IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090005397 


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, in effect, correction of his records to show his request for deferral into a subsequent U.S. Army War College Distance Education Course (USAWC DEC) was approved; reenrollment into the USAWC DEC (Class of 2011 or 2012); and extension of his mandatory removal date (MRD) from July 2010 to a timeframe that will allow him to complete the U.S. Army War College (USAWC), submit a Colonel (COL) Command Selection packet, serve a 2-year command tour (if selected), and submit a promotion packet for the first Brigadier General (BG) selection board following his graduation from the USAWC.

2.  The applicant states that on 21 August 2008 the Chief, Army Reserve (CAR), denied his request that the CAR reverse a previous decision he made in August 2006 when he overruled the recommendation of the Commander, U.S. Army Human Resources Command (USA HRC), Alexandria, VA, that the applicant’s deferment into a subsequent USAWC DEC be approved.  He adds that the CAR unjustly declined to forward the request to the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA (M&RA)) for consideration.  The applicant offers a summary of the events which led to his petition to the CAR.

   a.  He states he was forced to cease work in the U.S. Army War College Distance Education Program (USAWC DEP) and also lost his previous selection to serve as an Assistant Division Commander (ADC) in the 104th Division (Training) because of an unjust personnel action taken against him in Kosovo in July 2005.  He has spent the last three years working to overturn the actions that were taken against him, and he was fully vindicated and successful in having his record cleared.  However, the CAR has refused to restore to him what he unfairly lost; enrollment in the USAWC DEP and the opportunity to compete for a full-colonel command.

	b.  The applicant now has about 12 months before his 30-year MRD.  He states that his request for USAWC DEP reenrollment and to compete for a full-colonel command included a request for an extension of his MRD in order to accomplish the corrective actions outlined above; the approval authority is the ASA M&RA; and the CAR refuses to forward his request.

   c.  The applicant provides a summary of the events which led to his disenrollment in the USAWC DEC and removal from the full-colonel command list.
   
        (1)  He was deployed to Kosovo in December 2004 and serving as the Chief of Intelligence (J2) for the North Atlantic Treaty Organization (NATO) force in Kosovo (KFOR).

        (2)  He states he and his wife had been legally separated since March 2001 and they were going through a divorce prior to his mobilization and deployment.  He adds that he had a Russian fiancée and he planned to submit a fiancée visa and marry her upon finalization of his divorce.  

        (3)  He states that during his deployment he was authorized two 4-day passes (one in April 2005 and one in June 2005) and he visited his fiancée in Kiev (Ukraine) and Moscow (Russia), respectively.  He adds that these passes were approved by his direct supervisor, the Chief of Staff (CoS), KFOR. However, in June 2005, the new CoS, KFOR, expressed his disapproval of the applicant’s actions, relieved him from duty as Chief, J2 KFOR, suspended his security clearance, rendered a derogatory Officer Evaluation Report (OER) on him, and sent him home.  He adds the CoS, KFOR, refused to hear the applicant’s mitigating explanations regarding his marital status (i.e., a 4-year legal separation and the divorce being delayed due to his Iraq war service).

        (4)  He states that the suspension of his security clearance and relief from duty had numerous negative effects on his U.S. Army Reserve (USAR) career.
In February 2005, he had been selected by the Senior Service School Board to attend the USAWC DEC and he began course work in April 2005.  In addition, in August 2005, he was selected by the COL Command Assignment Selection Board to be the ADC (Support) for the 104th Division (Training), USAR.  However, due to the suspension of his security clearance, he was not able to continue his work in the USAWC DEC and his selection for a colonel command assignment was revoked.  He adds that he was told there was a 2-year backlog at the Central Clearance Facility for security clearance adjudications and his case could not be expedited.

        (5)  In October 2005, he received notice of a proposed General Officer Memorandum of Reprimand (GOMOR) from the Commander, USA HRC, Alexandria, VA, based on his relief from duty in Kosovo.  He provided an extensive and detailed rebuttal and, in February 2006, the Commander, USA HRC, informed him that he was rescinding the GOMOR.

