IN THE CASE OF: 

		BOARD DATE:	  12 March 2014

		DOCKET NUMBER:  AR20130008160 


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:

The applicant defers her request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the applicant be promoted to lieutenant colonel (LTC) and to colonel (COL) with entitlement to back pay and allowances
* the Army Board for Correction of Military Records (ABCMR) direct the applicant’s promotion to LTC and COL, subject to action of the President and the Senate
* the ABCMR not direct a special selection board (SSB) 
* a personal appearance with the applicant and at least three witnesses

2.  Counsel submits a 445-page memorandum and other documents in support of the application.  Counsel notes that the memorandum is intended for audiences other than the ABCMR.  Counsel refers to articles by academics, documents from the Military Leadership Diversity Commission (MLDC), documents from other sources, and case law. 

3.  Counsel states the applicant was not selected for promotion because of an assignment to a non-competitive job, a center of mass (COM) rating evaluation, a violation of personnel policy management by the senior rater, racial discrimination, and gender discrimination.  Her promotion should be based on equity.  Although it is difficult to summarize counsel's extensive 445-page argument he provides a 10-page document entitled "Supplement to DD Form 149" which assists in developing the following summary:

	a.  A personnel manager for the Office of The Judge Advocate General (OTJAG) and the gaining Staff Judge Advocate (SJA) (and senior rater) treated the applicant in a manner that fell below appropriate standards for personnel management of an officer or JAG officer with the applicant’s qualifications and prior performance.   

	b.  Due solely to the OTJAG personnel manager's and U.S. Army Forces Command (FORSCOM) SJA deficient management of the applicant's career, she was not selected for promotion to LTC in her one and only lifetime appearance in the primary zone (PZ) for LTC.  With her 70 percent (%) chance of promotion in the PZ ruined, she was banished to a career-long vortex of second-tier jobs and second-tier senior rater assessments.  Not only did the 2% odds of promotion above the zone (AZ) never materialize, but she was foreclosed from promotion to COL because she was ineligible.  She could not rise above the grade of major (MAJ).

	c.  When she was graduating from the prestigious Command and General Staff College (CGSC), she was one of the top senior JAG MAJs in the Army - otherwise she would not have been selected for CGSC.  Her record was impressive.  Three general officer senior raters recommended strongly that she be promoted to LTC.  As a MAJ, she had served flawlessly in an LTC deputy general counsel or deputy SJA (DSJA) position in a major deployment to Bosnia. The applicant states she was not provided an assignment commensurate with other CGSC graduates.  She states that a significant placement objective for CGSC graduates is to assign them to a position in which their leadership skills have the opportunity to be displayed.  She was not assigned to a prestigious position after CGSC on a par with assignments of other graduates of CGSC.  Her family needs were not accommodated in the same manner as other CGSC graduates.  She declined the DSJA position she was offered in Korea because she preferred not to serve in Korea.  The environment and schools would not benefit her daughter, who is a gifted student.  She requested a stateside leadership position.  At that point the Environmental Law Attorney position became open and the Personnel Plans and Training Office (PPTO) ceased looking for a "powerhouse" position for her.  She reluctantly accepted the Environmental Law position at FORSCOM.  

	d.  Her assignment to an "action officer" position in FORSCOM was characterized by a retired COL (from the Army JAGC) as "career assassination." Part of the trigger included converting her Master of Laws Degree in Environmental Law (that she paid for and secured on her own) - a degree the JAG Corps had known about for many years but had never attempted to utilize - into a weapon of career destruction.  Right at the point where she needed a competitive job to secure promotion, the JAGC satisfied the wants of the FORSCOM SJA.  The result was the needless sacrifice of her career, as the FORSCOM JA, in concert with the COL at JAG Assignments, also known as PPTO, secured the lawyer he wanted – the applicant –which he did not need and was not required.  In contrast, her upward career progression was seriously stunted as she was assigned duties as an action officer.

	e.  The JAGC’s errant handling of her career tracks a service-wide phenomenon observed by the MLDC, in its Final Report to the President of the United States and U.S. Congress, from Representation to Inclusion: Diversity Leadership for the 21st Century Military (2011).  The MLDC's report noted that minorities are placed in jobs off the due course path for promotion a disproportionate number of times and excessively.  The report was referring to jobs assigned to minorities during key periods, such as right before consideration for promotion.  In this case, right before promotion consideration, all of her CGSC JAG Detachment peers in the zone for consideration to LTC were assigned the powerhouse jobs traditionally awarded to CGSC graduates.  All were so assigned except one officer – the applicant.  The lack of leadership, management, high-profile assignment, and the work of an LTC in her post–CGSC action officer job, surely must have rendered her file as very conspicuously weak before the promotion board.

