IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110016684 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reinstatement of the applicant's U.S. Army Special Forces (SF) status by the removal of Department of the Army (DA), U.S. Army John F. Kennedy Special Warfare Center and School (JFKSWCS) Orders
260-04, dated 17 September 2010, from his Official Military Personnel File (OMPF).  Counsel requests that, if necessary, new orders be issued authorizing the applicant's wear of the SF Tab.

2.  Counsel states:

   a.  The errors in this case were clear, simple, and extremely prejudicial to the applicant.

       (1) Counsel states the criteria of Army Regulation 600-8-22 (Military Awards) (Interim Change), paragraph 1-31(c)(9)(c and f), were not satisfied at the time Orders 260-04, dated 17 September 2010, were issued.  Counsel states the applicant was not medically disqualified from performing SF duty and he had been previously acquitted of all allegations of misconduct by an officer panel; and 

	    (2) Under SF regulations, reclassification is not an option for SF-qualified officers because they do not retain their previous branch/military occupational specialty (MOS).  Further, under Army Regulation 600-8-24 (Officer Transfers and Discharges), elimination actions are not permitted for Soldiers acquitted of offenses at a court-martial.

   b.  Counsel states the issue was appealed through the U.S. Army Human Resources Command (HRC) on or about 4 May 2011.  On or about 18 May 2011, they received both a denial of their request and modified orders removing medical disqualification as a basis for the revocation.

   c.  Counsel provides as background that the applicant is an SF officer who was awarded the SF Tab by Permanent Orders 094-13 on 3 April 2008.  On 1 September 2009, the applicant was charged with seven charges and thirteen specifications of various allegations.  Counsel states he is providing only the first page of the charges.  On 21 May 2010, the applicant was found not guilty of all seven charges and thirteen specifications.  On 10 September 2010, the Staff Judge Advocate (SJA) provided a memorandum announcing the full acquittal and stating all of the applicant's "rights, privileges and property of which the accused may have been deprived by virtue of the proceedings would be restored...."

	d.  Counsel states that notwithstanding the SJA's memorandum, one week later, on 17 September 2010, Orders 260-04 were issued revoking the applicant's SF Tab.  The orders cited Army Regulation 600-8-22, paragraph 1-31(c)(9)(c) and f) as authority for revoking the applicant's SF Tab.  Counsel states that with respect to paragraph 1-31(c)(9)(c), the applicant was never found to be permanently medically disqualified from SF duty and is still on active duty.  Counsel states it is unclear what information suggested that Army Regulation 600-8-22, paragraph 1-31(c)(9)(c) was appropriate justification for revoking the applicant's SF Tab.  Counsel states in the modified orders the government has removed that justification from the orders.

	e.  Paragraph 1-31(c)(9)(f), however, remains.  Counsel states the applicant was acquitted of all charges and specifications by an officer panel after considering all of the evidence.  It was inappropriate for the Commander, U.S. Army JFKSWCS, to then conclude otherwise and revoke the applicant's SF Tab.

   f.  Counsel states the SF Legal Guide is clear that an SF Tab revocation action can only follow a board of inquiry resulting in elimination from the service.  In this case, the command attempted an over-the-top general court-martial with thirteen specifications of accusations.  The applicant was acquitted of all charges and specifications.  Counsel states that under Army Regulation 600-8-24, elimination proceedings are no longer permissible for any of the acquitted offenses.  The revocation of the applicant's SF Tab is, therefore, also impermissible.
   g.  Counsel states that given the applicant's acquittal at a court-martial, the revocation of his SF Tab one week after the SJA prepared a memorandum announcing the full acquittal was plainly an injustice that should be corrected.

	h.  Counsel further states it is worth mention that the applicant received a referred Officer Evaluation Report (OER) associated with the above facts.  The Officer Special Review Board has taken action to void and remove that OER from the applicant's records.

