IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090005258 


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 reconsideration of his earlier application to reinstate his revoked security clearance and that he be reinstated as a member of the U.S. Army Reserve (USAR).

2.  The applicant states that he was making clear progress in the execution of his financial obligations in the form of increasing his child support payments.  He was also assigned to a lieutenant colonel slot and proved that he was an excellent leader.  He also completed 75 percent of the Command and General Staff College (a colonel level school) with an overall 93 percent grade point average.  He concludes that he was a victim of continued libel and slander by Defense Security Services (DSS) agents.  He additionally states that his relief for cause Officer Evaluation Report (OER) violated the governing regulation.  He also states that there was never a DD Form 214 (Certificate of Release or Discharge from Active Duty) generated for his Reserve service and that this has caused him untold grief as he is unable to obtain employment without a DD Form 214.

3.  The applicant provides a copy of a letter, dated 4 March 2009, to his Member of Congress in which he presents a lengthy rebuttal to the original decision rendered by this Board. 






CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010756, dated 29 July 2008.

2.  The applicant submitted a lengthy, item by item, rebuttal (attached) to the original ABCMR decision in which he presents a new argument that was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant’s records show he was appointed as a second lieutenant in the Virginia Army National Guard (VAARNG), on 14 June 1985.  He subsequently entered active duty for training (ADT), on 16 March 1986, and completed the Engineer Officer Basic Course.  He was honorably released from ADT to the control of his ARNG unit, on 15 July 1986.  The DD Form 214 he was issued shows he completed 4 months of creditable active service.  

4.  The applicant he was honorably discharged from the ARNG in the rank/grade of first lieutenant, on 1 September 1991, and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve) to complete his Reserve obligation.  

5.  While the applicant was in the USAR, he was promoted to the rank of captain on 12 June 1992 and to the rank of major on 3 January 2000.

6.  On 8 June 2002, the Chief, Investigations Division (ID), U.S. Army Central Personnel Security Clearance Facility notified the applicant of his intent to revoke the applicant's security clearance.  He was advised that information obtained from an investigation of his personal history led to security concerns.  The Statement of Reasons that the applicant was furnished indicated that the Virginia Department of Taxation, Richmond, VA disclosed that there was no record of him filing his taxes for tax years 1990 to 1994 and 1996 to 1999.  He filed his 1995 tax return in June 1997.  He owed $3,940.08 and he made one payment which was returned due to insufficient funds.  The balance was written off as a bad debt on 19 October 2000.  

7.  The Chief, ID indicated in the Statement of Reasons that records of Henrico General District Court, Richmond, VA disclosed that, on 9 March 1990, the applicant was cited for failure to obey a highway sign.  On 21 November 1996, he was cited for having no state license plates and, 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 decal no license, and no county decal.  On 12 June 1992, he was cited for recklessly driving a motorcycle.  On 16 September 1992, he was cited for improper passing. On 19 July 1993, he was cited for failure to have a county sticker and for 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 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 vehicle registration.

8.  The Chief, ID further indicated in the Statement of Reasons the applicant was told IRS records disclosed he owed an outstanding balance of $47,253.35 plus interest and penalty that it was accruing; that Richmond District Court records indicate 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 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; however, an investigation disclosed 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 he resigned from 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, and he had three suspensions, 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.

9.  In the Statement of Reasons, the Chief, ID indicated that a source with varying amounts of contact with the applicant 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.

10.  The Statement of Reasons indicated 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.
11.  According to the Statement of Reasons, Records of the General District Court, Petersburg, VA 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 on 30 December 1996 for writing worthless checks.  On 23 May 1997, he was found guilty of contempt of court and he was fined. 

12.  Records of the Chesterfield Juvenile and Domestic Court show that, on 
8 July 1997, the applicant was found guilty of failure to pay $3,579.75 in attorney's fees.  On 6 January 1998, he was found guilty and sentenced to 60 days in jail (suspended) and ordered to provide payroll deduction.  On 15 April 1999, a show cause order was filed against him for failing to pay $465.00 weekly with $39,998.77 in arrears as of January 1999.  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.  On 22 December 1999, he was ordered to pay $274.93 biweekly effective November 1999 plus $500.00 monthly towards the arrearage.

