MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 5 August 2003
         DOCKET NUMBER: AR2003083881

         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:

Mr. Luther L. Santiful		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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 she be given the opportunity to complete her Military Intelligence Officer Advance Course (MIOAC) in order to be reconsidered for promotion major (MAJ).

APPLICANT STATES: In effect, that she was unable to complete the requirements for promotion because of security clearance issues that were beyond her control. She claims that she finished one phase of the MIOAC in January 2002, but was told she would not be allowed to attend classes because her Top Secret (TS)/Special Compartmented Information (SCI) clearance packet had not been opened by the Office of Personnel Management (OPM). She claims that her security clearance packet was sent to OPM in October 2001 by her unit security manager.

The applicant further indicates that she believes that the security clearance requirement to attend school is unjust since it places officers in a situation that is beyond their control or even the control of the unit security manager. She states that she submitted information for her clearance at her previous unit in May 2000. She also states that she had submitted information on a long form to her security manager in 1998 or early 1999. However, because of the backlog, she was informed her TS/SCI investigation could not be opened, and at that time she was granted an interim Secret (S) clearance that she continues to hold.

The applicant also claims that while assigned to Fort Huachuca, Arizona, she did everything in her power to arrange for special permission to gain access to the Special Compartmented Information Facility (SCIF) with an escort, or to be allowed to take the tests outside the SCIF in order to complete the course, and later she offered to complete the course elsewhere, or to fly to Fort Huachuca at her personal expense in order to complete the course, but these alternatives were not allowed.

The applicant further states that within a few days of the 2^nd MAJ promotion board, her investigation was opened. She states that for her part, she has demonstrated good faith and due diligence in submitting the paperwork requested. However, without a clearance, she could not complete the MIOAC, and therefore, could not be promoted to MAJ, which she claims was unjust.

The applicant also contends that there ought to be a difference between the academic graded aspects of training required for career management purposes and duty military occupational specialty (MOS). She claims that many students who have completed the MIOAC have informed her that they only received grades for work completed for which a top secret clearance is not required, and that a clearance is only needed for access to the SCIF, where the classes are held.

The applicant finally indicates that the fact is that civilian instructors are given free reign over who gets access to the SCIF, and which officers are promoted and which are left behind based on administrative technicalities. She claims this is either an injustice, an error, or an action of grave negligence since the government spends many financial and personnel resources conducting clearances which will never result in usefulness to the military or perhaps even the government.

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

On 21 July 1982, she was appointed a second lieutenant in the Military Intelligence (MI) Corps of the United States Army Reserve (USAR).

The record shows that the applicant was considered and not selected for promotion to MAJ by the 2001 and 2002 Reserve Component (RC) Promotion Selection Boards (PSBs). The notification memorandum, dated 26 July 2001, issued to the applicant after her first non-selection indicated that she had failed to satisfy the military education requirement for promotion.

Orders Number D-08-238250, dated 24 September 2002, issued by the Army Reserve Personnel Command (ARPERSCOM), directed the applicant’s honorable discharge from the USAR on 1 January 2003.

In connection with the processing of this case, an advisory opinion was obtained from the ARPERSCOM Chief of Security. It states that the applicant was contacted by ARPERSCOM security officials in 1998, and she was informed to submit a security clearance packet at that time. However, although she contacted the security office, she never submitted the necessary paperwork to being the investigation process.

The ARPERSCOM Chief of Security further states that a Top Secret/Special Compartmented Information (TS/SCI) clearance is required to attend certain phases of the MIOAC, and the applicant did not have this clearance. It further states that she finally submitted her security clearance packet in November 2001, and she was scheduled to attend the MIOAC in January 2002. However, even though the ARPERSCOM security office was able to grant the applicant an interim TS clearance after she submitted her packet and initial investigation steps were completed by OPM, the MI school at Fort Huachuca, Arizona, did not accept or recognize this interim clearance.

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In addition, the ARPERSCOM security office does not have the authority to grant interim TS-SCI clearances. This must be accomplished by a Special Security Office (SSO), in this case the SSO at Fort Huachuca. However, no SSO is obligated to accept an interim clearance if they do not determine or cannot determine suitability. Finally, the criteria for attendance at the MIOAC specifically requires that a member possess a TS-SCI clearance in order to participate in some portions of the course.

The applicant was provided a copy of the ARPERSCOM advisory opinion and responded on 2 July 2003. She states that she agrees with the summary contained in the advisory opinion in principle. However, she believes additional information is necessary to explain why her clearance was not opened until June 2002 in hope that the Board will see she was not negligent in attempting to get the paperwork initiated to conduct a security investigation.

