RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 April 2005
      DOCKET NUMBER:   AR20040005407


      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. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reinstatement of his United States
Army Special Forces (SF) status.

2.  The applicant states, in effect, that the revocation of his SF
qualification was based upon a non-existent regulatory authority and not
substantively justified.

3.  The documents supporting this application are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reinstatement of the applicant’s SF
Qualification Tab.

2.  Counsel states, in effect, that the preponderance of the evidence shows
that the authority relied upon to revoke the applicant’s SF Qualification
Tab was not valid.

3.  Counsel provides a petition and the 15 exhibits it identifies in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  As of the date of his application to the Board, the applicant was
serving on active duty in the Regular Army at Fort Bragg, North Carolina.
He holds the rank of sergeant first class (SFC).

2.  On 9 September 2002, the applicant was arrested for driving while
intoxicated (DWI), driving with two invalid driver’s licenses and for
possessing three concealed weapons in Raleigh, North Carolina.

3.  On 13 September 2002, the commanding general (CG), United States Army
Civil Affairs and Psychological Operations Command, Fort Bragg, issued the
applicant a General Officer Memorandum of reprimand.  He reprimanded the
applicant for his 9 September 2002 arrest and his flagrant violations of
the law  upon which the arrest was based.  He further indicated that the
applicant violated a position of trust and discredited himself, the Army
and the command.

4.  On 17 September 2002, the applicant acknowledged receipt of the GOMOR
and elected to submit statements in his own behalf.

5.  On 21 September 2002, the applicant submitted his appeal to have the
GOMOR filed locally as opposed to his Official Military Personnel File
(OMPF).  He based his appeal on his past performance of 19 years and his
accomplishments within the unit.  He included three Noncommissioned Officer
Evaluation Reports (NCOERs) he received during his tenure of assignment in
the unit and several character references in support of his appeal.  He
also cited the awards he had received while in the unit and his performance
during several inspections conducted during his assignment tenure.  He
further admitted that the shame and embarrassment of his action caused him
to completely reevaluate his behavior and thinking.  He further indicated
that although he made a mistake, he had been duly reprimanded and continued
to suffer the repercussions of his actions.  He claimed that he wished
nothing more than to learn from his mistake and that he knew of no one that
would be served by placing the GOMOR in his OMPF, as he was planning
retirement from the Army.

6.  The CG, after reviewing the applicant’s appeal and supporting
documents, found that the basis for the reprimand was substantiated and he
directed the filing of the GOMOR in the applicant’s OMPF.

7.  On 24 October 2002, the applicant’s unit commander, a major, notified
the applicant of his intent to initiate action to revoke his current
military occupational specialty (MOS) and his SF Tab.  The commander
indicated that the applicant’s conduct while assigned to the unit and the
SF community reflected a deficiency in his professional judgment.  He
further stated that the nature of the problem called into question the
applicant’s ability to operate as a representative of the United States,
the United States Army and SF.  He further stated that the applicant’s
misconduct demonstrated his unworthiness to wear the SF Tab and his
unsuitability for further SF or Civil Affairs duty.

8.  On 23 June 2003, the applicant appealed the removal of his MOS and SF
Tab, which he earned in 1992 upon his completion of the SF qualification
course. He further stated that he had accepted full responsibility for his
actions and deeply regretted the negative attention it brought to the SF
community.  He further stated that while he made mistakes, they were not
sufficiently serious to rise to a level warranting the removal of his SF
MOS and SF Tab.  He explained the difficulty he had in obtaining the
specific reasons for the removal action and in February 2003, he was
finally provided a copy of the supporting packet.

9.  In his removal appeal, the applicant further stated that he would be
submitting his retirement packet in June 2003 and planned to retire in
March 2004 with his 18 series MOS and SF Tab.  He indicated that upon his
retirement, he would have completed 20 years of service, of which 18 were
spent in the SF community and 12 as a SF medical corpsman (MEDIC).  He
stated that over this period, he believed he had upheld the high standards
and traditions of a SF Soldier.  He further stated that he had been
informed that the removal action was based on offenses cited in the GOMOR
he received, counseling statements from his team sergeant and leader, his
rebuttal to those statements and an informal equal opportunity complaint.
He stated that he had a response for all these factors.  He stated that in
reference to his arrest, he was found guilty of only DUI, one concealed
weapon (pocketknife) charge and of no valid driver’s license.  However, he
was found not guilty of the remaining concealed weapons charges.  He also
explained his version of the events pertaining to the counseling statements
and EO complaint.

10.  On 26 June 2003, the CG, United States Army John F. Kennedy Special
Warfare Center (USAJFKSWC) revoked the applicant’s SF Tab under the
provisions of paragraph 1-30c(8 d&f), Interim Change, Army Regulation 600-8-
22.  The CG indicated that he had determined the applicant’s actions were
inconsistent with the integrity, professionalism and conduct of a SF
Soldier.

11.  On 21 July 1997, the Chief, Military Awards Branch, United States
Total Army Personnel Command (PERSCOM), approved a change to the SF Tab
removal criteria contained in Army Regulation 600-8-22 that was recommended
by the CG, USAJFKSWC.  This PERSCOM official indicated that approved change
would be effective immediately and included in the next update of Army
Regulation 600-8-22.

