MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  26 August 1999
	DOCKET NUMBER:   AR1999022685

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		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:  In effect, that she be reinstated on active duty with restoration of all pay and allowances from the date of her discharge.

COUNSEL CONTENDS:  In effect, that the applicant, a black female, was a victim of racism and a poor leadership climate; that the contentions of her commander that she was a liar, a cheater and an incompetent performer are unsubstantiated and untrue; that her performance trend was downward with an unacceptable record of efficiency and mediocre service was also unsubstantiated; that she had an apathetic, defective and problematic attitude; and that these unsubstantiated and untrue contentions virtually led to her elimination from the service.  Counsel further stated that she hired a private investigator whose investigation uncovered racism, selectively enforced command policies, and a leadership climate cast in seeing her failure despite all of her efforts to succeed.  

Counsel also stated that 25% of the work force including all of the NCOs, voluntarily, came forward to make statements regarding the racism and unfair treatment toward her; and that in making such statements, these individuals did so at the risk of reprisal from the chain of command.

In support of her request, the applicant submitted a detailed statement from her counsel and a number of documents including Tab A, elimination proceedings; Tab B, a private investigator’s report summary and resume ; Tab C, a report of investigation by a private investigator; Tab D, a letter of commendation, dated 7 March 1996; Tab E, a memorandum of performance counseling, dated 25 August 1995; Tab F, a memorandum for record, dated 16 May 1995; Tab G, memoranda for record, dated 14 November 1995 and 5 October 1995; Tab H, a document with subject: To Whom It May Concern, dated 14 November 1995; Tab I, a memorandum for record, dated 5 December 1995; Tab J, a memorandum for record, dated 11 December 1995; Tab K, an officer evaluation report for the period 25 November 1994 to 14 April 1995; and Tab L, a memorandum announcing a retirement ceremony, dated 10 April 1996.

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

She was commissioned as a second lieutenant in the Regular Army and entered active duty on 25 July 1993.  Her assignments included a 12-month tour in Korea as a platoon leader in a postal company from April 1994 to April 1995 and assistant operations officer, Military Entrance Processing Station (MEPS), Beckley, West Virginia beginning on 5 May 1995.

A memorandum for record, dated 16 May 1995, indicated that she was given time off on 13 May 1995 to receive an unaccompanied baggage shipment from Korea; that she was given the next day off on 14 May 1995 to organize her personnel belongs; that she did not report work on 16 May 1995 due to illness and did not get permission to attend to her illness; and that she could not return to work until 18 May 1995.

On 25 August 1995, she was formally counseled by the MEPS operations officer, a first lieutenant and her supervisor, regarding specific performance shortcomings including not wearing the proper uniform, keeping her supervisor informed of her whereabouts and other issues relating to her duties and responsibilities, and failing to take initiative. 

Memoranda for record, dated 5 October 1995 and 14 November 1995 respectively, outlined a detailed chronology of events concerning the applicant’s continuing conflicts in her ability to carry out her primary duties and an additional duty as amusement vending machine fund custodian and her ability to keep the operations officer informed of her whereabouts.

On 11 December 1995, she was formally counseled by her brigade commander, telephonically, concerning the results of an investigation of a postal larceny during her assignment to Korea.  She was advised by her brigade commander that the investigation found that the quality standards of her postal operation had been extremely low; that the security of her postal operation was lax; that there was evidence of her lying regarding a personal loan from a subordinate; that she was suspected of fraternization while assigned to Korea; and that such poor performance would not be tolerated while assigned to the MEPS.

NOTE:  The larceny concerned the theft of $1,000.00 from a military postal activity for which the applicant and 4 others were held responsible and required to repay the loss according their rank.  Her share was $400.00.

On 2 February 1996, the Commander, Fort Meade, Maryland, a major general, initiated elimination proceedings and show cause for retention on active duty under the provisions of Army Regulation 600-8-24, Chapter 4, for misconduct or moral or professional dereliction.  The basis for the separation action concerned her downward trend in overall performance resulting in an unacceptable record of efficiency and a consistent record of mediocre service as evidence in 4 performance counseling statements; in 6 instances of intentional omissions or misstatements of fact in official statements or records for the purpose of misrepresentation, acts of personal misconduct, and conduct unbecoming an officer; in her failure to perform all assigned duties and additional tasks; and in her apathy, defective attitude and disrespect.  In conjunction with the proposed elimination action, she was afforded an opportunity to submit a statement in rebuttal or resign in lieu of elimination.  

There was nothing contained in her records indicating that she submitted a rebuttal to 
the elimination proceedings or that she exercised her option to resign in lieu of elimination.

In the private investigator report of investigation conducted on 24 March 1996, he outlined a detailed evaluation of the circumstances surrounding the applicant’s pending 
elimination action.  His report included interviews with the applicant, 4 NCOs,

a civilian employee, and her unit commander.  The report also included an analysis of the counseling statements and memoranda for record shown at the tabs in the application to this Board as well as several others not included.  In his conclusion, he stated, in effect, that it was difficult to get information from applicant and while she appeared pleasant, charitable, caring, and helpful to others, she ignored her other responsibilities; that she simply did not understand the importance of the administrative side of the military and did not know how to do even the simplest of administrative tasks; that considering her record, the Army would not reassign her with barely a year remaining on her 3-year obligation; and that an extension on active duty was unlikely.

In a follow-on summary of his earlier report of investigation to the applicant’s counsel, dated 17 April 1996, the private investigator stated, in effect, that the MEPS assignment was not the kind of career enhancing mainstream duty station were high performing officers were sent; that this particular assignment, in a remote location with only 
2 superior officers, lacked the quality leadership the applicant was in desperate need of; and that these same officers by influencing the NCOs to “distance themselves” from the applicant, made her assignment there untenable.  The private investigator further stated that he found it significant that 4 NCOs and a senior civilian employee would voluntarily come forward in support of the applicant; that this command had a serious problem when 4 NCOs perceived that the cause of the applicant’s problem was racial in nature; and that the best interest of the Army and the applicant would be served by reassigning her to a larger command for the remainder of her service. 

On 13 June 1996, the Deputy Assistant Secretary of the Army for Review Boards and Equal Employment Compliance and Complaints Review, approved the applicant’s elimination from service.

Her DD Form 214, separation document, shows that she was discharged in accordance with AR 600-8-24, Chapter 4, for unacceptable conduct on 3 July 1996 after completing 2 years, 11 months and 9 days of creditable service.  Her service was characterized as honorable.

AR 600-8-24 pertains to officer transfers and discharges.  Chapter 4 states, in pertinent part, that when an officer in probationary status (less than 5 years active commissioned service) is notified of elimination proceedings, show cause for retention on active duty is required; and that the officer may submit a rebuttal and/or resign in lieu of elimination.  
The regulation further states that if the officer declines to elect an option, final determination will be made by the Secretary of the Army.

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

1.  The applicant’s request for reinstatement is not warranted when the evidence of record is considered.

2.  Her records indicated a pattern of substandard duty performance, partly substantiated by her own private investigator, sufficient to warrant her elimination from the service.  There was nothing in the evidence of record or evidence submitted by her of a clear, convincing and compelling nature to show that the circumstances leading to her elimination was racially motivated or that her elimination was erroneous or unjust.

3.  Her elimination was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize her rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  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 the aforementioned requirement.

5.  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

___SP___  ___SC__  __BE____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022685	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990826	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  100	Reinstatement	
2.		
3.		
4.		
5.		
6.