PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           2 May 2002
	DOCKET NUMBER:   AR2001057380

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that her discharge from active duty in the Army National Guard (ARNG) be voided and that she be given constructive credit for 20 years of active duty military service, with all back pay, allowances, benefits and emoluments.  She also requests an active duty retirement with all rights and benefits provided in a lump-sum payment at the present day value.

3.  The applicant states, in effect, that as a result of being discriminated against in the form of sexual harassment and a hostile working environment, her active duty military service was terminated.  In support of her application, she provides 14 exhibits, one of which is the Report of Investigation (ROI) conducted by the National Guard Bureau (NGB), which has 30 enclosures.

4.  The applicant’s military records show that on 7 July 1983, she enlisted in the Army for 3 years.  She completed her training as a personnel administration specialist (75B) and remained on active duty until 1 September 1988, when she was honorably separated due to hardship.  Subsequently, on 13 June 1989, she enlisted in the ARNG.  On 16 September 1991, she joined the Arkansas ARNG and on 6 January 1992, she entered active duty in the Active Guard Reserve (AGR) program.  

5.  The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition during her period of active duty service and contains no indication that she was ever recommended for or selected for promotion to sergeant/E-5 (SGT/E-5).  The record does contain indications that during her active duty tenure she experienced difficulty in meeting Army weight control standards.  

6.  In September 1992, based on an attempted suicide by ingesting an overdose of sleeping pills, the applicant was hospitalized in the Department of Veterans Affairs (VA) hospital, Little Rock, Arkansas.  She was diagnosed with a bipolar disorder, a mood disorder that includes depression and mania, which impairs rational judgment.  In November 1992, she was transferred to a mental ward at Shepherd Air Force Base, Texas, where she was further diagnosed with a borderline personality disorder.  

7.  On 25 February 1993, the applicant submitted a request that she be allowed to resign from the AGR program, effective 15 April 1993, based on personal and professional reasons.  On 25 March 1993, after completing sexual harassment prevention training, she requested to withdraw her request for resignation from the AGR program.  She indicated that she had become aware of alternate means of alleviating her concerns and that she was confident that the situation could be corrected; and she filed a formal discrimination complaint, alleging sexual harassment and mistreatment by a senior noncommissioned officer (NCO), through her chain of command.  

8.  Orders 59-5, paragraph 2, issued by the ARNG Full Time Support Division, ARNG Readiness Center, Arlington, Virginia, dated 6 April 1993, directed the applicant’s release from attachment to her current AGR unit and reassigned her to the United States Army Transition Point, Fort Sill, Oklahoma, for separation processing.  

9.  Accordingly, on 30 April 1993, she was honorably released from active duty (REFRAD) by reason of completing her period of AGR service.  At this time, she had attained the rank and pay grade of specialist/E-4 (SPC/E-4) and had completed a total of 6 years, 4 months and 18 days of creditable active duty service.  

10.  Orders Number D-06-548779, issued by the U.S. Army Reserve Personnel Center, 9700 Page Avenue, St. Louis, Missouri, dated 13 June 1995, directed the applicant’s honorable discharge from the United States Army Reserve (USAR), effective that same date. 

11.  On 8 August 1993, the VA evaluated the applicant and observed that based on her bipolar disorder, she was having a hard time coping with mood swings and that she was taking care of her children and trying to cope with their problems.   

12.  On 30 August 1994, more than a year after her initial complaint and her discharge, the Director for Equal Opportunity, ARNG, requested an inquiry into the applicant’s discrimination complaint, in which she had alleged that a command sergeant major accused her of stealing meals from the mess hall; that she was harassed about her inability to do physical training due to the size of her breasts, but was denied authorization to travel to either Scott Air Force Base or to Fort Sam Houston for surgery; that a senior NCO was sexually harassing her; and that she was read three nonjudicial punishments on the same day without the presence of legal counsel, which were dropped after she refused to accept them and sought legal counsel.   

13.  The Director for Equal Opportunity, ARNG, directed this inquiry based on a letter the applicant sent to the NGB explaining how a senior NCO had pursued her and engaged in sex with her.  Her letter also indicated that she had documented other instances that show she was forced off active duty due to the on-going harassment she received during her AGR assignment.  She stated that she did not want to return to the military but did want the problems of sexual harassment and discrimination at the installation addressed.  In addition, she wanted the opportunity to receive a medical discharge, stating that she was in post trauma therapy and could not work.

