BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160015276 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 November 2017 DOCKET NUMBER: AR20160015276 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 November 2017 DOCKET NUMBER: AR20160015276 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, as stated in her application and further clarified in a subsequent letter dated 4 May 2017: * Army agencies look into allegations of misconduct by military/civilian personnel * a review of assignment opportunities not offered to her by the Military Police (MP) Career Branch * special selection board (relook) consideration for promotion to colonel (COL), pay grade O-6 * to be made whole 2. The applicant states that two former and her current assignment officers at the U.S. Army Human Resources Command (HRC) provided inaccurate assessments of several personnel actions showing their prejudice and bias regarding certain personnel actions/decisions that affected the applicant. These actions affected her and have the potential to affect her future considerations for key developmental assignments and/or her promotion to COL/O-6. She notes that because she is not a member of a certain clique or society she is disadvantaged in favor of other MP officers who appear to be a part of this favored clique. She has been vigilant in voicing her concern about correcting these personnel actions that have affected her. She expected fair and impartial treatment based on the merits of her performance; however, her personal experience has been otherwise. In July and August 2016, she was informed her concerns were not appropriate for action by either the Department of the Army (DA) Equal Opportunity (EO) Office or the DA Inspector General (DAIG). 3. The applicant provides: * DA Form 7279 (EO Complaint Form) dated 21 July 2016 * Email communication, subject: EO Complaint, dated 21-25 July 2016 * DA Form 1559 (DAIG Action Request) dated 4 August 2016, with 3 continuation pages * Letter from the DAIG to the applicant, dated 11 August 2016 CONSIDERATION OF EVIDENCE: 1. At the time of her application, the applicant was serving as an Active Guard Reserve (AGR) officer in the rank of lieutenant colonel (LTC), pay grade O-5. 2. In a DA Form 7279, as provided by the applicant, dated 21 July 2016, she states the basis of her complaint is perceived inequality as a minority female AGR MP Officer as it relates to her non-selection for promotion to COL and missing out on several key developmental AGR assignments. Prejudices against her by several MP HRC assignment managers caused them to underestimate her, thus preventing her from being assigned to key positions which also hampered her opportunity for promotion to COL/O-6. She feels the discrimination she experienced was due to her ethnic category and gender. Had her last name not been Hispanic and had she been male, any consideration and selection for promotion would have been higher. She feels that because she is a female and from Puerto Rico, she did not receive fair opportunities for promotion. She states she reviewed the Reserve Component (RC) COL Active Promotion List (APL) promotion board statistics for fiscal year (FY) 2013 through FY 2016 which failed to show any Puerto Rican female MP AGR officers were selected for promotion to COL. However, she did find one Puerto Rican female who was promoted to COL, but not as an MP. She feels that promotions to COL are not distributed equitably among all ethnicities and gender groups. 3. In email communications, as provided by the applicant, dated from 21 to 25 July 2016, the HRC EO Advisor stated her EO complaint could not be processed because the issues she addressed dealt with a DA process executed by HRC. She was informed that her best course of action would be to address her concerns to the DAIG Office. 4. In a DA Form 559, dated 4 August 2016, the applicant stated her request to have the IG assess her military records to determine to what degree her records inaccurately reflect her performance and potential. She believes past personal prejudices by several former HRC assignment managers, either intentionally or unintentionally, resulted in the omission of facts related to her performance and potential hampering her promotion and assignment opportunities. She provided background information on three continuation pages wherein she addressed the following issues: a. her confidence and pride of her military and personal achievements; b. her military career was not easy with challenges starting as early as 1999; c. her need to be vigilant because no one else would look after her and point out known errors for correction (in her personnel record and promotion file); d. her non-selection for promotion to captain due to not completing the required education, when in fact she had two bachelor degrees, resulting in action by a Special Selection Board (SSB); e. her not being nominated/selected for a Joint Staff assignment due to an assignment officer not properly checking her security clearance status; f. her tenacity for assignments to key MP AGR positions, such as the Executive Officer, 733rd MP Battalion; g. her applications for various boards and advanced military courses, to include the Senior Service College, which were all denied; h. her IG assignment as a LTC which was a major's position; i. her non-selection for COL in FY 2014/2015/2016 without being told the reasons for her non-selection; and j. her belief that her gender and ethnic designation makes her invisible, less desirable or not qualified to occupy key AGR assignments. 