MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 February 2001                
	DOCKET NUMBER:   AR2000045182

	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. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Stanley Kelley		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 NCO Evaluation Reports (NCOER) for the periods June 1988 to January 1989 (NCOER #1) and 2 February 1989 to September 1989 (NCOER #2) be removed from her official military personnel file (OMPF); that she be reconsidered for promotion to master sergeant by a Standby Selection Board (SSB) and receive back pay and allowances; and that she be retired in the rank of master sergeant with back pay and allowances. 

APPLICANT STATES:  That the contested NCOERs are the result of being sexually harassed by the rater on NCOER #1 and #2.  She states that the rater for the NCOER #1 created such an environment of sexual harassment in the work office that she initiated a transfer after eight months and the request was approved.  Also, despite the sexual harassment, she believed that her rater would provide a honest appraisal of her performance.  She states that the satisfactory rating she received was unfair.

The applicant states that she went from one bad situation to another.  She states that rater of NCOER #2 pursued her through sexual comments. Also, the sexual advances stopped after the threat of telling his wife and a transfer to a new assignment.  She states filing a complaint would label her as a whiner and that her senior rater had a reputation for not listening to soldiers.  She states that the absences mentioned by her senior rater were approved in advance and no mission suffered.  She states that NCOER #2 was written to be challenged only through the Board.

Finally, she states that the impact of the concurrent assignments took time for her confidence to recover and continues to affect her now.  Additionally, her current husband convinced her that some action had to be taken to defend herself, her integrity, and reputation.  In support of her application she submits a copy of the contested NCOERs, previous NCOERs from former rating officials, DD Form 214 (Certificate of Release or Discharge from Active Duty), the Meritorious Service Medal certificate, a copy of the request and denial for reconsideration for promotion.

COUNSEL CONTENDS: That the applicant was denied proper consideration for promotion to master sergeant.  He states that the applicant’s OMPF was incomplete for the 1995 promotion selection board to master sergeant and was denied reconsideration.  He contends that the applicant suffered sexual harassment and received unfair ratings by her supervisors because she refused their sexual advances.  He contends that if NCOER #1 and NCOER #2 had been removed from the applicant’s OMPF she would have been selected for promotion to master sergeant  in 1995.  He contends that the Army did itself a disservice by denying the applicant fair consideration.  Also, she was selected for master sergeant but was too disenchanted with the Army to accept her promotion.

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

The applicant entered the Army on 11 July 1978.  Her awards include the Meritorious Service Medal (2nd award), the Army Commendation Medal (4th award), the Army Achievement Medal (7th award), the Army Good Conduct Medal (6th award), and the National Defense Service Medal.  She honorably retired in pay grade E-7 on 31 July 1998.

NCOER #1 covered the period of June 1988 through January 1989 and was a change of rater report.  In Part IVa (Values/Responsibilities), the applicant was marked “Yes” in all categories.  In Part IV sections b through f the applicant received a “Success” rating.  In Part Va (Overall Performance and Potential), the rater marked the applicant as fully capable and recommended the applicant for positions she could serve in the Army.  In Part Vc and Vd (Overall Performance and Potential) the senior rater rated the applicant in the two block (successful) and in the third block (superior).  In Part Ve, the senior rater commented that the applicant should be promoted with her contemporaries, needs more positions of leadership to fully develop as senior supply NCO, and was always conscientious about the performance of her supply section.

NCOER #2 covered the period of February 1989 through September 1989 and was a change of rater report.  In Part IVa (Values/Responsibilities), the applicant was marked “Yes” in all categories.  In Part IV sections b through f the applicant received a “Success” rating.  In Part Va (Overall Performance and Potential), the rater marked the applicant as fully capable and recommended the applicant for positions she could serve in the Army.  In Part Vc and Vd (Overall Performance and Potential) the senior rater rated the applicant in the two block (successful) and in the two block (superior).  In Part Ve, the senior rater commented that the applicant has the knowledge and experience to be a solid performer as a supply NCO and did not perform at the level she is capable of due to numerous absences and distractions.

The applicant was considered for promotion to master sergeant by the Calendar Year 1995 Master Sergeant Selection Board and was non-selected.  She requested a SSB based upon an incomplete OMPF for the promotion board to review.  Memorandum dated 19 October 1995 Subject: Request for Enlisted Standby Advisory Board shows that the applicant’s request for promotion reconsideration was denied.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an noncommissioned officer is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that established clearly and convincingly that the action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 600-8-29 provides the policies and procedures for determining if individuals are entitled to review by a SSB.  It states, in pertinent part, that in order to be eligible for review by a SSB, a determination must have been made that a material error existed, that had it been corrected prior to the time the officer was considered by a board that failed to recommend him or her for promotion, and it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Authority to approve cases for referral to the SSB is delegated to the Deputy Chief of Staff for Personnel, or his designee, or the Enlisted Special Review Board (ESRB).

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 contested reports appear to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.

2.  The applicant has failed to show through the evidence submitted or the evidence of record sufficient justification to warrant deletion of the NCOERs
requested.

3.  The Board found no evidence that a material error existed in the applicant’s file when she was considered for promotion that would entitle her to a SSB in accordance regulatory guidance.

4.  The contentions of the applicant and counsel pertaining to sexual harassment are unsupported by either evidence submitted by the applicant or the evidence of record.

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

__RVO__  __TSK__  ___SK___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000045182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010222	
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.	111.02	
2.	131.00	
3.		
4.		
5.		
6.