IN THE CASE OF:	  

		BOARD DATE:	        29 JULY 2008

		DOCKET NUMBER:  AR20070010756 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his revoked security clearance be reinstated and that he be reinstated as a member of the United States Army Reserve.

2.  The applicant states that certain charges levied against him stemmed from irresponsible financial management on his part, which culminated in punitive actions being taken by the United States Army, Defense Security Services and the Department of Defense.  He states that the action taken against him resulted in his loosing his duties, his security clearance, and his over 17-year career as an Army officer.  He states that the background investigation conducted by the Defense Security Services in 2001 found many alleged flaws in his character that were overstated and misrepresented.  He states that the reasons for the revocation of his security clearance were originally attributed to what was previously referred to as alleged "Irresponsible Financial Management," which included child support arrearages totaling $47,000.00; a defaulted Stafford Federal Government Student Loan totaling $20,000.00; Internal Revenue Service Federal tax leans totaling $40,000.00; several additional, smaller judgments and liens that were listed in his financial record; and his incarceration by the state of Virginia for child support.  He states that these items, although non-critical in nature, posed (according to the Defense Security Services) a "significant disregard" for responsibility; a "potential for security breaches" that could emerge in the form of offerings of monies to him by those subversives trying and/or planning to do harm to the United States and her territories/interests.



3.  The applicant goes on to explain how he began going through a bad divorce in 1995 and his child's emancipation in November 2006.  He states that the years following the initiation of his divorce caused him tremendous mental and emotional strain; that his financial problems were caused by all of the "baggage" that accompanied the divorce; that he lost his children to a vindictive ex-spouse, a flawed social service system, and an overzealous attorney; that there was a firing from an 18-year civilian job for retribution; that he lost two businesses; and that his mom, grandmother and dad all died within 18 months of each other during those stressful years.  He states that all of these problems, even taken one at a time, would cause severe problems/hardships for any one in similar circumstances.  He states that since his discharge, all of his child support issues are paid in full with no balance due to the Virginia Department of Social Services; that he has rectified his student loan default issue; that he has been accepted into a doctoral program and he is in the third quarter with a 4.0 average; that he has contacted the IRS and they will do an offer in compromise with him using garnishments from his pay; that the additional liens and judgments will be taken care of using garnishments from his pay; and that he has opened a 22,000 square foot processing facility that has merged with a larger and well established 85-year old food processing facility.  

4.  The applicant states that at the time that he was involuntarily removed from the Army, he was at the 75 percent completion level in the Command and General Staff College where his cumulative grade point average was 93; that he suggested an idea that solved a very serious morale problem in a Major Command right after 11 September 2001; and that his commanding officer rewarded him with an lieutenant colonel position as Deputy Commander, J-9, Joint Task Force Civil Support (JTFCS), for which he received an Army Commendation Medal.  He states that after his discharge, he has taken the bull by the horns and achieved very difficult objectives which most could not have accomplished under any circumstances.  He concludes by stating that his accomplishments should show his high level performance as a senior field grade officer; and that he has been referred to as outstanding in an Officer Evaluation Report (OER).

5.  The applicant provides in support of his application, a statement in which he contends that the Department of Defense conducted his involuntary separation in a manner that was less than acceptable; that an order that was issued by the Army Reserve Personnel Command Center, St. Louis, Missouri, made no reference to the Army Regulation paragraph that "deals with this action"; that there is no record of the involuntary separation board hearing conducted by the 99th Army Reserve Command; and that an incorrect and unauthorized OER was prepared by a lieutenant colonel and a colonel outside of the rules and regulations pertaining to the OER.
CONSIDERATION OF EVIDENCE:

1.  On 14 June 1985, the applicant accepted a commission as a second lieutenant (O-1) in the Virginia Army National Guard as a combat engineer.  He was promoted to first lieutenant (O-2) on 12 December 1989.  He was honorably discharged on 1 September 1991 and he was transferred to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve) to complete his Reserve obligation.  He was promoted to captain (O-3) in the USAR on 12 June 1992; and he was promoted to Major (O-4) on 3 January 2000.