5. In a letter from the DAIG, as provided by the applicant, dated 11 August 2016, she was informed that her request concerning a comprehensive review of documents filed in her military records was not appropriate for action by an IG. Accordingly, no action was taken on her complaint. 6. During the processing of this application, the applicant sent a separate four-page letter with several enclosures for the Board's review. Her letter is dated 4 May 2017. In her communication, she adds the following summarized comments and arguments. a. The matters she presents are described as elusive and hard to prove; but does not mean she was not the recipient of unlawful discrimination. She contends she endured mistreatment and racism. She accuses personnel at HRC of mismanaging her career since 2007. b. She was disadvantaged by a civilian employee and by Army personnel in the later part of her military career. After her service as a command Inspector General, she contends she experienced racial discrimination and institutional mismanagement. She feels like she was put away like damaged goods because she was not offered any other career opportunities after 2013. c. She relates how she was invited to attend a memorialization ceremony for a project that she had spearheaded. She only found out about it when she searched the internet for a status of the project. It was then that she realized the impact of the negative psychological treatment she was subjected to while assigned to the 290th MP Brigade from April 2010 to February 2013. She states an Army civilian ostracized her by not inviting her to events that other Solders were invited to. He was biased against her performance and potential as a competent female officer in the MP community and he treated her with resentment. Earlier, she had reported this civilian when his name had appeared more than once on the delinquency report for the government travel card. d. In 2012, she was recognized for having the highest passing rate of the brigade’s physical security inspections, yet this civilian bad-mouthed her and often said she did not know anything at all. Later, as the rear detachment commander, she made significant gains. Even though she was only assigned there for 3 months, the increased readiness indicators showed her positive engagement in all aspects of measuring effectiveness, creating a team to affect every single metric in a positive direction. As shown on her DA Form 67-9 (Officer Evaluation Report (OER)) for the period 18 June to 31 December 2012, her rating officials outlined her exceptional performance and potential supporting her selection for battalion command, attendance at a Senior Service College and immediate promotion to COL/O-6. e. Her EO and DAIG complaints were returned without action as her issues were not appropriate for their respective agencies to review. She is now asking this Board to investigate her allegations. f. She submitted additional evidence with her letter. * Memorial Committee Slides; Timeline of Events; memorandum, subject: Memorialization of Cary, NC, USAR Center, dated 30 October 2012; Nomination Packet tabbed A to G (59 pages) * DA Form 67-9 for period ending 31 December 2012 * Email communication between HRC and the applicant, subject: Records Review, dated 4-8 August 2016 * DA Form 5016 (Chronological Statement of Retirement Points), dated 4 May 2017 * DA Form 4037 (Officer Record Brief (ORB) dated 16 December 2016 7. In the processing of this case, an advisory opinion was obtained from HRC wherein the Chief, Officer Promotions and Special Actions, provided the following information: a. Based on a records review and the information provided, the applicant’s request for reconsideration for promotion by an SSB did not have merit. b. The applicant's assumption she was not selected for promotion due to discrimination against her is not supported by any evidence of record. c. There is no evidence showing that the promotion board acted contrary to law. Statutory requirements prohibit disclosure of promotion board proceedings to anyone who was not a member of the presiding board. d. It can only be concluded that the promotion board determined that the applicant’s overall record, when compared to the records of her contemporaries, did not reflect as high a potential as those selected. Any additional comments, remarks or statements regarding her non-selection would be purely speculative. 8. On 30 May 2017, a copy of the advisory opinion was sent to the applicant for her information and opportunity to respond. 