IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090014653 


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 she be promoted to sergeant major (SGM) with back pay.

2.  The applicant states she was targeted as a whistle blower and faced sexual and racial discrimination.

3.  The applicant provides a 26 March 2004 statement and summary of her actions, a 2002 duty appointment memorandum, a list of personnel, a December 2002 Noncommissioned Officers Evaluation Report (NCOER), January 2004 release from active duty orders, February 2004 mobilization orders, February 2004 deployment orders, November 2004 active duty orders, a December 2004 NCOER, a December 2004 edition of "The 3rd Word" newsletter, a 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty), January 2005 release from active duty orders, letters of congratulations on her promotion to SGM, a May 2005 e-mail indicating acceptance of assignment of a command sergeant major (CSM) position, and a series of e-mails related to her retuning to a Reserve CSM position following her voluntary retirement.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant, a retired U.S. Army Reserve (USAR) MSG/E-8, enlisted in the Regular Army on 28 January 1975, was released from active duty on 26 May 1978 and transferred to the USAR, and has served under the last names of W____, S____, and H____.

3.  A 2nd Battalion, 338th Regiment, memorandum, dated 21 November 2002, appointed the applicant the battalion career counselor and retention noncommissioned officer in charge (NCOIC).

4.  On 30 January 2003, she was mobilized as a MSG in support of Operation Noble Eagle and released from active duty on 31 January 2004 with transfer back to her Reserve unit.  Her DD Form 214 for this period lists her rank as MSG/E-8.

5.  On 16 July 2003, U.S. Army Human Resources Command, St. Louis 
(AHRC-STL) issued the applicant a Notification of Eligible for Retired Pay at Age 60 (20-year letter).

6.  An article in the December 2004 edition of "The 3rd Word" newsletter lists the applicant as the first sergeant (1SG) for her unit.  It also contains an article of congratulation to Soldiers who had recently been selected for promotion, including the applicant's promotion to SGM.

7.  A 21 February 2005 DD Form 214 shows she was again mobilized in support of Operation Noble Eagle, serving on active duty from 30 January 2004 through 21 February 2005.  She was released from active duty in the rank and grade of 1SG/E-8.

8.  The applicant was apparently transferred to the Retired Reserve on an unknown date.

9.  AHRC-STL Orders C-03-607291 reassigned the applicant as a MSG from the Retired Reserve to the USAR Control Group (Reinforcement) effective 14 March 2006.

10.  AHRC-STL Orders C-03-608359 reassigned the applicant as a MSG/E-8 from the USAR Control Group (Reinforcement) to a troop program unit (TPU) effective 23 March 2006.

11.  Effective 2 November 2007 the applicant was assigned to the Retired Reserve, as a MSG.

12.  In her personal statements, the applicant avers that she was subject to sexual and racial discrimination and suffered retaliatory actions as a Whistle Blower.  She states that she submitted an Inspector General action request in 2004 in reference another Soldier who was mobilized and promoted to CSM in spite of having tested positive for drugs and having a bar to reenlistment on record.

13.  An advisory opinion was obtained from the AHRC-STL, DA Promotions section NCOIC.  It was stated that there is no evidence that the applicant was selected for promotion to the rank of SGM.  She had been selected by the 2004 Centralized TPU Command Sergeant Major Selection Board, which is an alternative route to SGM.  There is evidence that she had been assigned to a valid CSM position in 2006; however, the assignment was rescinded.  Therefore, promotion to SGM is not warranted.  The other Soldier had his bar lifted, was allowed to reenlist and was promoted to CSM.  Shortly after this she was advised that due to the other Soldiers retention and promotion the command was over manned and she was to be released from active duty.

14.  A copy of the advisory opinion was forwarded to the applicant.  She responded stating she agreed with the statement that she had been promoted but still questioned why her promotion was rescinded.  She knew that others had been offered positions within a 200-mile radius.  She knows that she was labeled a whistle blower, but cannot or will not name individuals responsible for the loss of her career because she does not have concrete proof.  She will accept her fate as she no longer has the diligence to pursue the injustices in her career.

15.  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 Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states 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 states she was targeted as a whistle blower and faced sexual and racial discrimination.

2.  As noted in the advisory opinion, the applicant was not selected by a Sergeant Major Selection Board but was selected by the 2004 Command Sergeant Major Selection Board.

3.  There are references to her selection for and acceptance of a vacancy as a CSM and that this selection was later rescinded.  However, no orders or official notification of these actions are of record.

4.  The applicant alleges she was subject to racial and sexual discrimination but she does not provide any supporting evidence to these allegations.  She states she submitted an IG investigation, but she did not provide a copy of it for Board consideration.  In addition, in her rebuttal to the advisory opinion she stated she will not name the individuals responsible for the loss of her career.

5.  She contends she was also considered a whistle blower but again states she does not have all of the information to clearly show that retaliatory actions were the result of questioning the improper retention, reenlistment, and promotion of another Soldier.

6.  The record does not contain and the applicant has not provided any evidence that supports her allegations of racial, sexual or whistle blower retaliation or bias in the actions surrounding her assignment to and then the rescission of orders which would have qualified her for promotion to SGM, E-9.

7.  In the absence of evidence to support her contentions, there is no basis on which to grant the relief requested.

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.



      __________X__________
       	     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)                                         AR20090014653



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ABCMR Record of Proceedings (cont)                                         AR20090014653



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