IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20180010702 APPLICANT REQUESTS: her specialist/E4 rank be restored and in effect, her Article 15’s be removed from her service record. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Self-Authored Statements * Power of Attorney (POA) for Attorney Representation * Letter from Attorney dated 15 March 2018 * DA Form 3881 (Right’s Warning Procedure/Waiver Certificate) * DA Form 2823 (Sworn Statement) * Memorandum of Findings & Recommendations for Investigation dated 5 September 2013 * Unexecuted DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * Article 15 Appeal Letter from Applicant dated 7 October 2013 * Three Award Documents * Orders C-02-502752 dated 23 February 2015 * Two Letters of Support FACTS: 1. The applicant states she would like her rank restored from private/E2 to specialist/E4 promotable (P). a. She received a field grade (FG) Article 15 for a negligent discharge (ND) with a weapon she was not qualified on. She always had an M4 and upon arriving in Afghanistan, her chain of command gave her a direct order to switch to the M249. She informed them that she had not qualified on that weapon and was told because she was an older woman she did not think she had to take the M249. She notified them that she had a bad feeling about it and because they were making others switch as well someone was going to have a ND. b. She had been shown the M249 in basic training; however, that was five years prior to her ND incident. She was trained for a month in Germany before their deployment to Afghanistan. At no time was she ever given any other weapon than her issued weapon, the M4. She had been in Afghanistan for a few weeks when she was told that her weapon was being switched out to an M249. She expressed her concerns to her noncommissioned officer (NCO) and shared with him that she was not qualified on that weapon and felt it was unsafe to issue a weapon to a Soldier who had no formal training. She had a gut feeling that someone would have a ND, but she did not think it would be her own. c. Approximately 15 people were ordered to switch out their weapons to an M249. She was working nights and did not switch out her weapons as the others had and was asking questions about regulations guidelines during that time. She approached First Lieutenant (1LT for his opinion and he told her he would chat with her NCO. The following day she was told to report to her leadership where she was given a counseling statement for slandering the chain of command. She was also told that just because she was an older female it was not going to get her out of carrying an M249. She was issued the weapon with a magazine. d. The only training she received was from a private first class (PFC) that also had no formal training and had never been to the range with an M249. She received the training after working all night and had not slept for weeks because her roommates were on day shifts. She ultimately contracted shingles from the lack of sleep and believed her system was run down. She requested to switch room with others that also had night shift and was told no one was switching rooms. e. Sergeant Major (SGM) told her his intent was to take one rank from her during her FG Article 15 proceedings; however, because he did not feel she was remorseful, he was taking two ranks from her. She states she was extremely remorseful and was crying from the date of the ND to present because she could have killed a fellow Soldier. f. The applicant provides details of her life prior to joining the military as a teacher’s assistant before being laid off and discussing the subsequent incident that got her in trouble with the chain of command. She returned to Germany after deployment and befriended SPC . He had a head injury and suffered from acute headaches and nightmares. His room was on the 3rd floor in Germany and he was having trouble navigating without feeling dizzy, accompanies by vision and depth perception issues. He had been admitted to the hospital at least four times since they returned from deployment. She took on a motherly role because he was the same age as her daughter and no one in his chain of command was checking on him or offering assistance. g. He called her one day at 5:30 in the morning to inform her that he was not feeling well and his room was uncomfortably hot. She offered him her room because it was cooler, she had a fan, food in the fridge, and internet. She was getting ready to go to formation. Approximately 15 minutes after he arrived she heard a knock at the door and it was several NCOs conducting a health and welfare inspection. SPC was found hiding under the bed in his boxers. She had no idea why he hid and if she had a guilty conscious she would have placed him in the shower and told him to turn on the shower since others that shared her room were not from the same organization. She was then accused of fraternizing and she received a second field grade. She refused to sign anything and realized that ultimately what she said did not matter because they had their minds made up. She requested a 2 year early release from her enlistment contract. h. Her follow on statement contains the same general details as the initial statement, but includes more individual names. 2. The applicant provides: a. A POA, dated 21 April 2015, which states she has designated the law firm and its attorneys to represent her in all matters relating to and/or arising out of her employment by the federal government of the United States of America. b. A letter from her attorney, GFG, dated 15 March 2018, which states: (1) The applicant enlisted in the Army when she was 39 years old. She excelled and achieved the rank of SPC in August, 2010. She deployed to Afghanistan with her assigned weapon, an M4 and volunteered to guard the gym on the compound which required a 12 hour shift from 7:00 pm to 7:00 am daily. She was notified she was required to trade the M4 for the M249 approximately a month after her arrival. She immediately notified her chain of command that she did not possess a weapons card for the M249. She was told she was going to take the weapon. (2) She had a bad feeling about being assigned the weapon without proper training. She informed the arms room personnel that she was not qualified to handle the M249 and she was very uncomfortable with the situation particularly because they were in a combat zone and regularly received incoming fire. It had also been reported that an escaped prisoner was in her