IN THE CASE OF:	  

		BOARD DATE:	      28 JULY 2009

		DOCKET NUMBER:  AR20090005016 


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 Official Military Personnel File (OMPF) be updated as follows:

a. removal of the following documents from his OMPF:

		(1)  DA Forms 5248-R (Report of Unfavorable Information for Security Determination), dated 17 and 22 October 2002;

		(2)  DA Forms 268 (Report to Suspend Favorable Personnel Actions (flag)), dated 12 December 2002 and 8 February 2003; and

		(3)  General Officer Memorandum of Reprimand (GOMOR), dated 1 March 2004.

	b.  reinstatement of his security clearance; and

	c.  reinstatement into the U.S. Army Reserve (USAR).

2.  The applicant states, in effect:

	a.  he requested his OMPF and received part of it in a very disorderly manner with most of it missing.  Denial of the entire OMPF impedes his ability and his right to appeal the errors in it, which causes him severe harm;

	b.  he was given a clean bill of health at Walter Reed Army Medical Center (WRAMC) subsequent to the illegal Emergency Mental Health Evaluation (EMHE), dated 25 October 2002, indicating that WRAMC did not substantiate the command's unverified allegations which renders the DA Form 5248-R without basis and warrants its removal from his records.  Likewise, the second DA Form 5248-R, dated 17 October 2002, should also be removed because it contains the same information as the first but it contains a different signature.  It was based on hearsay and unverified derogatory information;

	c.  two days after he started his detail rehabilitative assignment at the 5115th Garrison Support Unit (GSU), on 30 October 2002, his former battalion commander at the 323rd Military Intelligence (MI) Battalion initiated adverse actions in the form of a flag with a reprimand on 1 November 2002.  Neither action was founded or timely.  In addition, his performance at the 5115th GSU was outstanding given the letter of input that was added to his file by the Army Board for Correction of Military Record (ABCMR).  Likewise, there is a second flag, dated 12 December 2002, issued by a unit other than the 5115th GSU despite the lack of evidence to support such a flag; 

	d.  in addition, the 99th Regional Readiness Command (RRC) also initiated a flag and proceedings to eliminate him during his detail to the 5115th GSU and two months after the 323rd MI Battalion Commander invented a flag.   This action was taken despite his outstanding performance while at the 5115th GSU.  This is a further indication that the 99th RRC's irregular rehabilitative transfer was not intended for rehabilitation because there was no need for rehabilitation after he received a clean bill of health and fitness for duty from WRAMC in October 2002; 

	e.  absent the DA Forms 5248-R and aforementioned flags, there was no basis for the elimination action that was issued by the 99th RRC in February 2003.  Again, it appears that the 99th RRC based its flag action on hearsay and unverified derogatory information; 

	f.  the Commanding General (CG), 99th RRC, initiated elimination action against him because he was no longer a mobilization asset.  However, he was no longer a mobilization asset because of the unusual DA Forms 5248-R which were not substantiated.  Had he been treated fairly, his security clearance would have been reinstated on or after 25 October 2002 and before commencement of his rehabilitative transfer to the 5115th GSU on 30 October 2002.  With his security clearance intact, he would have been a mobilization asset to the 99th RRC and there would have been no reason to eliminate him from the Army; 


	g.  had he been treated fairly and maintained his security clearance, the U.S. Army Human Resources Command (HRC)-St. Louis, MO, would never have played havoc with his orders to attend the MI Captains Career Course (MICCC) at Fort Huachuca, AZ.  However, the fact remains that when he received his orders for the MICCC, he reported as directed, his orders were revoked, and he returned to the 5115th GSU.  Therefore, the GOMOR, dated 1 March 2004, is without foundation and absent the GOMOR, there was no reason to discharge him; 