	f.  To put this in context, it bears repeating that each and every one of her JA classmates in the Army's JA Detachment received coveted leadership, management and high profile positions, except her.  She was rendered noncompetitive because her job lacked leadership and management - the factors essential for LTCs.  Traditionally, the JAGC awards its top senior MAJ jobs to its CGSC graduates, as "they are groomed for promotion and demonstrate their on-the-job prowess to the promotion board."  But that was not the case for her.  In fact, her job was assigned as though she were not a CGSC graduate.  Unfortunately, her assignment to FORSCOM placed her on a track for career derailment, as the cost of satisfying the staff judge's interests in applying her advanced legal skills to fulfill a job vacancy on his roster.

	g.  Thus, by the time she stepped foot on FORSCOM she faced a situation in which she was required to make a total career sacrifice, as the regulations calling for considerations such as the balancing of the interests of the Army and the officer - and sensitivity to special career events such as consideration for LTC in the primary zone - were dismissed by the JAGC's personnel manager and senior rater.  She states she should be given "equitable credit" for promotion for her past flawless record and her acceptance of a position which was not on a promotable-career track.  It appears that the "in-sync" communications channel between the assignments officer and the FORSCOM SJA trumped all other considerations.  It is called the "Good Old Boy Network," and yielded results inimical to the interests of the black female officer (applicant), diversity in the Army, and national security readiness. 

	h.  If the applicant hoped to stabilize the peculiar and volatile situation, her hopes would be quashed by an avalanche of problematic personnel management practices that spun increasingly out of control.  Among them are the unconventional actions of the senior rater who was primarily responsible for her fate.  That senior rater knowingly secured a CGSC graduate – applicant - about to enter the zone for promotion to LTC, to work for him in the midst of his senior rater profile crisis.  The applicant, who was unaware of that problem at the time she arrived at FORSCOM, would bear yet another burden and pay the price for the senior rater's poor judgment.  Additionally, the senior rater did nothing to enhance the Environmental Law position so it could have approximated a leadership and management essential for promotion to LTC. 

	i.  Next, the FORSCOM SJA rated her as a "COM" or average performer, another exercise in poor judgment by him that adversely harmed her career.  That was the last officer evaluation report (OER) that the promotion board observed regarding her performance and potential.  Under the hand of the FORSCOM SJA, not only was she in a noncompetitive job, but she was rated as an average performer with average potential.  Not only that, but under the FORSCOM SJA's hand, she received an average rating in the very job in which she held a Master of Laws (LLM) Degree in Environmental Law.  Those factors had negative implications before a promotion board.

	j.  Next, although he represented to the JAG LTC's Above the Zone (AZ)  promotion board - a year after her consideration in the PZ - that he did not have space to rate the applicant as an above the center of mass (ACOM) performer, the FORSCOM SJA's explanation was incomplete.  In contrast, the FORSCOM SJA's frank revelations to her after he issued the COM assessment to her revealed a disturbing practice.  The FORSCOM SJA explained that with one ACOM billet left, he issued it to another MAJ, who needed the career assistance because of prior problems on another job that might preclude his promotion.  The FORSCOM SJA decided to play a hand in the destiny of that MAJ.

	k.  That MAJ was white and junior to the applicant, a black female.  The FORSCOM SJA changed the Secretary of the Army's (SA) rating rules by considering factors that occurred in the male MAJ's career prior to his rating by the FORSCOM SJA.  And while he considered the male MAJ's prior service, he gave no credit to the applicant's prior service.  For example: the male MAJ had not been selected to attend CGSC, whereas the applicant was a CGSC graduate.  Nothing indicates the male MAJ had been recommended for promotion to LTC by three general officer senior raters, or performed superbly during a major deployment in a LTC's position.  

	l.  Further, the FORSCOM SJA repeatedly insisted to the applicant that she was a strong candidate for promotion to LTC.  That contention was unreasonable given her position in a noncompetitive job with a COM rating.  In contrast, while placating her into a sense of acceptance of the scheme he orchestrated, the FORSCOM SJA worked diligently to strengthen the record of the male MAJ and make him competitive.

