BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130015618 


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 reconsideration of her previous application for promotion under the Fiscal Year (FY05) 2005 Master Sergeant (MSG) Promotion Selection Board (PSB) criteria and resolution of racial and gender discrimination issues surrounding the promotion list.

2.  She states:

	a.  Her attorney reviewed her previous case and determined the Board failed to consider all the facts regarding failure to promote her to MSG based on the FY05 promotion roster due to racial and gender discrimination.  She states she is not concerned with promotion rosters for other periods.  In the Record of Proceedings for her previous case, paragraph 2 of the Discussion and Conclusions states the "evidence of record contains no documents related to the applicant's various complaints of racial and gender bias."  This is the same verbiage used by every other organization she went to for assistance and is an attempt to keep discrimination quiet in the Army, just like sexual harassment.

	b.  A memorandum for record (MFR) signed by the current Chairman of the Joint Chiefs of Staff in 2005 validates and gives merit to her complaint.  It was again discarded or overlooked because everyone wants to protect his career and not get him involved in discrimination issues.  Before General (GEN) D____ signed the memorandum, she had contacted his office for assistance twice in 2003-2004 because of the open injustice, narrow-mindedness, discriminatory acts, sexism, unfairness, and prejudice she continued to experience at the hands of her senior leadership and chain of command in the maintenance field with the 1st Armored Division in Baumholder, Germany.

	c.  She received the FY05 promotion roster in question from her first sergeant (1SG), who received it from the Command Sergeant Major (CSM), Division Support Command, 1st Armored Division.  The roster clearly shows she was promoted to MSG with a sequence number of 6.  Regarding the claim that the U.S. Army Human Resources Command (HRC) does not have records to prove that, it appears that one, if not all, of the personnel in her chain of command (whom GEN D____ had contacted before counseling them in writing) changed an official promotion roster, which is illegal.  Discrimination does not begin to describe the superior, obnoxious, and dangerous behavior of the poor senior leadership she and many other Soldiers had to deal with.  If she had been an officer instead of a Native American/African American female noncommissioned officer (NCO), this would never have happened.

	d.  She questions why GEN D____ would counsel a colonel (COL), a lieutenant colonel (LTC), a captain (CPT), two CSM's, and a 1SG, and sign an Equal Opportunity (EO) Complaint Reprisal Plan for unlawful race, color, and gender discrimination if there weren't any evidence of discrimination.  She asks the Board to reconsider this important information that was overlooked and recognize the malicious intent surrounding the promotion roster, the hatred and discriminatory actions of her senior leadership, and the abuse she suffered at their hands.  She should not be held responsible for their actions or penalized any longer.  She knows with certainty that if she had been treated equally and fairly and had been given the opportunity to perform duty as a senior NCO like her comrades, not only would she have been promoted to MSG, but she also would have been selected for promotion to sergeant major (SGM) or CSM like them.

3.  She provides:

* MFR from the Commanding General, 1st Armored Division, dated 20 July 2005, subject:  EO Complaint Reprisal Plan, with an attached signature page
* FY05 MSG Selection Board Results

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120015744 on 14 March 2013.
2.  The applicant served in the Regular Army from 17 January 1984 to 31 May 2010.  On 1 June 2010, she was placed on the Retired List in the rank/pay grade of sergeant first class (SFC)/E-7.

3.  U.S. Total Army Personnel Command (now known as HRC) Order Number 282-24, dated 9 October 1998, promoted her to SFC effective 1 November 1998.  The orders stated that staff sergeants promoted to SFC who did not have credit for the Advanced NCO Course (ANCOC) were promoted conditionally.  Soldiers receiving a conditional promotion would have their orders revoked and their names removed from the promotion list if they failed to meet their NCO Education System requirement.

4.  A memorandum from the Chief, Enlisted Promotions, Promotions Branch, HRC, dated 27 March 2000, subject:  Administrative Removal from the Promotion Selection List, shows HRC notified her she had been administratively removed from the SFC selection list based on her failure to complete ANCOC due to her failure to meet the standards of Army Regulation 600-9 (Army Weight Control Program).

5.  Her records show she was again promoted to SFC effective 20 July 2001 after she completed ANCOC.

6.  On 3 June 2008, she was reconsidered for promotion to MSG by the Department of the Army Enlisted Standby Advisory Board (STAB).  She was not recommended for promotion under the criteria for the FY08 MSG PSB.  In support of her previous application, she provided an e-mail from HRC, dated 1 February 2012, stating HRC records showed she had been considered but not selected for promotion to MSG by the 2004, 2005, 2006, and 2007 MSG PSB's.

7.  On 2 October 2011, she was voluntarily recalled to active duty from her retired status for a period of 365 days and assigned to HRC.  On 1 October 2012, she was honorably released from active duty and returned to the Retired List.

8.  Her Army Military Human Resource Record (formerly called the Official Military Personnel File (OMPF)) is void of any documentation regarding her EO complaints.

9.  In support of her previous application, she provided several statements regarding her complaints and documents related to outcomes of various investigations by several different Army agencies, including command and Department of the Army Headquarters (HQDA) Inspector General (IG) offices, command and HQDA EO offices, and local commanders.  It appears that only 
one complaint resulted in any form of action.  A letter from the Task Force Eagle IG, Bosnia-Herzegovina, dated 10 May 1997, indicates the applicant complained about inappropriate behavior/actions by her supervisor and that appropriate action had been taken to rectify the situation and prevent it from recurring.

