PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001053276



         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. Eric N. Andersen		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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.

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2. The applicant requests, in effect, that his initial commissioning date be corrected; that his second lieutenant (2LT) date of rank (DOR) be adjusted; that he be promoted to first lieutenant (1LT) accordingly; and that he be provided all back pay and allowances due as a result.

3. The applicant states, in effect, that he graduated from Officer Candidate School (OCS) on 12 September 1998. At that time he was informed that he would not be commissioned because he did not receive the required security clearance as a result of his security packet not being submitted with the rest of his class. He claims that he completed all the OCS requirements and submitted the necessary paperwork required in order to be commissioned upon his graduation from OCS. He also states that matters were made worse when his clearance paperwork was finally submitted and again lost somewhere in the system. He indicates that he finally received his commission on 11 September 1999, a year after the rest of his classmates.

4. The applicant explains that there were extensive errors in the processing of his security clearance and outlines the timeline and events that took place in this process as follows: March 1997, he entered OCS Class 41 and at that time security clearance packets were prepared and submitted on all the members of the class except him; March 1998, OCS administrative personnel realized the mistake and a hard copy of his security packet was resubmitted but this becomes lost in shipment; May 1998, the clearance packet is again resubmitted; September 1998, he graduates from OCS but is unable to receive his commission due to a lack of security clearance and he was told an interim clearance could not be granted even though he had previously held a secret clearance in the Navy; and between September 1998 and September 1999, the clearance packet is lost a second time and a third attempt is resubmitted via electronic means, which is finally successful. He indicates that he was finally commissioned on 11 September 1999, and attempted to rectify these irregularities in his commissioning process through the Inspector General’s Office and a Member of Congress, both of whom informed him nothing could be done.

5. The applicant’s military records shows that in 1998 he joined the 100^th
Mobile Public Affairs Detachment (MPAD), Austin, Texas, Texas Army National Guard (TXARNG) as an officer candidate. On 12 September 1998, he completed OCS but was unable to be commissioned due to his not having received the necessary security clearance.

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6. On 3 August 1999, a noncommissioned officer (NCO) security manager for the Adjutant General Department of the TXARNG confirmed that he had seen the original computer generated Certificate of Clearance and/or Security Determination (DA Form 873) pertaining to the applicant, issued by the U.S. Army Central Personnel Clearance Facility on 27 July 1999. He also verified that the applicant was cleared for authorized access to classified information at the SECRET level based on a National Agency Clearance Check and that the original DA Form 873 was on file in the TXARNG personnel security office. He further indicated that the date the investigation was completed was 16 July 1999 and the date the final clearance was granted was 27 July 1999.

7. As a result, on 11 September 1999, the applicant was appointed a 2LT in the TXARNG and remained assigned to the MPAD and was assigned to a captain (CPT) position as a team leader, where he continues to serve.

8. On 3 January 2001, a lieutenant colonel (LTC) security manager for the TXARNG, recommended in a memorandum to the United States Army Reserve Personnel Command (ARPERSCOM), that any of the applicant’s requests that were based on his failure to obtain a security clearance in a timely manner be granted and that the applicant’s appointment date be reestablished as
12 September 1998. He also indicated that approximately 2 weeks before the applicant’s graduation date, 12 September 1998, he was informed that the applicant was the only OCS candidate lacking a security clearance.

9. The TXARNG security manager further indicated that the oversight in processing the applicant’s security clearance in a timely manner resulted in a great deal of anguish for the applicant and placed him behind his peers, with whom he had successfully completed all the necessary OCS class requirements in order to graduate on time. He further states that in order to correct this action he resubmitted a hard copy of the clearance packet after the applicant’s graduation and unfortunately this packet was also lost. He also verifies that the applicant had no derogatory information in his background that caused the delay in the security clearance processing and that it would be in the best interest of the TXARNG to have this injustice rectified by granting the applicant’s request for relief.

10. On 31 January 2001, an officer assigned to the OCS program offices completed a sworn statement, in which, he indicates that upon his assignment to the OCS program he started to research the files of all the graduating class members and noticed that several class members had no security clearance. After discussing this situation with the security manager, he found they had never received the necessary paperwork to initiate a security clearance on the applicant but he came to find out, after requiring the applicant to submit a new packet, that the original packet was still in a box in the OCS office and had never been submitted.

