MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002066315

         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
Ms. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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: Adjustment to his date of rank for captain from 11 May 2001 to 15 June 2000.

APPLICANT STATES: That the Army Reserve Personnel Command (AR-PERSCOM) committed material error and unjustly delayed his promotion by requiring a secret clearance as a condition of promotion when Army Regulation 380-67, paragraph 3-303 specifically excepts attorneys from the same requirement as a condition of appointment; and when no other regulation requires a secret clearance as a condition of promotion. He also states that AR-PERSCOM committed material error and unjustly delayed his promotion by violating the clear and unambiguous language of Army Regulation 135-155, paragraphs 4-10 and 4-12, which specifies that a screening of the military personnel records jacket for derogatory information is required as a condition of promotion. AR-PERSCOM failed to conduct such a screening and instead required him to have a secret clearance. He submits a self-authored memorandum, an appeal memorandum to AR-PERCOM dated 18 September 2001, his promotion memorandum dated 15 May 2002, his promotion qualification statement dated 7 March 2000, a letter from his commander dated 10 February 1997, assigning the applicant to a captain, Judge Advocate General’s Corps (JAGC) position vacancy, and his appointment memorandum dated 29 May 1997 in support of his application.

EVIDENCE OF RECORD: The applicant's military records were not provided to the Board. Information herein was obtained from documentation submitted with the application that shows:

He was appointed in the Reserve, JAGC, as a first lieutenant effective 3 June 1996, with 3 years constructive service credit. His date of rank was 3 June 1996. He was not issued a security clearance at the time. His maximum time in grade date for promotion to captain was 2 June 2001. He had over 14 years of enlisted active duty and Reserve service, with a security clearance.

On 10 February 1997, the applicant's commander notified the 214^th Legal Support Organization of his intent to assign the applicant to a captain, JAGC position vacancy pending action by higher headquarters.

He was considered and selected for promotion to captain by the June 2000 Position Vacancy Board (PVB). The President approved the results of the board on 7 January 2001.

He was issued a security clearance on 11 May 2001.



A promotion memorandum dated 15 May 2001, was issued to him indicating his date of rank and promotion effective date for captain as 11 May 2001.

Army Regulation 135-100, Appointment of Officers and Warrant Officers of the Army, specifies that each applicant for appointment as a commissioned officer have a secret security clearance before an appointment may be tendered a secret clearance is required prior to being tendered an appointment. It also specifies that as an exception, officers may be appointed in the Judge Advocate General’s (JAGC) prior to completion of a National Agency Check provided one is requested at the time of appointment, and prior to completion of a DOD National Agency Check (DNACI) and written inquiries provided that: a. A DNACI is initiated at the time an application for a commission is received; and b. The applying JAGC officers agree in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found to be ineligible to hold a commission.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. It was published on 24 October 2001 and became effective 2 November 2001. The regulation specifies that an officer who has been recommended for promotion to the next higher grade must meet the requirement of having undergone a favorable security screening. Paragraph 4-12 of this regulation also specifies that promotion authorities will ensure that a favorable security screening is completed before announcing a promotion. The military personnel records jacket (MPRJ) will be screened to ensure that derogatory or unfavorable suitability information is not contained therein for promotion purposes. If the results of this screening are favorable, final promotion action may proceed.

This regulation did not change the previous regulation on this issue.

A previous policy statement from an official of the Office of the Chief of the Army Reserve concerning this issue reads "Paragraph 4-10a(4) of AR 135-155 states that before an officer can be promoted, the officer must have undergone a favorable security screening. That paragraph includes, but is not limited to, an indication either through the officer's MPRJ, as coded on the SIDPERS [Standard Installation/Division Personnel System] database, or by security manager memorandum that the officer hold, as a minimum, a SECRET security clearance. If there is no indication or record that the officer holds the prescribed clearance, the officer cannot be promoted."

