PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 November 2003    
	DOCKET NUMBER:  AR2003086015

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Antonio Uribe		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 that her noncommissioned officer evaluation report (NCOER) for the period May 1991 through September 1991 be removed from her records, that she receive the promotions that were denied her due to the unjust rating, and, in effect, that she be granted a 30-year retirement.

3.  The applicant states that the contested Relief for Cause NCOER was in retaliation for filing an equal opportunity (EO) complaint against Sergeant Major (SGM) B___ for the daily discriminatory actions he caused her to suffer.

4.  As supporting evidence, the applicant provides her undated U. S. District Court for the Northern District of California action; her court action dated 9 June 2000 requesting for continuance of the hearing; her 17 July 2000 motion to dismiss the court action without prejudice; her undated Federal Tort Claim; a      5 May 2002 letter to her from the Office of the Judge Advocate General; a         24 April 2002 to her from the White House; a DA Form 638 (Recommendation for Award) dated 1 November 1996 recommending her for award of the Meritorious Service Medal and orders awarding her the Meritorious Service Medal; her      DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 1996; and a Department of Veterans Affairs letter dated 17 September 1997 notifying the Army that she has been in treatment since June 1997 for sexual harassment and sexual trauma.

5.  The applicant also provided as supporting evidence a letter dated 14 July 1997 to the applicant from the U. S. Army Criminal Investigation Command (USACIDC) (which informed her that, after completing an investigation of her allegations of sexual discrimination as reported to the U. S. Army Sexual Harassment Complaint Hotline on 5 December 1996, they determined there were no felony violations that fell within their investigative purview); a sworn statement from her dated 13 December 1996; an undated memorandum from an unidentified specialist four in support of the applicant's NCOER appeal; an undated memorandum from a staff sergeant, who was at the Sixth Army NCO Academy as a medic/instructor during the time of the contested NCOER, in support of the applicant's NCOER appeal; an undated letter from the applicant's son to Senator B___; and two undated statements from Staff Sergeant S___, the applicant's subordinate at the time of the contested NCOER.

6.  The applicant also provided a 30 August 1990 memorandum from SGM B___ to her; a 20 August 1991 memorandum to the applicant from Headquarters, USACIDC informing her that Sergeant First Class (SFC) P___ was not considered to be a CID Special Agent; a 20 September 1993 memorandum from Attorney Thomas G___, who was serving on two weeks active duty with the Staff Judge Advocate Legal Assistance Office at the Presidio of San Francisco at the time of the contested NCOER; an undated memorandum for record, subject:  SFC A___ Has Possession of (applicant's) Documents; an Appendix, apparently to her court action, with attachments as listed and a witness list.
7.  The applicant’s military records show that she had prior service in the Regular Army from February 1976 to October 1978, when she was honorably released from active duty and transferred to the U. S. Army Reserve (USAR).  On 2 July 1979, she entered active duty in an active guard/reserve (AGR) status.  On       12 January 1988, she was assigned to the 380th Military Police Detachment (Criminal Investigation) as an Administrative Supervisor, 71L30.  

8.  In a 17 December 1995 letter from Lieutenant Colonel (LTC) L___ (at the time the commander of the 380th Military Police Detachment), LTC L___ stated that the applicant was selected for promotion by the 1989 SFC promotion board.  At that time, she was selected assignment to a 71L40 position at the Sixth Army NCO Academy with a report date of 1 August 1990.  She informed SGM B___ of her arrival in August 1990; however, SGM B___ demanded she report around January 1990.  LTC L___ denied his request as he required the applicant's services to support his unit's deployment to Korea.  However, SGM B___ still gave the applicant a hard time.  The applicant informed LTC L___ that she was afraid of future harassment since she refused to report early.  Due to harassment from her new unit, LTC L___ allowed her to report to the Academy in April 1990 upon the unit's return from Korea.  

9.  On or about 7 May 1990, the applicant was assigned to the Sixth Army NCO
Academy as the Chief of Administration, 71L40.  She was promoted to SFC effective 1 June 1990.

