RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050009225


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement of her promotion to lieutenant
colonel (LTC) or promotion reconsideration to LTC by a special selection
board (SSB) under the fiscal year 2002 (FY02) criteria.  With her rebuttal
to the advisory opinion, she also requested reconsideration of her request
to amend her Officer Evaluation Report (OER) for the period ending 4 June
1999.

2.  The applicant states that, in 2002, she was assigned to the Air Command
and Staff College as a faculty member.  The LTC promotion selection board
convened in January 2002.  In March 2002, a federal judge ruled the
instructions given to Army promotion boards were unconstitutional because
they were biased.

3.  The applicant states that, before the promotion selection board met,
her branch manager told her she was in the top 50 percent of her year
group.  In June 2002, she asked her manager when the promotion list was
going to be released, and he told her "not to worry because I was on it"
and she was not a promotion risk because she could not have been sent to a
joint position if she was at risk for promotion.  She invited her parents
to Alabama so they could be there when the list was released.  However,
when she checked the website to download the list the day it was released
she discovered she was not on it.  Her branch manager told her supervisor
only that Quartermaster Branch did not do well that year but offered no
other explanation.  She later learned the board had to adjust for quotas.
She also learned that being female was one of the quotas used; however, non-
minority females were bumped in order to make the minority female quota.

4.  The applicant states that, on 25 July 2003, after the list was
released, she began receiving general officer congratulatory letters.
After she received the first two, she called her branch manager to ask what
was going on.  He said the general officers received pre-positioned
selection lists and used those lists to send out the letters and that is
why she received the notes.  She states that, after receiving three general
officer notes, she had a reasonable expectation to believe she would be
promoted that year.

5.  The applicant states she called the office of the Training and Doctrine
Command (TRADOC) Inspector General (IG), but they told her they could not
help her.  They recommended she appeal the branch-qualifying, center of
mass (COM) OER [for the period ending 4 June 1999] which she felt put her
close to the "cut line" when the board adjusted for affirmative action.
The tragic irony of her entire case is the senior rater (SR) on that OER
was biased against women and discriminated against her and other females,
then the promotion board discriminated against her for NOT (emphasis in the
original) being a minority.

6.  The applicant also stated, in her rebuttal to the advisory opinion,
that the SR on the contested OER discriminated against women and
statistically rated them lower than men 95 percent of the time.  The
Officer Special Review Board (OSRB) recommended a statement be added to
that OER attesting to the SR's bias but did not put in on the OER.  She did
not initially request this correction because she felt her case was so
strong based on the other evidence.

7.  The applicant provides a certified copy of a general officer
congratulatory letter with envelope; a summary of a March 2002 court
ruling; an excerpt from Department of the Army (DA) Pamphlet 600-26
(Department of the Army Affirmative Action Plan); and the memorandum of
instructions (MOI) to the FY02 LTC promotion selection board.  With her
rebuttal to the advisory opinion, she provided another copy of the MOI
along with a newspaper article on the March 2002 court ruling, the entire
DA Pamphlet 600-26, and a U. S. Army Combined Arms Support Command (CASCOM)
IG Report of Inquiry dated 1 May 2005.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed a
second lieutenant in the U. S. Army Reserve on 13 June 1986 and entered
active duty.  She was promoted to major in the Quartermaster Branch on 1
November 1997.

2.  The applicant received an 8-rated month change of rater OER for the
period ending 4 June 1998.  Her principal duty assignment was Division
Materiel Management Officer with the 10th Division Support Command, 10th
Mountain Division.  Her SR was the Division Support Commander, Colonel Ann
D___.  Her SR rated the applicant's promotion potential as "best qualified"
and rated her potential compared with other officers senior rated by the SR
as COM.  The SR's comments included, "…a must for selection for CGSC.
Promote to lieutenant colonel.  Tremendous potential for battalion
command."

3.  In 1999, the U. S. District Court for the District of Columbia and the
U. S. Army agreed to settle a lawsuit by two Judge Advocate General Corps
(JAGC) lieutenant colonels who claimed the affirmative action portion of
instructions used by the colonel’s promotion board violated their equal
protection and due process rights under the Fifth Amendment to the
Constitution.  The civil action was dismissed pursuant to those officers
being reconsidered for promotion to Colonel through an SSB representing the
FY97, FY97 (August), and FY99 Colonel JAGC Promotion Selection Board.  The
Court directed that the original MOI, paragraph 7 (the equal opportunity
instructions) be revised.  The revision in this particular case was to
read:

      "7.  Equal Opportunity.  The Army is committed to unbiased
consideration of officers for promotion.  You may not consider the race,
gender, or ethnic background of an officer in the course of your review and
selection of officers for promotion.  For purposes of this board, the
foregoing guidance is required and takes precedence over the guidance
contained in DA Memorandum 600-2, para A-10c(2) & (3).  You will not refer
to DA Memorandum 600-2, para A-10c(2) & (3) or use the procedures for
review described therein."

