IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013314 


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, that she be reinstated to the recommended list for promotion to staff sergeant (SSG), with concurrent reinstatement of her most recent promotion point reevaluation.

2.  The applicant essentially states that she was removed from the recommended list for promotion because she filed a sexual harassment complaint against her company first sergeant (1SG), and that he created a counseling statement on her afterwards which stated that she disrespected many senior noncommissioned officers (NCOs).  She also states, in effect, that a memorandum was also prepared to create the appearance of a pattern of unacceptable behavior.

3.  The applicant provides a self-authored letter, dated 10 August 2008, addressed to the Army Review Boards Agency, a memorandum, dated 
26 October 2007, which informed her that she was being recommended for removal from the recommended list for promotion, a memorandum, dated 
14 December 2007, which informed her that she would be removed from the recommended list for promotion, a DA Form 4856 (Developmental Counseling Form) from a 31 July 2006 counseling, a self-authored memorandum, dated 
15 August 2006, in which she rebutted a 1 August 2006 letter of concern, the 
1 August 2006 letter of concern that she received, a DA Form 7279 (Equal Opportunity Complaint Form), dated 19 April 2007, with a continuation sheet regarding events on 20 May 2006, a DA Form 7279, also dated 19 April 2007, with a continuation sheet regarding events on 15 October 2006, an unsworn self-authored DA Form 2823 (Sworn Statement), dated 27 May 2006, a DA Form 4856 from a counseling on 28 February 2007, with a two-page continuation,         a letter, dated 28 February 2007, from a doctor stating that the applicant had an appointment on that morning which had to be rescheduled, an e-mail, dated 17 September 2007, from the applicant to a command sergeant major, a DA Form 3349 (Physical Profile), dated 14 November 2007, for a temporary profile, a memorandum, which appears to be dated 5 November 2006, which reinstated her to recruiting duty, and her promotion packet, which included:

	a.  memorandums, dated 5 April 2005, 9 September 2005, and 14 March 2006;

	b.  two DA Form 3355 (Promotion Point Worksheet), initially dated 11 May 2001 and 30 May 2006, respectively; 

	c.  a memorandum, dated 31 May 2006, which showed that the applicant would compete for promotion to SSG with 783 promotion points effective 1 July 2006;

	d.  15 pages of military awards-related promotion material;

	e.  76 pages of military education-related promotion material; and

	f.  eight pages of civilian education-related promotion material.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show after having prior service in the Regular Army from March 1990 to April 1993, she reenlisted in the Regular Army on 
27 September 1999 in the rank and pay grade of sergeant/E-5.  

2.  The applicant's promotion packet essentially shows that she appeared before a SSG promotion board, and that the promotion authority approved her integration onto a recommended list for promotion to SSG.  Since then, she has subsequently had her promotion points adjusted over the next few years, and the last promotion point reevaluation was approved on 31 May 2006, with her competing for promotion to SSG with 783 promotion points effective 1 July 2006. She began serving with the New York City Recruiting Battalion in August 2005.

3.  The applicant provided a DA Form 4856 which essentially shows that she was counseled by her 1SG on 31 July 2006 for being disrespectful in deportment to him.  Her 1SG indicated that the applicant continually lost her military bearing with him and a sergeant first class on more than one occasion.  He also stated that she continued to talk loudly to her station commander and that he had to jump in and tell her to be at ease.  
4.  The applicant also provided a memorandum, dated 1 August 2006, in which her company commander essentially issued her a letter of concern.  In this memorandum, the applicant's company commander stated that the applicant had been counseled in writing and verbally many times about the importance of maintaining her professional military bearing.  He also stated that he and the applicant's 1SG had spent significant time on teaching, coaching and mentoring her, but that she had not responded to training, which was unacceptable, and that he would not allow it to continue.  He further stated that the applicant's continued inability to work with her fellow peers and superiors brought discredit upon her and adversely affected the company by disrupting the chain of command.  Additionally, he stated that the applicant failed to draw a distinction between her personal issues and her duties as a NCO, and that her conduct had not only been against Army regulations, but lowered the morale of her company. Pursuant to Army Regulation 600-37 (Unfavorable Information), the applicant's company commander referred this memorandum to the applicant for acknowledgement and rebuttal.  

5.  On 15 August 2006, the applicant submitted a six-page rebuttal in which she essentially denied the misconduct that she was being charged with, with the exception that she used the slang word "ya'll," and essentially stated that she believes she was being unjustly accused because she contacted or tried to contact the Commanding General, United States Army Recruiting Command, her battalion commander, the Inspector General, and chaplain for legitimate reasons with legitimate concerns.  