	h.  looking back at the summarized proceedings of the 2003 Board of Officers (BOI) that the CG, 99th RRC, enforced, his defense counsel was informed that the derivation of the summary of proceedings were audiotapes; yet, the CG never shared these tapes with his defense counsel, even upon request.  Additionally, during the BOI, the 99th RRC illegally obtained leaked Inspector General (IG) records and undue command influence, which has been deliberately omitted from the summary.  Absent the disparate behavior by the Command, this 2003 BOI was without foundation, as stated by his defense counsel, and absent the BOI, there were no basis for his discharge from the Active Guard Reserve (AGR) program on 17 March 2004 and no grounds for his discharge from the USAR on 25 March 2005.  The only basis for these disparate Command actions are reprisals stemming from the leaks by the Army IG which is a clear violation of the law; 

	i.  instead of detailing him to the 5115th GSU, the 99th RRC should have transferred him to a different command and the errors would have been avoided; and

	j.  his situation is similar to the Enron and/or Satyam Computers where it appears that the Army IG represents the devious internal auditors from Arthur Anderson and/or Pricewaterhouse.  In the end of both of these cases, the truth prevailed and justice was served with the criminals facing fair justice for their deeds.  In his case, he is confident that the truth will prevail.

3.  The applicant provides copies of DA Forms 5248-R, dated 17 and 22 October 2002; copies of DA Forms 268, dated 12 December 2002 and 8 February 2003; a copy of an email exchange, dated 25 February 2004, with the CG, 99th RRC; a copy of a GOMOR, dated 1 March 2004 and a rebuttal, dated 10 March 2004; and a copy of an email exchange, dated 14 October 2004 with the Chief, U.S. Army Reserve, in support of his request.




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service, the applicant's records show he was appointed as an MI second lieutenant in the USAR and executed an oath of office with concurrent call to active duty on 28 September 1993.  His records also show that he was granted a top secret security clearance with access to sensitive compartmental information (TS-SCI) effective 20 August 1993.  He subsequently served in various staff positions within and outside the continental U.S. and was promoted to first lieutenant on 27 September 1995.

3.  On 15 July 1997, while assigned to the 25th Infantry Division, HI, the applicant received a GOMOR which stated that he was formally reprimanded for his repeated failure to be at his appointed place of duty between 29 May and 5 June 1997; for being belligerent and disrespectful towards his company commander on numerous occasions; for willfully disobeying his commander’s orders; and for failing to accomplish assigned tasks.  The applicant provided a lengthy rebuttal.  On 6 September 1997, the CG, 25th Infantry Division directed the GOMOR be filed in the applicant’s OMPF.

4.  On 18 September 1997, the applicant was notified that he was not selected for promotion to captain (CPT) and would be released from active duty no      later than 1 March 1998.  He was accordingly released from active duty on        10 February 1998 by reason of non-selection for promotion.  He completed         4 years, 4 months, and 14 days of creditable active service during this period. 

5.  On 18 March 2001, the applicant was ordered to active duty in an AGR status for an initial 3-year period.  He was assigned to Headquarters and Headquarters Company, 323d MI Battalion, Fort Meade, MD.  He was subsequently promoted to captain (CPT) on 20 March 2001.

6.  On 10 May 2002, while serving as an Assistant Battalion S-3, 323d MI Battalion, Fort Meade, the applicant received a referred Change of Rater Officer Evaluation Report (OER) for the period 29 October 2002 through 9 May 2002, that shows he did not meet the weight control standards of Army Regulation  600-9 (the Army Weight Control Program).

7.  On 17 October 2002, the Security Manager submitted a DA Form 5248-R to the Commander, 323d MI Battalion, Fort Meade, that shows the battalion commander directed the applicant’s access to classified information be suspended pending the outcome of a command-referred mental health evaluation and full fit-for-duty physical examination.  The commander further recommended deferment of the revocation of clearance until the mental and physical examinations established whether there was cause beyond the applicant’s control that was responsible for his unstable behavior.  With this report, the security manager submitted four DA Forms 4187 (Personnel Actions) documenting the applicant’s AWOL and two statements from a care center staff regarding illegal extension of a "sick in quarters" period.  The basis of the report was as follows:

