MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:          30 OCTOBER 2003     
		DOCKET NUMBER:  AR2003089470

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Larry C. Bergquist		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 submitted to a special selection board for promotion reconsideration to captain.  

APPLICANT STATES:  In effect, that she was not informed of the necessity to submit documents for promotion consideration to the 2000 Captain Army Promotion List (APL) Selection Board.  She states that sexual harassment and discrimination prevented her from receiving information.     

She provides a copy of a 17 March 2003 order placing her on active duty for three days, and a copy of her "Rationale" and related documents in her appeal of her equal opportunity (EO) complaint submitted on her behalf by counsel. 

Thirteen tabs are submitted with her application.

COUNSEL CONTENDS:  That the applicant's failure to be properly notified that she would be considered for promotion was directly tied to a pattern of illegal sexual harassment and the practice of sexual discrimination that was continuously exhibited at her unit.  Actions that she could have taken had she been notified may have resulted in her being promoted to captain.  She was clearly qualified for promotion to captain as evidenced by her Bachelor of Arts degree, her evaluation reports, and her overall performance over a 16 year period.  She is a stellar member of the Missouri Army National Guard (MOARNG).

EVIDENCE OF RECORD:  The military records available are those submitted by the applicant.

A copy of a Report of Investigation – Line of Duty and Misconduct Status        (DD Form 261) shows that on 17 June 2001 the applicant was emotionally distraught because of excessive stress, and was diagnosed as having an anxiety attack.  The investigating officer indicated that she was subjected to harassment by members of her unit and that her attempts to address the issue led to more emotional distress. He determined that the applicant's illness was in line of duty.  The finding of "in line of duty" was approved by the National Guard Bureau for anxiety attack (resolved), this episode only, on 11 March 2002.

The applicant, then a first lieutenant platoon leader with the 220th Engineer Company, an Army National Guard unit in Festus, Missouri, on 29 June 2001, filed a discrimination complaint against her company commander.  An investigation was conducted and discrimination confirmed; however, the applicant was not satisfied with the resolution.

On 31 July 2002 The Adjutant General, MOARNG, informed the applicant of her right to send a rationale on the decision of the National Guard Bureau. 

She provided a nine page discussion alleging sexual harassment and discrimination, and unprofessional military conduct beginning in July 2000, and continuing, on and off, through mid-2001; and her attempts at redress.

She stated that she spoke with the state officer promotion representative on        5 August 2001 regarding what steps to take to contest her non-selection for promotion.  That officer told her to write to the selection board, enclosing a letter from her college explaining that she had met the degree requirement, but that her diploma was not sent out until December [2000].  She stated that had she known that the selection board would meet in November [2000] she could have requested a six month delay of a promotion decision.  She stated that during the brigade investigation a colonel asked her why she did not request an extension to be retained as a first lieutenant pending review of her promotion packet, and why she had not been advised to request a delay of promotion pending completion of her bachelor's degree.  She stated that she did not know that her file was being sent to the board.  She also stated that she had not been informed of her first non-selection or that she would be discharged following a second non- selection.  She stated that a master sergeant stated that she had been notified of her first non-selection; however, she stated that she only saw the notification on 5 August 2001.  

She indicated that on 7 March 2002 she had requested assistance with her EO complaint from the ACLU (American Civil Liberties Union), and that on 20 March 2002 the DOD IG (Department of Defense Inspector General) stated that there was no evidence that she was threatened with discharge from the Army Reserve in reprisal for indicating that she intended to file an EO complaint.

On 24 June 2002 The Adjutant General, MOARNG, requested to the National Guard Bureau, that the applicant be considered for promotion by a special consideration board because of material error.  He stated that the MOARNG had requested a special consideration board on 28 June 2001.  He stated that based on the findings of an EO investigation, the applicant might not have been timely notified to provide documentation concerning her baccalaureate degree to be included in her packet for the Department of the Army selection board.  

An 18 June 2002 biographical summary shows that the applicant, now an enlisted Soldier in pay grade E-4, was commissioned in 1992 and promoted to first lieutenant in 1994.

She provided a paper concerning the brigade investigation into her complaint, indicating that relevant witnesses were not called; and a paper concerning the sleeping arrangements while on annual training in 2000 and 2001 and on a firing range in the fall of 2000.

She provided information on the effect of her failure to be notified that she was under consideration by the promotion board, stating that a battalion NCO in charge of officer promotion files never mentioned her non-selection for promotion.  She stated that NCO had several EO charges filed against him, that he was demoted after having been found guilty of sexual misconduct, and that he was found guilty of gender bias discrimination.  That NCO worked with her file during the time it was to be sent to the selection board.  She stated that in late August 2001 she received a letter verifying completion of her degree requirements on 25 September 2000. 