3.  Counsel provides:

* DA, U.S. Army JFKSWCS Orders 260-04
* DA Form 458 (Charge Sheet)
* U.S. Army Japan and I Corps (Forward) General Court-Martial Orders Number 1
* DA, U.S. Army JFKSWCS Permanent Orders 094-13
* DA, U.S. Army JFKSWCS Orders 137-02
* Legal Guide Excerpt
* HRC Memorandum for Record, subject:  Nonrated Statement

CONSIDERATION OF EVIDENCE:

1.  At the time of the alleged error or injustice the applicant was serving on active duty in the Regular Army in Okinawa, Japan.  He held at the time and still holds the rank of captain.

2.  DA, U.S. Army JFKSWCS Permanent Orders 094-13, dated 3 April 2008, awarded the SF Tab to the applicant on 11 April 2008.

3.  On 1 September 2009, the following charges and specifications were preferred against the applicant:

* willfully disobeying the lawful command of his superior commissioned officer to pay Basic Allowance for Housing (BAH) in the amount of $1074.00 to his spouse at the time, Mrs. S.Y.L. due on or about 1 February 2009
* willfully disobeying the lawful command of his superior commissioned officer to pay BAH in the amount of $1074.00 to his spouse at the time, Mrs. S.Y.L. due on or about 1 March 2009
* willfully disobeying a lawful command from his superior commissioned officer, to sign in and out with the Staff Duty Officer
* failing to obey a U.S. Army Japan regulation by wrongfully possessing a fixed blade knife with a blade length of approximately 5 inches
* with intent to deceive signing a false official statement, to wit: DA Form 647, which record was totally false and was then known by the accused to be so false
* causing Mrs. S.Y.L. to engage in a sexual act, to wit: insert three to four of his fingers into Mrs. S.Y.L.’s vagina by using force in holding her down, sufficient that she could not avoid or escape the sexual conduct
* causing Mrs. S.Y.L. to engage in a sexual act, to wit: vaginal sexual intercourse, by using physical restraint to hold her down, sufficient that she could not avoid or escape the sexual conduct
* assaulting Mrs. S.Y.L. by moving his closed fist towards her, stopping it in close proximity to her face and saying in Korean, "I want to hit you and kill you now, I can do it, but for my career, I’ll give you a chance," or words to that effect
* committing an assault upon Mrs. S.Y.L. likely to produce grievous bodily harm upon Mrs. S.Y.L. by placing a military combat knife near her neck, while saying in Korean, "What would happen if I killed Somebody? I’m going to kill people who ignore me," or words to that effect
* wrongfully and dishonorably impede his spouse, Mrs. S.Y.L. from seeking proper medical attention for a vaginal injury
* wrongfully and without authority wear upon his uniform the ribbon representing the Bronze Star Medal
* wrongfully and without authority wear upon his uniform the Master Parachutist Badge
* wrongfully communicate to Mrs. S.Y.L. threats to injure her and her family

4.  DA, U.S Army Japan and I Corps (Forward) General Court-Martial Orders Number 1, dated 10 September 2010, show that pursuant to his pleas of not guilty a general court-martial found the applicant not guilty of all those offenses for which he was arraigned.  The findings were announced on 21 May 2010.  It was directed that all rights, privileges and property of which the accused may have been deprived of by virtue of those proceedings would be restored.

5.  DA, U.S. Army JFKSWCS Orders 260-04, dated 17 September 2010, revoked or rescinded so much of Permanent Orders Number 094-013, dated 3 April 2008, pertaining to award of the SF Tab to the applicant.

6.  DA, U.S. Army JFKSWCS Orders 137-02, dated 17 May 2011, amended so much of Orders Number 260-04, dated 17 September 2010, pertaining to the    SF Tab revocation for the applicant.  The authority as read: Army Regulation 600-8-22 (Interim Change), paragraph 1-31c(9) (e and f) was changed the read: Army Regulation 600-8-22 (Interim Change), paragraph 1-31c(9)(f).