“Applicant demonstrated unstable, unethical behavior, as well as misconduct, to include multiple instances of being absent without leave (AWOL), failure to obey lawful orders, and an unlawful extension of a doctor-directed quarters period.  Soldier demonstrates paranoia, poor social skills, and an inability to concentrate.  Soldier has reported that he suffers from blackouts (unverified) and that physicians suspect he had a brain tumor (unverified).  Soldier occasionally presents disheveled and groggy appearance consistent with mental/physical illness or substance dependency.  Soldier has in the past resisted urinalysis.  Alcohol abuse or mental/physical illness are [sic] possible causes are being explored.  Hearsay evidence suggests the Soldier may be on a regimen of anabolic steroids that can affect personality and judgment.  Soldier is pending UCMJ (Uniform Code of Military Justice)/legal action for multiple violations.” 

8.  On 29 October 2002, the applicant made an allegation of an improper mental health evaluation in reprisal for communications with the IG (redacted).  

9.  On 22 October 2002, the Security Manager, USAR Command submitted a DA Form 5248-R to the Commander, USAR Command, Fort McPherson, GA, that essentially restates the same information stated in the 323d MI Battalion commander's report. 

10.  On 29 October 2002, by memorandum, the 99th RRC detailed the applicant to the 5115th GSU, Fort Meade for rehabilitative purposes for the period 
30 October 2002 through 27 April 2003 (179 days).

11.  On 12 November 2002, the applicant's TS-SCI clearance was downgraded to "classified data" only.  Furthermore, there is no indication in the applicant's records that he appealed this downgrade. 

12.  On 12 December 2002, the commander, 323rd MI Battalion, initiated a flag against the applicant for adverse action.  The reasons appear to be the applicant’s multiple periods of being AWOL and his illegal extension of a “sick in quarters” period.

13.  The applicant's records contain a memorandum, dated 24 January 2003, that indicates he had been counseled concerning his performance and conduct on 3 August 2001 (twice), 21 November 2001 (twice), 15 January 2002, 3 September 2002 (three times), 4 October 2002, and 18 October 2002.  The available records also indicate the applicant could not attend the MICCC because he was flagged for APFT [failure], [failure to maintain] weight [standards] and because his personnel management officer told him he could not attend the course during his initial AGR tour.

14.  The 99th RRC IG concluded the allegations that the applicant was reprised against in violation of the Whistleblower Act were not substantiated.  The 99th RRC IG concluded that the allegation that the applicant was improperly referred for a mental health evaluation was also unsubstantiated.  The DAIG apparently later reversed the findings of the 99th RRC IG regarding the second allegation and found that the complaint the applicant was improperly referred for a mental health evaluation was substantiated.

15.  On 8 February 2003, the CG, RRC, initiated a flag against the applicant by reason of pending elimination action.  The Whistleblower IG Preliminary Analysis/Inquiry also indicated an individual testified to the IG in December 2002 that the applicant could not attend the MICCC because he was flagged for APFT [failure], and for [failure to maintain] weight [standards].

16.  On 13 May 2003, by memorandum, the 99th RRC approved a second detail period for the applicant for the period 13 May through 7 November 2003 for rehabilitative purposes. 

17.  The applicant provided an email from colonel (COL) K___ (the applicant's commander at the 5115th GSU) written to the Major General (MG) K___ (the CG, 99th RRC), dated 23 January 2004 that indicates a BOI was held on      20/21 September 2003.  It indicates MG K___ signed the DA Form 1574 (Report of Proceedings), on 13 December 2003, outside of the 30-calendar day after the BOI’s adjournment period as provided for in Army Regulation 600-8-24 (Officer Transfers and Discharges).  After expressing her concerns about the treatment of the applicant by his command, COL K___ noted that she was of the opinion that the applicant’s problems at the 323d MI were the result of conflicts with another Soldier, Major (MAJ) C___.  She stated the applicant had an otherwise exemplary military career before joining the 323d MI and he performed in an outstanding manner while detailed to the 5115th GSU.  The aberrations that occurred at the 323d MI were wholly unlike his actions at any other time in his career.  