2.  The Chief, Investigations Division (ID), United States Army Central Personnel Security Clearance Facility, notified the applicant on 8 January 2002, of his intent to revoke his security clearance.  He was informed that a preliminary decision had been made to revoke his security clearance, and that information obtained from an investigation of his personal history led to the security concerns.  The Statement of Reasons that the applicant was furnished indicates that records of Virginia Department of Taxation, Richmond, Virginia, disclosed no record of him filing his taxes for tax years 1990 to 1994 and 1996 to 1999; that he filed his 1995 tax return in June 1997 and he owed $3,940.08; that he made a payment which was returned due to insufficient funds; and that the balance was written off as a bad debt on 19 October 2000.  

3.  The Chief, ID indicated in the Statement of Reasons that records of Henrico General District Court, Richmond, Virginia, disclosed that on 9 March 1990, the applicant was cited for failure to obey a highway sign; that on 21 November he was cited for having no state license plates; and that on 6 January 1998, he was arrested for destruction of property.  Records of Chesterfield County General District Court, Chesterfield, VA, disclosed that on 12 February and 23 March 1992, the applicant was cited for having an expired state inspection ticket, no license, and no county decal.  On 12 June 1992, he was cited for reckless driving while driving a 1992 motorcycle; on 16 September 1992, he was cited for improper passing; on 19 July 1993 he was cited for not having a county sticker and having an expired license plate; on 26 January 1994, he was cited for disregarding a highway sign and he was fined; on 23 March 1994, he was arrested for operating a pyramid, which was continued for 6 months and then dismissed, although the judge noted that the evidence was sufficient to convict; on 24 March 1994, he was cited for failing to display a county tag; on 26 March 1994, he was cited for having an improper registration; and on 27 March 1997, he was cited for speeding and not having a registration.




4.  The Chief, ID further indicated in the Statement of Reasons that the applicant was told that records of the IRS disclosed that he owed an outstanding balance of $47,253.35 plus interest and penalty that was accruing; that Richmond District Court records indicate that he had a $10,000.00 judgment rendered against him for assault and a $855.51 judgment rendered against him in favor of Capital One Bank; and that Virginia State Police records disclosed that he was denied employment on 7 August 1996 for lying during the course of his investigation.  The applicant reported that he was fired from Philip Morris because he was 3 minutes late returning from lunch and an investigation disclosed that he had six disciplinary actions at Philip Morris from 27 January to 13 July 1995 and that he was fired for failure to follow company policies.  The investigation further disclosed that he resigned from employment with the Bureau of Police in 1997 while serving a 5-day suspension.  During his tenure with the Bureau of Police, he had 25 written violations of rules and regulations, three suspensions from duty, a 1-day suspension for discharging his issued firearm in the police station and blowing a hole in the wall, a 5-day suspension for disobeying a direct order of a superior officer, and a 5-day suspension for violating the haircut policy.

5.  In the Statement of Reason, the Chief, ID indicated that a source with varying amounts of contact from 1996 to 1998, failed to recommend the applicant for positions of trust because of his lack of responsibility and good judgment.  It was also noted that his appearance was unprofessional in that his uniforms were faded, tattered and the patches and insignia were barely sewn on.

6.  The Statement of Reason indicates that in Chesterfield County Circuit Court, judgments were rendered against the applicant for child support in the amounts of $2,370.95 on 26 February 1996; 8,470.45 on 8 August 1996; $4,355.00 on 29 January 1997; $3,579.75 on 14 February 1997; and $12,524.50 plus interest on 15 September 1997.

