MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 13 September 2001
         DOCKET NUMBER: AR20010556834


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John E. Denning		Member
Ms. Terry L. Placek		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
                  records
         Exhibit B - Military Personnel Records (including
                  advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of her earlier appeal to correct her military records by expunging an officer evaluation report (OER) for the period 25 June 1998 through 4 May 1999.

APPLICANT STATES: In effect, the OER was changed after she had signed as the rated officer. She indicated that she had attached comments to the report but that her handwritten “X” in block “e” of Part II was covered-up with correction fluid and a typewritten “X” was entered in the “No” block. In support of her case she submits a copy of the subject OER showing a handwritten “X” in the block labeled “Yes, comments are attached”, a copy in which a mark in the “Yes” block appears to have been covered-up and a memorandum dated 21 May 1999.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2000046477) on 8 March 2001.

The applicant’s contentions are new argument that requires Board consideration.

A 10 May 1999 memorandum from the battalion commander referred the subject OER to the applicant and states in part “Acknowledge receipt of the referred OER and submit any desired comments, by return endorsement….”

The memorandum dated 21 May 1999 carries a subject line of “Referred Officer Evaluation Report , 2LT [applicant”] and was signed by the applicant. It states that the OER is a reprisal for reporting sexual harassment that was confirmed by internal and external investigations, that counseling was not conducted, and that the rating scheme was undocumented. The statement also claimed that the signing rater was not actually her rater for at least 90 days, that 10 lines of adverse comments and 3¹/₂ lines of significant accomplishments showed a bias against women, that the words chosen connoted lying but ignored the invocation of her Article 31, Uniform Code of Military Justice rights against self-incrimination. Additionally the statement asserted that she was not responsible for any harm done to good order and discipline because of the command’s decision not to deploy the other officer involved. She further claimed that there were no supporting statements to justify the “NO block for courage” and that it took a lot of courage to report sexual harassment. She believed that the rater’s statement “Some might even perceive this act of omission as a deliberate attempt to mislead and therefore, a compromise of integrity” was hypothetical and not factual. She contended that her submission to the captain’s advances was forced and that when she reported it she was considered a liar.

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Block “e” of part II of the OER as available for the original ABCMR review is identical to the one the applicant reports she received after the Board’s corrective action had been accomplished.

The advisory opinion obtained during the processing of the original ABCMR states “The report was referred and the applicant signed that she did not desire to submit a statement on her behalf.”

The applicant’s rebuttal to the advisory opinion made no mention of the alleged change to the OER and offered nothing in rebuttal of the OER except to state that “If the GOMOR” is found unjust, so must the Adverse OER be removed.”

The applicant’s defense counsel prepared a 27 February 1999 memorandum in support of her rebuttal to the Memorandum of Reprimand. It states, in pertinent parts “she had a legitimate reason for wanting to keep a private indiscretion private.… 2. The underlying conduct, while inappropriate, is not a violation of the U.C.M.J. Until the investigation, evidently no one knew about their contacts, nor were they in a supervisor-subordinate relationship. Accordingly, there is legally insufficient evidence that their private acts were prejudicial to good order and discipline, service discrediting or conduct unbecoming an officer. … the complainant is being punished here. Please carefully look at the dichotomy being created: had she made a complete statement along with her complaint, she would have disclosed her own mistakes – she is protected by the constitution from having to do that, yet by not disclosing the full embarrassing details, she is now being sanctioned.”

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Considering that the applicant failed to even comment on the observation in the advisory opinion that “The report was referred and the applicant signed that she did not desire to submit a statement on her behalf”, her current presentation is not convincing and does not demonstrate an error or an injustice in this case.

2. The applicant made a false report by accusing a fellow officer of unwanted sexual advances while failing to mention her own involvement in the incident in which she had been a voluntary participant.

3. Furthermore, this Board concludes that even if the applicant’s comments had been submitted with the OER the outcome would have been the same. The overall circumstances of the incident demonstrate that the applicant’s omission of the facts concerning her voluntary involvement in this incident could reasonably be perceived as a deliberate attempt to deceive. This perception is reinforced by her own and her defense counsel’s attempts to justify her action as an exercise of her Constitutional right against self-incrimination while at the same time maintaining that “The underlying conduct, while inappropriate, is not a violation of the U.C.M.J.”

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.


BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_FNE ___ __JED __ __TLP___ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001053864
SUFFIX
RECON
DATE BOARDED	20010913
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.00
2.
3.
4.
5.
6.