18.  On 1 March 2004, by memorandum, the applicant was notified that he would be released from active duty no later than 90 days from receipt of this notification or at the expiration of his initial tour, whichever was later, due to having a nonwaivable disqualification during his initial AGR tour.  The disqualification was Rule H, Table 2-6, Army Regulation 135-18 (The AGR Program) which prohibited placement of a member on indefinite status in the AGR program when the member was flagged.  The applicant acknowledged receipt of the notification on 2 March 2004. 

19.  On 1 March 2004, MG K___ gave the applicant a GOMOR.  The GOMOR noted that the applicant was flagged because of the involuntary separation proceedings [initiated in September 2003] and that his security clearance access was suspended and was not reinstated.  Yet, despite these actions and the imposition of a flag, the applicant requested attendance at the officer advanced course on 15 October 2003.  He misled personnel at HRC and ignored their direction.  As a result, he went to Fort Huachuca for an extended period of time.  MG K___ reprimanded the applicant for his blatant disregard of regulatory guidance concerning administrative separations, flagging actions, and security clearance access.  Furthermore, after reviewing the applicant’s rebuttal, MG K___ ultimately directed the GOMOR to be filed in the applicant’s OMPF.

20.  On 17 March 2004, the applicant was released from active duty after completing 3 years of active duty and was transferred to the USAR Control Group (Reinforcement).  The narrative reason for separation was listed as non-retention on active duty, and the separation authority was listed as Army Regulation 600-8-24, paragraph 2-31 or 2-27.

21.  The applicant provided an email from Lieutenant General (LTG) H___, dated 14 October 2004.  This email informed the applicant that LTG H___ understood that the first BOI, conducted by the 99th RRC, was never finalized because the applicant was released from active duty prior to the board’s completion.  LTG H___ stated the second BOI was mandated by HRC-St. Louis.

22.  On 24 March 2005, by letter, HRC-St. Louis informed the applicant that a BOI recently considered him for involuntary separation.  The findings and recommendations of the BOI were approved and he would be discharged from the USAR and issued an Honorable Conditions Discharge.  Accordingly, on 25 March 2005, the applicant was discharged from the USAR with an Honorable Discharge.  The BOI is not available.

23.  On 9 May 2005, by letter, the Office of the IG, USAR Command, informed the applicant that a review of the 99th RSC’s BOI held in September 2003 revealed errors that were made in the timely submission of documents pertaining to the BOI.  However, the errors did not impact his ability to be heard and to protect his rights at the BOI.  The USARC IG’s review concluded he was not separated from the AGR program as a result of the BOI, but rather as a result of a separate administrative action.

24.  On 14 February 2006, by letter, the DAIG informed the Department of Defense IG (DODIG) that the applicant’s allegations of reprisal were not substantiated; however, the allegation of improper referral for an emergency mental health evaluation against his commander was substantiated.

25.  On 5 May 2006, by letter, the DODIG informed the DAIG that it had reviewed the DAIG’s report of investigation into the applicant’s allegations of whistleblower reprisal.  The DODIG agreed that responsible management officials did not reprise against the applicant for making protected communications.  The DODIG also agreed with the DAIG’s conclusion that the applicant’s commander did not follow the procedural requirements of Department of Defense Directive 6490.1 (Mental Health Evaluations of Members of the Armed Forces) and Department of Defense Instruction 6490.4 (Requirements for Mental Health Evaluations of Members of the Armed Forces) when referring the applicant for an emergency mental health evaluation on 18 October 2002.  The DODIG recommended that LTC D___ be counseled regarding the requirements.

26.  The DODIG also reviewed the applicant’s suspension of his security clearance, even though he did not allege that the suspension was an act of reprisal.  Based on the evidence, the DODIG determined that his suspension was in response to his substandard performance and not in reprisal for his protected communications.  

