IN THE CASE OF:			

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080012374 


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.  The American Legion, as counsel for the applicant, requests that:

	a.  all flag/negative actions in the applicant's record since 11 September 2001 be expunged;

	b.  a non-prejudicial statement be placed in the applicant's Official Military Personnel File (OMPF) to cover the gap for the Officer Evaluation Report (OER) that he never received for his last year of service in Korea;

	c.  the applicant be afforded promotion consideration to full colonel as if his security clearance had not been suspended and revoked;

	d.  the applicant’s mandatory retirement be voided;

	e.  the applicant’s records be corrected to show he was in an active status, on active duty, at least since March 2003, the approximate date of U.S. Army Special Operations Command's (USASOC's) attempt to recall the applicant to active duty; and if not possible,

	f.  correction of the applicant’s records to show that he was in an active status as a drilling Reservist with pay from 11 September 2001 to the date of his recall to active duty on 10 February 2008.

2. Counsel makes no additional contentions. 

3.  Counsel provides several documents from the applicant's OMPF such as:  a copy of his biographical summary; a copy of his OER for the period 20 July 1999 through 19 July 2000; a copy orders for recall to active duty; a copy of his retirement orders and some additional records that are available in his OMPF.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 May 1953.  He was initially appointed a Regular Army second lieutenant on 4 June 1975.  He was transferred to the U.S. Army Reserve (USAR) from the Army National Guard (ARNG) on 1 April 1990 in the rank and grade of major (MAJ)/O-4.  He was promoted to lieutenant colonel (LTC/O-5) effective 2 June 1994.  The automated personnel data system shows his mandatory removal date (MRD) as 14 July 2003.

2.  The applicant was not selected for promotion to colonel by the 1999 and 2000 Army Reserve Components Selection Boards (RCSB).  The reasons for non-selection are not divulged.  Those boards convened on 13 July 1999 and 11 July 2000, respectively.

3.  A review of the applicant's military service records indicates that he was assigned to USASOC with duty with U.S. Special Operations Command Korea in an Individual Mobilization Augmentee (IMA) status effective 21 October 1999.  He maintained this assignment from October 1999 to October 2001.

4.  The applicant's record contains a copy of his OER for the period 20 July 1999 through 19 July 2000.  This was the last OER that he was rendered, and it was issued while he was assigned to USASOC with duty in Korea.

5.  On 13 June 2001, the Army Reserve Personnel Command notified the applicant that he had completed the required years of service to be eligible for retired pay upon application at age 60 (20-Year Letter).

6.  The applicant was not selected for promotion to colonel by the 2001 RCSB.  The board convened on 10 July 2001.

7.  On 11 September 2001, the applicant responded to the attack on the World Trade Center.
8.  The applicant was later accused of conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty or unwillingness to comply with rules and regulations which indicated that he may not have properly safeguarded classified information.

9.  Page 1 of a 2-page U.S. Army Criminal Investigation Command Agent's Investigative Report indicated that a Target Analysis File (TAF) was initiated on 25 April 2002 based upon information that was obtained during casual and official conversations with personnel who had contact directly or indirectly with the applicant.  The Report stated that on or about 7 July 2002, it was determined by the agent signing the Report that in view of the lack of investigative leads based on the information available  that the TAF would be terminated.  The agent noted that the termination action did not preclude that there was or was not any criminal activity performed by the applicant and, in view of the applicant's actions after the initial attack of 11 September 2001 at the Federal Bureau of Investigation emergency operations center and the World Trade Center site, his actions were brought to the attention of his superior officers prior to and during this initial action.  A 22 September 2001 electronic mail message was referenced, but the electronic mail message is not available.

10.  On 23 October 2001, the applicant's access to all classified information was suspended immediately.

11.  Orders dated 1 November 2001 show that effective 23 October 2001 the applicant was voluntarily released from his IMA assignment with U.S. Special Operations Command and assigned to the U.S. Army Reserve Control Group (Reinforcement).

12.  The applicant was not selected for promotion to colonel by the 2002 RCSB which convened on 8 July 2002.

13.  On 14 March 2003, the USASOC mobilization officer prepared a memorandum for record that stated the USASOC was tasked to fill Joint Manning Documents (JMD) for the Joint Special Operations Task Force in the U.S. Central Command areas of responsibility.  These requirements were for qualified Special Forces officers and enlisted Soldiers and for current and future operations.  USASOC was unable to fill these positions from within their major subordinate commands.  The USASOC mobilization officer was tasked to find and mobilize qualified Individual Ready Reserve (IRR) and IMA Soldiers to fill these JMD positions.  The applicant was a qualified Special Forces officer from the IRR that USASOC would like to mobilize and deploy at the earliest possible opportunity.  The mobilization officer also stated that once the applicant was cleared for mobilization it was their intent to mobilize him under partial mobilization orders to fill a JMD position that USASOC has been tasked to fill.

14.  The applicant's clearance was reinstated and access to Secret Compartmented Information (SCI) was granted on 28 October 2004.

15.  The applicant was released from the USAR Control Group (Reinforcement) on 22 September 2006, due to his maximum authorized years of service.  He was transferred to the Retired Reserve effective 22 September 2006.  The reason for the extension of his MRD is not known.

16.  On 10 February 2008, the applicant was voluntarily recalled to active duty from a retired status in support of contingency operations as a training and exercise officer for a period of 11 months and 30 days with duty at Tampa, Florida.

17.  A review of the applicant's OMPF from the Integrated Personnel Electronic Records Management System (IPERMS) failed to show any flag or negative actions since 11 September 2001 to present.