9. In response to the advisory opinion, the applicant submitted an eleven page letter, dated 10 July 2017, with nine enclosures. She essentially made the same arguments concerning the issues she submitted to the EO and DAIG; however, with added details and references. Her enclosures, as listed immediately below, are discussed in the following paragraphs. * (1) – Email message, dated 21 - 25 July 2016 (4 pages) * (2) – DAIG final notification letter, dated 11 August 2016 * (3) – ARBA letter, dated 30 May 2017 with enclosure (2 pages) * (4) – Email message, dated 11October 2016 (3 pages) * (5) – DA Form 67-9 with through date of 31 December 2012 * (6) – Chronological timeline from March 2006 through 1 July 2018 * (7) – DA Form 638 (Recommendation for Award) dated 8 February 2013 * (8) – Email message, dated 19-23 June 2015 (4 pages) * (9) – retired brigadier general's support letter, dated 10 July 2017 (3 pages) 10. The DA Form 67-9 ending on 31 December 2012 was discussed in paragraph 6d above. 11. The DA Form 638, dated 8 February 2013, shows the applicant was recommended for and subsequently awarded her fourth Army Commendation Medal. It was presented in conjunction with her end of tour award due to a permanent change of station. The following achievements were noted on the form. a. She was critical (program manager) in the activation of the 290th MP Brigade. She ensured all operational support requirements were completed ahead of schedule. b. She sacrificed nights, weekends, and holidays to manage the brigade travel card program for 2,500 Soldiers. c. She was selected from among six other officers to serve as the rear battalion commander for two of the lesser performing battalions. She quickly accessed the challenges in both units and immediately made improvements. d. She successfully organized, planned and submitted the required documents for the memorialization of the Reserve Center in Cary, North Carolina, in honor of a fallen Soldier. She also reached out to other units and successfully honored their fallen Soldiers by having conference rooms and other public spaces named in their honor. e. She was recognized for her exceptional meritorious service while serving as the Operations Officer (G3) for the 290th MP Brigade. 12. The email message dated 19-23 June 2015 concerned the applicant’s request for a telephonic appointment to speak with the Commanding General (CG), 200th MP Command. The purpose of her request was to discuss her follow-on MP assignment. She was informed that more than likely the CG would speak with her on 30 June 2015. She was also advised to have her cell phone at the ready when the CG calls. 13. The email communication dated 21-25 July 2016, concerned the applicant's EO complaint and was discussed in paragraphs 3 and 4 above. 14. The DAIG final notification letter dated 11 August 2016 informed the applicant that the type of personalized record review she requested was not within the authorized functions of the IG. Accordingly, the IG took no further action on the applicant's complaint. 15. An email message dated 11 October 2016, indicates she had re-sent this message to HRC requesting an SSB reconsider her for promotion to COL/O-6 under the FY 2016 criteria. In response, the Action Officer, Promotions Branch, HRC, informed her of the following: a. The exact reasons for her non-selection for promotion are unknown by anyone outside of the members of the promotion board. b. Promotion decisions are based upon criteria established by the Secretary of the Army and the collective judgment of the respective board members. c. It can only be concluded that the previous promotion board determined that her overall record when compared to the records of her contemporaries in the zone of consideration, did not reflect as high a potential as those selected for promotion. d. Based on reviews of the information provided and the contents of her board file, the Special Actions Section, Officer Promotion Management, HRC, denied her request for an SSB. The grounds were that there were no material errors identified in her board file. e. The respective zone message announcing the promotion board afforded each candidate the opportunity to correspond directly with the President of the Promotion Board and its members to address issues that were not readily visible by reviewing their file. f. Every aspect of existing law and policy was adhered to regarding her promotional opportunity and in adjudicating her SSB request. 16. The applicant was sent a letter from ARBA, dated 30 May 2017, advising her of the advisory opinion from HRC (discussed in paragraph 7 above). 17. A retired brigadier general (BG) provided the applicant a letter of support dated 10 July 2017, the BG states he was her commander at the time the applicant was having difficulties with the deputy commander and a senior civilian in the unit. The BG states the deputy commander and the senior civilian often consulted with each other and were a major distractor within the organization. The BG had informally counseled the civilian regarding his unacceptable methods of obtaining information. He told them that he would have their actions investigated, if needed. The BG went outside of the command for an investigating officer (IO). The investigated actions were unsubstantiated. However, the BG did not trust the judgment of the IO because "he was a part of the gang." The BG now believes based on the outcome of the investigation and this request from the applicant that the IO had been in consultation with the deputy commander and senior civilian employee. The BG recommends that this Board investigate the applicant’s case to ensure full disclosure because he believes she was disadvantaged while in the AGR Program. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides: a. The Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The Board will decide cases on the evidence of record. It is not an investigative body. 2. Title 10, U.S. Code, section 14104, prohibits disclosure of promotion board proceedings to anyone who was not a member of the presiding board. Title 10, U.S. Code, section 628(b), concerns persons considered by promotion boards in an unfair manner. If the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene an SSB under this subsection to determine whether that person should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine that the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involve material error of fact or material administrative error, or that the board did not have before it for its consideration material information. 3. Army Regulation 135-155 Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR and Army National Guard. a. Promotion boards make recommendations to the President of the United States, who is the approval authority for all commissioned officers (except commissioned warrant officers). Promotions to the grade of COL and approved by the President must be confirmed by the Senate. b. The selection boards will receive promotion consideration files for each eligible officer that will contain the performance portion of the official military personnel file, OERs, academic evaluation reports, commendatory information and disciplinary information. An ORB and a professional photograph will be included. An officer is authorized to communicate to board president. c. Specific information will be provided to the selection board by the Secretary of the Army. The memorandum of instruction will include factors to be considered such as the Army's needs (number of personnel) in each branch, functional area or area of concentration. The board will also be provided the maximum number of officers to be selected from each competitive category. The selection board will base their recommendations for promotion on impartial consideration of all personnel being considered. To be fully qualified for selection, an officer must be participating satisfactorily, qualified physically, morally and professionally; capable of performing the duties of the next higher grade, and educationally qualified. The selection board will then select the best qualified from the members of the group that are fully qualified. d. It 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. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. 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 military schooling. DISCUSSION: 1. The desire of the applicant to have her allegations investigated is understood; however, investigations are not within the Board's statutory authority. The evidence shows that an investigation was conducted at the time with finding(s) that did not substantiate her allegations of discrimination based on her ethnicity and gender. 2. Reviewing an officer's record of assignments and/or determining what assignment opportunities are appropriate for career development is not within the scope and authority of this Board. Career management is a joint activity between the individual officer and the appropriate career management branch within HRC. 3. The advisory opinion provided by HRC states the applicant was not selected for promotion to COL/O-6. There is no evidence showing her non-selection was due to any type of discrimination. There is no available evidence showing the promotion board acted contrary to law. Statutes preclude any disclosure of promotion board proceedings to persons not party to the presiding board. Promotion boards are tasked with choosing the best qualified officers from a list of fully qualified officers to meet the needs of the Army including the numbers of officers in each branch, functional area or area of concentration. 4. The information provided by the applicant and her former commander suggests the relationship between the applicant and the deputy commander and a senior civilian was in discord. The commander attests to the applicant's working environment based on the behavior of two individuals who were his subordinate employees. As this Board is not an investigating body, it cannot take action on her allegations of discrimination or prejudicial actions by others during her career unless a preponderance of the evidence in the applicant's military records and in the documents she provided shows correction of her record is warranted to correct an error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015276 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015276 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2