area and they had already lost two Soldiers on the deployment, Staff Sergeant (SSG) and Chief Warrant Officer Two (CW2). (3) She felt conflicted about speaking with her NCO because she had already been told by her leadership that she had to accept the weapon. After continued inquiries, she was counseled for slandering the command. She again reiterated that she was not qualified on the weapon and shortly thereafter, on 13 September 2013, she had an accidental discharge during a preventive maintenance check. (4) An investigation was conducted and it was found that the applicant was grossly negligent. The recommendation was that she receive adverse punishment. She was given an Article 15 and offered a transition back to Germany. She elected to finish the deployment. She was reduced to E-2, given 45 days of extra duty, and forfeited two months of pay. In spite of the setback, the applicant continued the deployment and received the Meritorious Unit Commendation (MUC). (5) Upon returning from the deployment, the applicant became friends with a fellow Soldier, SPC . He suffered from a traumatic brain injury, headaches, and nightmares. He shared with the applicant that he was feeling dizzy and had problems with his vision and depth perception. It caused him difficulties and he had been admitted to the hospital on numerous occasions. He confided to the applicant that he had been sleep walking which caused her to become very concerned. To care for a fellow Soldier, she checked on him every night before she went to bed because she stated that no one in his chain of command was checking on him or offering assistance. (6) Counsel shared details of the health and welfare inspection, as noted by the applicant in her statement. Her attorney further noted that the applicant was humiliated, but she still elected to join the Reserve when she returned home. She has excelled in her reserve unit and is now requesting that the two Article 15s in her file be removed and that she be given back her rank that was taken away from her. It would be just and equitable to honor her service and considering the circumstances surrounding each incident of nonjudicial punishment. c. A Right’s Warning Procedure/Waiver Certificate, dated 4 September 2013, authorizing the investigating officer to ask questions regarding the negligent discharge of the M249 on or about 3 September 2013. d. The applicant’s sworn statement, dated 4 September 2013, which states: * she was given the training manual (TM) for the M249 for her to conduct a preventive maintenance checks and services (PMCS) on her weapon, she began reading, removed the magazine, and opened up the weapon to make sure it was cleared * she then decided she wanted to read the whole TM before she started PMCS it and placed the magazine back in, the weapon tipped to the ground fired three rounds * she was not familiar with PMCS for the M249 entails because she had not read the TM * she had the weapon for three weeks before being given any training * after three weeks she was shown by SGT how to disassemble the weapon, clean it, and put it back together * PFC gave a class and she was given a preliminary marksmanship instruction (PMI) on 1 September * she went to the range for familiarization on 2 September and shot 60 rounds * she still did not feel 100% comfortable with the weapon after that * the training she received with SGT was one on one and PFC provided formal classroom training with no slides, just the weapon * she immediately notified her chain of command of her unfamiliarity with the M249 and lack of training * she inserted the magazine after having removed it because she was not sure how to PMCS the weapon and wanted to read the TM first, she did not want anyone to step over or kick the magazine and decided to reinsert it in the weapon which led to the discharge * SGT was supervising during the PMCS, but walked away to talk to another Soldier and it happened fast e. A memorandum with the facts, findings, and recommendations of the investigation of the applicant’s negligent discharge incident on or about 3 September 2013. The memorandum details the events leading to the negligent discharge and the training received by the applicant. The recommendations were as follows: (1) That adverse action be taken against the applicant in response to her gross negligence resulting in the unauthorized discharge of her M249 weapon system on 3 September 2013. (2) That no adverse action be taken against SGT or any of the applicant’s immediate supervisors who correctly cleared her weapon prior to the PMCS of her assigned weapon, as well as for having provided all the tools, information, and instruction at the applicant’s disposal. (3) That no punitive action should be taken against the applicant’s chain of Command; however, a formal training event should have taken place giving the number of new M249 operators, to include an approved lesson plan, task condition standards, and a check on learning. f. An unexecuted DA Form 2627, dated 21 September 2013 and signed by the commander which noted the applicant negligently discharged her weapon on or about 3 September 2013. There are no other signatures and the document is not completed. g. An Article 15 appeal letter from the applicant, dated 7 October 2013, to Colonel (COL) in which the applicant details her remorse, lack of familiarity with the weapon, reasons why she did not receive regular training, and additional details concerning the events surrounding the incident. h. Three award documents: * Permanent Order 198-02, dated 17 July 2014, awarding the MUC for the period of service from 18 June 2013 to 11 April 2014 for exceptionally meritorious service of the unit while deployed to Afghanistan * DA Form 638 (Recommendation for Award) for the applicant’s second Army Achievement Medal, dated 26 November 2014 * A memorandum, dated 10 February 2015, approving the recommendation of the award of the MUC to the unit for the period of 18 June 2013 to 11 April 2014 i. Orders C-02-502752, dated 23 February 2015, reassigning the applicant within the U.S. Army Reserve with an effective date of 3 February 2015. j. Two letters of support: (1) A letter from WJB, dated 25 May 2015 which states he was the Equal Opportunity Advisory for the organization. He met the applicant when she came to him to make an informal complaint against her chain of command for the Article 15 she received for the negligent discharge. The applicant was assigned the weapon due to personnel shortages in her organization; however, she