4.  Based upon the Court's directive in the above case, the Army revised
the equal opportunity (EO) instructions in the MOIs to all subsequent
selection boards.

5.  The contested OER is a 12-rated month annual report for the period
ending   4 June 1999.  The applicant's principal duty title was Support
Operations Officer while with the 10th Forward Support Battalion, 10th
Mountain Division.  Her SR, the Division Support Commander, rated the
applicant's promotion potential as "best qualified."  He rated the
applicant's potential compared with other officers of the same grade senior
rated by him as COM.  He commented, "Outstanding Support Operations
Officer.  Hard charging execution of a Joint Readiness Training Center
Rotation…I chose her as my point of contact for the Joint Contingency Force
Advanced Warfighting Experiment (AWE).  Already selected for resident
Command and General Staff College.  Promote to Lieutenant Colonel.
Battalion Commander potential.  She will do well at higher levels of rank
and responsibility…excels at accomplishing the hard missions."

6.  The applicant attended the Command and General Staff College from
      2 August 1999 through 2 June 2000.  She was then assigned to a joint
position as a member of the U. S. Army Advisory Group, Air Command and
Staff College, Maxwell Air Force Base, Alabama.

7.  On 5 June 2000, the U. S. Court of Federal Claims established, in
Christian v. United States (a case concerning an officer selected by a
Selective Early Retirement Board (SERB) for early retirement), that the EO
instructions used by the SERB were unconstitutional.

8.  The applicant received an 12-rated month annual OER for the period
ending  2 June 2001.  Her principal duty assignment was Military Faculty
Member with the U. S. Army Advisory Group, Maxwell Air Force Base, Alabama.
 Her SR was the Air Command and Staff College Commandant, Brigadier General
John S___, U. S. Air Force.  Her SR rated the applicant's promotion
potential as "best qualified" and rated her potential compared with other
officers senior rated by the SR as COM.

9.  The applicant was considered but not selected by the FY02 LTC promotion
selection board that convened in February 2002.

10.  The 2 February 2002 MOI to the promotion selection board members
stated in pertinent parts:

      Joint Duty Selection Objectives:  Law and Defense Department
directives establish an important objective that the qualifications of
officers assigned to joint duty positions be such that they are selected at
a rate not less than that of their peers in comparable Service positions.
The Army assignment policy objective is working if the boards are able to
select officers, as a group, such that officers (a) serving on or have
served on the Joint Staff; (b) officers who have been awarded the joint
specialty; and (c) officers who are serving in or have served in other
joint duty assignments excluding those in (a) and (b) are selected at a
rate not less than the overall selection rate for officers in the same
competitive category under consideration by the board.  The boards will
identify the categories of officers described above from information
annotated on the voter completion sheet of the individual board file.  If
any board fails to meet these objectives in any category, that board will
discuss in the board's report the procedures taken to assure itself that
joint duty officers received appropriate consideration and provide an
analysis of factors that contributed to the shortfall.

      Equal Opportunity:  The success of today's Army comes from total
commitment to the ideals of freedom, fairness, and…To this end, equal
opportunity for all Soldiers is the only acceptable standard for our
Army…You must be alert to the possibility of past personal or institutional
discrimination – whether intentional or inadvertent – in the assignment
patterns, evaluations, or professional development of all officers.  Such
discrimination may be unintentional, not motivated by malice, bigotry, or
prejudice, and may have been the result of past service utilization
practices.  Indicators of discrimination may include disproportionately
lower evaluation reports; assignments of lesser importance or
responsibility; lack of opportunity to attend career-building military
schools; gratuitous mention of race, ethnicity, or gender; or mention of an
officer's organizational or institutional affiliations unrelated to duty
performance and potential.  Take these factors into consideration in
assessing the degree to which an officer's record, as a whole, is an
accurate reflection, free of bias, of that officer's performance and
potential.  The foregoing guidance shall not be interpreted as requiring or
authorizing you to extend any preference of any sort to any officer or
group of officers solely on the basis of race, ethnicity, or gender.

      (Prior to 2000, the EO guidance in selection board MOIs read as
follows:  "Goals.  Equal Opportunity.  Your goal is to achieve a selection
rate in each minority or gender group (minority groups:  Black, Hispanic,
Asian-Pacific Islander, American Indian, and Others, gender:  female) that
is not less than the selection rate for all officers in the promotion zone
of consideration (first time considered).  You are required to conduct a
review of files for the effects of past discrimination in any case in which
the selection rate for a minority or gender group is less than the
selection rate for all officers in the promotions zone (first time
considered).  This review is required even if the selection of one
additional individual in a minority or gender group would result in the
selection rate equal to or greater than the equal opportunity goal for the
minority or gender group.  For the purposes of this board, the foregoing
guidance as to when an Equal Opportunity review is required takes
precedence over the general guidance contained in DA Memorandum 600-2, para
A-10c(3), first sentence.  You should refer to the remainder of DA
Memorandum 600-2, para A-10c(3), for    a description of the procedures to
use for this review as well as instructions concerning required revoting
procedures where past discrimination is discovered."