27.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Action) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states, in pertinent part, that a separate flag will be initiated for each investigation, incident, or action.  The commander (or general officer staff head) directs the flagging action.  The effective date of a flag is the date of the incident or the date the commander (or general officer staff head) initiates the action, whichever is earlier.  Flags are classified into the two categories depending upon the specific action or investigation.  Non-transferable, the flag may not be transferred to another unit (except where consistent with paragraph 1–15), and transferable, the flag may be transferred to another unit.  The specific actions and investigations listed below require a non-transferable flag: (a) adverse actions (charges, restraint, or investigation; court-martial; nonjudicial punishment; AWOL; and administrative reduction; memorandums of admonition, censure, or reprimand not administered as nonjudicial punishment; (b) elimination; (c) removal from a promotion, command, or school-selection list; (d) receipt of a referred Officer Evaluation Report (OER; (e) security violation; and (f) elimination or removal from promotion, command, or school selection list.

28.  Paragraph 1-14 of this regulation provides for actions prohibited by a flag.  It states that a flag properly imposed in accordance with this regulation prohibits the following personnel actions (with some exceptions) appointment, reappointment, reenlistment, and extension; entry on active duty (AD) or active duty for training (ADT); reassignment; promotion or reevaluation for promotion; a awards and decorations; attendance at civil or military schooling; unqualified resignation or discharge; retirement; advanced or excess leave; assumption of command; family member travel to an oversea command (when sponsor is overseas); and/or command sponsorship of family members in an oversea command (when sponsor is overseas).

29.  Army Regulation 380-67 (Personnel Security) implements the Department of Defense and Department of the Army Personnel Security Program and takes precedence over all other departmental issuances affecting these programs.  It contains the policies and procedures for access to classified information and assignment in a sensitive position.  It also prescribes the investigative scope and adjudicative standards and criteria that are necessary prerequisites for such access or employment.  It includes due process procedures for appealing adverse administrative actions rendered in accordance with the provisions of this regulation.  It defines personnel security as the application of standards and criteria to determine whether or not an individual is eligible for access to classified information, qualified for assignment to or retention in sensitive duties, and suitable for acceptance and retention in the total Army consistent with national security interests.  A security clearance (confidential, secret, top secret) is determination that a person is eligible under the standards of this regulation for access to classified information.  
30.  Army Regulation 380-67 states, in pertinent part, that to ensure that DOD personnel security determinations are effected consistent with existing statues and Executive orders, the Central Clearance Facility (CCF) at Fort Meade, MD, has been designed as the single central adjudication facility for the Department of the Army.  The Commander of the CCF shall have the authority to act on behalf of the head of the Secretary of the Army with respect to personnel security determinations. 

31.  Sensitive Compartmented Information is classified information concerning or derived from intelligence sources, methods, or analytical processes that must be handled exclusively within formal access control systems established by the Director of Central Intelligence (DCI).  DCI Directive (DCID) 1/14 (reference (1) contains the minimum personnel security standards and procedures governing eligibility for access to SCI.

32.  Suspension of access is defined 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.

33.  Paragraph 2-200 of Army Regulation 380-67 provides for the criteria for application of security standards.  It states that the ultimate decision in applying either of the security standards set forth in applicable paragraphs of this regulation must be an overall common sense determination based upon all available facts.  The criteria for determining eligibility for a clearance or assignment to a sensitive position (emphasis added) under the security standard shall include, but not be limited to the following, in pertinent part, disregard of public law, statutes, Executive orders, or regulations, including violation of security regulations or practices; criminal or dishonest conduct; or acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness; an y behavior or illness, including any mental condition, which, in the opinion of competent medical authority, may cause a defect in judgment or reliability with due regard to the transient or continuing effect of the illness and the medical findings in such case.