7.  DA, HRC, memorandum for record, dated 14 June 2011, subject: Nonrated Statement, shows the Change of Rater evaluation report for the period 20061202-20090901 was voided and the period declared nonrated.  The authority for this action was the Army Special Review Board.
 
8.  It appears counsel did not correctly read that portion of the authority line containing "(e and f)" based on counsel's statement that "the criteria of Army Regulation 600-8-22 (Interim Change), paragraph 1-31(c)(9) (c and f) were not satisfied at the time Orders 260-04, dated 17 September 2010, was [sic] issued"; and when counsel stated "the applicant was not medically disqualified from performing SF duty"; and when counsel indicated the issue was appealed through U.S. Army HRC and his office received a denial and modified orders removing medical disqualification as a basis for the revocation.  Counsel states the applicant was never found to be permanently medically disqualified from performing SF duty.  Counsel misread the “(e)” as a (c).”  Therefore, this portion of counsel's statements will not be discussed further in these proceedings.

9.  Army Regulation 600-8-22 provides for the revocation of badges, Ranger Tab, SF Tab, and Sapper Tab.

   a.  Commanders authorized to award combat and special skill badges are authorized to revoke such awards.  An award, once revoked, will not be reinstated except by Commander, U.S. Army HRC, ATTN:  AHRC-PDP-A, Spearhead Division Avenue, Fort Knox, KY 40122, when fully justified.  When desirable, the awarding authority may refer the revocation request to Commander, U.S. Army HRC, for appropriate action.

   b.  Revocation of awards of badges will be announced in permanent orders, except that revocations which are automatically effected, as prescribed in this regulation, need not be announced in orders.
   
	c.  SF Tab may be revoked by the awarding authority (Commander, U.S. Army JFKSWC) if the recipient-

	    (a) Has his or her Parachutist Badge revoked.

	    (b) Initiates action which results in termination or withdrawal of the SF specialty or branch code prior to completing 36 months of SF duty.  Requests for advanced schooling which may lead to another specialty or branch code being awarded instead of SF will not be used as a basis for revocation of the tab.

	    (c) Has become permanently medically disqualified from performing SF duty and was found to have become disqualified not in the line of duty.
	    (d) Has been convicted at a trial by court-martial or has committed offenses which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of SF duties.

	    (e) Has committed any misconduct which is the subject of an administrative elimination action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) or Army Regulation 600-8-24.

	    (f) Has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier, as determined by the Commander, U.S. Army JFKSWCS.

	    (g) The SF Tab for active and reserve component Soldiers will be reinstated by the Commander, U.S. Army Special Operations Command (USASOC), Fort Bragg, NC, when fully justified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was acquitted by a general court-martial of seven charges and thirteen specifications.  Counsel contends the SF Legal Guide is clear that an SF Tab revocation action can only follow an elimination from the service and under Army Regulation 600-8-24 elimination proceedings are no longer permissible for any of the acquitted offenses and the revocation of the applicant's SF Tab is, therefore, also impermissible.  However, his SF tab was not revoked for the reason of misconduct which was the subject of an administrative elimination action.

2.  The orders revoking his SF tab were amended to show only that he had committed an act or engaged in conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier, as determined by the Commander, U.S. Army JFKSWCS.  Although he was acquitted by the court-martial, it is apparent the Commander, U.S. Army JFKSWCS, determined the applicant committed an act or engaged in conduct inconsistent with the integrity, professionalism, and conduct of an SF Soldier.  As a result, he appropriately directed the removal of the applicant's SF Tab and the revocation orders were properly filed in the applicant's OMPF.

3.  It is acknowledged that the Change of Rater evaluation report for the period 20061202-20090901 was voided and the period declared nonrated.  The authority for this action was the Army Special Review Board.  However, this is not sufficient justification for reinstatement of the SF tab.

4.  In view of the foregoing, there is an insufficient evidentiary basis to support removal of the revocation orders or issuance of new orders authorizing the applicant's wear of the SF Tab.

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)                                         AR20110016684



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ABCMR Record of Proceedings (cont)                                         AR20110016684



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