11.  On 4 March 2002, the U. S. District Court for the District of Columbia
found, in Saunders v. Thomas E. White, Secretary of the Army, the plaintiff
had standing to seek retrospective relief with respect to the [colonel
promotion] selection process and further held that the Army's promotion
selection procedures facially violated the Fifth Amendment.  The plaintiff
was an LTC who had been considered but not selected for promotion to
colonel during the years 1996 and 1997.  On 25 October 1999, he filed the
court action alleging his failure to be promoted was due to the Army's EO
policy.  The Court found the Army's policy obliged the selection board
members to grant [minority] preferences in two different respects (1) the
initial evaluation procedure and (2) the review and revote procedure.

12.  The Court referenced Christian v. United States, 46 Fed. Cl. 793, 803
9 Fed. Cl. 2000), in which the Court of Federal Claims considered an early
retirement selection process containing, almost word for word, the same
instructions as in the instant case.  The Court noted that, in the
Christian case, the MOI ordered the selection board to "consider that past
personal and institutional discrimination may have disadvantaged minority
and female officers" and ordered the board to "identify" and "explain"
instances where a "particular minority-gender grouping did not fare well in
comparison to the overall population."  The Court noted that, in the
Christian case, the requirement that the board "fully explain" its failure
to reach the "goals" was "a coercive accountability measure, not an
innocuous statistical compilation."

13.  The FY02 LTC promotion selection list was released on 22 July 2002.
The promotion zone selection rate for Headquarters Staff was 82.4 percent
(28 of    34 selected); for Joint Staff, 100 percent; for Joint Specialty,
100 percent; for Other Joint Duty, 76.4 percent (94 of 123 selected); and
for other Army, 77.4 percent (699 of 903 selected).

14.  The applicant provided a 23 July 2002 note from Major General K___
congratulating her on her selection for promotion to LTC.

15.  On 13 August 2002, the applicant appealed the contested OER.  She
requested either that her COM rating be changed to an above center of mass
(ACOM) rating or the ranking be deleted entirely from her file.  In the
alternative, she requested the following be added to the SR's narrative,
"The comments may not adequately reflect the duty performance due to gender
bias on the part of the senior rater."

16.  The OSRB contacted the rating officials and other personnel.  The
former commander of the 10th Forward Support Battalion informed the OSRB
that, to her knowledge, the SR did not automatically rate females lower
than males.  The SR's focus on increasing readiness might have rubbed some
Soldiers the wrong way.  The former commander stated she used some of the
same methods as the SR, i.e., separate sensing sessions for females and
communicating with Soldiers about being sexually active and the
responsibility that comes with those actions.

17.  The former deputy Staff Judge Advocate for the 10th Mountain Division
informed the OSRB the SR did attempt to bring charges against a Soldier for
being pregnant; however, she stated the SR believed the Soldier became
pregnant to avoid a deployment.  She stated the SR never stated to her that
he did not want females in his unit.

18.  The OSRB also considered a videotape of the applicant's SR giving a
talk to the Command and General Staff College.  A typed excerpt of his talk
revealed he made the following statements, "I think the current Army 25
questions methodology is worthless unless you have an extremely serious
problems…The tool that I use best is sensing sessions…sensing sessions with
junior NCOs, officers and females to get at issues."  One of the female
students indicated she was surprised the SR had separate sessions with his
females.  The SR responded, "You are never going to win on this discussion
major…Whatever you do, in fact, if you are a guy you are going to lose.
That's what most of the guys out here think…The pregnancy rate shot up in
the last two and half years from   36 to 71… the majority of the Soldiers
were single…Forty percent of a medical company pregnant is a hell of an
impact on my readiness to support the division…If you as leaders don't set
the command climate…and say hey listen pal you get three women pregnant and
you're downtown getting a judgment order against you and you're going to
have money taken out for support and…I'll chapter your butt out of the
Army.  It's a dual responsibility…"

19.  The OSRB indicated they believed the SR had demonstrated that he
possessed a gender bias through numerous public comments; however, the
existing evidence did not prove that his bias affected his decisions
regarding women.  In order to prove the applicant's contention that she was
discriminated against on the contested OER, she not only had to prove the
SR was biased against her because she was a female, but also that she
deserved the ACOM rating when compared to her contemporaries at the time
she was assessed.

