RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   21 February 2007
	DOCKET NUMBER:  AR20060009860 


	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. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck 

Member

Mr. Donald L. Lewy

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 provides his request for correction of his records through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) with the separation date 21 August 2002 and all related documents be removed.  Counsel also requests that the applicant be reinstated on active duty in his former position in the Army, with back pay, allowances, and credit for pay, promotion, and retirement purposes.

2.  Counsel states, in effect, that the applicant was involuntarily and unlawfully separated from the Army on 21 August 2002.

3.  Counsel continues that the applicant's separation was illegal, involuntary, and unjust because the Army failed to provide him with notice and opportunity to respond to the Department of Defense policy that prohibits the possession of dual passports before making its final security clearance determination.

4.  Counsel states that the Army violated the applicant's procedural due process rights by attaching a false and highly prejudicial stigma to his discharge certificate without affording him notice.  Counsel argues that the narrative reason for separation "unacceptable conduct" is false, unjust, contrary to law, and unsupported by substantial evidence. 

5.  Counsel provides a brief with attachments identified in an index as exhibits 
1-11 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The DD Form 214 that was issued at the time of the applicant's discharge shows that he entered active duty on 13 April 2000 as a second lieutenant and was honorably separated on 21 August 2002 under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges) with the Separation Program Designator (SPD) BNC and the narrative reason for separation "unacceptable conduct."  This form further shows that he had completed 10 years, 11 months, and 17 days of prior active federal service.


2.  The applicant's DD Form 214 shows that he was awarded the Army Commendation Medal (2nd award), Army Achievement Medal, Army Good Conduct Medal (3rd Award), National Defense Service Medal (2nd award), Noncommissioned Officer's Professional development Ribbon, Army Service Ribbon, and the Overseas Service Ribbon (2nd Award).

3.  The applicant's records contain a 14 June 2002 memorandum from the Major General in command of Headquarters, US Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas.  This memorandum notified the applicant that he was required to show cause for retention on active duty because his security clearance was revoked.  This memorandum listed as a basis for separation Army Regulation 600-8-24, paragraphs 4-2(b)(8) and (10).  The memorandum further shows that the applicant was advised that his security clearance was revoked due to his personal requirement to maintain an Iranian passport.  The applicant was informed that current Department of Defense guidelines regarding the possession and/or use of foreign passports contains no provisions for mitigation based on personal convenience, safety requirements of foreign law, or the identity of the foreign country.  

4.  The memorandum shows that the applicant was advised that the Central Clearance Facility (CCF) articulated the following security concerns: possession and use of a foreign passport in preference to a US passport raises doubt as to your allegiance to the US, possession of a foreign passport could facilitate your unverifiable foreign travel, and possession and use of a foreign passport is incompatible with military service.

5.  In this memorandum, the Major General recommended that the applicant be discharged with an honorable discharge.

6.  The applicant's records contain a 12 July 2002, memorandum from the applicant through his chain of command.  This memorandum shows that the applicant requested resignation in lieu of elimination proceedings.  The applicant stated that he voluntarily tendered his resignation in lieu of further elimination proceedings.  The applicant acknowledged that he consulted with counsel and was fully aware of the implication of his voluntary action.  The applicant elected to waive his rights to appear before a board of officers and acknowledged that he may be furnished an honorable, general, or other than honorable conditions discharge.  The applicant further acknowledged that his resignation was voluntary and that he was not entitled to separation pay.


7.  On 16 July 2002, the Major General in command of Headquarters, US Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, recommended that the commander of the Total Army Personnel Command (PERSCOM) approve the applicant's request for resignation and characterize his service as honorable.

8.  On 29 July 2002, the Department of the Army Ad Hoc Review Board reviewed the applicant's resignation in lieu of elimination based on misconduct, moral, or professional dereliction.  The Deputy Assistant Secretary (Army Review Boards) accepted his resignation and directed that he be separated from the United States Army with an honorable discharge.

9.  Counsel states that the applicant moved to the United States, in 1984,at the age of 17 and was granted refugee/asylum status.  He continues that the applicant enlisted in the US Army in April 1989 and was rapidly promoted through the enlisted ranks.

10.  Counsel contends that the applicant's evaluation reports consistently depicted a Soldier who displays absolute loyalty to the Army and sets high standards of conduct for himself and his subordinates.

11.  Counsel argues that, in 1992, after his first three years of active duty service and his first opportunity to do so, the applicant applied for Unites States citizenship.  He continues that, in 1994, the applicant received a national security clearance at the Secret level and held it for seven years without any security related incidents.