        (6)  He states he then asked the Commander, USA HRC, to assist him in his effort to obtain approval of a deferment for enrollment in the 2008 USAWC DEC.  The Commander, USA HRC (Alexandria, VA), referred his request to the Commander, HRC (St. Louis, MO), who supports the USAR; however, his request was denied after going to the CAR for decision.  He also states that he learned the request went to the CAR for decision because it was discovered that, if he were deferred into the 2008 USAWC DEC, he would fall two or three weeks short of the 2-year military service obligation the course entails because his MRD was in early July 2010.  He further states he later learned from the Senior Leader Development Officer in the Office of the CAR (OCAR) his request was denied primarily due to the derogatory OER he had received as the Chief, J2 KFOR. 

        (7)  In August 2007, the Central Clearance Facility reviewed his appeal and agreed to restore his security clearance.  He adds he was confident of a favorable decision because he had been previously advised by a Staff Security Officer at the USA HRC (St. Louis, MO) that the CoS, KFOR, over-reacted because all that was necessary for the applicant to visit his fiancée was a foreign contact report to CCF.
   
        (8)  It took a full year for the derogatory OER to be filed in his Official Military Personnel File (OMPF).  In September 2006, he appealed the OER to the Special Review Board (SRB), USA HRC (St. Louis, MO).  In March 2008,
18 months after submitting his appeal, he was notified that the SRB had agreed to remove the OER.
   
        (9)  Despite being very gratified that his security clearance was restored and the derogatory OER was removed from his OMPF, he now had insufficient time remaining to reenroll in the USAWC DEC and attempt to apply for another full-colonel command.  As a result, he could not fulfill the military education and assignment requirements for promotion to BG. 
   
        (10)  In August 2008, he brought his case to the attention of the CAR and requested reconsideration of the CAR’s previous refusal in 2006 to grant him a deferral into the USAWC DEP.  The applicant presented evidence to the CAR that he had been vindicated, argued that he felt his request was justified based on the inherent unfairness of what had happened to him, and also offered his previous record of success as a senior officer.

        (11)  In September 2008, the CAR decided not to reinstate the applicant as a student in the USAWC DEP.  The applicant states, "[h]is only explanation for his decision is that ‘it is not clear that the suspension of your security clearance was improper’."  The applicant believes the fact the Central Clearance Facility restored his security clearance makes a strong statement that the suspension was improper.  He adds the CAR avoided acknowledging the injustice of what he experienced and the merit of his request to have the injustice rectified.  He believes the CAR is holding the appearance of impropriety against him.

        (12)  The applicant concludes by requesting reenrollment into the USAWC DEP (Class of 2011 or 2012); extension of his MRD from July 2010 to a timeframe that will allow him to complete the USAWC, submit a COL Command Selection packet, and serve a 2-year command tour, if selected; and submit a promotion packet for the first BG selection board following his graduation from the USAWC.

3.  The applicant provides, in support of his application, his personal statement, dated 8 March 2009; a letter to Lieutenant General (LTG) Jack C. S_____, U.S. Army Reserve Command, Fort McPherson, GA, dated 21 August 2008; Headquarters, OCAR, Washington, DC, memorandum, dated 26 September 2008; Headquarters, USA HRC, Alexandria, VA, memorandum, dated 3 October 2005; letter to BG Rhett H________, Commander, USA HRC, Alexandria, VA, dated 9 December 2005, with nine enclosures; Headquarters, USA HRC, Alexandria, VA, memorandum, dated 6 February 2006; letter to Major General (MG) Rhett H________, Commander, USA HRC, Alexandria, VA, dated 22 May 2006; Headquarters, USA HRC, St. Louis, MO, memorandum, dated 9 August 2006; Headquarters, U.S. Army Central Personnel Security Clearance Facility, Fort George G. Meade, MD, memorandum, dated 6 September 2007; DA Form 67-9 (Officer Evaluation Report) for the period 2 June 2005 through 7 July 2005; and Headquarters, USA HRC, St. Louis, MO, memorandum, dated 24 March 2008, with a Nonrated Statement, dated 24 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a commissioned officer in the Regular Army (RA) in the grade of second lieutenant/pay grade O-1 on 8 June 1980.  At the time, he was 22 years of age.  He completed the Field Artillery Basic Course, served on active duty until 31 May 1987, and transferred to the USAR on 1 June 1987.  The applicant completed the Advanced Military Police Officer Orientation Course in 1993 and branch transferred to the Military Police (MP) Corps.