20.  The OSRB noted the applicant stated the SR discriminated against
pregnant women, but the applicant was not pregnant.  The applicant stated
she was slated for an executive officer job but after telling the SR she
planned to get pregnant the following year the position was given to
someone else.  The applicant provided no proof of that and also noted she
was selected for the Command and General Staff College and was due to make
a permanent change of station [to attend that course].

21.  The OSRB believed there was an unhealthy, hostile environment toward
women and acknowledged that was a form of discrimination; however, it did
not answer the second question that had to be satisfied in order to approve
the applicant's appeal -- did the applicant deserve an ACOM assessment when
compared to the rating population at the time the report was rendered.  The
OSRB concluded the body of evidence did not show that.  Her rater stated
the applicant was deserving of promotion; however, the rater never
indicated she deserved an ACOM assessment.

22.  The OSRB considered the applicant's alternative request, that if her
rating was not changed to ACOM that the rating be deleted and/or the
following comment be added to the SR's narrative section:  "The comments
may not adequately reflect duty performance due to gender bias on the part
of the senior rater."  The ORB considered those options, but determined
that enacting either would be detrimental to the applicant.  The OSRB noted
the applicant's only branch-qualifying OER was the contested report.
Either alternative would likely raise significant questions on the part of
promotion board members that could result in their dismissing the OER
entirely.  As her only branch-qualifying OER as a major, the ORB concluded
the only action that could help her would have been to change the block
check to an ACOM; however, the OSRB was unable to do that because there was
insufficient proof that she deserved it at the time the OER was rendered.

23.  The OSRB denied the applicant's appeal.

24.  By letter dated 13 January 2003, the applicant informed the president
of the FY03 LTC promotion selection board that the unique circumstances
regarding her [contested] OER warranted an explanation.  She stated she did
not receive a fair evaluation or ranking in her critical branch qualifying
job due to gender bias on the part of the SR.  She informed the president
the OSRB agreed the SR demonstrated "gender bias and created a hostile
climate for women as a result of his frequent generalizations about women."
 The ORB felt, however, that changing her OER and deleting the ranking
could be detrimental to her report.  She provided the OSRB's case summary
and pointed out the case summary showed the SR's ACOM rankings for women
were significantly statistically lower than men's rankings.

25.  The FY03 LTC promotion selection board convened on 24 February 2003.
The applicant was considered but not selected for promotion.

26.  The applicant resubmitted her OER appeal; however, it was returned
without action as the OSRB determined it did not provide new substantive
evidence of a clear and convincing manner for the OSRB to consider.

27.  The applicant twice applied to the Army Board for Correction of
Military Records (ABCMR), in Docket Number AR2002081536 on 25 February 2003
and in Docket Number AR2003095001 on 9 December 2003 for correction of the
contested OER.  The ABCMR denied her original case in part because "The
applicant has failed to show through the evidence submitted or the evidence
of record that the senior rater is biased against women and that bias was
the basis for her receiving a COM rating instead of the ACOM rating she had
earned.  Most significantly her former rater confirms that he informed the
senior rater that of the two majors he rated the applicant as his second
best.  The rater agrees that while the command climate was harsh he never
observed the senior rater practice bias against women."

28.  The applicant submitted to the ABCMR for reconsideration.  She stated,
in parts, that she did not refute rater's statement she was the "second
best."  However, there were 20 majors in the command at the time and she
was still in the top half.  She refuted the ABCMR's conclusion no one
informed the chain of command or sought IG or Equal Opportunity assistance.
 She indicated that three EO complaints were filed against the SR; however,
no disciplinary action was taken against him and that discouraged her from
filing her own complaint.  In August 2002, she discussed the SR's behavior
and concerns with officials in her servicing EO office who agreed the SR
had violated EO policy.  She stated the evidence showed the SR
statistically rated female officers lower than men.
29.  The ABCMR denied the applicant's request for reconsideration.  The
ABCMR noted the OSRB had supported her contentions that the SR created a
hostile environment and rated women statistically lower than men but stated
"opinions and statements made by the OSRB in its case summary do not
constitute evidence which warrants the requested relief, particularly when
the OSRB determined the preponderance of evidence did not justify altering
or amending the contested OER."  The ABCMR noted that records showed that,
of the eight evaluations the applicant received as a major, the majority of
SRs rated her performance as COM.  Records also showed, with the exception
of one OER, in those cases where she received a top block evaluation the
SRs rated all officers in the top block and therefore those reports were
top block COM ratings, not ACOM ratings.

30.  The ABCMR concluded, essentially, there was no evidence of record or
evidence presented by the applicant that showed the SR's subjective
evaluation of her performance on the contested OER was rendered with a bias
against women or that it was significantly inconsistent with other ratings
she had received and therefore found no basis for overturning its original
decision.