18.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph 7-2 of Army Regulation 140-10 provides guidance on length of Reserve service.  It states, in pertinent part, that the actual removal date will be 30 days after:  (a) the individual completes 28 years of commissioned service if under age 25 at initial appointment or (b) the individual’s 53rd birthday if age 25 or older at initial appointment.  However, the implementation of the Reserve Officer Personnel Management Act changed the removal date for lieutenant colonels to 28 years of service or age 60 whichever occurs earlier.

19.  Title 10 U.S. Code, section 14507(a), states that a lieutenant colonel must separate on the first day of the month after the month in which the officer completes 28 years of commissioned service, unless the officer reaches age 60.

20.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  The regulation specifies that an officer who has been recommended for promotion to the next higher grade must meet the requirement of having undergone a favorable security screening.

21.  Army Regulation 135-155 also states that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

22.  Army Regulation 380-67 (Personnel Security Program), paragraph 7-101, states that a personnel security clearance remains valid until (1) the individual is separated from the Armed Forces; (2) separated from Department of Defense (DOD) civilian employment; (3) has no further official relationship with DOD or other Federal agencies; (4) official action has been taken to deny, revoke, or suspend the clearance or access, or (5) regular access to the level of classified information for which the individual holds a clearance is no longer necessary in the normal course of his or her duties.

23.  Army Regulation 380-67, paragraph 1-327.1, defines "suspension of access" as the temporary withdrawal of a person's eligibility for access to classified information.  Access is suspended when information becomes known that casts doubt on whether continued access is consistent with national security interests.  Paragraph 2-200 states the ultimate decision in applying security standards must be an overall common sense determination based upon all available facts.  The criteria for determining eligibility for a clearance includes criminal or dishonest conduct and acts of omission or commission that indicate poor judgment, unreliability, or untrustworthiness.  Paragraph 7-100 states any commander or head of an organization may suspend access for cause when there exists information raising serious questions as to the individual's ability or intent to protect classified information.  Paragraph 8-102 states the commander or head of the organization shall determine whether, on the basis of all the facts available upon receipt of the initial derogatory information, it is in the interests of national security to continue subject's security status unchanged or to take interim action to suspend subject's access to classified information.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was initially appointed as a commissioned officer on 4 June 1975.  On 1 April 1990, he was transferred to the USAR from the ARNG in the rank and grade of MAJ/O-4.  His established MRD was 14 July 2003 (the date he would have completed 28 years of commissioned service).

2.  The applicant was promoted to LTC effective 2 June 1994.  He was considered for promotion to colonel by the 1999, 2000, 2001, and 2002 RCSBs and was not selected.  The promotion boards do not divulge the reasons for selection and non-selection of officers in the zones of consideration.

3.  While serving as a USAR IMA Soldier, the applicant responded to the attack on the World Trade Center on 11 September 2001.  He was later accused of conduct involving questionable judgement, untrustworthiness, unreliability, lack of candor, dishonoesty or unwillingness to comply with rules and regulations which indicated that he could not properly safeguard classified information.  In accordance with the governing regulation, it appears that his commander made a considered and proper decision to suspend his access to all classified information immediately.  It appears that, as a result of the suspension of his security clearance, he was transferred to the USAR Control Group (Reinforcement) effective 23 October 2001.

4.  The applicant has provided insufficient evidence to show why the Board should substitute its judgment concerning the suspension of his security clearance for that of the commander at the time even though it is acknowledged that his clearance was reinstated and access to SCI was granted on 28 October 2004.

5.  The applicant's MRD was 14 July 2003; however, he was not removed from an active status and placed in the Retired Reserve due to his maximum authorized years of service until 22 September 2006.  It cannot be determined why his MRD was extended.  However, because it was, he was in an active status (although not on active duty) from March 2003 through 22 September 2006.  In addition, counsel has provided insufficient evidence to show why the applicant's 2006 mandatory retirement should be voided.  He provides insufficient evidence to show why his records should be corrected to show he was in an active status on active duty at least since March 2003, or to show that he was in an active status as a drilling Reservist with pay since 11 September 2001 to the date of his recall to active duty 10 February 2008.

6.  Counsel requested any flag/negative actions in the applicant's records since 11 September 2001 be expunged from his records.  However, a review of his OMPF from IPERMS failed to show any flagging or negative action since 11 September 2001 to present.

7.  While serving with a unit in Korea in an IMA status, the applicant received an annual OER for the period 20 July 1999 thru 19 July 2000, which was his last OER.  He served with that unit until October 2001.  He was not issued another OER for an unknown reason.  Therefore, the applicant should be issued a statement to show that an annual OER for the period 20 July 2000 through 19 July 2001 was not rendered through no fault of the rated officer.  This period would be declared nonrated.

8.  Counsel claims, in effect, that the applicant would have been promoted to full colonel during the time frame of the investigation which resulted in suspension/ revocation of his clearance.  The evidence shows the applicant appeared before three RCSBs, in 1999, 2000, and in 2001, prior to the suspension of his security clearance.  He appeared before a 2002 RCSB while his suspension was still in effect.  The applicant provides insufficient evidence to show that the suspension of his clearance alone resulted in his non-selection for promotion by the 2002 RCSB even if he had provided sufficient evidence for the Board to substitute its judgment for that of his commander in regard to the suspension of his clearance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing to the applicant a statement covering the period from 20 July 2000 through 19 July 2001 to show no OER was rendered due to no fault of the applicant and that this statement be placed in his OMPF.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion consideration to colonel; voiding his mandatory retirement; and correction of his records to show that he was in an active status, on active duty, at least since March 2003, the approximate date of USASOC's attempt to recall him to active duty or as a drilling Reserve Soldier with pay since 11 September 2001.



___________x______________
           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.