2.  On 5 July 2004, the Director, Personnel Actions and Service, U.S. Army Reserve Personnel Command, St. Louis, MO, notified the applicant he had completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60.

3.  The applicant was promoted to the grade of COL (O-6) effective 10 November 2004.

4.  Headquarters, HRC, St. Louis, MO, Orders A-11-411414, dated 10 November 2004, show the applicant was ordered to active duty in support of contingency operations temporary tour of active duty (COTTAD) for a period of 270 days in support of Operation Joint Guard as a Military Assistant to the NATO Ambassador.  These orders also show the applicant possessed a top secret security clearance.

5.  The applicant’s military personnel records contain a DA Form 4037-E (Officer Record Brief), dated July 2005.

   a.  Section II (Security Data) shows the applicant was granted a Top Secret security clearance based on a Single Scope Background Investigation (SSBI) completed on 2 January 2001.

   b.  Section III (Service Data) shows his MRD is 8 July 2010.

   c.  Section IV (Personal/Family Data) shows the applicant’s marital status as "Married".

	d.  Section X (Remarks) shows he served a 1-year active duty tour in the Persian Gulf in support of Operation Iraqi Freedom from January 2003 to January 2004.  This item also shows the applicant was [then] serving a 9-month COTTAD tour with KFOR in Pristina, Kosovo, from November 2004 to August 2005.

6.  The applicant’s DD Form 214 shows he entered active duty this period on
28 November 2004; was honorably released from active duty on 8 August 2005 based on completion of required active service; and transferred to the
91st Simulation Exercise Group, Dublin, CA.  At the time he had completed
8 months and 8 days of net active duty this period.

7.  Headquarters, U.S. Army War College and Carlisle Barracks, Carlisle, PA, memorandum, dated 26 September 2006, subject:  Disenrollment from USAWC DEP, shows the applicant was disenrolled from the DEP Class of 2007 per his voluntary request for disenrollment.  Attached as an enclosure to this document is a DA Form 1059 (Service School Evaluation Report), dated 25 September 2006, for the USAWC Class 1-250-C16 (2007) from 1 May 2005 through 28 July 2007.  This document also shows the applicant requested a voluntary disenrollment from the USAWC Class of 2007.  In addition, an undated letter written by the applicant shows the applicant expressed his disagreement with the comments on the report.

8.  In support of his application, the applicant provides the following documents.

	a.  A letter from the applicant to LTG Jack C. S_____, USARC, Fort McPherson, GA, dated 21 August 2008, subject:  Request for Reconsideration of Denial of War College Deferment Based on Subsequent Vindication, in which he requests reconsideration of the CAR’s August 2006 decision to disapprove his deferment into a subsequent USAWC DEC class.  The request includes detailed background and assertions in favor of the request, including information about the lengthy process that ultimately led to restoration of his security clearance and removal of the OER from his OMPF, which the applicant also includes in his self-authored statement to this Board.

   b.  Headquarters, OCAR, Washington, DC, memorandum, dated
26 September 2008, subject:  Special Inquiry - COL [Applicant’s Name] Request for Reconsideration of 2006 Denial of the USAWC DEP Deferment, that shows the CAR informed the applicant he was unable to support his request to reinstate him as a student in the USAWC DEP because in order to fulfill the service obligation, the applicant would have to be retained beyond his MRD for service and that authority resides with the ASA (M&RA).  The CAR added he was not forwarding his request to the ASA (M&RA).  The CAR stated that "[a]lthough you have clearly been disadvantaged, it is not clear that the suspension of your security clearance was improper."

   c.  Headquarters, USA HRC, Alexandria, VA, memorandum, dated 3 October 2005, subject:  Memorandum of Reprimand, that shows, in pertinent part, the Commander, USA HRC (Alexandria, VA), notified the applicant that based on a report of investigation by Allied Command Counterintelligence (ACCI) - KFOR pertaining to the applicant’s conduct while serving as the Chief, J2, KFOR, he intended to file the GOMOR in the performance portion of his OMPF.