31.  In the processing of this case, an advisory opinion was obtained from
the Officer Policy Division, Office of the Deputy Chief of Staff, G-1.
That office noted the applicant was never on any promotion list.  That
office stated pre-positioned lists are sent out to Major Commands and they
include the MOI and copies        of the recommended and not recommended
lists.  That office noted that, on        20 September 2005, the Promotion
Branch Chief at Human Resources Command reviewed the pre-positioned not
recommended list that was used and the applicant was on the not recommended
list.

32.  The Officer Policy Division, Office of the Deputy Chief of Staff, G-1
noted that the EO language in the FY02 LTC Army promotion selection board
was not ruled unconstitutional.  The language that was ruled
unconstitutional was used prior to 2000.  The FY02 board MOI specifically
stated that, "The foregoing guidance shall not be interpreted as requiring
or authorizing you to extend any preference of any sort to any officer or
group of offices solely on the basis of race, ethnicity, or gender."

33.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.

34.  The applicant rebutted that the rationale of the Officer Policy
Division, Office of the Deputy Chief of Staff, G-1 was incorrect.  That
office stated the "equal opportunity language in the FY02 LTC Promotion
Selection Board was not ruled unconstitutional" and that the language used
prior to 2000 was ruled unconstitutional.  She questions, then, why the
language was there at all.  She stated that, in Saunders v. White, the
plaintiff was a white male who was denied promotion to colonel in 1996 and
1997.

35.  The applicant rebutted that one of the instructions challenged in
Saunders v. White was:

      "In evaluating the files of the officers you are about to consider,
be alert to the possibility of past personal or institutional
discrimination – either intentional or inadvertent – in the assignment
patterns, evaluations, or professional development of officers in those
groups for which you have an equal opportunity selection goal.  Such
indicators may include disproportionately lower evaluation reports,
assignment of lesser importance or responsibility, or lack of opportunity
to attend career-building military schools.  Taking these factors into
consideration, assess the degree to which an officer's record as a whole is
an accurate reflection, free from bias, of that officer's performance and
potential."

(The above instructions were outlined in DA Memorandum 600-2, not the MOI).

36.  The applicant rebutted that the exact wording the Court deemed
unconstitutional in the above case was "past personal or institutional
discrimination" because it gave preferential treatment to one race or
gender over another on its face.  She stated that the [FY02] MOI the
advisory opinion references, under Equal Opportunity, clearly reads "(y)ou
must be alert to the possibility of past personal or institutional
discrimination (emphasis in the original)…(t)aking these factors into
consideration in assessing the degree to which an officer's record, as a
whole, is an accurate reflection, free of bias, of that office's
performance and potential."  Thus, the FY02 instructions still prejudices
officers by allowing the members of the board to give preferential
treatment.

37.  The applicant noted the advisory opinion stated she was never on any
promotion list and the congratulatory letters were erroneous.  It was the
applicant's understanding that general officers only send out letters of
congratulation once the pre-positioned list is received.  She contacted
other officers on the not recommended list and none received congratulatory
notes.

38.  The applicant also noted that she was serving in a joint position.
According to the MOI cited in the advisory opinion, Title 10, U. S. Code
establishes as an important objective that the qualifications of officers
assigned to joint duty positions are such that they are selected at a rate
not less than that of their peers in comparable service positions.  The
selection rate for her assignment group was 70 percent; the rate for
comparable service positions was 80 percent.  The Army assignment policy
objective is not working because she should not have been assigned to a
joint position if she was at risk for promotion.

39.  The applicant noted the MOI stated that if the board fails to meet its
joint duty objectives in any category, that board would discuss in the
board's report the procedures taken to assure itself that joint duty
officers received appropriate consideration and provide an analysis of
factors that contributed to the shortfall. She personally knew a member of
the board who stated her status as an officer serving in a joint position
was not considered.

40.  The applicant rebutted that, in addition, once the initial names for
promotion were listed, the board then went back and ensured the Army met
its affirmative action "goals."  According to DA Pamphlet 600-26,
guidelines are for Army promotion boards to select minority members
equivalent to the percentage in the promotion pool.  Therefore, if her
board had a large number of minorities, it numerically decreased her
chances for promotion.  She was on the list until the numbers were
readjusted for "goals" and the letters she was sent were a result of the
general officers using the unadjusted list.  In the interest of fairness,
if general officers send you written notification on your promotion then
you have an expectation you are going to get promoted and should be
promoted.

41.  The applicant also provided a CASCOM IG review of her contested OER.
The IG determined the applicant's SR on the contested OER unfairly rated
female officers in his command which resulted in systemic adverse promotion
rates for those female officers and the applicant was adversely impacted by
his gender bias.  However, while the OSRB recognized the SR "created a
hostile command climate for women, which is a form of discrimination," no
remedy was directed regarding the final disposition of the OER.  Although
the OSRB considered adding a statement to the OER attesting to the bias of
the SR, the board felt that could hurt her future promotion chances.

