BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001523 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001523 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001523 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of her earlier requests for promotion to colonel (COL). 2. The applicant states: a. She is providing new evidence for the reconsideration of her case, which centers around her being a two-time non-select for promotion to COL. Since her two promotion boards, more promotion opportunities have opened up for female Soldiers. The President, Congress, and the Army recognized there were low promotion numbers and females have enjoyed a higher promotion rate. b. As an Active Guard Reserve (AGR) officer, her group only competed against each other, with different standards, instead of against the larger Reserve officer group for which the promotion potential was least restrictive and, hence, which a higher promotion rate for the 2008 and 2009 promotion board. Had she competed with the Reserve officer group, there is a good chance she would have been promoted to COL. c. As an AGR officer at that time, the units she was serving in were not mobilized for duty in Operation Iraqi Freedom (OIF) or for Operation Enduring Freedom (OEF). At that time, Federal law stated an AGR officer could only be deployed to OIF or OEF if the whole unit was mobilized, not like in 2011, when an AGR officer could be sent on a unique singular line number to fill a position. d. She was further handicapped when she was declared medically un-deployable to serve in overseas locations, but found fit for duty in the U.S. The Secretary of the Army memorandum of instruction (MOI) to the promotion board members stated, "Special attention should be paid to officers serving on Provincial Reconstruction Teams (PRTs) and special attention should be paid to officers serving on Transition Teams." e. After the Army Board for Correction of Military Records (ABCMR) denied her initial and first reconsideration request for promotion to COL, she noted that the Board failed to address her submission of the DA Form 2823 (Sworn Statement) by major (MAJ) R_____ L. G_____, wherein MAJ R_____ L. G_____ states, in effect, for the period of 16 April 2008 to 17 August 2008, "[applicant’s] ratings were lowered to Promote with Peers, center of mass after she was determined not to be a mobilization asset." f. Had she been made aware of the above, she would have petitioned the Human Resources Command (HRC) in accordance with Army Regulation 623-3 to have her OER for the period 16 April 2008 to 17 August 2008 appealed. g. Her prior OER for the period from 16 April 2007 to 15 April 2008 had the same rater and senior rater, and she received an "above center of mass" rating. The applicant notes that this is significant because she was rated at above center of mass for 12 months. Yet during the following period from April 2008 to August 2008, her rating fell to "center of mass," which is the period she was declared medically unfit to deploy. Clearly, this was the rater and/or senior rater’s way of discriminating against her by showing their dissatisfaction with her and punishing her for not deploying. Furthermore, she states neither her rater nor her senior rater counseled her during the new rating period or, for the matter, counseled her for which she perceived as a mark indicating "poor performance." h. The ABCMR recommended she seek relief with the proper court of jurisdiction. After she sought relief in civilian court, the U.S. District Court of Texas, San Antonio Division, stated that they did not have jurisdiction over her case and remanded it back to ABCMR. 3. The applicant provides: * DA Form 2823, dated 31 January 2011 * U.S. District Court Western District of Texas San Antonio Order, Civil Number SA-12-CA-641-OG, Applicant v. Secretary of the Army, dated 27 November 2012 * A self-authored statement, dated 6 November 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's cases by the ABCMR in Docket Numbers AR20100012599 on 9 December 2010 and AR20110002939 on 6 October 2011. 2. The applicant provides a DA Form 2823, dated 31 January 2011, which was not previously reviewed by the ABCMR and is considered new evidence warranting consideration by the Board. She also provides new arguments. 3. On 5 May 1984, the applicant was appointed and commissioned in the USAR as a second lieutenant. 4. She was promoted to lieutenant colonel (LTC), with an effective date of 20 July 2003. 4. The MOI for the fiscal year (FY) 2008 COL "ARNG and Reserve" Promotion Selection Board (PSB), dated 30 August 2007, provided instructions to those officers appointed to the board. The sections the applicant referenced in her application to the Board and her comments to the advisory opinion listed under "Guidance" in the MOI are as follows: a. Paragraph 4g: Special attention should be paid to officers serving on Transition Teams in the current environment and foreseeable future. The invaluable experience these officers are receiving in these tough assignments will posture them for success in future leadership positions in the operational environment. Transition Teams are the key force multiplier that will enable the United States to hand over security responsibilities to host nation security forces. Transition Teams live and operate under very austere conditions and are embedded with Iraqi or Afghan units at the