   d.  A letter from the applicant to BG Rhett H________, Commander, HRC, Alexandria, VA, dated 9 December 2005, subject: Submission of Statements and Documents in Response to Memorandum of Reprimand with nine enclosures .  The applicant asserts there are factual errors in the ACCI report regarding his marital status, delay in his divorce, and relationship with his fiancée.  The applicant states, in pertinent part, "[t]o assert that my relationship with Veronika K______ is somehow immoral and unbecoming an officer because I am ‘married’ is a totally unfair and unjust assessment, given the realities of my marital situation" and he provides a brief history of the dissolution of his marriage.  He also offers details on the events that led to his assignment as Chief, J2, KFOR; an explanation of his acts of omission of not making foreign contact reports; and offered his previous OER as Chief, J2, KFOR, as evidence of his outstanding duty performance.  His attachments include:

        (1)  A Petition for Alien Fiancé(e), undated, that shows the applicant was presently stationed overseas at Headquarters, KFOR (Main), Film City, Pristina (Kosovo), and he planned to return to the United States on or about 7 December 2005.  This document also contains information pertaining to the applicant’s alien fiancée and, in pertinent part, shows the applicant’s marital status as divorced. 

        (2)  A letter from the applicant’s attorney, dated 18 July 2005, addresses the perception of the applicant’s adultery by explaining the reason he does not have a finalized divorce certificate.  The attorney asserts the applicant’s estranged wife has been purposefully delaying the resolution of the divorce for the last 18 months in order to derive financial gain from the settlement.  The attorney adds she expected to accomplish and finalize a Status Only Dissolution by the end of July or early August 2005.
   
          (3)  An OER for the period from 10 November 2004 through 1 June 2005, that shows, in pertinent part, the applicant’s principal duty title was "J2, KFOR" and he received an "Above Center of Mass" rating from the senior rater.

          (4)  Two Headquarters, KFOR, Requests for Absence, dated 10 April 2005 and 9 May 2005, that show the CoS, KFOR, approved a 4-day pass for the applicant to visit Kiev, Ukraine, from 27 to 30 April 2005, and a 4-day pass for the applicant to visit Moscow, Russia, from 10 to 13 June 2005.

	     (5)  A copy of Headquarters, Joint Prisoner of War/Missing in Action (POW/MIA) Accounting Command, Hickam Air Force Base, Hawaii, memorandum, dated 8 November 2005, that shows BG Michael C. F______ acknowledged he was the CoS, KFOR, from August 2003 to May 2005 and he authorized two 4-day passes for the applicant to visit Russia.  BG F______ also states, "In addition, I did not know the purpose of the trip and thought it was a trip for sight-seeing and typical tourist activities."

        (6)  Two letters, one from COL Robert H______, dated 12 December 2005, and the other from COL Carl F. R_______, undated, that were submitted as professional endorsements of the applicant in support of his GOMOR rebuttal.
   
        (7)  A copy of a photograph of the applicant in his U.S. Army uniform.

   e.  Headquarters, HRC, Alexandria, VA, memorandum, dated 6 February 2006, subject Memorandum of Reprimand Filing Determination, states the Commander, HRC (Alexandria, VA) carefully considered the GOMOR, the supporting documentation, and the applicant’s response and determined that the GOMOR will not be filed in the applicant’s OMPF.

   f.  A letter from the applicant to MG Rhett H________, Commander, HRC, Alexandria, VA, dated 9 December 2005, subject:  Request for Assistance with Request for War College Deferment, in which the applicant requests his intervention with the Commander, USA HRC (St. Louis, MO), and assistance in obtaining a deferral from USAWC DEC Class 2007 to USAW DEC Class 2008.
   
   g.  Headquarters, USA HRC, St. Louis, MO, memorandum, dated 9 August 2006, that shows the CAR denied the applicant’s request to defer the USAWC DEC Class 2007.

   h.  Headquarters, Central Personnel Security Clearance Facility, Fort George G. Meade, MD, memorandum, dated 6 September 2007, subject:  "WARNING NOTICE" - Security Clearance Determination, that shows the applicant was advised that he had been granted a secret security clearance.  This document also shows that this favorable determination took into account disclosure of the applicant’s foreign national contact.  This document further advised the applicant that his responsibilities for reporting any possible contact by representatives or citizens of foreign countries are outlined in Army Regulation 381-12 (Subversion and Espionage Directed Against the U.S. Army).

   i.  An OER for the period 2 June 2005 through 7 July 2005 and Headquarters, HRC, St. Louis, MO memorandum, dated 24 March 2008, subject:  OER Appeal (050602-050707) with a Nonrated Statement, dated 24 March 2008.  These documents show the OER pertaining to the applicant’s performance of duty as Chief, J2, KFOR, from 2 June through 7 July 2005 was removed from the applicant’s OMPF by the USA HRC (St. Louis, MO) and a document showing that this period of time was declared nonrated.