	m.  The effect of the totality of the circumstances is personnel mismanagement, racial discrimination, gender discrimination, and generalized bias against her.  "From the very beginning, the senior rater subscribed to the theory of no burden, cost or sacrifice are too great for an assignment to FORSCOM if the senior rater's position vacancy is filled; and, applied that outdated management concept to her."  Likewise, the senior rater was not concerned that the activation of her LLM would derail her from the standard CGSC graduate's position; was indifferent to the fact that she was approaching the LTC PZ; was indifferent to the fact that her assignment to a noncompetitive job at FORSCOM lacked in leadership and management; was not concerned that his senior rater profile crisis would adversely impact on her career; declined to strengthen her weak job; refused to secure an alternative senior rater with cap room for an above center of mass (ACOM), if she earned it; refused to provide her with straight talk about his careening mismanagement of her career; and declined to explain to the promotion board, in 2004, when she was in the PZ, why and how she had the noncompetitive job, and why she had a COM rating with a civilian LLM in the field of her job.  The coup de grace is the senior rater's persistent and unreasonable claim that she would be promoted with a noncompetitive job and a COM or average rating.  Realism in evaluation of the facts yields the conclusion that the senior rater stated, believed, inferred or gave the public the impression that a black female can be an average performer in a substandard job and still be promoted to LTC because of affirmative action generated by the need for senior black female leaders.  As a result, based on the fictitious assertion that a senior black female MAJ would be "taken care of'' and promoted even with an average record - instead of an outstanding record - the FORSCOM SJA appears to have treated the applicant differently on the premise that because she was a black woman she could afford to step back.  The applicant stepped back when she was assigned to a noncompetitive job - the only one in her CGSC JAG Detachment - as she faced the competitive promotion board for LTC.  She stepped back when her job was not strengthened in the face of an impending promotion board.  She stepped back when she was not placed under the supervision of a senior rater who did not have a senior rater profile crisis - as the promotion board loomed.  She stepped back when, after being recruited by the FORSCOM SJA, he issued her a COM senior rating profile - as though she had not graduated from CGSC or was about to face the promotion board.  She stepped back when the FORSCOM SJA informed the promotion board that although she had an advanced degree and applied it directly in the job to which she was assigned, she could only muster an average performer.  She stepped back when the FORSCOM SJA refused to explain to the promotion board why she had a noncompetitive job and an average rating. 

	n.  Yet, he insisted  that she would be promoted despite his maltreatment of her.  He singled her out as a black woman, placed her in a disadvantaged position so he extracted her skills to his advantage regarding the environmental position.  But the FORSCOM SJA had no reward for her.  Next, he wanted to help a white, male MAJ whom he believed needed an ACOM.  Without compunction, the FORSCOM SJA awarded that last ACOM to the male MAJ with whom he had a connection.  The FORSCOM SJA informed her she would be promoted.  Connecting the dots, the FORSCOM SJA relied upon the promotion process to overlook the deficiencies in her file and promote her because of the need for senior black females.  The FORSCOM SJA sanctioned her because she was a black female; he placed her in disadvantaged positions to achieve some other objective (have his environmental law work performed and using her as fodder for awarding his favored white, male MAJ the ACOM). 

	o.  Surely under this record there can be no serious claim that the FORSCOM SJA mentored her and displayed reasonable care for the development of her career.  To the contrary, the FORSCOM SJA treated her as though she were an oppressed character in a Grimm's fairy tale.  Under the public perception test alone, the Secretary of the Army (SA), Assistant SA, Deputy Assistant SA, and ABCMR should be in agreement that the best interests of personnel management warrant the conclusion that the totality of the circumstances in this case reveals a pattern that reflects intolerable actual, implied, or apparent racial and gender discrimination.  In the modern Army, there is absolutely no room for the FORSCOM SJA’s conduct.  That is the case whether his actions were deliberate or inadvertent.  The modern Army requires sensitivity to diversity and public perception in personnel matters.

	p.  The record compiled by the JAGC and its FORSCOM SJA in this case is mired in unacceptable inequity.  If all of the officers in the JAGC or Army were treated in the manner in which the applicant was subjected, it would probably be regarded as management's breach of faith with the covenant of fair dealing with the officer corps and an impediment to national security that could alarm the Commander-in-Chief, Congress, and public.  Whether the conduct of the JAGC and especially the FORSCOM SJA affects 50,000 officers or 1, the principles are the same - principled and fair personnel management is undermined.  The applicant should be promoted to LTC and COL. 

