MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 December 2001
         DOCKET NUMBER: AR2001060443

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Thomas Lanyi		Member
Mr. Jose A. Martinez		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)

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APPLICANT REQUESTS: In effect, that his security clearance be restored.

APPLICANT STATES: In effect, that in 1989 he arrived in Germany at a time that he was experiencing marital difficulties and he decided that he no longer wanted to remain in the military. He states that he stopped attending formations from March through May 1989 which resulted in his being convicted by a summary court-martial and sentenced to 30 days of confinement, of which he actually served 22 days in Mannheim, Germany. Upon his return to his unit, after being coached by his first sergeant, he decided to stay in the Army. After
9 months he earned back his rank of specialist/E-4 (SPC) and he had been recommended for promotion to sergeant/E-5 after appearing before the promotion selection board. He indicates that during this period, he performed in his primary military occupational specialty (MOS) 63J (Quartermaster Chemical Repairer) and also as the unit clerk based on his having administrative skills. He also claims that during this period, he earned awards for his contribution in the preparation for command inspections conducted by Army higher headquarters. In addition, he comments that he has accepted full responsibility for his actions and if he had it to do over again, he would surely be wiser in his choices. He indicates that in October 2000, he was offered an auditor position with the Army Audit Agency; however, he was informed that he had been denied a security clearance based on derogatory information placed in his record in October 1991. He concludes by stating that he does not claim that what he did in the Army was right and he knows he made errors. However, he has since graduated from the University of Baltimore with a degree in accounting and has had no blemish on his character since 1989, therefore, he would be grateful if this matter were resolved favorably.

EVIDENCE OF RECORD: The applicant's military records show:

He continuously served on active duty in the Regular Army for 4 years,
10 months, and 21 days, from 7 October 1987 until 27 August 1992, at which time he was honorably separated by reason of physical disability with severance pay.

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that the highest rank he attained while serving on active duty was SPC/E-4 and that during his active duty tenure, he earned the following awards: Army Achievement Medal with 1^st Oak Leaf Cluster; Army Good Conduct Medal; National Defense Service Medal; Army Service Ribbon; Overseas Service Ribbon; and Marksman Qualification Badge (M-16 Rifle).

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While there is no information on file regarding the applicant’s disciplinary history or the specific facts and circumstances surrounding the events that led to the derogatory information being added to his records, by his own admission, he was convicted by a summary court-martial that resulted in his being sentenced to a period of confinement that he served in Mannheim, Germany.

On 10 July 1989, a Report of Unfavorable Information for Security Determination (DA Form 5248-R) was prepared by the applicant’s unit security officer. The offense listed as the basis for the report was the applicant’s disobeying a lawful order. The DA Form 5248-R also listed the action taken as confinement for
30 days and it contained the unit commander’s recommendation that the applicant not be considered for a security clearance in the future.

On 6 February 1991, based on the derogatory information outlined in the DA Form 5248-R, dated 10 July 1989, the applicant’s security clearance was revoked by the United States Army Central Personnel Security Clearance Facility (CCF), Fort Meade, Maryland.

In October 2000, the applicant was tentatively offered a position as an auditor with the United States Army Audit Agency (USAAA), Fort Meade, Maryland. However, he was later advised that he had been denied a security clearance based on derogatory information on file in his records; and as a result this tentative employment offer was officially retracted.

On 8 March 2001, the Chief, Freedom of Information Office/Privacy Officer, United States Army Intelligence and Security Command, Fort Meade, Maryland, responded to a privacy act request from the applicant. He advised the applicant that the Defense Clearance and Investigations Index (DCII) contained an Army intelligence investigative record on him that showed that his security clearance had been revoked by the CCF on 6 February 1991.

Army Regulation 380-67 (Personnel Security Program) establishes the policy and procedure to ensure granting access to classified information to members employed by the Army is clearly consistent with national security interests. This regulation establishes CCF as the agency responsible for adjudicating records to determine if a security clearances should be granted. It also requires that all determinations made by CCF, whether favorable or unfavorable, be added to the DCII. Paragraph 8-201, provides the unfavorable administrative action procedures and states that CCF is the DA authority for denial of security clearances and it also provides administrative procedures for appealing a
CCF security clearance denial.

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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. The Board notes the applicant’s request that his security clearance be restored; however, it finds insufficient evidence to support granting this requested relief.

2. By the applicant’s own admission, the derogatory information contained in the DA Form 5248-R that was used as a basis for revoking his security clearance in 1991 was true. As a result, the Board finds no error or injustice related to the original revocation of his security clearance in 1991, and it finds no basis for restoring it at this time.

3. Further, by regulation, CCF retains the DA authority for adjudicating security clearance requests, to include records of derogatory information, in order to render a security clearance decision that is clearly consistent with national security interests.

4. In the opinion of the Board, the action taken by CCF to deny the applicant’s security clearance was accomplished in accordance with the applicable regulation based on the derogatory information contained in his record. Thus, the Board finds no basis for questioning the validity of this determination.

5. It is unclear from the available records if the applicant appealed, rebutted, or offered factors of mitigation to CCF in regard to the denial of his security clearance. The Board recommends, if he has not already done so, that he contact CCF officials to determine the appropriate method for taking this action at this time.

6. 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 this requirement.

7. 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

__INW __ _ _TL __ __JAM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060443
SUFFIX
RECON
DATE BOARDED	2001/12/18
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1992/08/27
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Physical Disability-Severance Pay
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2.
3.
4.
5.
6.