drug Testing Register, which was totally false, and known by her to be false. d. On 29 March 2016, in an affidavit, she wrongfully and unlawfully made under lawful affirmation a false statement in substance as follows: signing and initialing that SFC C____'s urinalysis specimen was not altered or contaminated which statement she did not believe to be true. e. On or about 14 April 2016, she wrongfully possessed three pills of methylphenidate, a schedule II controlled substance. f. On or about 22 April 2016, she wrongfully possessed three to four pills of methylphenidate, a schedule II controlled substance. g. On or about 26 April 2016, she wrongfully possessed 10 to 12 pills of methylphenidate, a schedule II controlled substance. 7. Her punishment consisted of reduction to SGT/E-5; forfeiture of $1,583.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 6 June 2017; extra duty for 45 days; and restriction for 45 days, suspended, to be automatically remitted if not vacated before 6 June 2017. 8. As part of her field grade Article 15 punishment, the BAMC Commander issued the applicant a letter of reprimand on 8 December 2016. He stated that as an NCO the applicant is held to the highest standard possible. She was expected to lead by example and set the standard for subordinates. She failed at both tasks. She failed to exercise good judgement, to do what is right (especially when no one is looking), and to set a positive example. 9. She appealed the NJP and in doing so she requested a closed hearing and to present in person matters in defense, extenuation, and/or mitigation. In her appeal, dated 13 December 2016, she requested character witnesses be called to testify on her behalf. She contended that she was a good Soldier with the strength of character to do the right thing. She had a strong duty record, which should be weighed against this isolated incident and factored into the commander's decision. She gave the following reasons to grant her request: * her 16 years of service in the U.S. Army * the punishment would cause a tremendous financial burden due to having two children in college and an active bankruptcy * her mother, a dependent, was a post-liver transplant recipient * her youngest son was enrolled in the Exceptional Family Member Program 10. On 18 January 2017, the commander denied her appeal, stating, "Appropriate punishment for the offense demonstrating leniency with suspended actions." On 25 January 2017, she acknowledged she had seen the action taken on her appeal. 11. The applicant provides numerous documents filed in her Official Military Personnel File and character references attesting to her work ethic, leadership, integrity, and technical proficiency. She also provides documents regarding her children and her mother that confirm the statements she made when she appealed her NJP. 12. The U.S. Army Human Resources Command notified the applicant on 21 April 2017 of her potential denial of continued active duty service under the Qualitative Management Program. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. 2. 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 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 non-punitive 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. Paragraph 3-28 describes setting aside and restorations. a. Setting aside 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. b. 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. c. 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. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. 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. DISCUSSION: 1. The applicant requests, in effect, correction of her records to set aside the NJP she received under Article 15, UCMJ, and reinstatement of her rank. 2. The imposing authority determined the applicant violated the UCMJ and she accepted NJP rather than demand trial by court-martial. On 25 January 2016, subsequent to her appeal, she accepted NJP for altering a urinalysis specimen, dereliction of duty, intent to deceive, making a false statement, and wrongful possession of a schedule II controlled substance. 3. The applicant made a sworn statement admitting to having knowingly and willingly altering a urine sample. Despite her contention that she was only attempting to get help for her supervisor, her actions were illegal. 4. 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. The available evidence show no clear instance of legal or factual error. 5. Her NJP proceedings were conducted in accordance with law and regulation. Although she continued to perform her duties, there is no evidence of record and she provides none to show the Article 15 Record of Proceedings is untrue or unjust. 6. 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 the commander's determination is clearly unsupported by the evidence. The applicant was provided the opportunity to consult with 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170006299 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170006299 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2