13.  The Statement of Reasons shows that Records of the Department of Juvenile Justice, Bon Air Juvenile Correctional Center, Richmond, VA disclosed the applicant was employed from August to October 1997 and he was 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.  The applicant’s landlord also disclosed he rented a home from October 1997 through April 1998 and he left owing rent of approximately $500.00.

14.  The Statement of Reasons 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.  Records of the Hanover Circuit Court, Hanover, VA 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.  "DCSE" disclosed a wage deduction was approved beginning May 2000 for an outstanding balance owed in the amount of $50,446.14 plus interest accruing for child support and arrearage.  

15.  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.
16.  Further review of the Statement of Reasons show that records of Cawthorn and Picard (CP), Attorneys at Law, Richmond, VA disclosed a judgment against the applicant in the amount of $8,281.38 plus interest accruing daily.  Records of "GTE Recovery" disclosed the applicant’s account with cellular phone service was charged off and placed in collection for the amount of $1,885.67.  Records of Gulf State Credit, Atlanta, GA disclosed the applicant’s account with Sprint was charged off 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 in collection in the amount of $408.00.  Records of Glasser and Glasser, Norfolk, VA disclosed a judgment against him in the amount of $1,424.45 with interest accruing daily.

17.  The Statement of Reasons 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 VA State Police Application he forgot to list his arrest for assault on a policeman in April 1981 and operating a pyramid in March 1994. When he completed his employment application for Wella Manufacturing of VA, on 19 May 2000, he reported leaving Philip Morris to start his own business, then he later stated that he was officially fired for being 3 minutes late from a dinner break.  However, the company's records reflect that he was an "undesirable employee."  He received correspondence from Capital One and agreed to a
50 percent settlement and planned to satisfy the obligation in the near future.  He was under the impression that Retreat Hospital would not charge anyone who was indigent for treatment, he was unable to pay after he received treatment, and he disagreed with their findings and he indicated he intended to seek legal guidance.  He believed the judgment in favor of Cellular One was a result of him terminating a service contract and he intended to contact the credit bureau to find out/get more information.  He indicated he intended to satisfy the judgment with Norwest American by the end of summer 2001.  He indicated that he was actively catching up on his child support arrearages and had received $10,000.00 from his spouse.  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 Gulf State/Sprint and he intended to contact the credit bureau to find out more information.  He owed the Department of Education Student Loan Collections approximately $25,129.00 and intended to begin scheduled payments if he got an active duty appointment.  He acknowledged 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."  
18.  On 17 September 2002, the applicant was furnished a Relief for Cause OER for the period 25 May 2002 through 10 June 2002.  In the Relief for Cause OER, the applicant's rater stated the applicant 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 that once the applicant was assigned and mobilized, on 8 December 2001, the USJFCOM initiated the security management process and that the U.S. 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 Reasons 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 the applicant's senior rater directed the Relief for Cause.

19.  In the Relief for Cause OER, the senior rater stated the applicant's actions and personal conduct violated Army Values and his Oath of Commission as an Officer; and that he initiated the appropriate flagging action and the Relief for Cause effective 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.

20.  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.  The applicant’s CG cited the applicant’s 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 serve 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.  

21.  In the notification, the CG went on to cite the applicant's mismanagement of personal affairs detrimentally affecting his duty performance by having his Reserve pay garnished by the IRS 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.

22.  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.

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

24.  On 15 March 2004, the applicant was notified that a Board of Officers would convene on 17 and 18 April 2004 to determine whether he should be discharged from the United States Army Reserve due to misconduct.  He was advised the board may recommend his retention or that he may be discharged with an honorable, general, or other than honorable discharge.  He was also advised that if he failed to appear before the board due to being absent without leave, he may be discharged from or retained in the USAR 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.