10.  The applicant's evaluation report history is as follows:  

	For the DA Forms 2166-6 (Enlisted Evaluation Report (EER)), ratings in Part III (Evaluation of Professionalism and Performance) ranged from a high of   5 in a total of 34 areas (as rated by both the rater and indorser) to a low of 0.  Ratings in Part IV (Evaluation of Potential) ranged from a high of 40 to a low of    0 from both the rater and indorser:

	EER ending August 1982:  all 5s in Part III; 40/40 in Part IV
	EER ending August 1983:  31 5s and 3 4s in Part III; 39/36 in Part IV
	EER ending August 1984:  32 5s and 2 4s in Part III; 40/39 in Part IV
	EER ending August 1985:  all 5s in Part III; 40/40 in Part IV
	EER ending August 1986:  all 5s in Part III; 40/40 in Part IV
	EER ending August 1987:  all 5s in Part III; 40/40 in Part IV
	EER ending December 1987:  25 5s and 9 4s in Part III; 38/38 in Part IV
	EER ending May 1988:  all 5s in Part III; 40/40 in Part IV

	For the DA Forms 2166-7 (NCOER), ratings in Part IVb (NCO Responsibilities) ranged from a high of "excellence" in five areas (as rated by the rater) to a low of "needs much improvement."  Ratings in Part V (Overall Performance and Potential) ranged from a high of "among the best" to a low of    "marginal" (as rated by the rater):

	NCOER ending May 1989:  3 "excellence" and 2 "success" in Part IVb and "among the best" in Part V

	NCOER ending May 1990:  3 "excellence" and 2 "success" in Part IVb and "among the best" in Part V

11.  On 27 August 1990, the applicant filed a notification of EO complaint charging SGM B__, SFC P___, and Command Sergeant Major C___ with sexual harassment.  

12.  On 30 August 1990, SGM B___ gave the applicant a memorandum, Subject: Utilization of Chain of Command.  In this memorandum, he noted that he had received from her a memorandum dated 27 August 1990, Subject:  EEO Complaint.  He informed her that he had counseled her on a number of occasions and discussed utilization of the chain of command.  She was specifically told on at least two occasions that if she had any further problems with SFC P___ (emphasis added) to take them to him (SGM B___) immediately. In this instance, she had not done so. 

13.  By memorandum dated 15 September 1990, the applicant indicated that she had not yet had a response back from the Equal Employment Office concerning her complaint.  (In paragraphs 58 through 62 of the applicant's District Court action, she indicated that the Equal Employment Office had taken the issue to the Sixth Army NCO Academy and considered the matter resolved because SGM B___ had verbally assured that office he would take care of the matter personally.)

14.  The applicant received a 12-rated month annual NCOER for the period June 1990 through May 1991.  Her rater, SGM B___, gave her all "success" ratings in Part IVb-f (NCO Responsibilities) and a "fully capable" rating in Part V (Overall Performance and Potential).

15.  The contested NCOER is a 4-rated month Relief for Cause report for the period May through September 1991.  The applicant was given two "no" entries ("Is honest and truthful in word and deed" and "Maintains high standards of personal conduct on and off duty") in Part IVa (Values).  Two related negative comments were, "made unfounded statements against junior enlisted soldiers" and "borrowed money from subordinates contrary to accepted ethics."  

16.  The applicant was given three "success" ratings in Part IVb; one "needs some improvement" rating (Leadership) with the negative comments, "spread malicious gossip rather than stopping it" and "adversely affects morale of soldiers;" and one "needs much improvement" rating (Responsibility and Accountability) with the negative comments, "borrowed substantial sum of money from subordinate thru perceived influence of position" and "irresponsible violation of Army traditions and ethics."  The rater rated her overall potential as "marginal." The senior rater made two negative comments.

17.  The contested NCOER contains the entry that the applicant was not available to sign the NCOER.  The copy of the NCOER in her Official Military Personnel File (OMPF) is properly authenticated by the rater, senior rater, and reviewer.  The hard copy of the NCOER in her Military Personnel Records Jacket is properly authenticated only by the rater and does not have the senior rater's portion completed.  

