IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100010050 


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 all references to the criminal investigation and charges that were levied against him be removed from his military service records.  He also requests promotion to major/pay grade O-4 on the date he would have been promoted had false charges not been levied against him.

2.  The applicant states he found himself under investigation by civilian law enforcement in Boone County, Kentucky, in late October 2005.  

   a.  The allegations were very serious and he was charged with a felony crime shortly after the investigation began.  He fought the charges for the next two and one-half years.  On 12 March 2008, the charges were dismissed with prejudice (i.e., the charges may never be filed again) per a court order entered on 26 March 2008.

   b.  He states that charges were not brought against him by the military, and the civilian charges were expunged from his record on 14 May 2008.  He adds that the expungement language is very explicit and reassuring; however, the charges have wrecked his life both socially and professionally.

   c.  He states he voluntarily discloses the charges to the Army Board for Correction of Military Records (ABCMR) in order to seek an equitable restoration of his military career.

       (1)  He states the military was alerted to the civilian investigation on or about 30 June 2006.  Although he does not know how this occurred, on 6 July 2006, he learned that an incident report was logged on his secret clearance.

       (2)  He adds his situation worsened when he was arrested by civilian authorities at the Army Reserve Center during drill on 4 November 2007.

       (3)  He states his secret clearance was suspended and he was denied access to government computers.  He also states he was prevented from attending the required Army career courses; counseled and ostracized by multiple commands; transferred to a non-leadership position; and denied promotion to major on two separate occasions.
   
   d.  He states he had a superb military record prior to the ordeal; however, over the course of the past four years his career was derailed.  He desires to continue his military career and seeks the Board's assistance.

   e.  He states that after the charges were dismissed, he was allowed to take the necessary prerequisites for the Captains Career Course (CCC) and attend the resident portion of the CCC.  He adds he has now successfully completed the promotion prerequisites and requests promotion to major with the accompanying pay and allowances back-dated to the earliest date possible had he not been denied access to the CCC.

   f.  He states the adverse information and comments related to the charges that exist in his security file and other military records should be removed and his government computer privileges restored.

3.  The applicant provides documents identified as nine exhibits in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was promoted to major when he was first eligible for promotion, and whatever else is in the Board's power to ensure the applicant's promotion attempts do not continue to be unfairly hampered.

2.  Counsel states the ABCMR returned the applicant's request on 23 December 2009 indicating the applicant had failed to exhaust all administrative remedies to correct the error/injustice prior to applying to the ABCMR.  (Note:  The application with attachments and memorandum from the ABCMR are filed in the restricted portion of the applicant's Official Military Personnel File (OMPF).)
   a.  He states the ABCMR advised that the applicant should apply to the U.S. Army Criminal Investigation Command (CID), Fort Belvoir, Virginia, to request expungement of a titling action from the Defense Central Investigation Index record.

   b.  He states the applicant was never placed in the subject block of a CID report and, to the best of their knowledge, CID never investigated the alleged misconduct.  Thus, the applicant's request does not relate to a titling issue.  Therefore, he resubmits the original application for consideration by the Board.

3.  Counsel provides no additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a U.S. Army Reserve (USAR) commissioned officer in Area of Concentration (AOC) 15A (Aviation General).

2.  The applicant was promoted to captain/pay grade O-3 effective and with a date of rank (DOR) of 17 March 2003.

3.  A DA Form 87 (Certificate of Training) shows the applicant successfully completed the Aviation Captains Career Course, Phase I, during the period
11 August 2006 through 16 January 2007.

4.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant completed the Aviation Captains Career Reserve Course, Class 09-01, during the period 1 to 14 December 2008, at the U.S. Army Aviation Center of Excellence, Fort Rucker, Alabama, on 14 December 2008.

   a.  The applicant marginally achieved course standards for failing to pass the height/weight standards and the report was referred to him on 14 December 2008.

   b.  The applicant acknowledged there was no excuse for not complying with the Army height/weight standards and stated he was [then] within the height/ weight standards.

5.  U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri, Orders B-07-004349, dated 1 July 2010, promoted the applicant to major effective and with a DOR of 3 June 2010.

6.  The applicant's DA Forms 67-9 (Officer Evaluation Reports) filed in his OMPF from the period beginning 1 March 2006 through 30 September 2008 do not show any reference to a criminal investigation, incident report, or charges.

7.  Further review of the applicant's OMPF also does not show any record or reference to a criminal investigation, incident report, or charges.