battalion, brigade, and division level. The teams may be called Military Transition Teams (MiTTs), Special Police Transition Teams (SpTTs), or Border Teams. The members of the teams serve as advisors as well as the coalition link to force enablers for the foreign command group and their staff. Reserve and active officers may serve as team Chiefs, executive officers, or staff members to shadow the unit's leadership; the battalion team is led by a MAJ, brigade team by a LTC, and a COL on the division team. They directly represent the United States of America and are charged with coaching, teaching, and mentoring host nation security forces while simultaneously conducting combat operation as an embedded part of the host nation security force. The boards should understand the challenging nature and demands of these jobs and provide appropriate consideration in the overall evaluation of each officer's record. b. Paragraph 4h: Special attention should be paid to officers serving on Provincial Reconstruction Teams (PRTs) in the current environment and foreseeable future. PRTs assist the Afghan government in stabilizing the country, encourage international and non-governmental organization to operate in rural areas and facilitate reconstruction. Their primary functions focus on the coordination of the reconstruction process, identification of reconstruction projects, conducting village assessments, and liaising with regional commanders. Members of the PRTs work closely with provincial governors, local leaders and elders, Afghan government ministers, the United Nations and other international agencies. PRTs operate in remote area where other non-governmental organizations traditionally have no presence, providing a more stable and secure environment and a tangible oversight of central government programs. c. Paragraph 4m: I wish to emphasize that in accordance with Department of the Army (DA) Memorandum 600-4, paragraph10b, you should not place undue emphasis on the diversity of assignment or the level at which duties are performed. All assignments are important to sustain a trained and ready Army. The absence of command, combat experience, or support of deployed forces, for example, should not be a basis for non-selection. 5. The Promotion List for COL, Army Promotion List (APL), U.S. Army Reserve Comoponents, dated 13 February 2008, provided a summary of the board actions. This memorandum shows the board considered 72 USAR AGR officers who were previously considered for promotion to COL, and selected five of those officers. These statistics indicate there was a seven percent (%) selection rate for promotion to COL in the previously considered zone. 6. A DA Form 67-9 (OER) for the period from 16 April 2007 through 15 April 2008 shows the applicant’s rater as COL F____ and senior rater as brigadier general (BG) H_______. She received the following ratings: a. Part Va (Performance and Potential Evaluation) – Outstanding Performance, Must Promote; b. Part Vc (Comment on Potential for Promotion) – Select immediately for COL and resident Senior Service College; c. Part VIIa (Senior Rater) – Best Qualified; and d. Part VIIa (Potential compared with Officers Senior Rated in Same Grade) – Above Center of Mass 7. A DA Form 67-9 for the period from 16 April 2008 through 17 August 2008 shows the applicant’s rater as COL F____ and senior rater as BG H______. She received the following ratings: a. Part Va – Outstanding Performance, Must Promote; b. Part Vc – Promote to COL when eligible and select for Senior Service College; c. Part VIIa – Best Qualified; and d. Part VIIb – Center of Mass 8. A DA Form 67-9 for the period from 18 August 2008 through 6 December 2008 shows the applicant’s rater as COL A______ and senior rater as COL R_____. She received the following ratings: a. Part Va – Outstanding Performance, Must Promote; b. Part Vc – Promote now to COL and select for Senior Service College; c. Part VIIa – Best Qualified; and d. Part VIIb – Center of Mass 9. A DA Form 67-9 for the period from 17 December 2008 through 6 December 2009 shows the applicant’s rater as COL R_____ and senior rater as BG C______. She received the following ratings: a. Part Va – Outstanding Performance, Must Promote; b. Part Vc – Promote to COL now. Will flourish in positions of increased responsibility. Select for resident Senior Service College; c. Part VIIa – Best Qualified; and d. Part VIIb – Center of Mass 10. A DA Form 199 (Physical Evaluation Board (PEB) Proceeding, dated 27 January 2009 shows the applicant was found fit for duty. She was diagnosed with thrombocytopenia and leukopenia secondary to SLE [systemic lupus erythematosus], asymptomatic, history of basal cell carcinoma-lip, osteoarthritis knees, non-duty limiting, mild osteopenia, hypertension, and Sjogren’s syndrome, primary sicca complex. However, these conditions were determined to meet retention standards by the medical evaluation board and there was no evidence in the case file that the PEB finds them unfitting. The applicant concurred with the findings. 11. A memorandum for commander, Brooke Army Medical Center, subject: Approval of the PEB action under provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) regarding the applicant, issued by the U.S. Army Physical Disability Agency (PDA), Washington DC, dated 12 February 2009, states the PEB findings were approved. The applicant was found physically fit to perform the duties of her office, grade, rank, and military occupational specialty within the limits of her profile. 