4.  Counsel provides:

* An extensive memorandum of argument (445 pages - attached)
* A supplemental brief to the application (DD Form 149)
* Photograph of the applicant
* Table of Content consisting of 21 Parts 
* Table of Authorities (statutory, regulatory, and other references)
* Multiple award orders and certificates
* Multiple Officer Evaluation Reports (OER) from 1993 to 2012
* Multiple DA Forms 1059 (Service School Academic Evaluation Report) from 1986 to 2001
* Previous appeal of an OER and denial of appeal

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 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.  Having had prior enlisted service in the Army National Guard and commissioned officer service in the U.S. Army Reserve, the applicant was appointed as a Reserve commissioned officer of the Army in the rank of first lieutenant end entered active duty on 8 September 1992.  She completed the JAG Officer Basic Course.  

3.  She served in a variety of stateside or overseas assignments and she was promoted to captain on 1 April 1993.  She was awarded an LLM - Master of Laws with a major in Environmental Law in January 1998. 

4.  She was promoted to MAJ on 1 August 2000 and she also executed an oath of office as a Regular Army commissioned officer on that date.  She completed the JA Officer Graduate Course on 24 May 2001 and CGSC on 5 April 2002.  After completing CGSC she was offered the position of Deputy Staff Judge Advocate in Korea.  She declined this position.  She states in her application that she declined because she felt it was not in the best interest of her child, either educationally or socially.  Subsequently, she was assigned as an Environmental Law Attorney at FORSCOM.  

5.  Her assignments - as a MAJ - included the following, most recent first:

* Chief, Administrative Law, Fort Bragg, NC
* Chief, Military Justice, Fort Gillem, GA
* Deputy Staff Judge Advocate, Fort Detrick, MD
* Environmental Law Attorney, Fort McNair, Washington DC
* Officer in Charge, Legal Center, Germany
* Deputy Legal Advisor, Sarajevo, Former Republic of Yugoslavia
* Senior Defense Counsel, Fort Benning, GA

6.  Her OERs as a MAJ show the following ratings:

* 20110501-20120430, Chief, Administrative Law		COM
* 20100501-20110430, Chief, Military Justice				ACOM
* 20090501-20100430, Chief, Military Justice				COM
* 20080501-20090430, Chief, Military Justice				COM
* 20070501-20080430, Deputy Staff Judge Advocate	COM
* 20060501-20070430, Deputy Staff Judge Advocate	COM
* 20050619-20060430, Environmental Law Attorney		COM
* 20040619-20050618, Environmental Law Attorney		COM
* 20030507-20040618, No OER on file
* 20020507-20030506, Command Judge Advocate		COM
* 20011117-20020506, Deputy Legal Advisor				ACOM
* 20010525-20011116, Deputy Legal Advisor				COM

7.  Based on her date of rank (DOR) to MAJ (1 August 2000), she could or would have been considered for promotion to LTC in the PZ or AZ by the following boards:

* Fiscal Year (FY) 2005 LTC JAG Corps Competitive Category, September 2005, AZ DOR 15 July 2000 and earlier; PZ DOR 16 July 2000 through
15 June 2001
* FY 2006 LTC JAG Corps Promotion Selection Board, September 2006, AZ DOR 15 June 2001 and earlier; PZ DOR 16 June 2001 through 31 May 2002
* FY 2007 LTC JAG Corps Promotion Selection Board, August 2007, AZ DOR 31 May 2002 and earlier; PZ DOR 1 June 2002 through 31 May 2003
* FY 2008 LTC JAG Corps Promotion Selection Board, August 2008, AZ DOR 31 May 2003 and earlier; PZ DOR 1 June 2003 through 16 July 2004
* FY 2009 LTC JAG Corps Promotion Selection Board, August 2009, AZ DOR 16 July 2004 and earlier; PZ DOR 17 July 2004 through 15 July 2005
* FY 2010 LTC JAG Corps Promotion Selection Board, April 2010, AZ DOR 15 July 2005 and earlier; PZ DOR 16 July 2005 through 1 May 2006
* FY 2011 LTC JAG Corps Promotion Selection Board, August 2011, AZ DOR 1 May 2006 and earlier, PZ DOR 2 May 2006 through 20 September 2006

8.  On 28 August 2010, by letter, the Director of Officer Personnel Management notified the applicant that she was considered for promotion to LTC by the FY 2010 LTC JAG Corps Promotion Selection Board but she was not selected for promotion.  However, she was selected for a 3-year selective continuation on active duty until the end of the month she completed 24 years of active service, the maximum allowed for her grade.  She accepted selective continuation. 