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

   a.  Commonwealth of Kentucky, Unified Court of Justice, Boone Circuit Court, Commonwealth of Kentucky vs. [Applicant], Order Dismissing, that shows the cause having come before the Court on 12 March 2008, was dismissed with prejudice on 25 March 2008.

   b.  Commonwealth of Kentucky, Court of Justice, Expungement Order and Certification Form, that shows the motion to expunge was granted on 14 May 2008.  It also states, in pertinent part, "[t]hat the above named offense(s) is/are expunged from the court's records.  Upon entry of this order, the proceedings shall be deemed never to have occurred, the court shall reply to any inquiry that no record exists, and the defendant shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.

   c.  An email message from the Unit Administrator to the applicant, Subject:  Clearance, dated 6 July 2006, and "Person Summary" that shows an Incident Report from Major General  Benjamin J. B-----, U.S. Army Reserve Central, Army Central Clearance Facility (CCF), dated 30 June 2006, was pending adjudication.

   d.  Commonwealth of Kentucky, Uniform Citation, that shows a Boone County Circuit Court, Warrant of Arrest on Indictment, was executed on the applicant on 4 November 2007 based on a violation that occurred on 10 October 2006.

   e.  Email messages (Exhibit 5):

       (1)  to the USA HRC, Subject:  Cancel School, dated 17 October 2006, that requested cancellation of the applicant's attendance at School 011, Class 001, Course 2-1-C23, Aviation School, Fort Rucker, AL, for the period 26 November to 10 December 2006; and

       (2)  to the applicant, Subject:  AV [Aviation] CCC Orders, dated
28 November 2007, that shows a personnel action code on the applicant's file prevented orders from being issued for the course.
   f.  An email message to the applicant, Subject:  ARAMP Request [Applicant's Name] for a New User Account for Major Command:  DIT100 Unit:  W705AA, dated 18 June 2007, that shows the applicant's request was denied based on an Incident Report submitted to the Army CCF on 30 June 2006.

   g.  A DA Form 4856 (Development Counseling Form), dated 13 August 2006, that shows the applicant was counseled on Army values, leadership, communication, training, and key performance metrics.  The document also shows a handwritten note entered by the applicant that states, "Read my rites [sic] by my battalion commander.  This was not an arrest, but I was advised on this day I might have UCMJ [Uniform Code of Military Justice] action as a result of civil investigation."

   h.  Email messages (Exhibit 8):

       (1)  Subject:  Grade Mis-Match, dated 27 to 29 September 2006, that show an exception to policy was approved to assign the applicant to a lieutenant colonel/pay grade O-5 position, AOC 15D, on 29 September 2006.

       (2)  from the applicant, Subject:  IMA [Individual Mobilization Augmentee] at Fort Eustis, dated 12 November 2006, that shows the applicant was accepted for a position [O-4].  It also shows he must first complete two tasks over the course of the next couple of months and his commander must write an evaluation so that he may leave as honorably and tactfully as possible."

       (3)  to the applicant, Subject:  Position with the 2nd Brigade Headquarters, dated 29 April 2007, and subject:  Reassignment (Format 450) Order, dated
6 May 2007, that show the applicant was accepted for the Assistant S-4 position and transferred to the 2nd Brigade.  A handwritten note entered by the applicant states, "Brigade XO [Executive Officer] allows me to transfer to brigade from battalion so that I am not in the presence of enlisted.  This is not [applicant's emphasis] an O-4 slot."

   i.  Email messages (Exhibit 9):

       (1)  Subject:  Promotion Education Status, dated 20 December 2007, that notified the applicant his records do not indicate that he is educationally qualified for the upcoming [2008] promotion board.

       (2)  Subject:  Board File, dated 30 January 2008, that notified the applicant a DA Form 1059 was required showing he completed the OAC [Officer Advanced Course]/CCC; and

       (3)  Subject:  Captains Career Course April, dated 26 March 2008, that shows the applicant was advised that the 2007 Major Promotion Board was held in the February-March 2007 timeframe and that only a very small percentage of captains get promoted to major below the zone.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Special Actions Branch, Department of the Army (DA) Promotions, USA HRC, Fort Knox, Kentucky, dated 24 August 2010.

   a.  The advisory official stated that, based on the applicant's DOR to CPT,
he was considered for promotion by the 2008 DA Major Reserve Components Selection Board (RCSB) as below the zone (BZ) of consideration, and by the 2009 DA Major RCSB in the promotion zone (PZ) of consideration.

   b.  He was non-selected by both boards due to non-completion of the required military education of the CCC.

   c.  The applicant provided documentation to verify completion of the Aviation CCC on 14 December 2008.  Therefore, he is eligible for promotion consideration by the DA Special Selection Board (SSB) under the 2009 selection criteria.

   d.  The advisory opinion notes that the applicant was scheduled to attend CCC on 26 November 2006, but was cancelled from the school on 17 October 2006 due to being under an investigation that was completed favorably on
25 March 2008.  Thus, incompletion of the education requirement prior to the 2008 DA Major RCSB was through no fault of the applicant.