She provided information about her attempts to be retained in an active status as a first lieutenant.  She stated that she reenlisted in the Army National Guard on   1 October 2001 in pay grade E-4.

On 27 July 2001 the Academic Director of Greenville College notified an officer of the 1138th Engineer Battalion that the college confers degrees three times during the year – May, August, and December, that the applicant was in their adult degree completion program that completed classes on 25 September 2000, and that she completed the program and received a December diploma.

A diploma awarding the applicant a Bachelor of Science in Organizational Leadership was conferred by Greenville College on 20 December 2000.

She provided a message concerning the problems of National Guard officers not being educationally qualified for promotion because of the lack of evidence of a baccalaureate degree.

She provided a document concerning the falsification of training records in her unit. 

In order to ascertain whether the applicant had exhausted her administrative remedies, a member of this agency contacted the Human Resources Command promotion branch at St. Louis.  An official of that branch stated that the applicant had submitted a request for consideration by a special selection board, and that her request was denied sometime in September 2002.  He stated that the 2000 selection board met on 13 November 2000 and adjourned on 15 December 2000, and that the evidence provided by the applicant showed that she did not complete her degree requirement until 20 December 2000, after the convening date of the board.

Army Regulation 135-155 prescribes the policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard.
The regulation in effect at the time that the applicant was eligible for promotion consideration, provides for mandatory selection boards to be convened each year to consider Army Reserve and National Guard officers in an active status for promotion to captain through lieutenant colonel.  To be eligible for consideration for promotion, an officer must be in an active status and meet certain service requirements.  Effective on 1 October 1995, no person may be selected for promotion to the Reserve grade of captain unless, not later than the day before the selection board convene date, that person as been awarded a baccalaureate degree from an accredited institution recognized by the Secretary of Education. 

Officers who are selected for promotion may request a declination (now referred to as a delay), up to three years for National Guard officers.  

That regulation states that selection boards will be provided a promotion consideration file for each eligible officer, to include the performance portion of the officer's OMPF (Official Military Personnel File).  A personnel qualification record will be included in the promotion consideration file of Army Reserve troop unit and Army National Guard officers.  The forms will be provide by the supporting military personnel offices.  Each officer will audit his/her personnel qualification record before it is forwarded to the selection board.  An officer under consideration may write to the selection board inviting attention to any matter of record deemed vital to consideration. 

Chief, National Guard Bureau and the Chief, Office of Promotions, Reserve Components, will notify each National Guard and Army Reserve officer in the zone of consideration by a mandatory selection board.  The notice will be dispatched at least 30 days before the convening date of the board.  A copy of the officer's records to be reviewed by the selection board will accompany the notification.  Officers will be directed to review the records and submit copies of missing documents or other corrections as appropriate, and to submit an official photograph.  Lack of notification does not provide an independent basis for the officer to be considered by a standby board.

Paragraph 4-29 of that regulation states that an officer whose removal from active Reserve status is required by law for failure to be selected for promotion must be removed within the prescribed time limits.  Those time limits can be extended or suspended only as authorized by law.  Officers not qualified for retention will be removed from an active status within 90 days after the selection board submits is results to Headquarters, Department of the Army.

Standby advisory boards are formed to prevent any injustice to an officer or former officer who was eligible for promotion but whose records, through error, were not submitted to a promotion selection board for consideration, or contained a material error when reviewed by the selection board.  Headquarters, Department of the Army may find that a material error caused an officer's non-selection by a promotion board.  It must first determine that there is a fair risk that circumstances were responsible for the non-selection, to include, an officer's military or civilian educational level, as constituted in the person's record (as seen by the board) was incorrect.  

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.  There is no evidence, and neither the applicant nor counsel has provided any, to show that the applicant's non-selection for promotion to captain was a result of the problems she experienced in her unit.  Her contention that she was unaware of her first non-selection for promotion to captain, and that she was not notified that she would again be considered for promotion, causing her in effect, not to review her records, or to submit documents for consideration by the promotion board, is not reason for promotion reconsideration.  Whether or not she was aware of her promotion status is unknown; however, she should have been aware.  She is responsible for managing her career.  She was not selected for promotion because she was not educationally qualified at the time the promotion board convened, a requirement which she should have known. 

2.  There are no provisions to request a delay of promotion pending completion of her bachelor's degree.  A delay is authorized only for an officer who has been selected for promotion.  There are no provisions for her to be retained in an active status pending review of her promotion packet, unless authorized by Headquarters, Department of the Army, pending results of a standby advisory board.  

3.  There is no material error.  Consequently, there is no reason to grant her request that her records be submitted to a special selection board for promotion reconsideration.       

4.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

__CLG       __EWL__  __LCB __  DENY APPLICATION

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

INDEX

CASE ID	AR2003089470	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031030	
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.	131.00	
2.		
3.		
4.		
5.		
6.