34.  Chapter 8 of the above regulation provides for unfavorable administrative actions.  Paragraph 8-101 states that whenever derogatory information relating to the criteria and policy set forth in paragraph 2–200 and appendix I of this regulation is developed or otherwise becomes available to any DOD element, it shall be referred by the most expeditious means to the commander or the security officer of the organization to which the individual is assigned for duty.  The commander or security officer of the organization to which the subject of the information is assigned shall review the information in terms of its security significance and completeness.  If further information is needed to confirm or disprove the allegations, additional investigation should be requested.  The commander of the duty organization shall ensure that the parent component of the individual concerned is informed promptly concerning (1) the derogatory information developed and (2) any actions taken or anticipated with respect thereto by forwarding DA Form 5248–R (Report of Unfavorable Information for Security Determination) to the Commander, Central Clearance Facility (CCF) (emphasis added).  

35.  Army Regulation 380-67 provides that when the commander learns of credible derogatory information concerning a member of his/her command that falls within the scope of paragraph 2–200, the commander will immediately forward DA Form 5248–R to the Commander, CCF, in a timely manner.  At a minimum, initial reports will indicate the details of the credible derogatory information and actions being taken by the commander or appropriate authorities (for example, conducting an inquiry or investigation) to resolve the incident.  Follow-up reports will be submitted at 90–day intervals if the commander has not taken final action or, for example, the subject is still pending action by civil court.  At the conclusion of the command action, a final report will be forwarded to CCF indicating the action taken by the commander.  The final report must contain results of any local inquiry, investigation, or board action and recommendation of the command concerning restoration or revocation of the person’s security clearance, if appropriate.  Commanders will not delay any contemplated personnel action while awaiting final action by CCF.  The personnel action should proceed, with CCF being informed of the final action by submission of DA Form 5248–R through established channels.  If the personnel file does not indicate the existence of a security clearance, commanders must still report information that falls within the scope of paragraph 2–200, since the person might later require a clearance.  Only a final report is required on personnel who do not have a security clearance.  Staff Security Officers (SSOs) are charged with protecting SCI.  If an SSO learns of any derogatory information falling within the scope of paragraph 2–200 concerning any person under the SSO’s security cognizance, the SSO will immediately inform the commander.  

36.  Army Regulation 380-67 also provides that when a commander learns of significant derogatory information falling within the scope of paragraph 2–200, in addition to the reporting requirements the commander must decide whether or not to suspend the individual’s access to classified information.  The commander may wish to suspend access on an "informal" basis while gathering information to determine whether or not formal suspension is warranted.  After gathering the required data, the commander may decide to restore access.  If the commander does not suspend access, CCF will review all available information and, if warranted, advise the commander to suspend access.  If the commander decides on formal suspension of access, the DA Form 873 (Certificate of Clearance and Security Determination) will be removed from individual’s personnel file and attached to DA Form 5248–R reporting the suspension to CCF.  Once this is done, the commander may not restore access until a final favorable determination by the Commander, CCF, unless all the following criteria are met.  These following procedures apply to both collateral and SCI access:  

	(1) if the commander determines that the person has been cleared of all charges and that the alleged offense or disqualifying information has been disproved or found groundless, and the commander is completely convinced that no element of risk remains, the commander may restore interim access in the name of the Commander, CCF.  The commander will notify CCF of this action.  Access will not normally be restored in cases where factors such as dismissal of charges, acquittal because of legal technicalities, plea bargaining, or absence of a speedy trial are involved.  These factors cannot be construed as a clearing of all charges.  

	(2) When the commander is considering suspending or has suspended a person’s access because of a suspected or actual psychological problem, the commander may elect to retain the person in status or reinstate access if all the following conditions are met: a current medical evaluation indicates the condition was a one–time occurrence; the condition has no lasting effects that would affect the person’s judgment; there no requirement for further medical consultation relating to the condition; the examining physician recommends the person be returned to full duty status; the person exhibits no unacceptable behavior after the favorable medical evaluation; and the commander firmly believes the person does not pose a risk to the security of classified information.  

	(3)  If the commander has any doubts concerning the person’s current acceptability for access, even though the above provisions have been met, the case will be referred to CCF.  The commander will ensure that the SSO is expeditiously notified of any information within the scope of paragraph 2–200 if the person is indoctrinated for SCI.  This notification is especially critical if the commander suspends access.  A commander who suspends access to classified information will ensure that the suspension is documented in the Field Determined Personnel Security Status data field of the Standard Installation/Division Personnel System personnel file.