9.  She retired on 31 December 2012 and she was placed on the Retired List in her retired grade of MAJ on 1 January 2013.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was credited with 21 years, 2 months, and 26 days of creditable active service, of which 2 years, 1 month, and 17 days was foreign service.  She was awarded or authorized the:

* Meritorious Service Medal (4th Award)
* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* National Defense Service Medal (2nd Award)
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Army Reserve Component Training Ribbon

10.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.

	a.  Promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the SA.  For centralized promotions, eligibility is based on an officer’s active date of rank (ADOR) and time in grade (TIG).  Promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports.  Promotions to the grade of major and above must be confirmed by the Senate in accordance with Title 10, U.S. Code (USC), section 624c.

	b.  An officer on the ADL who has failed to be selected for promotion to LTC a second time will be subject to one of the following: (1) Discharged or released from active duty; (2) Retired under any provision of law, if eligible, on the date requested by the officer and approved by proper authority (retirement will be not later than the first day of the seventh month beginning after the month in which the President or the President’s designee approves the report of the board that considered the officer the second time); (3) Retained on active duty (if a commissioned officer) until qualified for retirement if, on the date the officer would otherwise have been discharged, he or she is within 2 years of qualifying for retirement under 10 USC 1293, 3911; (4) Retained on active duty (if a WO) until qualified for retirement if he or she is within 2 years of qualifying for retirement on the date the SA approves the board report; or (5) Selectively continued under provisions of paragraph 1–14 of this regulation.

	c.  The SA will provide guidance and instructions in a Memorandum of Instructions (MOI) to the board.  The SA or his or her designee may modify, with draw, or supplement the MOI before the board adjourns; however, once the board has convened, the maximum number of officers to be selected may not be increased without the written permission of the Office of the Secretary of Defense. 

	d.  Promotion selection boards will (1) Base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI and (2) Keep confidential their reasons for recommending or not recommending any officer considered.  For commissioned officers, use one of the following methods of selection as directed by the MOI:

		(1)  The "Fully Qualified" method when the maximum number of officers to be selected, as established by the Secretary, equals the number of officers above, in, and below the promotion zone.  Although the law requires that officers recommended for promotion be "Best Qualified" for promotion when the number to be recommended equals the number to be considered, an officer who is fully qualified for promotion is also best qualified for promotion.  Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade.  The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill.

		(2)  The "Best Qualified" method when the board must recommend fewer than the total number of officers to be considered for promotion.  However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion.  As specified in the MOI for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion.

	e.  SSBs are convened to consider commissioned officers for promotion when Headquarters, Department of the Army discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

	f.  An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the officer, exercising reasonable diligence, could have discovered and corrected the error in his/her official records.  An officer will also not be considered or reconsidered for promotion by a SSB when letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the record.

11.  Army Pamphlet 600-3 (Commissioned Officer Professional Development) focuses on development and career management for all Army officers.  Chapter 39, Judge Advocate General’s Corps, paragraph 39-3a states:

Officer Development Model.  The Judge Advocate Development Model is focused more on the quality and range of experience, rather than the specific gates or assignments required to progress.

12.  The Pamphlet states all assignments are made in the best interests of the Army.  Figure 39-1, Active Army Judge Advocate Development Model, indicates that a senior MAJ or LTC may fill a "Specialized Assignment."  MAJs may be assigned as an "Action Officer” at a Combatant Command, Joint Command or OTJAG.  

13.  JAG Publication 1-1 (Personnel Policies) contains personnel policies for JAGC officers.  Paragraph 5-1 f states:

No assignment in the JAGC is a prerequisite for either future assignments or future promotion.  Sustained superior performance in a variety of assignments that develop and display each officer’s skills as an attorney, manager, and leader are the guarantors of success.

14.  JAG Publication 1-1, paragraph 5-2, states TJAG assigns all SJAs and has final authority over all JAGC assignments.  SJAs and other heads of legal offices participate fully in the assignment process.  They identify needs, explain the assignment process to their subordinates, provide career advice, make recommendations about assignments, and tailor JAs’ duties according to their stage of professional development.  The most critical link in the personnel management process is the individual officer.  Each officer is ultimately responsible for his or her own career.  All officers have the right to communicate directly with the appropriate Assignments Officer in PPTO.  Paragraph 5-3 describes an extensive process used to make JAG assignments.  Assignments are presented to a steering committee for discussion and evaluation.  After a review and discussion the proposed assignments are presented to TJAG.  TJAG then makes final decision on all field grade JA assignments.   