received little to no training on the weapon. He went to the chain of command to share her concerns and the unit was unable to produce records associated with her training. The applicant was not familiar with the weapon and could not answer questions about the basic operational components of the weapon system. The applicant received an Article 15 which greatly impacted her morale and self-esteem. Based on his personal findings and interviews with the senior leadership, he believes the applicant was wrongfully given the Article 15 based on lack of training and her basic understanding of how to safely operate that particular weapon system. (2) An email from JR, dated 25 May 2015, which states the day they were caught in the applicant’s room she was fully dressed and ready for physical training (PT). He was asleep because of the medication he was on from having his wisdom teeth pulled. The applicant was taking care of him because no one in his chain of command had checked on him since he was placed on quarters. She was just making sure he was fed and rested, but they had the misfortune of having a health and welfare inspection that day. They were accused of doing things that were not true and her NCO lied on a statement saying they were both undressed. He apologizes because he does not remember the exact date or further details, but he was being treated for a TBI and hoped the information would be helpful to her case. She is a good woman that did not deserve the things they went through and the unfair punishment. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 22 August 2008. b. Her foreign/overseas service includes: * Kuwait from 3 April 2011 to 22 March 2012 * Afghanistan from 10 July 2013 to 1 April 2014 c. Her service record is void of documentation pertaining to any nonjudicial punishment. d. The Enlisted Record Brief shows the applicant’s dates of rank as follows: * Private/E-1 (PVT) – 22 August 2008 * Private/E-2 (PV2) – 24 July 2014 * PFC – 1 January 2014 * SPC – 22 August 2010 e. Orders 260-0003, dated 17 September 2014, released the applicant from active duty with an effective date of 24 January 2015. f. She was honorably released from active duty on 24 January 2015. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 6 years, 5 months, and 3 days of active service. It also shows in Block 4a (Grade, Rate, or Rank), PV2, and in Block 4b (Pay Grade), E02. g. She subsequently received a DD Form 215 (Correction to DD Form 214) annotating the applicant’s separating pay as $13,351.80. h. Orders 16-231-00035, dated 18 August 2016, honorably discharged the applicant from the U.S. Army Reserve with an effective date of 25 August 2016. 4. On 11 March 2020, U.S. Army Human Resources Command’s Chief of Department of the Army Promotions rendered an advisory opinion in the processing of this case. He opined the applicant was legally reduced under Article 15, UCMJ, signed by LTC KCB on 21 September 2013. In accordance with AR 27-10, paragraph 3-43, Table 3-2, rule 3, removal of records of non-judicial punishment from military personnel files must demonstrate error or injustice to a degree justifying removal which this case does not. 5. On 23 March 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. 6. On 26 March 2020, the applicant responded by email and stated in her rebuttal: a. Receipt of the advisory opinion brought back all the feelings she had when the incident occurred. She points out that she was not qualified on the M249 weapon. The command waited until they were in theater to switch the M4 out for the M249 for 22 people. She made it clear at that time that she was not qualified on the weapon and that being in country with incoming fire taking place daily, in addition to lose prisoners that escaped, made her feel it was unsafe for herself and the rest of the Soldiers. Her fear was that someone would negligently discharge their weapon. b. She feels she could have killed a battle buddy and it was externally upsetting to her which caused her to break out in shingles from the stress. She also believes that her lack of sleep led to the negligent discharge. She had an 18 year old Soldier in her room that would go in and out all the time, waking her up with no consideration. That same Soldier wrote a statement saying she fell asleep during the M249 training she was conducting, but was not qualified on herself. c. There would not have been a problem being assigned the M249 if she was properly trained before the deployment. She was told just because she was a female in her 40s did not mean they were not going to give her that weapon. She can still handle an M4 like driving a car and plan to open an outside range with pop up targets and to teach weapon safety. She signed a sworn statement one day and was brought back two days later to sign a second one which she failed to read. She regularly replays the incident in her head and is unsure what she signed. She can say for sure that she would still be in the Army today if she did not lose rank. She waited 5 years for the decision and spent $5,000.00 on a layer to submit her paperwork, if she was wrong she would have gladly owned her actions. 7. By regulation (AR 27-10), removal of records of non-judicial punishment from military personnel files must demonstrate error or injustice to a degree justifying removal. 8. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. One potential outcome discussed was to grant relief based upon the applicant’s statements of mitigation for the events leading to the applicant’s Article 15. However, based upon the recommendation of the HRC advisory opinion and the applicant accepting the weapon and failing to show sufficient evidence to show an attempt to refuse carrying it based upon a lack of training on it at the time of the events leading to the Article 15, the Board concluded there was insufficient evidence of an error or injustice which would warrant removal of the Article 15 and restoration of the applicant’s previous rank. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. 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. REFERENCES: 1. Army Regulation 27-10 (Military Justice,) paragraph 3-43, Table 3-2, rule 3, states the removal of records of non-judicial punishment from military personnel files must demonstrate error or injustice to a degree justifying removal. 2. Army Regulation 635-8 (Separations Processing and Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010702 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1