       (1)  Military Education policy provides that waivers will not be granted for BZ consideration.  Denial for SSB consideration is because BZ non-selection will neither count as a non-selection, nor reflect unfavorably on an officer.  Therefore, the applicant is not eligible for waiver or SSB consideration for the 2008 criteria.

       (2)  The 2007 DA Major RCSB considered officers for promotion with a DOR of 1 September 2000 through 31 August 2002.  The applicant was not in the PZ.

   e.  The USA HRC advisory official recommended the applicant be granted SSB consideration only under the 2009 selection criteria.  If selected for promotion, his DOR should be adjusted appropriately.

10.  On 9 September 2010, the applicant was provided a copy of the USA HRC advisory opinion for information and in order to allow him the opportunity to submit comments or a rebuttal.
11.  On 14 September 2010, the applicant provided his response to the advisory opinion stating the advisory acknowledges that he was disenrolled from school through "no fault of my own"; however, it recommends his DOR be reflective of the 2009 DA Major RCSB.

   a.  He states the evidence he submitted shows his multiple attempts to accept an O-4 position so that he would be promotable (BZ) at the time of the 2008
DA Major RCSB.  He requests the Board consider granting him an exception to policy so that his DOR may be reflective of the 2008 DA Major RCSB, along with the corresponding back-pay.

   b.  He also states that, through "no fault of my own" and without due process, his secret clearance was suspended and negative comments were placed in his security file in 2006.  He requests removal of the comments and restoration of his clearance credentials to the state they were in prior to the incident.  He further request that any security information or S-2 files be expunged of the comments and cleared of any reference to the incident.

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.   Chapter 1 (Introduction), section III (Policy), provides in:

	a.  paragraph 1-11 (Categories of flags) that suspension of favorable personnel actions is mandatory when an investigation (formal or informal) is initiated on a Soldier by military or civilian authorities; and

	b.  paragraph 1-14 (Actions prohibited by a flag) that a flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States (ARNGUS) and of commissioned and warrant officers of the USAR.  

   a.  Chapter 2 (Promotion Eligibility and Qualification Requirements), Section III (Board Considerations), provides in paragraph 2-10 (Mandatory selection boards), subparagraph d (Below the zone consideration), that the Secretary of the Army may, when the needs of the Army require, authorize the consideration of officers for promotion to the next higher grade from below the promotion zones.  Subparagraph d(6) states that special selection boards will not consider officers for below the zone promotion [emphasis added].

   b.  Chapter 3 (Board Schedules and Procedures), Section III (Promotion Reconsideration Boards), paragraph 3-19 (General), provides that officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board. Special selection boards will reconsider commissioned officers who were wrongly not considered and/or those who were considered, but not selected by mandatory promotion boards that convened on or after 1 October 1996.

14.  Title 10, U.S. Code, section 14502 (Special selection boards:  correction of errors), provides for the consideration an officer who was not considered for selection for promotion from in or above the promotion zone by a mandatory promotion board; and for an officer who was eligible for promotion and was considered for selection for promotion from in or above the promotion zone by the selection board, but was not selected.  There are no provisions for special selection board consideration of officers below the promotion zone.

15.  Army Regulation 380-67 (Personnel Security Program) implements the Department of Defense (DoD) and DA Personnel Security Program and takes precedence over all other departmental issuances affecting these programs.

   a.  Chapter 2 (Policies), paragraph 2-502 (Collection of investigative data), provides that to the greatest extent practicable, personal information relevant to security determinations shall be obtained directly from the subject of a personnel security investigation.  Such additional information required to make the necessary personnel security determination shall be obtained as appropriate from knowledgeable personal sources, particularly the subject's peers, and through checks of relevant records, including school, employment, credit, medical, and law enforcement records.

   b.  Chapter 9 (Continuing Security Responsibilities), paragraph 9-100 (General), provides that a personnel security determination is an effort to assess the future trustworthiness of an individual in terms of the likelihood of the individual preserving the national security.  Accordingly, the issuance of a personnel security clearance or the determination that a person is suitable for assignment to sensitive duties cannot be considered as a final personnel security action.  Rather, there is the clear need to ensure that, after the personnel security determination is reached, the individual's trustworthiness is a matter of continuing assessment.  The responsibility for such assessment must be shared by the organizational commander or manager, the individual's supervisor and, to a large degree, the individual himself.  Therefore, the heads of DoD Components shall establish and maintain a program designed to evaluate on a continuing basis the status of personnel under their jurisdiction with respect to security eligibility.  This program should ensure close coordination between security authorities and personnel, medical, legal, and supervisory personnel to ensure that all pertinent information available within a command is considered in the personnel security process.

   c.  Chapter 10 (Safeguarding Personnel Security Investigative Record), provides in:

       (1)  Paragraph 10-100 (General) that in recognition of the sensitivity of personnel security reports and records, particularly with regard to individual privacy, it is DoD policy that such personal information shall be handled with the highest degree of discretion.  Access to such information shall be afforded only for the purpose cited herein and to persons whose official duties require such information.