15.  Army Regulation 623-105, (OER Reporting System), chapter 6 (OER Redress Program) at paragraph 6-10g states: 

Accordingly, a subsequent statement from a rating official that he or she rendered an inaccurate "COM" or lower evaluation of a rated officer’s potential in order to preserve "ACOM" ratings for other officers (e.g. those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal. 

16.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states 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.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant should be promoted to LTC and COL.  Her application is premised on the Army’s alleged failure to provide her with a "prestigious" or "powerhouse" position following CGSC.  Counsel states she was not provided an assignment commensurate with her CGSC peers.  This position would have set her up for promotion to LTC.  CGSC graduates were being groomed for promotion and her CGSC follow-on assignment was not consistent with her career path for promotion.  Counsel alleges this treatment was the result of racial and gender discrimination and bias.  Counsel states a COL in the assignments section in OTJAG and the FORSCOM SJA acted with improper motives of racial and gender discrimination on her assignment and OERs post CGSC.  Failure to promote an African-American female with her qualifications does not meet the public perception test.

2.  Although counsel raises the issues of racial discrimination, gender discrimination, and generalized bias, counsel fails to provide sufficient evidence of such issues.  He provides a lengthy memorandum which makes numerous allegations.  He also requests that the Board draw inferences from various documents.  The Army has programs in place to address such issues.  For example, counsel does not produce a formal Equal Opportunity finding that substantiated the alleged contention or an Inspector General finding of bias. 

3.  Counsel submits an extensive argument that raises several issues including OERs, senior rater profile, personnel management decisions, overall promotion system.  Applicant states the central issue of her argument is "Equity." 

4.  Counsel asserts that the applicant’s assignment to the Environmental Law Attorney position at FORSCOM was an off "due-course" assignment.  She relies on the MLDC Final Report.  The MLDC Final Report recommended:

The Services shall ensure that promotion board precepts provide guidance regarding Service-directed special assignments outside normal career paths and/or field.  As appropriate, senior rater evaluations shall acknowledge when a service member has deviated from the due-course path at the specific request of his or her leadership.  

The MLDC Final Report stated "there is some indication" that officers who are members of demographically underrepresented groups are disproportionally diverted from their due-course career paths to fill recruiting and EO assignments, thus making them less competitive for promotions.  It is noted here the applicant remained in her career field when she was assigned to the Environmental Law Attorney position at FORSCOM.  
5.  Army Pamphlet 600-3, chapter 39, Judge Advocate General’s Corps, paragraph 39-3a states:

Officer Development Model.  The Judge Advocate Development Model is focused more on the quality and range of experience, rather than the specific gates or assignments required to progress.

6.  It states all assignments are made in the best interests of the Army.  Figure 39-1, Active Army Judge Advocate Development Model, indicates that a senior MAJ or LTC may fill a "Specialized Assignment."  MAJs may be assigned as an "Action Officer” at a Combatant Command, Joint Command or OTJAG.  The applicant characterizes the Environmental Law Attorney position as an "Action Officer" position.  

7.  The applicant declined a post-CGSC DSJA position.  A DSJA position is one of the named "powerhouse" positions counsel states is due CGSC graduates and the applicant should have received one.  She requested a stateside assignment for the benefit of her daughter.  The JAGC accommodated her request and she was assigned to a FORSCOM Environmental Attorney Position at Fort McPherson, GA.  Counsel states she reluctantly accepted this position.  It is noted that this assignment action took place almost 10 years ago and the evidence regarding the applicant’s discussions with PP&TO, her assignment, available assignments, and the assignments of her peers may no longer be readily available.  Counsel claims the Army did not balance leadership and diversity criteria in assigning the applicant to FORSCOM but provides insufficient evidence to support this assertion.  