12.  Counsel states that, after 10 years of enlisted service, the applicant applied to enter an officer commissioning program and in January 2000, with the strong support and recommendation from his chain of command, he was accepted into Officer Candidate School. 

13.  Counsel continues that in March 2000, the applicant graduated from Officer Candidate School and received a commission to the rank of second lieutenant.  Counsel argues that in that same month, the applicant completed an SF-86 (National Security Questionnaire) as part of a five-year periodic background re-investigation by the Defense Security Service.

14.  Counsel states that, in April 2000, the applicant was assigned to the 52nd Air Defense Artillery, Fort Bliss, Texas, where he served as the platoon leader of a US Army Forces Command Air Defense Artillery platoon.

15.  Counsel argues that, on 16 August 2000, the Department of Defense issues a policy that "governs the application of Guideline C [of the Directive's Additional Procedural Guidance] to cases involving an applicant's possession or use of a foreign passport," specifically failure to surrender a foreign passport mandates denial or revocation of an applicant's security clearance.  Counsel adds that this policy is known as the "Money Memorandum."  Counsel continues that the impact of this dramatic change in policy was that it required the denial or revocation of a security clearance whenever the applicant or security clearance holder possesses a passport from any foreign nation, unless the Department of State expressly authorized its possession.

16.  Counsel argues that prior to the implementation of the Money Memorandum, the possession of a foreign passport was by no means a bar to receiving or retaining a security clearance and that it was not uncommon for dual citizens with dual passports to have a security clearance.

17.  Counsel states that, in October 2000, the applicant married an Iranian citizen who was a permanent resident of the United States at that time.  He continues that the applicant's wife was studying in the United States and intended to apply for citizenship as soon as she became eligible.

18.  Counsel contends that shortly after the applicant was married his father's health started to deteriorate rapidly and in March 2001, the applicant's parents returned to Iran to get their affairs in order.

19.  Counsel states that, in March 2001, an agent from the Defense Security Service interviewed the applicant and never explained the recent change in policy concerning foreign passports.

20.  Counsel states that, on 6 April 2001, the applicant's father died and that it was family and cultural custom that the eldest son lead the funeral arrangements. Counsel argues that the applicant was unable to honor that custom and pay his last respects because he did not have an Iranian passport and did not believe that it was safe to return to Iran on his US passport.  Counsel further argues that the Iranian passport that he held prior to becoming a US citizen expired in May 1987.

21.  Counsel argues that the applicant never sought to renew his Iranian passport until after the death of his father and that in July 2001, he renewed his Iranian passport merely for convenience.  He further argues that he wanted to be able to pay his last respects to his mother when it was necessary and that he needed an Iranian passport in order for his wife to be able to travel to Iran without an escort.  Counsel further argues that the applicant's wife wanted to be able to stay with her family in Iran if he was deployed for an extended period of time.

22.  Counsel contends that, in October 2001, the Defense Security Service issued the applicant a Letter of Intent to revoke his security clearance, citing allegations of foreign influence, foreign preference, and personal conduct.  Counsel argues that the notice failed to cite or make any reference to the new Department of Defense policy on foreign passports.

23.  Counsel contends that, on 20 November 2001, the applicant submitted a rebuttal to the Letter of Intent.  In his rebuttal, the applicant adamantly and steadfastly denied that any of his family ties have potential to create or impose any foreign influence that could result in the compromise of classified information.  The applicant further states that he never had any contact with any foreign government and denied that the renewal of his Iranian passport reflects any loyalty or allegiance to Iran or any preference for Iran over the United States.

24.  Counsel states that the applicant served honorably and contributed to this nation's defense for twelve consecutive years and had every intention of making the military his career, he was ready, willing, and able to bear arms to defend this country, and his allegiance was and is to the United States, and any suggestion otherwise is completely without merit.

25.  Counsel argues that the applicant's entire chain of command, including his commanding officer, favorably endorsed his rebuttal to the Letter of Intent and recommended that he retain his security clearance.  Counsel further argues that it is clear from the command's endorsement packet, that it too was completely oblivious to the new Department of Defense policy on foreign passports and its ramifications.

26.  Counsel contends that, in April 2002, the Army Personnel Security Clearance Facility revoked the applicant's clearance on the sole basis that he had a foreign passport and that Department of Defense policy mandates the revocation of a security clearance for any applicant who has one.

27.  Counsel argues that even in its final decision, the Army still failed to expressly cite or provide a copy of the applicable Department of Defense policy on foreign passports and that the applicant was never made aware of the Department of Defense policy or afforded the opportunity to surrender his foreign passport before the Army reached its final adverse decision.

