MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2003085925

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Frank C. Jones		Member
Ms. Barbara J. Ellis		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: Reinstatement of his Special Forces Tab and reinstatement to the special forces career management field (CMF).

APPLICANT STATES: In effect, that his Special Forces Tab was unjustly revoked and he was unjustifiably removed from the special forces CMF. In support of his application he submits letters of support from 16 noncommissioned officers.

COUNSEL CONTENDS: In effect, that the applicant was unjustly removed from the special forces CMF and his Special Forces Tab was revoked because of alleged misconduct, which amounted to no more than a cynical manipulation of the administrative process, which avoided any meaningful scrutiny, challenge or due process. He further states that the so-called record of misconduct was without substance and explains in his brief why he believes such is the case. He contends that the actions taken against the applicant serves as a serious injustice to the applicant that deserves correction by this Board.

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

On 27 February 1997, while serving in the rank of corporal in the Florida Army National Guard (FLARNG), the applicant completed the Special Forces Weapons Course and was awarded the Special Forces Tab. He was promoted to the rank of staff sergeant on 15 May 1998.

On 15 September 1998, he was honorably discharged from the FLARNG for the purpose of enlisting in the Regular Army. He enlisted in the Regular Army on 16 September 1998, in the pay grade of E-6, for a period of 3 years, as a special forces weapons sergeant with assignment to Fort Bragg, North Carolina.

On 7 July 2000, the applicant received a memorandum of reprimand (MOR) from his battalion commander for misconduct. The MOR cited the applicant's early return from Kuwait due to poor performance and disciplinary problems, disobeying a lawful order and being counseled numerous times for poor attitude and behavior that was detrimental to the overall morale, sense of order and discipline of the detachment. The record is silent as to the disposition/filing of the MOR; however, he was reassigned to another company within the same group.

On 9 October 2000, an informal commander's inquiry was conducted in regards to a pallet/vehicle guard detail in which the applicant participated. In regards to the applicant, the inquiry found that the applicant had performed guard duty while not in a military uniform and that he was riding an all terrain vehicle (ATV) around the guard area. The ATV was one of the vehicles he was guarding and he was not authorized to do so. Overall, the inquiry determined that the guard detail had been improperly organized and conducted without any standard operating procedures being followed.
On 16 October 2000, the applicant received a letter of reprimand (LOR) from his company commander in which he was formally reprimanded for his actions while performing pallet guard duties which bordered on dereliction of duty and misbehavior as a sentinel. His commander informed him that any further incidents would not be tolerated and that he would take action to revoke his security clearance and recommend withdrawal of his Special Forces Tab.

On 6 September 2001, the applicant received a MOR from his battalion commander for poor performance and dereliction of duty. The applicant acknowledged receipt of the MOR and elected to submit a statement of rebuttal in his own behalf.

On 9 September 2001, the applicant submitted a rebuttal to the MOR and termination of CMF 18 and revocation of his Special Forces Tab. In his rebuttal he denied any wrongdoings and provided his version of the events that transpired and led to the MOR.

On 21 November 2001, the commanding general of the Special Forces Command directed that the MOR be filed in the applicant's Official Military Personnel File (OMPF).

On 15 January 2002, the applicant's Special Forces Tab was revoked in accordance with Army Regulation 600-8-22, by the commander of the United States Army John F. Kennedy Special Warfare Center and School, Fort Bragg, North Carolina.

The applicant was reclassified to MOS 11B (infantryman) and was transferred to Korea on 17 April 2003.

In the processing of this case a staff advisory opinion was obtained from the Total Army Personnel Command (PERSCOM) which opined that there was not compelling evidence presented to negate the decision of the Commander, United States Army John F. Kennedy Special Warfare Center and School to revoke the applicant's Special Forces Tab. The advisory opinion was provided to the applicant for comment and his counsel contended, in effect, that the applicant was not processed for administrative separation or nonjudicial punishment and therefore was unjustly denied an opportunity to present his position on the matter.

Army Regulation 614-200 provides the conditions for termination of special forces duty. It provides, in pertinent part, that the assignment of soldiers to special forces duty will be terminated and CMF 18 military occupational specialty (MOS) withdrawn when it is determined that a soldier is unsuitable for special forces duty. Unsuitable for special forces duty is defined as conduct which falls into question the soldier's ability to perform in a stand-alone environment and is evidenced by initiation of any adverse administrative elimination action, repeated failure to perform MOS duties after counseling and rehabilitative reassignment and any other acts or series of acts inconsistent with the integrity, professionalism and conduct required of a special forces soldier.

Army Regulation 600-8-22 provides the provisions for the revocation of the Special Forces Tab. It provides, in pertinent part, that the Special Forces Tab may be revoked by the Commander, United States Army John F. Kennedy Special Warfare Center if the recipient has committed any misconduct which is the subject of an administrative elimination action under the provisions of Army Regulation 635-200 or has committed any act or engaged in any misconduct inconsistent with the integrity, professionalism, and conduct of a special forces soldier, as determined by the Commander, United States Army John F. Kennedy Special Warfare Center and School.

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

1. 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.

2. The appropriate regulation provides that a Special Forces Tab may be revoked for a variety of reasons, two of which are if an individual is being processed for administrative separation for misconduct or for misconduct that is inconsistent with the integrity, professionalism and conduct of a special forces soldier, as determined by the Commander, United States Army John F. Kennedy Special Warfare Center and School.

3. While the applicant contends that he was not processed for separation and that his misconduct was simply a fabrication by his chain of command used to get his tab revoked, the Board finds that his tab was revoked by the appropriate authority in accordance with the applicable regulation.

4. The Board has noted the supporting statements provided by the applicant with his application and while they are complimentary of the applicant's performance, those individuals were not in a position to be aware of the chain of command's expectations or directions of his chain of command.

5. The evidence presented shows that the applicant was given sufficient notice that his performance and conduct were lacking and that if he continued in the same manner, his tab would be subject to revocation. It appears that he failed to correct his shortcomings and his chain of command took action to revoke his tab.
6. Accordingly, the Board finds that the applicant as failed to show through the evidence presented or the evidence of record that his Special Forces Tab was unjustly revoked or that it was revoked contrary to the intent of the applicable regulation.

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

___fcj ___ __bje ___ _rvo____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085925
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 170	107.0124/SF TAB
2.
3.
4.
5.
6.