8.  As the name indicates, the senior rater profile belongs to the senior rater:

	a.  The senior rater makes an assessment of the rated officer’s potential in comparison with all officers of the same grade.  This assessment is based on officers the senior rater has senior rated or were currently in his/her senior rater population.  Senior rater profiles are composites of internal evaluations privileged from public release in order to maintain open and honest recommendations/ ratings and not only to protect the senior rater from unwarranted invasion of his or her privacy, but also to protect the privacy of other individuals populated in the senior rater profile.  In any case, the senior rater is under no obligation to senior rate any of the total officers populated in his profile as ACOM.

	b.  Again, the Army has a redress system in place to address appeals of OERs.  It appears that aside from her dissatisfaction and her disbelief that someone of her caliber would receive a COM rating, neither the applicant nor her counsel provide sufficient evidence to show that her non-selection for promotion was based on a single OER that was not a referred OER.  In any case, selection boards use the "whole file concept" when making promotion recommendations.  

	c.  Board members do not put undue focus on any one item.  Selection board members review all evaluation reports, a record of the officer's training history, civilian and military education and other critical elements, the photograph, and awards and decorations.  When looking at an OER, members review the entire document.  Selections are made against standing and selected Army requirements.  A single document - such as the profiled check box - within the totality of the file is not normally the deciding factor in the selection board decision. 

9.  Her senior rater, on the OER ending 18 June 2005, provided a statement dated 9 August 2006 which was apparently provided to the 2006 promotion board.  He stated that during the 4 years he served at FORSCOM he rated five MAJs carefully balancing COM ratings and ACOM ratings to help ensure the promotion of deserving officers.  The senior rater endorsed her for promotion to LTC.  He did not state that the report or rating was inaccurate. 

10.  Counsel alleges that this senior rater’s request for an environmental attorney at FORSCOM, and the applicant’s subsequent assignment to FORSCOM, was the product of racial and gender discrimination.  Counsel labels the communication between the FORSCOM SJA and OTJAG personnel or "COL to COL contact" as an "unauthorized and unfair exclusionary decision-marking network (or ‘good old boy network’)."  Because no minorities or women were involved in this communication, the white male decision-makers "qualified as a traditional exclusory process of interest to and addressed in the literature."  Counsel asserts that this is an "unauthorized and unfair exclusory decision-marking networks or ‘good old boy’ network befitting all white males."  However, neither the applicant nor counsel was an invitee or participant in those networks. 

11.  JAG Publication 1-1, (Personnel Policies), dated 15 October 2011, contains personnel policies for JAGC.  Paragraph 5-1 f states:

No assignment in the JAGC is a prerequisite for either future assignments or future promotion. Sustained superior performance in a variety of assignments that develop and display each officer’s skills as an attorney, manager, and leader are the guarantors of success.

12.  JAG Publication 1-1, paragraph 5-2, states TJAG assigns all SJAs and has final authority over all JAGC assignments.  SJAs and other heads of legal offices participate fully in the assignment process.  They identify needs, explain the assignment process to their subordinates, provide career advice, make recommendations about assignments, and tailor JA duties according to their stage of professional development.  The most critical link in the personnel management process is the individual officer.  Each officer is ultimately responsible for his or her own career. All officers have the right to communicate directly with the appropriate Assignments Officer in PPTO.  Paragraph 5-3 describes an extensive process used to make JAG assignments.  Assignments are presented to a steering committee for discussion and evaluation.  After a review and discussion the proposed assignments are presented to TJAG.  TJAG then makes final decision on all field grade JA assignments.   

13.  As stated in the synopsis of JAGC Publication 1-1 above, it was the FORSCOM SJA's duty to identify needs to PPTO.  Furthermore, the applicant stated in her Declaration she was discussing her post-CGSC assignment with the PPTO.  She stated she requested the DSJA position at Ft Rucker, AL.  The assignment officer at PPTO informed her that another MAJ who had recently deployed was scheduled for that position.  PPTO asked if she was interested in a position in Korea.  The Declaration indicated it was a DSJA position which was at her requested leadership level.  After she researched Korea she did not feel the assignment would be beneficial to the educational and social needs of her gifted daughter.  She also discussed the FORSCOM assignment which she stated she accepted "for the good of the Corps and the Army as there was a need for an environmental lawyer at FORSCOM."  She also stated she felt that the JAG Corps would be displeased if she made waves.  Despite her statement in the Declaration, counsel spends a significant portion of his legal brief stating that an LLM is not required to practice environmental law and that FORSCOM did not have a need for an environmental lawyer with an LLM.  Counsel only provides assertion and allegation to support the argument that FORSCOM did not need an environmental attorney with an LLM.  The applicant requested a stateside assignment because she did not want to go to Korea and she was accommodated.   