14.  On 2 September 1994, an investigating officer (IO) was appointed by Arkansas ARNG at the direction of the NGB.  An on-site investigation was conducted from 2 to 30 September 1994.  On 6 October 1994, the IO submitted his findings and recommendations to the appointing authority.  In summary, the IO found no evidence to support the applicant’s claim of discrimination, sexual discrimination, or sexual harassment against her.  Further, he indicated that the issues of discrimination and sexual harassment at the installation were addressed at the time, but were not substantiated.  Finally, in regard to the issue of a medical review for discharge and the applicant’s inability to work, the IO found that there was no basis for medical separation processing or review and that the applicant’s ability to work was evidenced by the fact that she was working over 7 hours a day at the time the investigation was conducted.  Thus, the IO concluded that there was no basis for granting a medical review of her discharge.

15.  On 18 April 1995, the Chief, Equal Opportunity Branch, requested that the Fort Sill, Oklahoma, Staff Judge Advocate (SJA), review the investigating officer’s report summarized above.  The Chief, Administrative Law Division, SJA, stated that this investigation was quite possibly the most incoherent investigation he had ever reviewed, adding that he could not determine from the write-up what happened, let alone whether the facts were substantiated.  He recommended appointment of a competent investigator to investigate the applicant’s allegations.

16.  On 9 October 1996, another IO was appointed and he conducted an on-site investigation from 9 to 17 October 1996.  He completed his gathering and hearing of evidence on 7 March 1997, and submitted his report to the appointing authority.  In the IO’s executive summary, he stated that the investigation focused on ascertaining the veracity of the alleged incidents of sexual harassment and racial discrimination.  Attempts were made to validate the complaint through testimony, sworn statements, and documentary evidence.  He indicated that he found the applicant to be a very credible witness and that there were three instances of sexual harassment or sexual assault cited by the applicant that were directly corroborated through unbiased and neutral witness testimony.  However, the IO found the allegations of racial discrimination and reprisal incidents to be unsubstantiated.  He recommended that the offending NCO receive sexual harassment training and that appropriate action be initiated against him under the provisions of the Uniform Code of Military Justice.

17.  On 30 July 1998, the Director for Equal Opportunity, NGB, provided a copy of the investigation to the applicant.  He requested that she review the report and respond back as to whether it addressed all of her complaints.  If she disagreed, she was to submit a rebuttal, in writing.  It further stated that the ARNG was endeavoring to obtain an agreeable resolution to her complaint.

18.  On 16 February 2000, the applicant was notified by the Director for Equal Opportunity, NGB, in a letter addressed to her counsel, that a final decision had been made by the NGB on the applicant’s discrimination complaint.  It was concluded, by a preponderance of the evidence, that the applicant’s allegations of discrimination based on sexual harassment and a hostile working environment were substantiated and that this discrimination resulted in her release from active duty and discharge from the ARNG and USAR.  

19.  The applicant’s counsel provided a signed affidavit, dated 11 May 2001, attesting to the fact that, shortly after the applicant received a copy of the second report of investigation, the Director for Equal Opportunity, NGB, provided him an offer to void the applicant’s discharge, grant her back pay and allowances, and to give her an early active duty retirement with all rights and benefits.  Counsel counter-offered but did not receive a response.  

20.  On 8 November 2000, counsel and applicant appeared in the offices of the Equal Opportunity Directorate, NGB, to discuss the handling of the case and to hopefully negotiate a settlement.  At that time, all parties agreed to settle the case by agreeing to a letter signed by the Chief, NGB, recommending that the applicant’s discharge from active duty military service be voided, she receive constructive credit of 17 years of active duty military service with all back pay, allowances and emoluments, and that she be retired from active military service with all rights and benefits.  A letter confirming this agreement was to be forwarded to him.  In March 2001, the applicant’s counsel was informed by a NGB legal representative that the NGB did not have the requisite authority to enter into this settlement agreement. 

21.  In February 2002, the VA evaluated the applicant and increased her disability rating for a lumbar strain from 10 to 20 percent, for hyperthyroidism from 0 to 10 percent.  This evaluation also continued her 50 percent rating for a Post Traumatic Stress Disorder (PTSD) that resulted from the trauma of the sexual harassment she received while serving on active duty, and included a bipolar disorder as a subset of this condition.  This evaluation confirms that the applicant has required continued medical treatment and medication for this condition.  

22.  Army Regulation 635-40 provides the policy and procedure for the Army Disability Evaluation System.  It states, in pertinent part, that a solider whose disability percentage less than 30 percent and whose time in service is less than 20 years is entitled to disability with severance pay.  A solider whose disability percentage is 30 percent or more and whose service is less than 20 years is eligible for a disability retirement.  