7.  According to the Statement of Reason, Records of General Discharge Court, Petersburg, Virginia, show that on 25 October 1996, the applicant was arrested for issuing a non-sufficient funds check to "Moore's Building Supplies" in the amounts of $36.56 and $24.86; on 22 November 1996, he was arrested for failing to appear in court for two counts of writing worthless checks; on 12 March 1997, he was arrested for failure to appear in court for writing worthless checks; and on 23 May 1997, he was found guilty of contempt of court and he was fined. Records of the Chesterfield Juvenile and Domestic Court show that on 6 January 1998, the applicant was found guilty of failure to pay $3,579.75 in attorney's fees; on 4 August 1999, he was found guilty of failing to pay $465.00 weekly with 



$39,998.77 in arrears and he was ordered to jail until he paid a $10,000.00 lump sum; and on 22 December 1999, he was ordered to pay $274.93 biweekly effective November 1999 plus $500.00 monthly towards the arrearage.

8.  The Statement of Reason shows that Records of the Department of Juvenile Justice, Bon Air Juvenile Correctional Center, Richmond, VA disclosed that the applicant was employed and terminated within the probationary period for failing to report for orientation, absenteeism, not following identification procedures, tardiness, falling asleep during a meeting, and attempting to gain entry into the facility with a lighter and a stethoscope; and that his landlord disclosed that he rented a home from October 1997 through April 1998 and he left owing rent of approximately $500.00.

9.  The Statement of Reason further shows that records of Henrico Juvenile and Domestic Relations Court disclosed that on 8 January 1998, he was arrested for assault and battery upon a cohabitant, with a knife; that records of Hanover Circuit Court disclosed that in June 1999, a lien for support was filed by "DCSE" for a debt owed in the amount of $49,849.03 for the period August 1995 through May 1999; that records of "DCSE" disclosed a wage deduction was approved beginning May 2000 for an outstanding balance owed of $50,446.14 plus interest accruing for child support and arrearage; and that on 14 July 2001, he completed a security clearance application in which he reported operating a pyramid in July 1994, an assault in January 1998, and a wage garnishment in December 1999 in the amount of $274.00.  He also answered "no" to relevant questions regarding delinquent accounts, and unpaid judgments.

10.  Further review of the Statement of Reason shows that records of Cawthorn and Picard (CP), Attorneys at Law disclosed a judgment against the applicant in the amount of $8,281.38 plus interest accruing daily; records of "GTE Recovery" disclosed that his account with cellular phone service was charged off and placed for collection in the amount of $1,885.67; records of Gulf State Credit, disclosed his account with Sprint was charged and placed in collection in the amount of $70.51; records of Capital One Bank disclosed an account that was rated as a bad debt and charged off in the amount of $1,405.95; records of Credit Adjustment Board/Dominion Medal Management disclosed his account with 
Mid-Atlantic Anesthesia Association was placed for collection in the amount of $408.00; that records of Glasser and Glasser disclosed a judgment against him in the amount of $1,424.45 with interest accruing daily.

11.  The Statement of Reason indicates that during an investigative interview on 24 March 2001 and 6 April 2001 in a sworn statement, the applicant disclosed that when he completed his Virginia State Police Application, he forgot to list his 

arrest for assault on a policeman in April 1981 and operating a pyramid in March 1994; that when he completed his Wella Manufacturing of Virginia Application on 19 May 2000, he reported leaving Philip Morris to start his own business, which he later stated that he was officially fired for being 3 minutes late from a dinner break, but the company's records reflect that he was an "undesirable employee"; that he received correspondence from Capital One and agreed to a 50 percent settlement and planned to satisfy the obligation in the near future; that he was under the impression that Retreat Hospital would not charge anyone for treatment that was indigent, he was unable to pay after he received treatment, and he disagreed with their finding and he intended to seek legal guidance; that he believe the judgment in favor of Cellular One was a result of terminating a service contract and intended to contact the credit bureau to find out more information; that he intended to satisfy the judgment with Norwest American by the end of summer 2001; that he was actively catching up on his child support arrearages and had received $10,000.00 from his spouse and was released from jail in August 1999; that he owed the IRS $40,000.00 and was attempting to have payments/garnishment taken from his Reserve pay to satisfy the debt; that he had no knowledge of the debt to "GTE" and Gulfstate/Sprint and intended to contact the credit bureau to find out more information; that he owed the Department of Education Student Loan Collection approximately $25,129.00 and intended to begin scheduled payments if he got an active duty appointment; and that he owed "Bell Atlantic Telephone/IC Systems Collection, Jostens, Inc./Credit Bureau of Faribault, Media One of Richmond/CIS Collections, Media One of Virginia/CIS Collections, patient First/Receivable Management, Virginia Power/Capitol Recovery, Cawthorn and Picard/Retreat Hospital, Dominion Medical Management/Mid-Atlantic Anesthesia Association."  