42.  The IG determined the applicant was duly selected for promotion to LTC
in July 2002.  Her selection was announced officially in official and
personal military correspondence and through official Human Resource
Command pre-position documents announcing her selection.  However, the
applicant was "unselected" for promotion after the fact based upon criteria
related to EO/affirmative action "goals."

43.  The IG stated the applicant was misinformed by several agencies
regarding her due process options in trying to obtain redress for
grievances.  First, she was denied the right to file an issue with the IG
in July 2002.  Originally, the TRADOC IG office told her in July 2002 that
the OER was a gender discrimination issue and not IG appropriate.  That was
incorrect since many of the issues brought out in the appeal case against
her SR could have easily fallen under the jurisdiction of the IG.  Based
upon the preliminary evidence provided by the applicant to the OSRB and by
statements made by the CASCOM commanding general, the allegation of gender
bias by the SR toward the applicant as well as numerous violations of Army
Regulation 600-20 would have been substantiated.  Secondly, she was also
denied access with Equal Opportunity authorities since their claim was the
complaint was not submitted in a timely manner.

44.  The IG concluded the applicant was not afforded due process when she
originally sought redress for her OER from the TRADOC IG or Equal
Opportunity offices, nor was the remedy to place a statement attesting to
the gender bias of her SR as recommended by the OSRB added to her OER.  The
IG stated it was obvious the applicant was clearly selected for promotion
to LTC and her promotion was taken away because of a clear gender bias by a
SR and then reverse discrimination.  The IG believed a fair and logical
remedy was for the applicant to be considered by an SSB for promotion
reconsideration to LTC.

45.  Title 10, U. S. Code, section 617(a) states each selection board…shall
submit to the Secretary of the military department concerned a written
report, signed by each member of the board,…and certifying (1) that the
board has carefully considered the record of each officer whose name was
furnished to it…and (2) that, in the opinion of a majority of the members
of the board, the officers recommended for promotion by the board are best
qualified for promotion to meet the needs of the armed force concerned…to
the selection board.

46.  Title 10, U. S. Code, section 618(b)(1) states, after…the Secretary
concerned, in the case of the report of a selection board that considered
officers who are serving, or have served, in joint duty assignments, shall
submit the report to the Chairman of the Joint Chiefs of Staff.  Section
618(b)(2) states the Chairman, in accordance with guidelines furnished to
the Chairman by the Secretary of Defense, shall review the report for the
purpose of determining if (A) the selection board acted consistent with the
guidelines of the Secretary of Defense…to ensure that selection boards give
appropriate consideration to the performance in joint duty assignments of
officers who are serving, or have served, in such assignments; and (B) the
selection board otherwise gave appropriate consideration to the performance
in joint duty assignments of officers who are serving, or have served, in
such assignments.

47.  Title 10, U. S. Code, section 618(f) states that, except as authorized
or required by this section, proceedings of a selection board convened…may
not be disclosed to any person not a member of the board.

48.  Army Regulation 623-105 (Officer Evaluation Reporting System),
paragraph 3-22 states the SR makes an assessment of the rated officer's
overall potential in comparison with all other officers of the same grade
the SR has senior rated or currently has in his or her SR population.  This
potential is evaluated in terms of the majority of the officers in the
population.  If the potential assessment is consistent with the majority of
officers in that grade the SR will place his "X" in the COM box.  If the
rated officer's potential exceeds that of the majority of officers in the
SR's population, the SR will place his "X" in the ACOM/COM box.  (The
intent is for the SR to use this box to identify their upper third in each
grade.)

49.  Army Regulation 623-105, paragraph 3-22 further states that, to ensure
maximum rating flexibility when rating populations change or to preclude a
top box check from inadvertently profiling as a COM rating, SRs need to
maintain     a "cushion" in their top box rather than simply playing the
line at less than          50 percent.  This is best accomplished by
limiting the top box to no more than one third of all ratings in that
grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the U. S. District Court for the District of
Columbia, in Saunders v. Thomas E. White, Secretary of the Army, ruled the
instructions given to the FY02 promotion board were unconstitutional
because they were biased.  The decision in this case was dated March 2002;
however, the case concerned promotion selection boards held in 1996 and
1997.

2.  The U. S. Court of Federal Claims had already established in June 2000,
in Christian v. United States, that the EO instructions (used in that case
by a SERB) were unconstitutional.  In Saunders v. Thomas E. White,
Secretary of the Army, the Court found the plaintiff had standing to seek
retrospective relief with respect to the [colonel promotion] selection
process and further held that the Army's [1996 and 1997] promotion
selection procedures facially violated the Fifth Amendment.  However, based
upon the Christian v. United States case, the Army had changed the EO
instructions to selection boards in 2000.