28.  Counsel further argues that the applicant never had prior notice that his foreign passport, which he renewed purely as a matter of convenience, would automatically result in the revocation of his clearance and subsequent separation from the Army.  Counsel contends that had the applicant been properly advised of the Department of Defense policy and its consequences , he would have immediately surrendered the foreign passport to its issuing authority.

29.  Counsel argues that the Army did not substantiate the other allegations against the applicant including the allegations that his personal conduct posed a security risk.

30.  Counsel states that the applicant's commanding officer expressed regret for having to separate him and assured the applicant that he would receive an honorable discharge.  Counsel continues that the commanding officer never told the applicant that his DD Form 214 would state "unacceptable conduct" as the reason for separation.

31.  Counsel contends that the Army assigned the applicant military counsel who advised him to resign since he could not remain on active duty without a security clearance and that he would be separated.  Counsel contends that the applicant's military counsel never informed him that his separation document would show unacceptable conduct as the reason for separation.

32.  Counsel contends that an administrative error was made on the applicant's separation document and that it was not the intent of the Army to show the applicant's reason for separation as unacceptable conduct.

33.  Counsel concludes that the applicant has surrendered his Iranian passport, his wife has become a US citizen, and his mother is living in England.

34.  The Director of the Counterintelligence, Human Intelligence, Disclosure and Security Directorate provided an advisory opinion for consideration with this application.

35.  The Director of the Counterintelligence, Human Intelligence, Disclosure and Security Directorate opined that there were no errors or injustices committed with respect to the procedures used when the applicant's Secret security clearance was revoked.  He continued that the applicant's claim that the Army failed to provide notice of and an opportunity to respond to the Department of Defense policy that prohibits the possession of dual passports before making its final security clearance determination is a misleading accusation.

36.  The Director of the Counterintelligence, Human Intelligence, Disclosure and Security Directorate continued that by the applicant's own admission, he obtained an Iranian passport after the initial CCF Letter of Intent/Statement of Reasons and he was given the opportunity to rebut the revocation by providing mitigating information or through the appeal process.  He continued that it is not the Department of Defense policy to issue a new Letter of Intent/Statement of Reasons when additional disqualifying information is uncovered during the adjudicative process.

37.  The opinion provided by Director of the Counterintelligence, Human Intelligence, Disclosure and Security Directorate was forwarded to the applicant for review and rebuttal.

38.  On 20 October 2006, the applicant's counsel provided a two-page written response to the advisory opinion.

39.  Counsel argues that it is clear from the record that the Army knew that the applicant possessed a foreign passport before the issuance of its intent letter and that he renewed the passport before his security clearance was revoked.  Counsel further argues that the Army knew based on the applicant's rebuttal letter and favorable endorsements from his chain of command that they were oblivious to the existence and implication of the Money Memorandum and that the Army revoked the applicant's security clearance for a reason not specified in the letter of intent.  Counsel contends that the prohibition of a dual passport was the sole basis for revocation of the security clearance and the Army did not provide the applicant with prior notice of an  opportunity to respond to the Money Memorandum.

40.  Counsel contends that the Army had a duty to provide advance notice of the Money Memorandum before taking adverse action based on it.

41.  Counsel states that the advisory opinion incorrectly states that during his March 21 and 22, 2001 interview with the Defense Security Service agent, "[applicant's name removed] advised that he did not have an Iranian passport."  Counsel continues that the advisory opinion also incorrectly states "the disqualifying factor, possession and/or use of a foreign passport was not mentioned in the statement of reason because the applicant did not possess a foreign passport at that time."

42.  Counsel states that the first page of the written statement provided by the applicant to the Defense Security Service on 22 March 2001 makes clear that he possessed an Iranian passport at that time.  Counsel continues that the Money Memorandum does not distinguish between active and expired foreign passports and it is well settled that possession of an expired passport is just as disqualifying as the possession of an active one.

43.  Counsel argues that the Army failed to provide advance notice of and opportunity to respond to the Money Memorandum.

44.  Counsel concludes that applicant is currently serving on active duty as a sergeant/pay grade E-5 assigned to the 169th Engineer Battalion, Delta Company, Shepard Air Force Base, Wichita Falls, Texas.

45.  On 16 August 2000, The Assistant Secretary of Defense provided written guidance to the Department of Defense Central Adjudication Facilities clarifying the application of the Foreign Preference Adjudication Guideline.  This memorandum is referred to as the Money Memorandum.