14.  Counsel alleges that the senior rater’s failure to provide the applicant with an ACOM was a product of racial and gender discrimination.  He states that the provision of an ACOM to a junior white male, with alleged past performance issues, is evidence of the senior rater’s illegal motivation.  The applicant provides a Declaration recounting her version of the conversation with the senior rater where he told her that he provided an ACOM to the junior MAJ.  The record does not contain the senior rater’s version of the conversation.  However, the senior rater in question provided a statement in August 2006 indicating he carefully balanced the COM and ACOM ratings.  He stated he would have rated the applicant above center of mass if the block was available in his profile.  The senior rater did not repudiate the OER or state it was in error. 

15.  The applicant asserts that the senior rater’s comments to the FY 2006 promotion Board are admissible and allowable factors in evaluating the accuracy of the senior rater’s refusal to issue the applicant the ACOM she deserved.  Applicant states there is no regulatory bar to consideration and application of the senior rater's comments to the promotion board a year after applicant was non-selected in the primary zone for LTC.  Applicant states that the senior rater’s comments to the FY 2006 Board effectively repudiated the COM he issued the applicant and tacitly admitted she deserved an ACOM.  As stated above the senior rater did not repudiate the OER he provided. 

16.  Army Regulation 623-105 at paragraph 6-10g states: 

Accordingly, a subsequent statement from a rating official that he or she rendered an inaccurate "COM" or lower evaluation of a rated officer’s potential in order to preserve "ACOM" ratings for other officers (e.g. those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal. 

17.  Despite counsel’s characterization of the senior rater’s 2006 statement as a repudiation of the OER, the senior rater did not state he rendered an inaccurate COM evaluation for applicant. 

18.  As for promotion, each board considers all officers eligible for promotion consideration, but it may only select a number within established selection constraints.  The SA, in his MOI, establishes limits on the number of officers to be selected.  The selection process is an extremely competitive process based on the "whole officer" concept.  It is an unavoidable fact that some officers considered for promotion will not be selected.  There are always more outstanding officers who are fully qualified to perform duty at the next higher grade, but who are not selected because of selection capability restrictions.

	a.  It is unfortunate that the applicant was not selected for promotion to LTC while she was on active duty; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.  

	b.  It is a well-known fact that promotion boards do not reveal the basis for selection or non-selection.  This means the statement by counsel "Those factors had negative implications before a promotion board" are speculative at best.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant it must be presumed that what the board did was correct.  Since promotion selection boards are not authorized by law to divulge the reasons for selection or non-selection of any officer, specific reasons for the promotion board's recommendations are not known. 

	c.  A non-selected officer can only conclude that a promotion selection board determined that his or her overall record, when compared with the records of contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion.

19.  Counsel asserts the applicant should be promoted based on equitable and social justice considerations.  

	a.  Commissioned officers of the Army are not selected for promotion based on equity.  The Army promotion system is based on performance, merit, and potential.  

	b.  The undeniable facts of the applicant's case are that the Army established competitive categories, as required, to manage, in relation to the requirements of the officer category concerned, the career development and promotion of certain groups of officers whose specialized education, training, or experience, and often relatively narrow utilization, make separate career management desirable; that the selection boards were conducted in compliance with applicable statutes and directives; and that these boards provided careful consideration for all officers eligible for promotion - including the applicant - without prejudice or partiality, and ensured the applicant had an opportunity to review her promotion file and communicate with the President of each board. 

20.  Counsel insists the applicant "deserved" an ACOM rating for her first rating at FORSCOM.  Only provides a very minimal description of her accomplishments at FORSCOM is provided.  Counsel primarily bases his argument on her accomplishments and "flawless performance" in previous assignments and the fact she was selected for and completed CGSC in residence at Fort Leavenworth.  The descriptions of her accomplishments at FORSCOM are extremely general.  The OER with ending date 18 June 2005 indicates she performed well in an important position.  However, the OER and her assertions regarding her performance and less than complimentary assertions regarding the senior rater and PPTO personnel are insufficient to support changing the COM to an ACOM.   

21.  The applicant was simply not selected for promotion.  After a comprehensive review of the evidence in the her official record, her contentions and arguments, and the evidence submitted by counsel in support of her application, other than her dissatisfaction, the applicant failed to show, by a preponderance of the evidence, that her non-selection for promotion was a result of material error, inaccuracy, injustice, and/or inequity.

22.  Counsel's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and the substantial argument provided by counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

23.  Applicant completed over 21 years of faithful and honorable service and was honorably retired in 2012.  The Board wishes to extend its thanks for the applicant’s service to our nation.  

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)                                         AR20130008160





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ABCMR Record of Proceedings (cont)                                         AR20130008160



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