18.  In September 1991, the applicant sought legal advice from Thomas G___, then on two weeks active duty with the Staff Judge Advocate Legal Assistance Office at the Presidio of San Francisco.  In a 20 September 1993 letter, Attorney G___ stated that it was very obvious to him that the sexual harassment the applicant was receiving and the contested NCOER she received were connected.  

19.  The applicant's NCOER history subsequent to the contested NCOER was as follows:

	NCOER ending September 1992:  1 "excellence" and 4 "success" in Part IVb and "fully capable " in Part V

	NCOER ending March 1993:  1 "excellence" and 4 "success" in Part IVb and "fully capable" in Part V

	NCOER ending August 1993:  2 "excellence" and 2 "success" in Part IVb and "among the best" in Part V

	NCOER ending February 1994:  1 "excellence" and 4 "success" in Part IVb and "fully capable" in Part V

20.  On 2 May 1993, the applicant was notified that she had been selected for a bar to reenlistment under the Qualitative Management Program (QMP).  This bar to reenlistment was apparently based on the contested NCOER (there is no other evidence of disciplinary or derogatory information in the applicant's records).  She appealed the bar to reenlistment.

21.  The applicant appealed the contested NCOER on an unknown date.  Her appeal was denied in January 1994.

22.  The applicant's appeal of her QMP bar to reenlistment was disapproved by letter dated 28 March 1994.

23.  The applicant's last available NCOER is for the period ending July 1994.  This NCOER contains a "no" entry in part IVa (Places dedication and commitment to the goals and mission of the Army and nation above personal reasons) with three related negative comments.  In Part IVb she received two "needs some improvement" ratings (under Competence and under Responsibility and Accountability) and one "needs much improvement" rating (under Physical Fitness and Military Bearing).  She received a "marginal" rating in Part V.

24.  On 1 December 1996, the applicant retired upon completing 20 years of active Federal Service.

25.  On 26 August 1997, the applicant filed a claim against the Army for sexual harassment, retaliation, and promotion denial.  Her claim was denied on            16 March 1999.  On 8 July 1999, she filed suit in the Northern District of California, which was subsequently dismissed without prejudice on 5 September 2001.

26.  On 14 October 2003, conversation between the Board analyst and the U. S. Army Human Resources Command – St. Louis stated that the retention control point for AGR E-7s in 1996 was 22 years active Federal service.  The U. S. Army Human Resources Command – St. Louis also stated that the AGR E-7 71L promotion selection rate for the 1989 promotion board was 5 percent (7 selected out of 141 considered).  The selection rate for AGR E-8 71L in 1995 (the first year the applicant would have been in the primary zone) was 6 percent               (1 selected out of 16 considered).

27.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) establishes the policies and procedures for the NCOER system.  Paragraph 4-2 states that an NCOER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 of that regulation also states that the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

28.  Army Regulation 140-111 prescribes policies and procedures for the USAR Reenlistment Program.  At the time, chapter 10 described the qualitative screening program.  The program is based on the premise that reenlistment for continuing service on AGR status is a privilege for those whose performance, conduct, attitude, and potential for advancement meet USAR AGR standards.  It is designed to selectively retain the best-qualified soldiers up to 29 years of active federal service and to deny reenlistment for continued AGR service to nonprogressive and nonproductive soldiers.  The regulation states that the records of E-6s, E-7s, and E-8s will be screened by the regularly scheduled USAR AGR Enlisted Selection Boards.  The appropriate board will review the performance portion of the OMPF.  The selection board will evaluate past performance and estimate the potential of each soldier to determine if continued service on AGR is warranted.  Bars to reenlistment for soldiers identified by the selection board will be imposed as directed by the Commander, AR-PERSCOM. Soldiers selected for a QMP bar to reenlistment will be informed and provided a copy of the performance portion of their OMPF.  Documents which most significantly contributed to the board’s decision to impose the bar will be identified.

CONCLUSIONS:

1. The Board has considered the applicant's contention that the contested NCOER was given her because she made an EO complaint against her rater for the daily discriminatory actions he caused her to suffer.  The Board notes that most of the statements she has provided in support of this contention are either self-authored, provided by an individual with a personal interest (e.g., her son) or by unidentified individuals.