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11. In connection with the processing of this case, an advisory opinion was requested of and received from the National Guard Bureau (NGB) Chief, Personnel Division, dated 31 July 2001. It indicates that the applicant did not meet the requirements for commissioning after he completed OCS. Further, he commented that those who complete the course and that are not appointed receive a certificate of eligibility that allows them to be appointed before the expiration date. If they fail to meet all the requirements of commissioning and the certificate expires, they must complete another officer accession program before they can receive a Reserve appointment in the Army. In accordance with National Guard Regulation 600-100, paragraph 2-11c, a candidate has two years to become qualified for appointment. If they fail to become qualified within the two years, they are no longer eligible for appointment based on the certificate of eligibility.

12. On 20 August 2001, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond, which he did on
11 September 2001. In his rebuttal, the applicant states, in effect, that his failure to be appointed upon his graduation from OCS was thorough no fault of his own and of the 75 members of his class, he is the only one that underwent these difficulties in obtaining his security clearance. He indicates that since his appointment he has served with the 100^th MPAD in CPT position and claims that the delay in his commissioning has limited his effectiveness with the unit because it limits his ability to be deployed.

13. The MPAD unit commander provided a statement of support with the applicant’s rebuttal. In it he indicates that the applicant was assigned to a CPT position with the understanding he would be commissioned shortly thereafter and the delay in the applicant’s commissioning has kept him nondeployable and hurt the unit’s readiness posture. He recommends that applicant be promoted to 1LT immediately and that his commission date be backdated to 12 September 1998, the date he graduated from OCS. The unit’s executive officer also provided a statement. It indicates, in effect, that the applicant was not commissioned on time as the result of a clerical error through no fault of his own and that common sense dictates that he not be punished for this inexcusable incompetence. He goes on to indicate the applicant had sacrificed much to be in the unit given the travel time involved and the lodging costs he sometimes incurs. In addition, he indicates that the applicant has a pregnant wife and one child to support and if the Army is serious about taking care of its own, this is a case where the right thing to do is clear. He goes on to comment that the applicant is an outstanding officer and despite having every reason to be bitter about his military experience he has thus far been the hardest working most conscientious officer in the unit.

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14. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR). Paragraph
1-6h contains the security requirements necessary for appointment and indicates that applicants will have as a minimum of a Secret security clearance prior to being tendered an appointment. It also indicates that a National Agency Check will be initiated at the time an application for a commission is submitted.

CONCLUSIONS:

1. The Board notes the position taken in the NGB advisory opinion and while it does not take issue with the fact that the applicant was technically not eligible to be commissioned upon his graduation from OCS, it does conclude this is not the overriding controlling factor is this case.

2. The evidence or record clearly shows that the applicant graduated from OCS and had completed all the prerequisites necessary to be commissioned at that time, with the exception of holding the proper security clearance. It further confirms that the reason he did not have the necessary security clearance was because of the inordinate processing time it took to obtain it.

3. In the opinion of the Board, the evidence clearly establishes that the applicant’s appointment date was unjustly delayed through no fault of his own and was the result of the administrative errors committed during the processing of his security clearance packet. In addition, TXARNG security managers confirm that there was no derogatory information contained in the applicant’s background that would have delayed the issue of the appropriate security clearance prior to his graduation from OCS had the proper processing procedures been followed.

4. Therefore, the Board concludes that the applicant was unfairly denied the opportunity to be commissioned with his contemporaries, upon his graduation from OCS, as a result of administrative errors in the processing of his security clearance. It further concludes that these errors resulted in his being placed at a competitive disadvantage with his peers through no fault of his own and have resulted in an injustice being served upon the applicant that should be corrected at this time.

5. In the interest of justice and equity, the Board finds that it would be appropriate to correct the date the applicant was commissioned a Reserve 2LT and appointed in the TXARNG to 12 September 1998, the date he would have initially been commissioned had it not been for the delay in the processing of his security clearance.

6. In addition, as a result of the change in his appointment date, the Board concludes that it would be appropriate to promote the applicant to 1LT, effective 11 September 2000, which is the date he would have become eligible had he been commissioned and appointed a 2LT on the proper date and to provide him all back pay and allowances due as a result.

7. Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that insofar as the Department of the Army is concerned, it would be in the best interest of justice to correct the ARNG records of the individual concerned as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was commissioned a Reserve 2LT and appointed in the TXARNG on 12 September 1968; by promoting him to 1LT on 11 September 2000; and by providing him any back pay and allowances due as a result.

__RVO___ __ENA__ __TEO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Raymond V. O’Connor, Jr._
                  CHAIRPERSON

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INDEX

CASE ID	AR2001053276
SUFFIX
RECON
DATE BOARDED	2001/09/27
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 21	102.0700
2.
3.
4.
5.
6.