25.  The applicant was notified by a memorandum, dated 13 May 2004, that the convening date for the Board of Officers had been rescheduled from 17 and 
18 April 2004 to 22 and 23 May 2004. 

26.  On 22 May 2004, the Board of Officers convened and 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. 

27.  The appropriate authority approved the findings and recommendations of the board on 2 June 2004.  On 13 October 2005, the U.S. Army Human Resources Command notified the applicant that the Report of Board Proceedings had been reviewed and the findings and recommendations were approved for him to be issued a general discharge.

28.  On 14 October 2005, HRC-St. Louis, MO, published Orders D-10533509 directing the applicant’s discharge from the USAR under the provisions of Army Regulation 135-175, effective 14 November 2005.  He was furnished a general discharge.

29.  Army Regulation 135-175 (Separation of Officers) provides policy, criteria, and procedures for the separation of ARNG and/or USAR officers.  Chapter 2 of this regulation prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service.  Paragraph 2-12 states, in pertinent part, that while not all-inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction. Officers discharged for any of the following reasons may be furnished an Honorable or General Discharge Certificate, or Other Than Honorable Conditions Discharge:  Discreditable, intentional failure to meet personal financial obligations; mismanagement of personal affairs to the discredit of the service; mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned; intentional omission or misstatement of facts in official statements or records for the purpose of misrepresentation; acts of personal misconduct; intentional neglect; conviction by civil court of a felony when no sentence to confinement results; and/or conduct unbecoming an officer.  Paragraph 2-16 states, in pertinent part, that a recommendation for involuntary separation may be originated by a duly constituted selection board, operating under official letter of instruction in which the board may recommend individuals who should be involuntarily separated.  When a board recommends retaining an officer in a military status, Headquarters, Department of the Army (HQDA) will approve the recommendation, close the case, notify the officer, and, if appropriate, the headquarters that recommended the involuntary separation

30.  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.

31.  Army Regulation 623-105 (Officer Evaluation System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provided guidance regarding redress programs including commander inquiries and appeals. 

32.  Paragraph 3-57 of Army Regulation 623-105 provided the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified; and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

33.  Army Regulation 635-5 (Separations Document) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his revoked security clearance should be reinstated and that he should be reinstated as a member of the USAR. 

2.  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 Officers convened and by a majority vote determined he did engage in the misconduct stated in his memorandum of notification.  The evidence of record shows he engaged in misconduct that resulted in the revocation of his security clearance and ultimately, his discharge.  While his contentions regarding his hardships have been reviewed, 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.

3.  In his rebuttal of the original ABCMR decision, the applicant argues that most of the negative information that led to the revocation of his security clearance was beyond his control and/or caused by others.  He argues that his traffic violations did not result in a detriment to the Army.  He also argues that he was involved in a bad divorce and other personal/domestic issues that had a negative financial effect on him.  He then argues that he was assaulted by an individual rather than assaulting an individual and that he wrote checks with insufficient funds rather than nonsufficient funds.  He also argues that his assault on a police officer happened 4 years before he entered the military and that he had paid most of his delinquent student loans. 

4.  In accordance with the applicable regulation, a secret clearance is a condition of appointment and if the results of the investigation are unfavorable, the individual 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 debts and illegal financial practices.  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.

5.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The only period of active duty completed by the applicant was that period of ADT from 16 March 1986 to 15 July 1986.  He was issued a DD Form 214 to document this period of active duty service.  There is no evidence that he completed any other period of active duty that warranted the issuance of a DD Form 214.  Therefore, there is no basis for granting the applicant's requested relief.

6.  With respect to the OER, there is no evidence, and the applicant has provided none to show his rater and senior rater failed to comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The applicant’s arguments and statements of support he provided in this case addresses his overall performance and the impact the contested report will have on his future, but he failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  

7.  In view of the foregoing, the applicant Is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20070010756, dated 29 July 2008.




      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20090005258



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ABCMR Record of Proceedings (cont)                                         AR20090005258



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