The applicant further states that in 1998, while she was in the Individual Ready Reserve (IRR), she was provided a packet with the paperwork necessary to initiate her TS/SCI clearance investigation. She states that as indicated in the advisory opinion, at this time she was in contact with ARPERSCOM and discussing the possibility of a Troop Program Unit (TPU) assignment. She claims that in the months that followed, she became aware of a program that assigned trained linguists to various TPUs throughout the country. In July 1999, she was accepted into this program and assigned to a TPU at Fort Sheridan, Illinois, where she worked as a Russian Team Leader.

The applicant further indicates that in the Fall of 1999 and Spring of 2000, her unit security manager conducted an in-depth interview with her that would be used for her background investigation. This was followed by her submission of the written long form security clearance request. She states this was prior to the implementation of electronic filing of security clearances, and her belief at the time was that her clearance package was underway, and her case would be opened soon. At that time, she was also granted an interim Secret (S) security clearance by the unit. Shortly after these events, the unit security manager retired and left the unit, and she had no reason to believe that the investigation was not imminent.

The applicant also claims that in June 2001, she was informed by the unit’s new security manager that she needed to submit her electronic security package
on-line, and she spent the better part of a drill day completing this task. She received a response that her submission had been successful, and was under the impression that the security paperwork had been properly received through this electronic submission process.

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However, in August 2001, while she was attending Phase 2 of the MIOAC at Fort Huachuca, the applicant was informed that it appeared her TS/SCI investigation had not been opened and that this would be required in order for her to attend Phase IV of the course, which she planned to attend in February 2002. In September 2001, she transferred units and still believed he paperwork was in order.

The applicant further states that the Security Manager at her next assignment agreed to act quickly to help her expedite the submission of her packet and she completed the necessary paperwork for the third time. She concludes by commenting that she made continued active efforts to submit her required paperwork through a series of appropriate channels between 1998 and 2002, and would like the Board to be aware of that fact.

Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers (WO) of the USAR. Chapter 2 contains the promotion eligibility and qualification requirements. Paragraph 2-8 contains guidance on the military education requirement for officer promotions. It states, in pertinent part, that in order to qualify for promotion to MAJ, a member must have completed the Officer Advance Course.

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. The Board notes the applicant’s contention that her non-selection for promotion based on her not being able to complete the MIOAC was unjust. However, it finds insufficient evidence to support this claim.

2. The evidence of record clearly shows that the applicant was informed by ARPERSCOM security officials of the requirement to complete her security clearance packet in 1998, while she was in the IRR. As indicated in the ARPERSCOM advisory opinion, although in contact with the command, the applicant failed to complete and return the paperwork at that time, and her clearance paperwork was not received until November 2001.

3. The Board considered the applicant’s assertions that she continued active efforts to submit the required paperwork through a series of appropriate channels between 1998 and 2002. However, it finds no corroborating evidence of record to support this claim. Even if this claim is true, it does not appear she exercised due diligence in pursuing her TS/SCI clearance. As an MI officer the applicant should have been aware that the lack of the clearance would prohibit her from completing the MIOAC, the military education requirement for promotion.
4. In the opinion of the Board, while the applicant may have made efforts to gain the required security clearance, she did not aggressively pursue a resolution to this issue until her first non-selection for promotion to MAJ. As noted in the ARPERSCOM advisory opinion, it is a requirement that a member possess a TS/SCI clearance in order to attend specified portions of the MIOAC. This appears to be an established and well known policy that is applicable to all eligible officers.

5. The Board does not feel that it is in a position to substitute its judgment for that of the MI School SSO at Fort Huachuca where based on a suitability determination, security officials elected not to grant the applicant the interim TS/SCI clearance that was necessary for her to complete the MIOAC. Lacking evidence to the contrary, the Board presumes this determination was made in accordance with established policy.

6. In view of the facts of this case, the Board finds insufficient evidence showing that there was any error or injustice related to the applicant being denied access to MIOAC areas that required a TS-SCI clearance level, or to her twice being non-selected for promotion to MAJ based on her failure to satisfy the military education requirements for promotion to MAJ.

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

__LS__ _RJW___ __CLG__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083881
SUFFIX
RECON
DATE BOARDED	2003/06/DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2003/01/01
DISCHARGE AUTHORITY	AR 135-155
DISCHARGE REASON	Promotion non select X2
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2.
3.
4.
5.
6.