IN THE CASE OF:	  

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080006715 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s Special Forces Tab be reinstated.

2.  Counsel states, in effect, that the revocation of the applicant’s Special Forces Tab in October 2007 was unjust or inequitable.  He points out that the purported basis for the revocation was that on 23 August 2007 the applicant agreed to accept nonjudicial punishment for statements made during the course of a Commander’s Inquiry.  The official statement which served as the basis for the imposition of the nonjudicial punishment and later the revocation of his Special Forces Tab was, “students were not allowed to consume alcohol” during the 
4 July 2007 celebration of Independence Day and the completion of Student Operational Detachment 921’s ROBIN SAGE training in Rowan County, North Carolina.  The applicant accepted nonjudicial punishment for a false official statement but submitted an appeal to have his Special Forces Tab reinstated.  However, his request was disapproved on 21 March 2008. 

3.  Counsel states that the applicant’s decision to make the false statement was admittedly an error in judgment and the reason for the statement was an effort by the applicant to protect the student team members from getting into the “mix” of the investigation pertaining to the use of unexpended military blank ammunition and flares during the celebration, because they had done nothing wrong.  He claims the applicant accepts responsibility for this error in judgment but further suggests that revocation of his Special Forces Tab, in addition to the nonjudicial punishment, when considered in total context of his military career and those individuals who supported his efforts to have his Special Forces Tab reinstated, was disproportionate punishment and relief in the nature of the restoration of his Special Forces Tab is warranted.  Counsel indicates that such action is particularly disproportionate considering the fact that revocation will cause loss of the applicant’s branch qualification and career status, at a time when such qualified officers are needed in the global war on terrorism.   

4.  Counsel provided five of the applicant’s most recent Officer Evaluation Reports (OER) covering the period 10 May 2003 through 17 May 2007.  He points out that clearly and unequivocally these OERs describe a Special Forces field grade officer who is combat tested and whose raters and senior raters have recommended promotions below the zone to lieutenant colonel and selection for the command of a tactical Special Forces Battalion.

5.  Counsel further states that reinstatement of the applicant’s Special Forces Tab is warranted for the following reasons:  (1) the applicant accepted responsibility for the false statement; (2) the applicant accepted nonjudicial punishment for making such a false statement; (3) the continued revocation of the applicant’s Special Forces Tab will deprive him of his Branch qualification and result in his involuntary separation from active duty without adequate due process, since the underlying Tab revocation decision was without any meaningful due process; (4) the applicant has had two combat deployments as a Special Forces Detachment Commander and his assigned area of responsibility in Paktika Province, Afghanistan, was one of the largest and most dangerous, and this is where the applicant demonstrated the utmost in character and resolve when his detachment was ambushed while conducting a reconnaissance patrol; (5) during the course of that ambush, the applicant lost two of his men and the wounding of an additional two, but without hesitation and with the utmost confidence, regrouped his forces and completed the mission and the rest of the rotation; (6) the cumulative effect of nonjudicial punishment and Special Forces Tab revocation is punishment which is disproportionate to the underlying offense; and (7) the applicant has been and will be a valuable asset to the U.S. Army Special Operations Community in the continued fight against the global war on terrorism.      

6.  Counsel provides six exhibits outlined on page 13 of his memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of Major in the Special Forces branch.
2.  On 23 August 2007, nonjudicial punishment was imposed against the applicant for making a false official statement (“no locals approached me with concerns over the use of ammunition or pyrotechnics” and “students were not allowed to consume alcohol”) to an investigating officer.  His punishment consisted of a forfeiture of pay and arrest in quarters.  The applicant did not appeal this action.

3.  Orders, dated 26 October 2007, show the applicant’s Special Forces Tab was revoked.

4.  On an unknown date, the applicant requested reinstatement of his Special Forces Tab.  On 21 March 2008, the Commander, U.S. Army Special Operations Command, Fort Bragg, North Carolina disapproved the applicant’s request. 

5.  In the processing of this case, an advisory opinion was obtained from the Chief, Military Awards Branch, U.S. Army Human Resources Command, Alexandria, Virginia.  The opinion determined that the actions taken were accomplished in accordance with Army Regulation 600-8-22 (Military Awards), paragraph 1-31c(9).  The Special Forces Tab was revoked by the correct awarding authority, Commander, U.S. Army John F. Kennedy Special Warfare Center, and subsequently reviewed by the Commander, U.S. Army Special Operations Command. 

6.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 9 June 2008, counsel responded.  In summary, counsel stated that the advisory opinion emphasizes the fact that the revocation of the applicant’s Special Forces Tab was done in compliance with Army Regulation 600-8-22, paragraph 1-31c(9).  However, this is not the issue in the case.  The applicant’s appeal to the Army Board for Correction of Military Records to have his Special Forces Tab reinstated is based upon eight separate unrelated contentions.  He states that the applicant’s historical performance as a Special Forces Officer demonstrates that the punishment of removal of his Special Forces Tab was disproportionate and unjust and then counsel reiterates the above mentioned seven reasons.   

7.  Paragraph 1-31c(9)(f) of Army Regulation 600-8-22 states, in pertinent part, that the Special Forces Tab may be revoked by the awarding authority (Commander, U.S. Army John F. Kennedy Special Warfare Center) if the recipient has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School.   

8.  Paragraph 1-31c(9)(g) of Army Regulation 600-8-22 states that the Special Forces Tab for Active and Reserve Component Soldiers will be reinstated by the Commander, U.S. Army Special Operations Command, Fort Bragg, North Carolina, when fully justified.

9.  Army Regulation 600-8-24 (Officers Transfer and Discharges) does not state that involuntary discharge action would be automatically initiated solely because an officer loses his Special Forces qualification. 

DISCUSSION AND CONCLUSIONS:

1.  Counsel contentions and the applicant’s military career and combat deployments were noted.  However, evidence of record shows the applicant, a Special Forces field grade officer, received nonjudicial punishment for making a false official statement to an investigating officer during a Commander’s Inquiry.  Since this misconduct is inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, the applicant’s Special Forces Tab was revoked.      

2.  In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who would ultimately have to rely on the applicant’s integrity under more stressful conditions.

3.  Although counsel contends that the continued revocation of the applicant’s Special Forces Tab will deprive him of his Branch qualification and result in his involuntary separation from active duty without adequate due process, the governing regulation does not provide for the initiation of involuntary discharge action solely on the basis of the loss of Special Forces qualification.  Therefore, there is no basis for granting the applicant’s request at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.




       _    xxxxx__   ___
       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)                                         AR20080006715





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ABCMR Record of Proceedings (cont)                                         AR20080006715



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