12. On 3 September 2009, the applicant requested a promotion reconsideration board. She stated the FY 2008 COL, APL Competitive Categories, PSBs for Reserve and ARNG Soldiers improperly failed to consider her for promotion. The applicant questioned the two pieces of guidance given to the promotion board members regarding the instruction of "special attention should be paid to officers serving on Transition Teams in the current environment and foreseeable future and special attention should be paid to officers serving on PRTs in the current environment and foreseeable future." She opined that these instructions were in violation of Army Regulation 600-20 (Command Policy). She argued that the board was essentially instructed to create an institutional barrier and, therefore, prejudiced officers who did not receive the chance to serve on PRTs or Transitional Teams. 13. She continued by citing guidance listed in the MOI and argued that the guidance emphasized not placing undue emphasis on the diversity of assignment or the absence of combat experience, which contradicted the "special" attention comments. She maintained the guidance of "View an officer's experience not in terms of one key assignment, but as a combination of many assignments and deployments" was also in conflict with the special attention comments. 14. On 4 November 2009, the Chief, DA Promotions, HRC, St Louis, MO (HRC-STL), responded to the applicant's request for promotion reconsideration, stating the applicant's record was considered but not selected by the FY 2008 and 2009 COL DA, RC Selection Boards. He explained she was considered educationally qualified for the selection board. He stated the reasons for her non-selection were unknown, because board deliberations were not a matter of record. He further stated the applicant's archived 2008 and 2009 board consideration files revealed all critical elements were present in the board consideration file to include her Officer Record Brief (ORB) and OERs, which were viewed and certified to be correct by her. Since there was neither material error nor documents missing, she did not have a basis for a Special Selection Board (SSB). 15. ABCMR Docket Number AR20100012599, dated 9 December 2010, shows the applicant applied to the Board requesting promotion to the rank of COL, claiming the promotion board improperly failed to consider her for promotion for not having deployment experience to Iraq or Afghanistan, based on improper instructions from the MOI given to the promotions board members by the Secretary of the Army. However, the ABCMR denied her case. 16. ABCMR Docket Number AR20110002939, dated 6 October 2011, shows the applicant requested a reconsideration of her previous case (ABCMR Docket Number AR20100012599, dated 9 December 2010). She provided new evidence claiming that she was issued a DA Form 3349 (Physical Profile) for a permanent profile, but was rendered fit for duty for continental U.S. (CONUS) duty only, which she believes hurt her chances to be considered for promotion based on the MOI by the Secretary of the Army. She also provided a new argument concerning her non-deployable status as the reason for her non-selection. The ABCMR denied her case. 17. On 8 November 2011, the applicant requested a second reconsideration from the ABCMR based on the Board’s failure to address the issue of the applicant’s request for a personal appearance hearing. On 21 November 2011, in a letter addressed to the applicant, she was advised that the evidence she provided was sufficient on its merits in order to render a sound decision on her case, and further determined that a personal appearance before the board was not required. As a result, her last request for a personal appearance and reconsideration was returned without action. 18. The applicant provided a court document from the U. S. District Court, Western District of TX, San Antonio, Civil Number SA-12-CA-641-OG, dated 27 November 2012, in which she appealed her case to the civilian court. The case was dismissed for lack of jurisdiction and for failure to state a claim upon which relief could be granted. 19. The applicant provides an unsigned but initialed DA Form 2823, dated 31 January 2011, wherein MAJ R_____ L. G_____ states: Somewhere in the mobilization process she was deemed to have a medical condition that prohibits deployment [outside of] CONUS. [Applicant] was subjected to review by the Physical Evaluation Board (PEB). The results of the PEB indicated [she] was pronounced 'fit for duty,' and could only deploy in CONUS. After the recommendation from the Department of the Army PEB, [she] was the subject of 'talk' within the 90th Regional Readiness Command (RRC) that she was trying to avoid deployment, and conveniently disclosed her medical condition. Subsequently, [she] shared her OER during the above time frame with [me]. COL F____ rated her as 'Promote with Peers,' and her senior rater Brigadier General (BG) H_______ gave her a center of mass and 'Promote with Peers.' Of significant note, her ratings by COL F_____, BG H_____ before the disclosure of her medical condition and PEB evaluation were 'Select to Colonel Now,' and an above center of mass rating. [Her] ratings were lowered to 'Promote with Peers,' center of mass, after she was determined not to be a mobilization asset. [She] served as my supervisor in the Inspection Division, Inspector General 90th RRC. She was well respected, displayed outstanding leadership characteristics, and is one of the best officers I have ever worked with in my 28 year Army career. [She] should have been promoted to Colonel… 20. On 30 June 2011, the applicant was placed on the Retired List after completing sufficient service for retirement. REFERENCES: 1. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other Than General Officer) provides guidelines on promotion board procedures. Paragraph 3-10 states that the Secretary of the Army (SA) or their designee will issue an MOI to selection boards prescribing the oath to be taken by board members. The MOI will include the zone of consideration as well as guidance to the board on methods of selection, reports to be furnished, and any other administrative details required. The MOI is issued by authority of the SA. Accordingly, the MOI may override certain provisions of this regulation for a particular board, provided such supersession is not contrary to law or other controlling regulation. The MOI will direct that the board, in pertinent part, to Review the evaluation report files when determining an officer's qualifications and to select officers using the fully or best-qualified method, as covered in the MOI. 2. Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. DISCUSSION: 1. The applicant contends that she should have been selected for promotion. She states she would have been selected for promotion had it not been for the fact that she did not receive an opportunity to compete with a larger Reserve officer group where the promotion potential was least restrictive and which had a higher promotion rate, and the fact that her OER reflected a "center of mass" rating instead of "above center mass" due to her medical issues. 2. The applicant’s claim that as an AGR officer, had she been in competition with the larger Reserve officer group, she would have had a greater chance of being promoted to COL has no merit. Based on the MOI for FY 2008 for COL, she was, in fact, considered for promotion for both the smaller and larger groups of the consisting of the ARNG, USAR AGR, and USAR Non-AGR APL Competitive Categories, PSBs, and was not selected for promotion. In addition, this information had already been provided to the applicant in Docket Number AR20100012599, date 9 December 2010. 3. The applicant provides the sworn statement of MAJ R_____ L. G______, which the ABCMR did not previously consider. It is unclear how MAJ R____ L. G_____ "knows" that the applicant’s ratings were lowered by the rater and senior rater by giving her "Promote with Peers and a rating of "center of mass" after she was determined not to be a mobilization asset. The statement appears to be merely speculative. In addition, MAJ R______ L. G_____ was the applicant’s subordinate and not in the position to make a determination regarding her rating performance against her peers. 4. MAJ R____ L. G_____ also states, "Of significant note, her ratings by COL F_____, [and] BG H_____ before the disclosure of her medical condition and PEB evaluation were ‘Select to Colonel Now,’ and an above center of mass rating. [Her] ratings were lowered to ‘Promote with Peers,’ center of mass, after she was determined not to be an mobilization asset." However, there is no evidence that the applicant’s OER was changed. The applicant was given her next OER during her regular scheduled period. In this subsequent evaluation, the applicant’s new rater and senior rater gave her a rating of "center of mass," which was within their authority. There is no indication that this rating was based on anything other than the rating chains subjective opinion of her performance during the period of question. 5. The fact the promotion board was informed in the MOI that special attention should be paid to officers serving on Transition Teams and PRTs in the current environment and foreseeable future is not sufficient justification to conclude "the board was given improper instructions" and therefore, she was discriminated against. Since the type of job, duties, and responsibilities are listed in the OERs and ORBs and are reviewed as part of the selection process, the special instructions as set forth in the MOI explains the responsibilities involved in serving on these teams for the board members' clarification. It does not appear that these "special attention areas" were listed as a means to discriminate against those officers who had not been deployed. 6. Further, as shown in the summary of board actions, there were only five officers selected out of 72 considered for promotion in the previously considered zone under the FY 2008 board. A 7% selection rate is extremely low; however, as stated in both memoranda issued by DA Promotions, the reasons for non-selection were unknown because board deliberations are not a matter of record. 7. The ABCMR is not empowered to promote officers. The Board may recommend the case be referred to an SSB if the Board determines there was a material error in the officer’s record at the time of the original consideration. The available records do not indicate there was an error in her file that would warrant a referral to an SSB. 8. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001523 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001523 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2