       (2)  Paragraph 10-104 (Records disposition) provides that personnel security investigative (PSI) reports, to include Office of Personnel Management National Agency Check Investigations, may be retained by DoD recipient organizations, if the head of the Component deems it necessary to fulfill the requirements of paragraph 9-100.  DoD record repositories authorized to file PSI reports shall destroy PSI reports of a favorable or of a minor derogatory nature 15 years after the date of the last action.  That is, after the completion date of the investigation or the date on which the record was last released to an authorized user - whichever is later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend all references to the criminal investigation and charges that were levied against the applicant should be removed from his military service records and security information files.  They also contend he should be promoted to major on the date he would have been promoted had false charges not been levied against him because he was denied the opportunity to complete the military education requirement for promotion and assignment to an O-4 position, despite the fact that the charges were dismissed with prejudice.

2.  The evidence of record shows that the applicant was under investigation by civilian authorities in late October 2005, cited for a violation on 10 October 2006, and that the cause of action was dismissed with prejudice (i.e., favorably resolved) on 25 March 2008.
   a.  The Commonwealth of Kentucky, Court of Justice, Expungement Order and Certification Form, shows it was granted on 14 May 2008 and that it pertains to Commonwealth of Kentucky court records.  It also shows the applicant is not required to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
   
   b.  The applicant's OMPF is void of any reference to a criminal investigation, incident report, or charges.

   c.  The evidence of record shows that PSI reports may be retained by DoD recipient organizations deemed necessary to fulfill their continuing security responsibilities and that DoD record repositories authorized to file PSI reports shall destroy PSI reports of a favorable or of a minor derogatory nature 15 years after the date of the last action.

   d.  In view of the foregoing, at this time, the applicant is not entitled to the removal of references to the criminal investigation and charges that were levied against him from security information files or restoration of his security credentials to the state prior to the incident.

3.  The evidence of record shows that the governing Army regulation required the initiation of a Flag for the suspension of favorable personnel actions, at least as early as 30 June 2006, the date of the Incident Report.

	a.  The applicant was approved for assignment to an O-5 (AOC 15D) position on 29 September 2006; however, he was not assigned to the position.

   b.  The applicant was denied the opportunity to attend the Aviation CCC during the period 26 November to 10 December 2006 and also in late 2007.  

   c.  It cannot be determined from the available evidence if the applicant was considered for promotion (BZ) by the 2007 Major RCSB.
   
   d.  The applicant was considered (BZ) by the 2008 Major RCSB; however, he was non-selected, at least in part, due to non-completion of the required military education.
   
   e.  The applicant was considered (PZ) by the 2009 Major RCSB; however, he was non-selected, at least in part, due to non-completion of the required military education.


4.  There are no provisions in the law or Army regulation that allow for special selection board consideration of officers below the promotion zone.  Therefore, notwithstanding the facts surrounding this case, the applicant is not entitled to consideration for promotion to Major by an SSB under the 2007 or 2008 criteria.

5.  The evidence of record shows the results of the investigation proved favorable to the applicant based on a court order entered on 25 March 2008.  Thus, the applicant was denied assignment to a higher position and the opportunity to complete the requisite military education for promotion due to no fault of his own.

6.  The Flag for the suspension of favorable personnel actions terminated on
25 March 2008.

7.  The applicant completed the required military education for promotion to Major on 14 December 2008.

8.  In view of all of the foregoing, and  as a matter of justice, it would be appropriate to refer the applicant's records for consideration for promotion to Major by an SSB under the 2009 selection criteria.

   a.  If selected under the 2009 Major RCSB selection criteria, his records should be corrected to show he was promoted to Major if otherwise eligible,  with an appropriate DOR and authorized all back-pay and allowances due.

   b.  If not selected, he should be notified of this non-selection and that his current DOR and effective date for promotion to Major remains valid.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to a Special Selection Board for promotion consideration under the 2009 Major RCSB selection criteria.

   a.  If selected, he should be promoted to Major if otherwise eligible, with an appropriate DOR and authorized all back-pay and allowances due.

   b.  If not selected, he should be notified of his non-selection and that his current DOR and effective date for promotion to Major remains valid.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to consideration by a special selection board under the 2007 or 2008 selection criteria, or the removal of comments/information from security files relating to the incident and restoration of his clearance credentials to the state they were in prior to the incident in question.

3.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, the Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing.  The Record of Proceedings and associated documents will not be filed in the individual's OMPF.  In addition, the application with attachments and memorandum from the ABCMR that are currently filed in the restricted portion of the applicant's OMPF will be removed and destroyed.




      _______ _   _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)                                         AR20100010050



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ABCMR Record of Proceedings (cont)                                         AR20100010050



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