12.  On 17 September 2002, the applicant was furnished a Relief for Cause OER for the period covering 25 May 2002 through 10 June 2002.  In the Relief for Cause OER, the applicant's rater stated that he was mobilized by United States Joint Forces Command (USJFCOM) Joint Task Force Civil Support as a by name request to support Operation Noble Eagle and Operation Enduring Freedom; and that he was assigned to the unit solely for mobilization purposes.  The rater stated once he was assigned and mobilized on 8 December 2001, the USJFCOM initiated the security management process and that the United States Army Central Personnel Security Clearance Facility announced their intent to revoke his security clearance on 8 January 2002.  The applicant's rater stated that the Statement of Reason included eight pages identifying a long history of deliberate omission, concealment, false statements and deceptive or illegal financial practices.  The rater further stated that the applicant's rebuttal was considered and that his security clearance was revoked on 17 May 2002.  The rater concluded by stating that while the applicant had the right to appeal to the 

Personnel Security Appeals Board (PASB) and the Defense Office of Hearings and Appeals, the process could take up to 1 year; that the suspension and subsequent security clearance revocation flagged the applicant; and that he was no longer eligible to work at the location to which he was assigned.  The rating noted that the applicant's senior rater directed the Relief for Cause.

13.  In the Relief for Cause OER, the senior rater stated that the applicant's actions and personal conduct violate Army Values and his Oath of Commission as an Officer; and that he initiated the appropriate flagging action and the Relief for Cause effect 10 June 2002.  The senior rater stated that he notified the applicant of the reasons for the relief telephonically and by memorandum and that he also advised him of the Officer Evaluation Redress Program and provided him a copy of Army Regulation 623-105 for reference should the United States Army Central Personnel Security Clearance Facility approve his appeal and reinstate his security clearance.

14.  On 20 June 2003, the applicant was notified by his Commanding General (CG) of his intent to initiate action to separate him from the USAR for numerous acts of misconduct.  His CG cited discreditable, intentional failure to meet personal financial obligations by: failure to file tax returns in 1999 and 2000; being found in contempt of court for failure to pay child support; issuing two bad checks, an act for which he was arrested on 26 October 1996; failure to pay attorneys fees, for which he was sentenced to 60 days in jail on 8 July 1999; and failure to pay rent to his landlord between 1997 and 1998.  The applicant's CG also cited his mismanagement of personal affairs to the discredit of the service by operating a pyramid scheme (financial fraud); and failure to pay his debts to Capital One Bank, the United States Government (tax obligation for which judgment exists), Retreat Hospital, Sprint PCS, and Northwest Financial Incorporated.  

15.  In the notification, the CG went on to cite mismanagement of personal affairs detrimentally affecting his duty performance by having his Reserve pay garnished by the Internal Revenue Service to satisfy a judgment taken against him by the IRS for failure to pay taxes; intentionally omitting or misstating the facts of his official statements or records, for the purpose of misrepresentation (answering "No" to a question regarding delinquent financial accounts and unpaid judgments on a Security Clearance application on 14 July 2001); and committing acts of personal misconduct based on traffic violations of reckless driving, disregarding traffic signs, and driving without county decals and driving with expired license plates.  The CG concluded his notification by citing conduct unbecoming an officer based partly upon the facts set forth in the notification.