3.  The EO instructions given to selection boards pre-Christian and post-
Christian
were NOT the same.

      Prior to 2000, selection boards were required to conduct a review of
files for the effects of past discrimination in any case in which the
selection rate for a minority or gender group was less than the selection
rate for all officers in the promotions zone (first time considered).
Boards were referred to DA Memorandum 600-2 for a description of the
procedures to use for this review as well as instructions concerning
required revoting procedures where past discrimination was discovered.

      After 2000, selection boards were informed only of the Army's
commitment to EO for all Soldiers and alerted board members to the
possibility of past personal or institutional discrimination.  They were
informed about possible indicators of discrimination and informed to take
those factors into consideration in assessing the degree to which an
officer's record, as a whole, is an accurate reflection, free of bias, of
that officer's performance and potential.  They were informed the foregoing
guidance should not be interpreted as requiring or authorizing board
members to extend any preference of any sort to any officer or group of
officers solely on the basis of race, ethnicity, or gender.

4.  The above guidance was not ruled unconstitutional by either Christian
or Saunders.  Pre-Christian, however, board members were required not only
to consider that past personal and institutional discrimination may have
disadvantaged minority and female officers but were further ordered to
"identify" and "explain" instances where a "particular minority-gender
grouping did not fare well in comparison to the overall population."
Christian found that the requirement that the SERB "fully explain" its
failure to reach its "goals" was "a coercive accountability measure, not an
innocuous statistical compilation."

5.  Post-Christian, board members are no longer required to "identify" and
"explain" instances where a minority-gender grouping does not fare well in
comparison to the overall population.  Board members are no longer referred
to DA Pamphlet 600-26 or DA Memorandum 600-2.  Most importantly, revoting
is no longer permitted.  As of 2000, there is no "cut line" for affirmative
action.

6.  Revoting is no longer permitted.  Neither the applicant nor the CASCOM
IG provided evidence to show the board violated that prohibition.  The
applicant provided no evidence to show that, "once the initial names for
promotion were listed, the board then went back and ensured the Army met
its affirmative action goals" or that "she was on the list until the
numbers were readjusted for goals and the letters she was sent were a
result of the general officers using the unadjusted list."

7.  The applicant's branch manager did her a disservice by telling her "not
to worry because I was on [the promotion selection] list before the list
was released."  The results of promotion lists are confidential until they
are officially released.  She provides no statement from her branch manager
explaining how he came to give her that information.

8.  The applicant stated she checked the website to download the list the
day it was released and she discovered she was not on it.  Nevertheless,
after the list was released she began receiving general officer
congratulatory letters.  She contended that, after receiving three general
officer notes, she had a reasonable expectation to believe she would be
promoted that year.

9.  However, the applicant knew she was not on the publicly-released
promotion list when she checked the website.  Instead of calling the source
of the congratulatory letters (i.e., the administrative staff of the three
generals who sent her the letters) to ask for their basis for sending the
letters, she called her branch manager.  She provides no evidence to show
the generals had a pre-positioned list that was different from the
official, publicly-released list.  She provides no evidence to show the
congratulatory letters were based on a different list from the one publicly-
released and were not in fact errors on the part of the administrative
staff of those generals.

10.  The applicant was serving in a joint duty position.  As she noted,
Title 10,   U. S. Code establishes as an important objective that the
qualifications of officers assigned to joint duty positions are such that
they are selected at a rate not less than that of their peers in comparable
service positions.  She correctly noted the selection rate for her group
was less than the rate for officers in comparable service positions.  She
stated the rate was 70 percent versus 80 percent whereas the actual rate
was 76.4 percent versus 77.4 percent (or 77.5 percent if the Headquarters
Staff selection rate was included with the others).

11.  Such a narrow gap, however, is not evidence the Army's assignment
policy objective regarding joint duty officers is not working.

12.  In addition, the applicant correctly noted the MOI stated the board
would discuss in the board's report the procedures taken to assure itself
joint duty officers received appropriate consideration and provide an
analysis of factors that contributed to any shortfall.  She also contended
she personally knew a member of the board who stated her status as an
officer serving in a joint position was not considered.

13.  However, the board is not required to discuss each individual joint
duty officer who was not selected for promotion.  They are to discuss only
the procedures taken to assure itself that joint duty officers received
appropriate consideration.

14.  The member of the board who informed the applicant her status as a
joint duty officer was not considered also signed the written board report
certifying the board carefully considered the record of each officer whose
name was furnished to it.  That member of the board signed the board report
certifying that, in the opinion of a majority of the members of the board,
the officers recommended for promotion by the board were the best qualified
for promotion to meet the needs of the armed force concerned.