Army Regulation 380-67, prescribes the policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces access to classified information and assignment to sensitive positions are clearly consistent with the interests of national security. This regulation establishes Department of Defense and Department of the Army personnel security policies and procedures. Paragraph 3-303 of this regulation specifies that the requirements for entrance investigations shall be rigidly adhered to with the exception as outlined above in Army Regulation 135-100.

The Reserve Officer Personnel Management Act (ROPMA), a public law enacted by Congress on 5 October 1994, prescribes the policies and procedures to consolidate and modernize the laws that govern Reserve component officers. The law was implemented on 1 October 1996. ROPMA provides that an officer cannot be promoted until the President of the United States has approved the appropriate selection board.

The Chief, Military Personnel Actions Branch, AR-PERSCOM, expressed the opinion that the applicant's request for a date of rank of 15 June 2000 is inappropriate. The June 2000 PVB that was approved by the President on 7 January 2001, and released on 6 March 2001 recommended the applicant for promotion. If the applicant met all qualifications when the board was released, he could have been promoted with a date of rank of 7 January 2001. There is no provision to promote an officer with a date of rank prior to approval of the board by the President. Unfortunately, the applicant could not be promoted when the PVB was released because he did not have a security clearance. The following was received from an Information Paper, dated 23 April 1998, from the Chief, Security and Counterintelligence Management Officer, AR-PERSCOM. As an exception, health professional, chaplains and attorneys may be commissioned in the Reserve Components prior to receipt of a clearance; however, the officer will be subject to discharge if the results of the security investigation are unfavorable. Without meeting the proper personnel security requirements to maintain an appointment, an officer cannot be promoted to the next higher grade. The applicant was granted a security clearance on 11 May 2001; therefore, his date of rank is correct. It was recommended that his request be denied.

The opinion was forwarded to the applicant for rebuttal on 23 January 2002. In his response dated 13 March 2002, the applicant states that the statement "that there is no provision to promote an officer with a date of rank prior to the approval of the board by the President", is not only misleading, it ignores federal statutes. He also states that paragraph 4-10 and 4-12 do not mention or define a requirement for a secret clearance, or for any clearance for that matter. AR-PERSCOM is unauthorized to delay the effective date of promotion under the guise of 'not qualified for promotion' when no security clearance is available. AR-PERSCOM does not provide citation to any federal statute, regulation or case law to support their position or negate his position. Because AR-PERSCOM's application of Army Regulations is a material error, fundamentally flawed, contrary to law and effectuates an injustice, the Army Correction Board should direct that AR-PERSCOM properly follow regulations and that it set his date of rank at 15 June 2000 for all purposes.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. In view of the circumstances in this case, the applicant is not entitled to adjustment to his date of rank for captain to 15 June 2000. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board has noted his contention that as an attorney he was not required to possess a security clearance prior to appointment and promotion; however, without a clearance, or a favorable security screening for a clearance, final promotion action may not proceed. The applicant was granted a security clearance on 11 May 2001; therefore, his date of rank for captain was properly established as the date that he was granted a security clearance and eligible for promotion.

3. Pertinent regulation does not exempt JAGC officers from the requirement to have a secret clearance at the time of their appointment; it merely permits the issuance of the clearance to occur after commissioning. Security screening, which is required for promotion, is intended to fill in the time gap between the issuance of the initial clearance and consideration of the officer for promotion.

4. The Board also notes the applicant's contentions that federal statute, regulation or case law does not preclude an officer's promotion before the President approves the board. However, in accordance with current regulations, authorities will ensure that an updated security screening is completed before announcing a promotion, including assurance that officers have the proper security clearance for promotion purposes. The effective date of promotion will be the date the officer meets the eligibility requirements for promotion to the next higher grade, and ROPMA also specifies that an officer cannot be promoted until the President has approved the appropriate promotion board results.

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 this 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

_KWL___ _DPH___ _AAO__ _ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066315
SUFFIX
RECON
DATE BOARDED	20020924
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.00
2.	131.01
3.
4.
5.
6.