16.  In the 20 June 2003 notification, the applicant was advised of his right to submit an unqualified resignation in lieu of involuntary separation, to request transfer to the Retired Reserve, if eligible, or to request that a board of officers consider his case.  He was advised that he had 30 days to acknowledge receipt of the notification and to elect one of the stated options.

17.  On 28 July 2003, the applicant acknowledged receipt of the notification and he requested a hearing before a Boards of Officers.

18.  On 15 March 2004, the applicant was notified that a Board of Officers would convene on 17 April and 18 April 2004 to determine whether he should be discharged from the United States Army Reserve due to misconduct.  He was told that the board may recommend his retention or that he may be discharged with an honorable, general, or other than honorable discharge.  He was also told that if he failed to appear before the board due to being absent without leave, he may be discharged from or retained in the United States Army Reserve by the discharge authority without personal appearance before the board.  The applicant was informed that witnesses may be called and he was advised of the rights that were available to him in accordance with Army Regulations.

19.  The applicant was notified in a memorandum dated 13 May 2004 that the date scheduled for the Board of Officers to convene had been rescheduled from 17 April and 18 April 2004 to 22 May and 23 May 2004. 

20.  On 22 May 2004 the Board of Officer convened and the board determined, by a majority vote, that the applicant did engage in the misconduct stated in the memorandum of notification.  The board recommended, by a majority vote, that the applicant be involuntarily separated with a General Discharge. 

21.  The appropriate authority approved the findings and recommendations of the board on 2 June 2004.  On 13 October 2005, the United States Army Human Resources Command notified the applicant that the Report of Board Proceedings had been reviewed and the findings and recommendations that he be separated and issued a general discharge were approved.

22.  Orders D-10533509 was published on 14 October 2005, discharging the applicant from the USAR under the provisions of Army Regulation 135-175, with an effective date of 14 November 2005.  He was furnished a general discharge.

23.  Army Regulation 380-67 implements the Department of Defense (DOD) and Department of the Army Personnel Security Program.  It provides, in pertinent part, that a DOD National Agency Check and written inquiries (DNACI) shall be 

conducted on each commissioned, warrant officer, cadet, midshipman, and Reserve Officers Training Candidate, at the time of or before appointment.  A secret clearance is a condition of appointment.  However, health professionals, chaplains and attorneys may be commissioned in the Reserve Components prior to completion of a DNACI provided that they agree in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found ineligible to hold a commission.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show 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 applicant's contentions regarding his current finances and his 
post-service accomplishments have been noted.  However, he has submitted insufficient evidence to support his contentions.  His records show that he was over $100,000.000 in debt at the time of his discharge from the USAR and he has provided no evidence to show that an error was made at the time that his security clearance was revoked and at the time he was discharged from the USAR.

3.  As previously stated, the applicant's records show that he had a long history of deliberate omission, concealment, false statements and deceptive or illegal financial practices.  A Board of Officer convened and by a majority vote, determined that he did engage in the misconduct stated in his memorandum of notification.  The evidence of record shows that he engaged in the misconduct that resulted in the revocation of his security clearance and ultimately, his discharge.  While the Board has reviewed his contention regarding his hardships, none of the factors that he explains are acceptable reasons for his failure to pay his debts or his total lack of honesty on his Security Clearance Application.  His records show that he went as far as being dishonest regarding previous positions that he held and the reasons for termination.

4.  In accordance with the applicable regulation, a secret clearance is a condition of appointment and if the results of the investigation are unfavorable, he or she will be subject to discharge if found ineligible to hold a commission.  At the end of the applicant's investigation, there were eight pages of unfavorable information regarding his debt and illegal financial practices.  




5.  His security clearance was properly revoked as a result of information that was revealed during his background investigation and he was discharged accordingly.  Considering all of the fact of this case, it is clear that what the Army did was correct and there is no basis for reinstating his security clearance or reinstating him in the USAR.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20070010756





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ABCMR Record of Proceedings (cont)                                         AR20070010756



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