23.  Department of Defense Instruction 1332.39, Appendix B-107 addresses mental disorders and states, in pertinent part, that in order to conclude functional impairment, behavioral patterns must be severe enough to hinder a member’s capacity to perform military duties or earn a living.  Further, the disability schedule contained in this appendix indicates that at 30 percent disabled, the patient does not require hospitalization, displays signs of mental illness upon examination, requires medication or psychotherapy, and displays job instability and borderline social adjustments.  

CONCLUSIONS:

1.  The evidence of record and independent evidence submitted by the applicant is sufficient to convince the Board that she was sexually harassed and that her termination from active duty and discharge from the ARNG was a proximate result of this harassment.  Therefore, the Board concludes that the applicant’s records should be corrected to show that she was neither separated from active duty or released from the AGR program on 30 April 1993, nor discharged from the ARNG and USAR on 13 June 1995.  

2.  The evidence of record confirms that the ARNG took 7 years, between 1993 and 2000, to render an official decision regarding the propriety of applicant’s separation, although the matter should have been decided in 1993.  On 
16 February 2000, the NGB finally concluded that the applicant’s discrimination allegations were substantiated and that her discharge was defective because it resulted from this discrimination.  

3.  Therefore, the Board finds that the applicant’s 1993 release from active duty and discharge from the ARNG/USAR should be voided and her record corrected to show she continued to served on active duty through 16 February 2000, the date the NGB determined that her discharge was defective.  Further, the Board concludes she should be provided all active duty back pay and allowances due as a result minus any appropriate offsets for civilian or other compensation received during this period.  

4.  Normally, under these circumstances the Board would also recommend that the applicant be reinstated on active duty and allowed to continue to serve in that status.  However, given her documented service connected medical problems, the trauma she suffered as a result of the substantiated sexual harassment she experienced, and her aversion to continued service, the Board finds a more appropriate method of relief must be fashioned in the interest of justice, compassion, and equity, based on the particular circumstances of this case.  

5.  The evidence of record confirms that the applicant suffered from and was hospitalized for a mental disorder while she was still serving on active duty.  Further, she was subsequently granted a 50 percent disability rating by the VA based on a PTSD related to the sexual harassment she suffered while serving on active duty, and for which she still receives medical treatment and takes medication.  

6.  As a result of her medical condition, the Board finds there is a sufficient evidentiary basis to conclude she is medically unfit for further active duty service and is eligible for a medical retirement on 17 February 2000.  This conclusion is based on there being a sufficient equity basis to support granting a 30 percent disability rating for her mental disorder that began on active duty and that is supported by a PTSD diagnosis rendered by the VA in 1993, that was the result of the sexual harassment she experienced while serving on active duty.  

7.  Although the Board finds sufficient medical cause to consider the applicant medically unqualified for further service considering the injustices she suffered while serving on active duty, it did not arrive at the 30 percent disability rating based on established medical disability rating standards, but rather because it was the minimum necessary to qualify the applicant for retirement based on equity, compassion, and justice considerations based on the wrongs done her while she served on active duty and her aversion to continued active duty service for the time necessary to gain eligibility for a length of service retirement.  

8.  Therefore, the Board also concludes that it would be appropriate to correct the applicant’s record to show she was released from active duty on 17 February 2000, under the provisions of Army Regulation 635-40, for the purpose of medical retirement, and that she was placed on the Retired List the following day in the rank and pay grade of SPC/E-4.  In addition, the Board finds that it would be appropriate to provide her all back retired pay due as a result.  

9.  The Board did consider the applicant for promotion and placement on the Retired List in a higher rank and pay grade.  However, based on a review of her record, it determined that she had never been recommended for promotion prior to the events that resulted in her being inappropriately discharged, and that there was reason to believe that her difficulty in meeting Army weight control standards likely would have prevented her promotion to a higher rank and pay grade even had she remained on active duty in the AGR program.  Therefore, her placement on the Retired List in a higher rank and pay grade is not recommended.  

10.  In view of the foregoing, the applicant’s records should be corrected as recommended below. 

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case, be corrected by:

	a.  voiding the 30 April 1993 REFRAD of the individual concerned and her concurrent release from the AGR program;

	b.  voiding her 13 June 1995 discharge from the ARNG and USAR;

	c.  showing that she continuously served on active duty in the AGR program until 16 February 2000, with service credit and entitlement to all back pay and allowances due, minus appropriate offsets for employment income she received during the same period;  

	d.  showing she was released from active duty, for the purpose of disability retirement with a 30 percent disability rating, on 17 February 2000, and placed on the Retired List the following day in the rank and pay grade of SPC/E-4, and providing her any back retired pay due as a result. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___FNE__  __WTM_  __CJP___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Fred N. Eichorn____
		        CHAIRPERSON

INDEX

CASE ID	AR2001057380	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/02	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930430	
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.