10.  In support of her previous application, she also provided the following documents:

	a.  A memorandum from the Personnel Processing Branch, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, to the Commander, HRC, dated 14 August 2008, subject:  Request for Issuance of Promotion Orders Pertaining to (Applicant), shows a request for orders promoting the applicant to MSG was submitted.  The request was based on the applicant's selection for promotion to MSG with a sequence number of 6 on the FY05 MSG Promotion Selection List.  The memorandum stated she had not been promoted due to an erroneous flag.  The FY05 MSG Selection Board Results attached to the memorandum show her name listed with sequence number 6 and unit processing code (UPC) "DQWA2."

	b.  An e-mail from the HQDA EO Policy Chief, dated 29 August 2008, shows he contacted the applicant regarding an e-mail she had forwarded to the Office of the Secretary of Defense in which she alleged discrimination.  The EO Policy Chief stated:

* he was enclosing evidence showing her name was on the FY05 preposition list for promotion, but not on the FY05 promotion list
* another Soldier's name appeared on the preposition list with a sequence number of 6
* the preposition list identified her with the UPC for the 101st Personnel Service Company (at Fort Campbell, KY), but she was in Germany during FY05
* the evidence showed her name appeared on the preposition list linked to the data for the other Soldier
* he consulted with the HRC Enlisted Promotions Branch and that office confirmed the promotion list submitted by the applicant was erroneous
* he provided enclosures showing the applicant had been considered but not selected for promotion
* in view of the facts, there was no conspiracy by the HRC Enlisted Promotions Branch to prevent her from being promoted

11.  In support of her current application she provided an MFR from the Commanding General, 1st Armored Division, dated 20 July 2005, subject:  EO Complaint Reprisal Plan, with an attached signature page.  The MFR is signed by Major General (now GEN) D____.  The MFR described a reprisal plan for a formal unlawful race, color, and gender discrimination complaint filed by the applicant.  The MFR provided a definition of reprisal, identified actions that could be construed as retaliation, directed readers to the rules of retaliation listed in Department of Defense Directive 7050.6 (Military Whistleblower Protection), and directed individuals listed in the reprisal plan to report to the 1st Armored Division IG or EO office immediately if he or she felt reprised against.  A list of six individuals counseled on the reprisal plan was attached to the MFR.  These individuals included a COL, an LTC, a CPT, two CSM's, and a 1SG.

12.  Training Circular 26-6 (Commander's EO Handbook) describes the procedures commanders will follow in processing EO complaints.  It states the commander will establish and implement a plan to protect the complainant, any named witnesses, and the alleged subject from acts of reprisal.

	a.  The plan will include, as a minimum, specified meetings and discussions with the complainant, alleged subject, named witnesses, selected members of the chain of command and coworkers.  Content of the discussions will also include:

* definition of reprisal and the Army's policy prohibiting reprisal
* complainant's rights and extent of the Whistleblower Protection Act
* encouragement to all the aforementioned individuals to report incidents and/or threats of reprisal
* procedures to report acts and/or threats of reprisal
* consequences of reprisal and possible sanctions against violators
* reminder of the roles and responsibilities of the leadership in the prevention of reprisal and protection of all parties involved
* command's commitment for a thorough, expeditious and unbiased investigation

	b.  To prevent the plan from becoming an administrative burden, the plan need only consist of a one-page list (in bullet format) of actions to be accomplished.  The commander shall annotate the names of the personnel addressed and initial and date the actions as they are completed.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

	a.  Chapter 4 (Centralized Promotions – SFC, MSG, and SGM), section IV (Task:  Processing Request for STAB Consideration), paragraph 4-13 (Rules), shows that STAB's are convened to consider records of those Soldiers whose records were not properly constituted due to material error when reviewed by the regular board.

	b.  Paragraph 4-13f provides that reconsideration normally will be granted when one or more specified conditions existed in the Soldier's OMPF at the time it was reviewed by a PSB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she was not promoted under the FY05 MSG PSB criteria because a promotion roster bearing her name was altered as an act of retaliation against her.  The available evidence, however, shows the HQDA EO Policy Chief reviewed her case in 2008 and, after consulting with HRC, found that the promotion list she had provided was erroneous.  The EO Policy Chief found no evidence of a conspiracy to prevent her from being promoted.  While it is clear that she does not accept the explanation she was given in 2008, she has provided no documentary evidence that would refute that explanation.

2.  She contends that the MFR she provided indicates there was evidence of discrimination.  To the contrary, the MFR is a standard document prepared in preparation for investigating an EO complaint.  It does not indicate whether discrimination actually occurred.

3.  As noted in the previous consideration of her case, it is clear the applicant believes she has been discriminated against based on her race and gender.  A thorough review of her records and the documentation she provided failed to reveal any evidence of proven discrimination that impacted her consideration for promotion to MSG.  Her contentions have been reviewed at the highest levels and it appears that none of those contentions have been substantiated.

4.  In view of the foregoing, there is an insufficient basis upon which to grant the requested relief.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120015744, dated 14 March 2013.



      ___________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)                                         AR20130015618



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ABCMR Record of Proceedings (cont)                                         AR20130015618



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