15.  After the board results had been furnished to the Secretary of the
Army, the Secretary submitted that report to the Chairman of the Joint
Chiefs of Staff.  The Chairman reviewed the report for the purpose of
determining if (A) the selection board acted consistent with the guidelines
of the Secretary of Defense…to ensure that selection boards give
appropriate consideration to the performance in joint duty assignments of
officers who are serving, or have served, in such assignments; and (B) the
selection board otherwise gave appropriate consideration to the performance
in joint duty assignments of officers who are serving, or have served, in
such assignments.

16.  The applicant provides no evidence to show the Chairman of the Joint
Chiefs of Staff found fault with the FY02 LTC promotion selection board's
procedures for giving the appropriate consideration required by law.

17.  The applicant's contention that her SR discriminated against women has
been carefully considered for the third time by the ABCMR.  The ABCMR has
considered the statistics cited by the applicant to show her SR was biased
against women by rating them lower than men 95 percent of the time.  This
is one of the reasons it is still lawful to remind selection board members
of the possibility of past personal or institutional discrimination, to
inform them of possible indicators of discrimination, and to take those
factors into consideration in assessing the degree to which an officer's
record, as a whole, is an accurate reflection, free of bias, of that
officer's performance and potential.

18.  The applicant believed her SR discriminated against women; however, it
appears she did not think the contested OER reflected that bias until after
she had been non-selected for promotion to LTC.  Her argument, in her
second application to the ABCMR, is understood -- three EO complaints had
been filed against the SR with no disciplinary action taken against him and
that discouraged her from filing her own complaint.  However, that is a
weak explanation of why she did not immediately file an OER appeal based
upon gender bias or why she did not raise her concerns in a letter to the
president of the FY02 LTC promotion selection board (as she did to the
president of the FY03 LTC promotion selection board).

19.  The EO instructions to selection boards remind board members that, as
a group, certain minorities may have suffered institutional discrimination.
 It informs board members what to look for, in the case of an individual
officer, as indicators that a particular officer has personally suffered as
a result of that institutional discrimination.

20.  However, this Board cannot find any clues in the contested OER that
would lead a careful reviewer to conclude the applicant's SR practiced
gender discrimination against her.  She was given a COM rating.  In her
resubmission to the ABCMR, the applicant herself contended "there were 20
majors in the command at the time and she was still in the top half."
Regulatory guidance is that if the rated officer's potential exceeds that
of the majority of officers in the SR's population, the SR will place his
"X" in the ACOM/COM box and the intent is for the SR to use the ACOM box to
identify their upper third (not the upper half) in each grade.

21.  Even if the applicant's SR statistically rated women more often as
COM, rather than ACOM, than he did men, the evidence of record shows a COM
rating was statistically normal for her.  Her OER immediately prior to the
contested report showed her SR (a female) had rated her as COM.  That SR's
comments included, "…a must for selection for CGSC.  Promote to lieutenant
colonel.  Tremendous potential for battalion command."

22.  The SR's comments on the contested OER included, "Promote to
Lieutenant Colonel.  Battalion Commander potential.  She will do well at
higher levels of rank and responsibility…excels at accomplishing the hard
missions."

23.  The SR on her OER immediately subsequent to the contested OER rated
her as COM.  She was rated as COM in the majority of the eight OERs she
received as a major.

24.  This Board notes that the OSRB considered adding the statement, "The
comments may not adequately reflect duty performance due to gender bias on
the part of the senior rater" to the SR's narrative section of the
contested OER.  The OSRB determined that doing so would be detrimental to
the applicant.  This Board understands the OSRB's argument (that doing so
would likely raise significant questions on the part of promotion board
members that could result in their dismissing the OER entirely).

25.  This Board further believes that adding the requested statement would
not be appropriate.  By the applicant's own contention, she was not in the
top one third of the SR's comparison population.  The SR's narrative
comments were just as laudatory as those of the SR on the applicant's
immediately previous OER.  Almost her entire file as a major showed she was
a COM officer.  There is insufficient evidence to show the contested OER
reflected her SR's bias against women.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __dja___  __drt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As regards the applicant's request for "reinstatement of her promotion
to LTC" or promotion reconsideration to LTC by an SSB under the FY02
criteria, the evidence presented does not demonstrate the existence of a
probable error or injustice.  Therefore, the Board determined that the
overall merits of this case are insufficient as a basis for correction of
the records of the individual concerned.

2.  As regards the applicant's request for reconsideration of her request
to amend her OER for the period ending 4 June 1999, the evidence presented
does not demonstrate the existence of a probable error or injustice.
Therefore, the Board determined that the overall merits of this case are
insufficient as a basis to amend the decisions of the ABCMR set forth in
Docket Number AR2002081536 dated 25 February 2003 and Docket Number
AR2003095011 dated 9 December 2003.




                                  __Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009225                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |111.0100.0003                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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