37.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) sets forth the policies, operating tasks and steps for governing the OMPF.  Table 2-1 provides for composition of the OMPF.  It states, in pertinent part, that in the case of administrative letters of reprimand, admonitions, and censures of a nonpunitive nature, if the provisions of Army Regulation 600-37 (Unfavorable Information) have been complied with, the referral correspondence, member’s reply, and other allied documents-- if they are specifically directed for file by the letter or referral correspondence-- are filed in the performance section of the OMPF.  Additionally, this regulation also states that unfavorable information of which the member concerned had prior official knowledge is filed in the restricted section of the OMPF if directed by the commander having general court–martial authority over the member or by higher authority.  If the document is an enclosure to an adverse action that resulted in disciplinary action, relief for cause, reclassification for cause, elimination from service, or administrative reduction, the document is also filed in the restriction section of the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the two DA Forms 5248-R, dated 17 and 22 October 2002; the two DA Forms 268, dated 12 December 2002 and 8 February 2003; and his GOMOR, dated 1 March 2004 should be removed from his OMPF.  He also contends that his security clearance should be reinstated and that he should be reinstated in the USAR.

2.  With respect to the applicant's flags, the evidence of record shows that the applicant demonstrated unstable and/or unethical behavior, as well as misconduct, including multiple instances of AWOL, failure to obey lawful orders, and an unlawful extension of a doctor-directed quarters’ period.  As required by regulation, the commander initiated a flag against him for adverse actions.  This flag action became a part of a subsequent GOMOR and is correctly filed in the applicant’s OMPF as an allied document to the GOMOR.  Similarly, on 8 February 2003, the CG, 99th RRC, initiated a flag against the applicant by reason of pending elimination action.  Again, this flag action became a part of his subsequent elimination action and is correctly filed in the applicant’s OMPF as an allied document to the elimination action.

3.  The available evidence shows the applicant demonstrated practices of dishonest conduct, acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness, and instances of AWOL that warranted the initiation of the DA Forms 5248-R.  As required by paragraph 7-200 of Army Regulation 380-67 a DA Form 5248-R was initiated from the security manager to the commander and a second report from the higher command’s security manager to the USAR Command, for an ultimate decision by the CCF.  Both forms are correctly filed on his OMPF.

4.  The Reports of Unfavorable Information for Security Determination were submitted from the applicant's commander to the U.S. Army Reserve Command and action was ultimately taken by CCF in November 2002 to downgrade the applicant's security level.  However, there is no evidence in the applicant's records that he appealed this decision to the Commander, U.S. Army Central Personnel Security Clearance Facility at the time.  The applicant was discharged in March 2005.  Even if he were able to substantiate his request, there is no regulatory requirement to reinstate a member's security clearance years after his discharge. 

5.  With respect to the GOMOR, the evidence of record shows the applicant received a GOMOR on 1 March 2004 that noted he was flagged because of the involuntary separation proceedings [initiated in September 2003] and that his security clearance access was suspended and he was not reinstated; yet, the applicant requested an advanced course on 15 October 2003.  He misled HRC personnel and ignored their direction.  As a result, he went to Fort Huachuca for an extended period of time.  He was reprimanded for his blatant disregard of regulatory guidance concerning administrative separations, flagging actions, and security clearance access.  He was afforded the opportunity to submit a rebuttal and did so.  After consideration of his rebuttal, the imposing commander directed the GOMOR be filed in his OMPF.  There is no error or injustice.

6.  The applicant was released from active duty on 17 March 2004 after completing 3 years of active duty and was transferred to the USAR Control Group (Reinforcement).  He was subsequently discharged from the USAR on 25 March 2005.  He has shown neither error nor injustice that would warrant reinstatement in the USAR.  

7.  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 did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to any of the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  _____X___  ____X____  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.


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