MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 November 1998                  
	DOCKET NUMBER:   AC98-09984

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

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick 		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That her records be corrected to show that she was promoted to 1st lieutenant and (since she has been separated from active duty since she submitted her application) that she be reinstated to active duty.

APPLICANT STATES:  That she was not counseled by her commander when he recommended that she not be promoted; that she had just transferred branches; and that she had not received due process in her Equal Opportunity investigation.

EVIDENCE OF RECORD:  The applicant's military records show:

She was commissioned as a second lieutenant, Regular Army, on 26 July 1996.

On 27 April 1998 she was notified that she had been passed over for promotion to first lieutenant and would be separated.

On the same day she submitted a statement to the promotion authority.  In that statement she said that “ . . . I made many mistakes.  If you are looking at my file, or have already looked at my file you will see this fact is true” and “ . . .I admit that I started out very shaky and that it looked as if I did not have enough potential to make it as an officer.”  She also outlines how she failed a critical test twice.

On 30 April 1998 she submitted a rebuttal to her failure to be promoted.  In that rebuttal she questions whether various documents in her file were considered, she states that she had been led to believe that she was going to be promoted, and that although she had signed counseling statements on her performance, she never had access to her entire military file.

On 2 July 1998 the applicant submitted a third rebuttal to her failure to be selected for promotion.  In that rebuttal she charged that she was never counseled regarding her commander’s recommendation that she not be promoted.

On 1 August 1998 she submitted an appeal to an Equal Opportunity (EO) investigation’s findings.  In that appeal she charged that the investigation was not conducted in accordance with regulatory requirements and that key individuals were not interviewed.  She charged that her commander treated her differently than he treated other second lieutenants in the command, that she was “singled out.”  She related how he would try to publicly humiliate her and give her written counseling statements for the same mistakes for which her counterparts would receive verbal warnings.  She stated that her commander “ . . . may have treated the other Lieutenants with hard discipline, but he treated me with disrespect.”

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Total Army Personnel Command (PERSCOM).  The PERSCOM stated that the applicant’s contention that she was not afforded the time to prepare a rebuttal to the recommendation to not promote her is refuted by the two rebuttals contained in her records.  The PERSCOM also notes that she has stated that she signed all of her counseling statements, so she was aware of the content of those counselings.  The PERSCOM stated that it cannot find any regulatory noncompliance based on the information provided and recommends disapproval of the applicant's request.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  The applicant’s rebuttals/appeals progress from an admission of errors made and a plea for a second chance, to allegations of procedural errors being made in the processing of her commander’s recommendation that she not be promoted, to blatant charges of discrimination.  It is interesting to note that it was only after her three rebuttals/appeals failed did she make any mention of discrimination.

2.  The applicant has made numerous allegations but has not submitted any evidence to support those allegations.  Apparently the EO investigation also found no wrongdoing (the EO investigation was not provided to the Board).

3.  In the applicant’s first rebuttal she admitted to having made numerous mistakes and to failing critical tests repeatedly.  It is hardly surprising that she was not selected for promotion under those circumstances.

4.  In view of the foregoing, there is no basis for granting the applicant's request. 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                                         GRANT          

                                          GRANT FORMAL HEARING

JEV       LLS          TNK      DENY APPLICATION

                                                      Edmund P. Mercanti   

Loren G. Harrell
Director