12.  The PERSCOM Chief, Military Awards Branch stated that paragraph
1-30c(8) would be changed as follows:  (8) Special Forces Tab may be
revoked by the awarding authority (CG, USAJFKSWC) if the recipient:

      (a)  Has his or her Parachutist Badge revoked;


      (b)  Initiates action which results in termination or withdrawal of
the SF specialty or branch code prior to completing 36 months of SF duty.
Requests for advanced schooling which may lead to another specialty or
branch code being awarded instead of SF will not be used as a basis for
revocation of the tab;


      (c)  Has become permanently medically disqualified from performing SF
duty and was found to have become disqualified not in the line of duty;
      (d)  Has been convicted at a trial by courts-martial for offenses
which demonstrate severe professional misconduct, incompetence, or willlful
dereliction in the performance of SF duties;


      (e)  has committed any misconduct which is the subject of an
administrative elimination action under the provisions of Army Regulation
635-200;


      (f)  has committed any act or engaged in any conduct inconsistent with
the integrity, professionalism, and conduct of a SF Soldier, as determined
by the Commander, act or engaged in any conduct inconsistent with the
integrity, professionalism, (Commander, U.S. Army John F. Kennedy Special
Warfare Center).

13.  In connection with the processing of this case, an advisory opinion
was obtained from the Human Resources Command (HRC) Chief, SF Enlisted
Branch.  This official stated that the applicant’s attorney failed to make
a valid argument to reinstate the applicant’s MOS and SF Tab.  He further
stated that the authority of the CG, USAJFKSWC to revoke the SF Tab is well
known throughout the SF community.  The CG exercises that authority when,
in his judgment, a Soldier meets the criteria of Army Regulation 600-8-22,
as amended. SF Tabs can only be revoked in this fashion and many have.
This official further states that counsel’s contention that the 21 July
1997 approved change to the criteria for removal of the SF Tab was not in
effect because it had not been authenticated by the Administrative
Assistant to The Secretary of the Army, in effect negating the authority of
the CG.  However, this official states the approved change to the
regulation outlined in the 21 July 1997 PERSCOM memorandum from the Chief,
Awards Branch, was in fact the document provided by HRC to convey this
authority to the CG.

14.  The HRC Chief, SF Enlisted Branch further states that while
applicant’s counsel cites a preponderance of the evidence, the only
argument presented in the entire petition was the lack of regulatory
authority cited in the preceding paragraph, which is hardly a preponderance
of evidence.  This official finally recommends that the revocation of the
applicant’s SF Tab stand.

15.  On 7 September 2004, the applicant was provided a copy of the HRC
advisory opinion through his counsel in order to have the opportunity to
respond and was advised to provide any rebuttal within 30 days.  On 6
October 2004, counsel submitted a request for a 30 day extension to the
rebuttal suspense date to 6 November 2004.  To date, no rebuttal has been
submitted.
16.  Army Regulation 600-8-22 (Military Awards), effective 28 March 1995,
prescribes the Army’s awards policy.  Paragraph 1-30 contains guidance on
the revocation of badges and the SF Tab.  It stipulates that commanders
authorized to award combat and special skill badges are authorized to
revoke such awards. An award, once revoked, will not be reinstated except
by Commander, PERSCOM, when fully justified.

17.  Paragraph 1-30 (8) contains the criteria for removal of the SF Tab may
be revoked by the awarding authority (CG, USAJFKSWC) if the recipient:  (a)
Has his or her Parachutist Badge revoked; (b) Initiates action which
results in termination or withdrawal of the Special Forces specialty or
branch code prior to completing 36 months of Special Forces duty. Requests
for advanced schooling which may lead to another specialty or branch code
being awarded instead of Special Forces will not be used as a basis for
revocation of the tab; (c) Has become permanently medically disqualified
from performing Special Forces duty and was found to have become
disqualified not in the line of duty; and (d) Has been convicted at a trial
by courts-martial for offenses which demonstrate severe professional
misconduct, incompetence, or willful dereliction in the performance of
Special Forces duties.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and counsel that the circumstances in
the applicant’s case did not support the removal of his SF Tab and that the
CG, USAJFKSWC lacked the regulatory authority to direct this action was
carefully considered.  However, there is insufficient evidence to support
this claim.

2.  The evidence of record confirms that the CG, USAJFKSWC determined the
applicant committed acts and/or engaged in conduct inconsistent with the
integrity, professionalism, and conduct of a SF Soldier and as a result, he
directed the removal of the applicant’s SF Tab.

3.  By regulation, commanders authorized to award combat and special skill
badges are authorized to revoke such awards.  Further, HRC Awards Branch
officials approved the changes to the SF Tab removal criteria in 1997, more
than five years before action was taken to remove the applicant’s SF Tab.

4.  Although regulation changes normally require Secretarial review and
approval prior to implementation, in this case there was no change in the
basic SF Tab approval/removal authority vested in the CG, USAJFKSWC.  The
language change in question was recommended by the CG, USAJFKSWC and
approved for immediate implementation by Department of the Army awards
officials in 1997, more than five years before any action was taken on the
applicant.
5.  As confirmed in the HRC advisory opinion, the removal policy approved
in 1997 was well known in the SF community and was common practice for more
than five years prior to the action taken on the applicant.  As a result,
it is concluded the removal of the applicant’s SF Tab was accomplished by
the proper authority in accordance with the applicable policy in effect at
the time.  Thus, there is an insufficient evidentiary basis to support
granting the requested relief at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JI___   __PBF __  ___REB _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ____John Infante_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005407                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/28                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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