46.  The purpose of the Money Memorandum was to provide clarification on the application of Guideline C of the Department of Defense Adjudicative Guidelines and Investigative Standards.  The memorandum states "The Guideline specifically provides that "possession or use of a foreign passport" may be a disqualifying condition.  It contains no mitigating factor related to the applicant's personal convenience, safety, requirements of foreign law, or the identity of the foreign country.  The only applicable mitigating factor addresses the official approval of the United States Government for the possession or use.  The security concerns underlying this guideline are that possession and use of a foreign passport in preference to a US passport raises doubts as to whether the person's allegiance to the United States is paramount and it could also facilitate foreign travel unverifiable by the United States.  Therefore, consistent application of the guideline requires that any clearance be denied or revoked unless the applicant surrenders the foreign passport or obtains official approval for its use from the appropriate agency of the United States Government.  Modification of the Guideline is not required.  This clarification of the current adjudication policy applies to all cases in which a final decision has not been issued as of the date of this memorandum."
47.  Army Regulation 600-8-24 (Officer Transfer and Discharges) prescribes policies and procedures governing transfer and discharge of Army officers.  Paragraph 4-2b states reasons for elimination including misconduct, moral or professional dereliction, or in the interests of national security, conduct unbecoming an officer and denial or revocation of an officer's Secret security clearance by appropriate authorities. 

48.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes shows that the SPD Code for separation under the provisions of paragraphs 4-2b and 4-24a of Army Regulation 600-8-24 is BNC and the narrative reason is unacceptable conduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Army had a duty to provide advance notice of the Money Memorandum before taking adverse action based on it was carefully considered.  However, his records show that he was in the process of a security clearance review at the time that the Money Memorandum was issued.  

2.  By the applicant's own admission, he applied for and was granted an Iranian passport in July 2001 for his own personal convenience.  Further, there is no evidence of record or independent evidence provided by the applicant that shows he provided rebuttal evidence documenting mitigating factors during the security clearance process that supported allowing him to maintain a foreign passport and a US security clearance.

3.  The Money Memorandum clearly states that security clearances would be denied and/or revoked for those individuals that possessed foreign passports unless they surrendered the foreign passport or obtained approval to maintain the foreign passport from appropriate officials of the United States Government.  The Money Memorandum also stated that the policy change applied to all security clearance cases not final at the time of the memorandum.  The date of the memorandum was 16 August 2000, and the applicant's security clearance was revoked in April 2002. 

4.  There is no evidence in the available records and the applicant has failed to provide sufficient independent evidence showing that at the time of the revocation of his security clearance, he either surrendered his Iranian passport or requested permission to retain the foreign passport from the appropriate United Government officials, which would have allowed him to maintain his security clearance.

5.  The applicant's contention that the narrative reason "unacceptable conduct" noted on his separation document is unjust was also carefully considered.  However, the evidence of record clearly shows the applicant's security clearance was revoked for cause based on his possession of a foreign passport.  By regulation, the appropriate SPD code for separation under the provisions of paragraphs 4-2b and 4-24a of Army Regulation 600-8-24 is BNC, and the narrative reason for separation is unacceptable conduct.  Therefore, the narrative reason for separation and SPD code contained on the applicant's DD Form 214 are correct, as currently constituted.  

5.  The 5 April 2002 letter form the US Army Central Personnel Security Clearance Facility notifying the applicant of the revocation of his security clearance notified the applicant of the essential policy of the Money Memorandum.  This letter notified the applicant that his possession of an Iranian passport was incompatible with the standards established for access to classified defense information and notes that the applicant, in his rebuttal to the security clearance revocation notification, did not indicate his intent to surrender the passport.

6.  The 5 April 2002 memorandum further advised the applicant that, if he had additional mitigating evidence, he had 10 days to ask for reconsideration of his case.  If he asked for reconsideration, he had 10 days to present information for reconsideration.  The record does not show that the applicant availed himself of this opportunity to request reconsideration or offer proof that he was forfeiting his Iranian passport.  This memorandum further advised the applicant he could appeal the determination to the Personnel Security Appeals Board or requests a personal appearance before the Defense Office of Hearing and Appeals.  Again, there is no evidence that the applicant exercised these appellate rights.

7.  The evidence of record confirms the applicant's separation was accomplished in accordance with the applicable regulation.  The applicant voluntarily requested separation and acknowledged that he consulted with counsel prior to making his request.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

8.  The applicant's contention that he is entitled to reinstatement on active 
duty and to his former position in the Army, with back pay, allowances, and 
credit for pay, promotion, and retirement purposes was also carefully considered. However, given his security clearance was properly denied based on his possession of a foreign passport, and because his separation was accomplished in accordance with the applicable law and regulation, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MJNT___  __JGH__  _DLL____  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.





_Marla J. N. Troup___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.