MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 21 August 2003
         DOCKET NUMBER: AR2003087539

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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: In effect, that she be recalled to active duty and promoted to lieutenant colonel (LTC) or that her retired rank be raised to Colonel (COL).

APPLICANT STATES: In effect, that she was unfairly denied promotion and strongly encouraged to retire. She states that she had four Officer Evaluation Reports (OERs) removed from her records after proving sexual discrimination/harassment. Subsequent to a favorable recommendation of this Board, removal of three of these reports allowed her to be promoted to major (MAJ) in 1989 after being selected by a Special Selection Board (SSB). She claims that while going through this appeal and reconsideration process, she missed out on several career enhancing assignments. She states that not only did her career suffer because of this, she also had to do the same job for four years, which negatively impacted her OER. She claims that the senior rater on the last OER she received as a captain (CPT), which was when everyone thought she would be kicked out of the Army, indicated that he would not waste a top block rating on her because she had been passed over for promotion. She states that once she was selected for promotion by the SSB, there was no apology from the Army and no action was ever taken against those who had discriminated against her.

The applicant claims that once she was promoted to MAJ, her next assignment was in Germany. She states that she received her first OER, which placed her in the top 10 percent of the officer corps. Seven months later, she received a below average OER because she left the unit to take an assignment with the North Atlantic Treaty Organization in a position authorized a LTC. This assignment gave her credit for filling both a joint and combined billet. She states that she initially started the OER appeal process in 1992. She ended up applying to this Board for relief, and her case was accepted for review by the Board in 1996. She claims that she contacted the Board in order to see if the processing of her case could be expedited given she was being forced to take early retirement. She was told that it would take approximately three years for her case to be reviewed by the Board, and if relief were recommended she could be recalled to active duty. She states that after she was forced to retire, she checked on her packet every six months. In January 1999, she was told that the OER had been removed and that she would be reconsidered for promotion to LTC by a SSB.

---

The applicant claims that in April 1999, she went to the Office of the Inspector General (OTIG) at Fort Knox, Kentucky, to get assistance to find out if she was selected for promotion. Within a couple of days, she was notified that the SSB had not selected her for promotion to LTC. She claims that once again she proved discrimination and once again the Army did nothing. She states that she has had four OERs removed from her records which left gaps in her record that the SSB may have mistakenly thought was due to her negligence. She claims that in reviewing the discrepancies in her record, there is no way she could have been given a fair look for promotion to LTC.

The applicant concludes by stating that no action has been taken against the individuals that discriminated against her, and these individuals continued their careers and receive their promotions on time. Since the discrimination occurred while she was on active duty, she cannot take legal action against those individuals nor can she bring a law suit against their employer, the United States Army, for the emotional distress humiliation, or the mental anguish she has suffered. She states that since she has proven that her career was shortened because of the actions of others which caused her not to be allowed to progress in a normal fashion, she should be recalled to active duty and be promoted to LTC or her retired rank should be raised to colonel.

EVIDENCE OF RECORD: The applicant's military records show:

On 30 September 1996, she was honorably released from active duty (REFRAD) for the purpose of early voluntary retirement under the provisions of Title 10 of the United States Code, section 4403.

On 22 October 1997, this Board recommended that the applicant’s OER for the period 23 May through 4 October 1992 and all related documents be removed from her record. The Board further recommended that a non-prejudicial statement be placed on file explaining the absence of the OER, and that her corrected record be placed before a SSB for promotion consideration to LTC. As a result of this Board decision, the applicant was ultimately considered and not selected for promotion to LTC by a duly constituted Department of the Army (DA) SSB.

The separation document issued to the applicant upon her REFRAD for retirement on 30 September 1996, confirms that she held the rank and pay grade of MAJ/0-4 on that date and that she had completed a total of 18 years and
19 days of active military service.

---

Army Regulation 600-8-29 prescribes the Army’s officer promotion policy. Paragraph 1-32 outlines the conduct of board members. It states, in pertinent part, that board members will ensure that the selection process is scrupulously fair. Further, board members must swear to perform their duties without prejudice or partiality, having in view both the special fitness of officers and the efficiency of the Army. Paragraph 7-7 contains guidance on the information provided to a SSB. It states, in pertinent part, that an SSB will consider the record of an officer as it should have been considered by the original board.

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. The Board notes the applicant’s contention that she should be recalled to active duty and promoted to LTC or her retired rank should be raised to COL because her career was shortened because of the actions of others which caused her not to progress in a normal fashion.

2. The evidence of record confirms that after the successful appeal of OERs she received as a CPT, the applicant was considered and selected for promotion to MAJ by a SSB. However, subsequent to the approval of her appeal and removal of an OER from her record that ended on 4 October 1992, she was considered but not selected for promotion to LTC by a properly constituted SSB.

3. Although the applicant’s perceptions are understood, in the opinion of the Board, all the necessary and appropriate promotion reconsideration actions related to her successful OER appeals were accomplished in accordance with the applicable law and regulation. Further, the governing regulation stipulates that members of a SSB must ensure that the selection process is scrupulously fair. In this case, the Board finds no evidence to suggest that the members of the SSB that considered the applicant for promotion to LTC did not fulfill this regulatory obligation.

4. Lacking evidence of any error or injustice related to the SSB reconsideration process in this case, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the SSB process. Therefore, the Board finds no evidentiary basis for granting the requested relief.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. 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

_JS___ __RWA___ __RKS _ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2003087539
SUFFIX
RECON
DATE BOARDED	2003/08/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1996/09/30
DISCHARGE AUTHORITY	10 USC 4430
DISCHARGE REASON	Vol Early Ret
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.