2.  The Board has considered, however, two statements from identified individuals who would not have a personal interest in the applicant's case.  

3.  LTC L___, the applicant's previous commander, noted that the applicant had been harassed by SGM B___ for months prior to arriving at the Sixth Army NCO Academy over an issue the applicant had no control over – the timing of her report to that unit.  

4.  Attorney Thomas G___ noted that it was obvious to him that the sexual harassment the applicant was receiving and the contested NCOER were connected.

5.  While it is not so clear to the Board that the contested NCOER was related to sexual harassment charges, the Board has some concerns regarding the legitimacy of the NCOER.  

6.  The contested NCOER makes some very serious charges against a senior NCO, i. e., that the applicant "borrowed substantial sum of money from subordinate thru perceived influence of position."  Yet, there is no evidence that any form of disciplinary action was taken against the applicant for this breach of accepted ethics.  
7.  It also concerns the Board that the NCOER filed in the applicant's Military Personnel Records Jacket is so incomplete.

8.  It also concerns the Board that SGM B___ gave the applicant the 30 August 1990 memorandum, Subject: Utilization of Chain of Command.  The Board believes that the applicant had a legitimate complaint against her chain of command when SGM B___ failed to resolve her problems with SFC P___ after she complained about him to SGM B___ at least twice.  

9.  Even though the applicant received her annual, June 1990 through May 1991, NCOER from SGM B___ prior to the contested NCOER, the Board concludes that there are enough questions about the contested NCOER to justify removing the NCOER from her records.

10.  The Board has considered the applicant's further requests that she receive the promotions that were denied her due to the unjust rating, and, in effect, that she be granted a 30-year retirement.

11.  The Board notes the applicant's highly successful progression to the rank    of SFC, when she was one of only 7 selected out of 141 considered.  The Board notes that her selection was made based in part on an NCOER (DA Form          2166-7) history of mostly "excellence" NCO Responsibility ratings and "among the best" Potential ratings and an EER (DA Form 2166-6) history of mostly maximum or near-maximum numerical ratings.

12.  The Board also notes, however, that the applicant was not rated as highly on her NCOERs subsequent to the contested NCOER.  On those NCOERs, she received mostly "success" Responsibility ratings and "fully capable" Potential ratings.  It appears the applicant would have been in the primary zone for promotion to E-8 in 1995.  Considering the promotion rate was 1 selected out of 16 considered, the Board concludes that the applicant would not have been selected for promotion even barring the contested NCOER.

13.  The QMP bar to reenlistment packet is not available; however, in the absence of any other disciplinary or derogatory information in the applicant's records prior to the date of the QMP bar to reenlistment the Board agrees with the applicant that it was the contested NCOER that led to her selection for the bar to reenlistment.  Absent the QMP bar to reenlistment, the applicant would normally have been eligible to remain on active duty for another two years, until she reached the retention control point for E7s.  

14.  However, the Board notes the applicant's NCOER for the period ending July 1994.  This NCOER contains a "no" entry in part IVa with three related negative comments.  She received two "needs some improvement" ratings and one "needs much improvement" rating in Part IVb.  She received a "marginal" rating in Part V.  She does not explain the reason for the ratings on this NCOER and there is no evidence available to show she appealed it.  

15.  The Board concludes that had the applicant's appeals of the contested NCOER and QMP bar to reenlistment been approved, her NCOER for the period ending July 1994 most likely would have led to her being selected for another QMP bar to reenlistment by the 1995 promotion board.  Therefore, she still would have had to retire at 20 years of service in November 1996.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the NCOER for the period June 1991 through September 1991 from the applicant's records.

2.  That so much of the application as pertains to the applicant's promotion and retention in service be denied.

BOARD VOTE:  

__fne___  __gjw___  __au____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003086015	
SUFFIX		
RECON		
DATE BOARDED	20031104	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	131.00	
2.	110.03	
3.		
4.		
5.		
6.