9.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  It also defines Ready Reserve Control Groups and the Selected Reserve, provides detailed procedures for removing Soldiers from an active status, and gives procedures for inter-service transfer and selective retention of unit Soldiers.

   a.  Chapter 7 (Removal from Active Status) of Army Regulation 140-10 provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Section I (Reasons for Removal), paragraph 7-2 (Length of service), in pertinent part, states that colonels will be removed upon completion of 30 years of commissioned service, if under age 25 at initial appointment.  The actual removal date will be within
30 days after the date of completion of the maximum years of service.

   b.  Chapter 7, Section II (Exceptions to Removal from Active Status), paragraph 7-9 (General), lists the authorized exceptions to removal from an active status and also describes processing procedures.  Removal from an active status for the reasons shown in Section I is mandatory, unless an exception is authorized in this section.  Section II does not contain an authorized exception to removal from active status for the applicant’s case.

10.  Department of Defense (DoD) 5200.2-R (Personnel Security Program) provides expanded direction and procedures for granting persons access to classified information or assignment to a sensitive position.

   a.  Chapter 2 (Policies), paragraph C2.1 (Standards for Access to Classified Information or Assignment to Sensitive Duties), subparagraph C2.1.2 (Clearance and Sensitive Position Standard), states that the personnel security standard that must be applied to determine whether a person is eligible for access to classified information or assignment to sensitive duties is whether, based on all available information, the personal’s loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security.

   b.  Chapter 2, paragraph C2.2 (Criteria for Application of Security Standards), subparagraph C2.2.1 (Criteria for Application of Security Standards), states the criteria for determining eligibility for a clearance under the security standard shall include, but not be limited to, vulnerability to coercion, influence, or pressure that may cause conduct contrary to the national interest; and this may be the presence of immediate family members or other persons to whom the applicant is bonded by affection or obligation in a nation (or areas under its domination) whose interests may be inimical to those of the United States.

   c.  Chapter 8 (Unfavorable Administrative Actions), paragraph C8.1.2 (Referral for Action), in pertinent part, states that whenever derogatory information related to the criteria and policy set forth in paragraph C2.2.1 and Appendix 8 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 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 allegation, additional investigation should be requested.

   d.  Chapter 8, paragraph 8.1.3 (Suspension), provides that the commander or head of the organization shall determine whether, on the basis of all 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 or assignment to sensitive duties (or other duties requiring a trustworthiness determination), if information exists which raises serious questions as to the individual’s ability or intent to protect classified information or execute sensitive duties (or other duties requiring a trustworthiness determination) until a final determination is made by the appropriate authority.

   e.  Chapter 8, subparagraph C8.1.3.5, in pertinent part, states a final security clearance eligibility determination shall be made for all suspension actions.

   f.  Chapter 9 (Continuing Security Responsibilities), paragraph 9.1.4 (Individual Responsibility), in pertinent part, provides that individuals must familiarize themselves with pertinent security regulations that pertain to their assigned duties.  Further, individuals must be aware of the standards of conduct required of persons holding positions of trust ,in this connection, individuals must recognize and avoid the kind of personal behavior that would result in rendering one ineligible for continued assignment in a position of trust.  In the final analysis, the ultimate responsibility for maintaining continued eligibility for a position of trust rests with the individual.  Moreover, individuals having access to classified information must report promptly to their security office any form of contact, intentional or otherwise, with individuals of any nationality, whether within or outside the scope of the employee’s official activities, and any information of the type referred to in paragraph C2.2.1 or Appendix 8.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show his request for deferral into a subsequent USAWC DEC was approved; reenrollment into the USAWC DEC (Class of 2011 or 2012); and extension of his MRD from July 2010 to a timeframe that will allow him to complete the USAWC, submit a COL Command Selection packet, serve a 2-year command tour (if selected), and submit a promotion packet for the first BG selection board following his graduation from the USAWC.