6. In a memorandum, dated 26 October 2007, the applicant was informed by her battalion commander that she was being recommended for removal from the recommended list for promotion to SSG due to her past substandard performance in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  She was also informed that a removal board would be held 
15 duty days from the date this memorandum was read to her.  She was further informed that the removal board would be composed of unbiased members as specified in Army Regulation 600-8-19, and she was advised of her rights regarding this removal board, which included:

	a.  declining, in writing, to appear before the board during any or all open proceedings;

	b.  for cause, challenge any member of the board;

	c.  request any reasonably available witness whose testimony she believed to be pertinent to her case;

	d.  present written affidavits and depositions of witnesses who were unable to appear;

	e.  elect to remain silent, to make an unsworn or sworn statement, or be verbally examined by the board; and

	f.  question any witness appearing before the board;

7.  The applicant was also advised that her failure to exercise her rights would not negate the board's proceedings, findings, or recommendations.  She was also advised that the president of the removal board would ensure that enough testimony was presented to enable the board members to fully and impartially evaluate her case and arrive at a recommendation, and prepare a written report of the board proceedings and submit it to him.  She was further advised that she had the opportunity to discuss the removal board with the judge advocate general office.

8.  In a memorandum, dated 14 December 2007, the applicant's battalion commander essentially informed her that she would be removed from the recommended list for promotion to SSG, and that he reached this decision based on the recommendation of a board held on 12 December 2007 which fully and impartially evaluated her case.  He also informed her that he directed that this board be held due to her past misconduct and behavior unbecoming an NCO.  He further stated that the applicant was notified of this board on 15 November 2007; more than 15 days prior to the board, and was provided instructions on the conduct of this board as written in Army Regulation 600-8-19.  Additionally, he stated that the applicant was allowed more time to prepare her statement, gather evidence, and contact witnesses than was required by Army Regulation 
600-8-19.  Further, he stated that the applicant had the opportunity to question each witness about their testimony, and was given as much time as she wanted during the board to make statements regarding each incident, and to present evidence.  The applicant provided no evidence that she submitted a rebuttal to this decision, which was her right to do if she so wished.  

9.  The applicant essentially stated that she was removed from the recommended list for promotion because she filed a sexual harassment complaint against her company 1SG, and that he created a counseling statement on her after that which stated that she disrespected many senior NCOs.  She also stated, in effect, that a memorandum was also prepared to create the appearance of a pattern of unacceptable behavior.

10.  The applicant provided evidence, in the form of two DA Form 7279 and an unsworn DA Form 2823, in which she essentially alleged sexual harassment from her 1SG and sexual assault by an unknown person at her office while resting after taking a pain killer.

11.  Chapter 3 (Semicentralized Promotions [Sergeant and Staff Sergeant]) of Army Regulation 600-8-19, in effect at the time, provided guidance on processing removal of a Soldier from a recommended list for promotion, and that commanders may conduct removal boards when a Soldier's substandard performance or inefficiencies warrant such.  It also provided that commanders will give Soldiers written notification of the removal board at least 15 duty days prior to the date of the board, and that the board would be composed of unbiased members.  It also essentially provided that Soldiers would be afforded the same rights that the applicant was advised of in the 26 October 2007 memorandum from her battalion commander.  This regulation further provided that once the Soldier is removed, the action is final.

12.  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.  This 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 AND CONCLUSIONS:

1.  The applicant contends that she should be reinstated to the recommended list for promotion to SSG, with concurrent reinstatement of her most recent promotion point reevaluation.

2.  It is clear that the applicant alleges that her removal from the recommended list for promotion to SSG was retaliatory in nature, and that she was sexually harassed by her 1SG and sexually assaulted by an unknown person in her office. The evidence provided by the applicant to support her allegations was carefully considered; however, 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.

3.  While the record of her removal from the recommended list for promotion to SSG was not among the documents in her military records, the applicant provided sufficient evidence which shows that she was removed from the recommended list for promotion to SSG by her promotion authority, who based his decision on the recommendation of a removal board that was held on 
12 December 2007, and which appears to have been conducted in accordance with Army Regulation 600-8-19.  There is also no evidence in her military records, and the applicant failed to provide any evidence which shows that her rights were not fully protected through the process of removing her from the recommended list for promotion to SSG.  Additionally, while the applicant alleges that she was sexually harassed by her 1SG and was sexually assaulted by an unknown person in her office, she provided no evidence such as third-party statements or results from any equal opportunity, inspector general, or criminal investigation division investigations to support her allegations.   

4.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ XXX  _______   ___
               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.

ABCMR Record of Proceedings (cont)                                         AR20080013314



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ABCMR Record of Proceedings (cont)                                         AR20080013314



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