2.  Records show the applicant was under the age of 25 at the time of his initial appointment as a commissioned officer on 8 June 1980.  Records also show the applicant’s active and inactive service as a commissioned officer in the RA and USAR from 8 June 1980 to the present was continuous, uninterrupted, and qualifies as creditable service.  Therefore, the evidence of record confirms the applicant’s MRD is 8 July 2010.

3.  Records show the applicant possessed a top secret security clearance, he deployed to Kosovo in December 2004, and was assigned as the Chief, J2, KFOR.

   a.  The applicant's attorney supports the assertion that the applicant was legally separated from his wife at the time (since March 2001) and they were going through a divorce.

   b.  Records show the applicant was authorized two 4-day passes (one in April 2005 and one in June 2005) and he visited his fiancée, a Russian foreign national, in Kiev (Ukraine) and Moscow (Russia).  The evidence of record also shows that the applicant’s immediate supervisor who authorized the two passes, (i.e., the CoS, KFOR) subsequently stated, "I did not know the purpose of the trip and thought it was a trip for sight-seeing and typical tourist activities."

4.  The evidence of record shows that the general officer who assumed duties as CoS, KFOR, in June 2005 discovered that the applicant’s divorce was not finalized, that he had visited his Russian fiancée while serving as KFOR J2, and that he failed to report his contacts with a foreign national upon his return to duty at KFOR.

	a.  Records show the CoS, KFOR, rendered a relief for cause OER on the applicant for the period 2 June through 7 July 2005 and took action to have the applicant’s security clearance suspended pending further investigation.

   b.  Records show that, based on the above incident, the Commander, USA HRC (Alexandria, VA), issued a memorandum of reprimand to the applicant and notified him of his intent to file the GOMOR in the performance portion of the applicant’s OMPF.  Upon receipt of the applicant’s appeal, that decision was reversed.

   c.  Records show that the Army Special Review Board (ASRB), USA HRC (St. Louis, MO), reviewed the applicant’s OER appeal, determined that the evidence he submitted justified removing the OER from his OMPF, and declared the period from 2 June through 7 July 2005 as nonrated.

5.  The evidence of record shows that individuals must familiarize themselves with pertinent security regulations that pertain to their assigned duties.  Further, individuals must be aware of the standards of conduct required of persons holding positions of trust, in this connection, individuals must recognize and avoid the kind of personal behavior that would result in rendering one ineligible for continued assignment in a position of trust.  
   
   a.  The applicant contends he was not aware of the security clearance reporting requirements regarding foreign contacts.

   b.  Records show the applicant was serving as a senior commissioned officer with NATO, had completed nearly 25 years of military service, was detailed in the MP Corps, possessed a top secret security clearance [emphasis added], and he was assigned as the Chief, J2, KFOR; a multi-national force.  Thus, the applicant should have been aware of his own particular security clearance responsibilities, specific security clearance reporting requirements, and issues of intelligence and security in general based on his years of military experience and his duty position.

   c.  On or about 7 July 2005, the applicant’s supervisor took action to suspend the applicant’s access to classified information and assignment to sensitive duties pending additional information and investigation.  Records also shows that, on 21 August 2007, the CCF granted the applicant a secret clearance taking into account the applicant’s disclosure of his foreign national contact [emphasis added].  In effect, the applicant’s security clearance was downgraded from top secret to secret.  Thus, it is concluded that the action taken by the applicant’s supervisor (i.e., the CoS, KFOR) in this instance was both prudent and appropriate.  In addition, there is no evidence that the length of time it took the CCF to make a security clearance determination regarding the status of the applicant’s security clearance was either arbitrary or capricious or in any way unjust.

6.  While the applicant contends that the suspension of his security clearance and relief from duty had numerous negative effects on his USAR career, the evidence of record does not demonstrate error in the process, particularly with regard to the applicant’s security clearance.  Therefore, in view of all of the foregoing, the applicant is not entitled to deferral into a subsequent USAWC DEC; reenrollment into the USAWC DEC (Class of 2011 or 2012); or extension of his MRD from July 2010 to a timeframe that will allow him to complete the USAWC, submit a COL Command Selection packet, serve a 2-year command tour (if selected), and submit a promotion packet for the first BG selection board following his graduation from the USAWC.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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.



      _______ _  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)                                         AR20090005397



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ABCMR Record of Proceedings (cont)                                         AR20090005397



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