IN THE CASE OF: 

		BOARD DATE:	  27 August 2014

		DOCKET NUMBER:  AR20130015615 


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 the following:

	a.  removal of his security clearance revocation based on flawed, misrepresented and incomplete information;

	b.  deletion of an erroneously directed Relief-for-Cause DA Form 67-9 (Officer Evaluation Report (OER)) (hereafter referred to as the contested report) for the period 25 May 2002 through 10 June 2002 from his Official Military Personnel File (OMPF);

	c.  deletion of the orders directing relief from his tour of active duty for "Operation Support" ( i.e., Operation Noble Eagle) as a member of the U.S. Army Reserve (USAR) based on removal of his security clearance and the contested report;

	d.  deletion of his discharge from the USAR pursuant to a board of officers consequent to the removal of his security clearance and relief from active duty;
	
	e.  credit for the active duty during which he was relieved and during which his supervisor was asking that his tour be extended;

	f.  issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his period of active duty;

	g.  upgrade of his general discharge to an honorable discharge;
	h.  credit for service towards retired pay for non-regular service;

	i.  award of  minimum retirement points in order that he be issued a 20-Year Letter by the U.S. Army Human Resources Command (HRC) notifying him of his eligibility for retired pay for non-regular service at age 60;

	j.  payment of pay and allowances that would have accrued during such periods; 

	k.  consideration for promotion to lieutenant colonel (LTC) by mandatory promotion boards that were conducted during the period(s).

2.  He states:

	a.  The paramount reasons for the revocation of his security clearance were originally attributed to what was previously referred to as alleged "Irresponsible Financial Management."  These issues include:

		(1)  Child support arrearages totaling $47,000;

		(2)  A defaulted Stafford Federal Government Student Loan totaling $20,000;

		(3)  Internal Revenue Service (IRS) tax liens totaling $40,000;

		(4)  Several additional, smaller judgments and liens that were listed; and 

		(5)  Incarceration by the state of Virginia for child support.

	b.  These items, although not criminal in nature, posed (according to Defense Security Services (DSS)) a "significant disregard" for responsibility.  In addition to these problems, they also posed "the potential for security breaches" that could emerge in the form of supposed offerings of monies to him by those subversives trying to do and/or plan harm to the U.S. and her territories/interests.

	c.  There was a very bad divorce that began in 1995 and then culminated in November 2006 as his last child was emancipated at the age of 18.  The ensuing years that followed the 1995 event caused tremendous mental and emotional strain on him.  The divorce and all the baggage that accompanied it caused the financial problems.

   d.  He lost his children to a vindictive ex-spouse, a flawed social service system, and an overzealous attorney.  In addition, he was fired from an 18-year civilian job for retribution, lost two businesses, and his mom, grandmother and dad all died within 18 months of each other during those stressful years.  All of these items, even taken one at a time, would cause severe problems/hardships for anyone in a similar circumstance addressed in a unilateral fashion.

	e.  The corrections/compliances that have been accomplished by him are as follows:

		(1)  all child support issues are paid in full with no balance due to the Virginia Department of Social Services;

		(2)  he rectified the student loan default issue that was lifted after he made regular payments for nine months.  He also graduated with a Doctor of Philosophy (PhD.) degree;

		(3)  he has contacted the IRS and will do an offer in compromise (OIC) with him using garnishments from his pay;

		(4)  the additional liens and judgments will be taken care of with garnishments from his pay;

		(5)  he has opened a 22,000 square foot food processing facility since he was discharged; 

		(6)  he was involuntarily removed from the Army while he was at the 75 percent completion level in Command and General Staff College (CGSC) where his grade point average was 93; and 

		(7)  he suggested an idea that solved a very serious morale problem in a major command following 9/11.  The O-8 Commander rewarded him with an O-5 slot as Deputy Commander, J-9, Joint Task force Civil Support and he received an Army Commendation Medal for it.  

	f.  These many endeavors should show how he could perform as a Civil Affairs Battalion Commander or Combat Engineer Battalion Commander in which he was trained.

	g.  His OER microfilm records should show his high level performance as a senior field-grade officer.  One senior rater (SR) referred to him as "outstanding" in an OER he received in an Army Reserve unit assignment prior to his achieving an active duty assignment.  He requests positive consideration that would benefit the U.S. Army, his family, and himself.  

3.  He also states:

	a.  He served his country with distinction as a member of the Armed Forces from 1981 until he was forced out of the military 2003 because the board of officers relied on hearsay evidence presented that was taken from a seriously flawed DSS investigation.

	b.  The DSS investigator who conducted his background investigation made serious mistakes based on the utterances he made on the "Statement of Reasons" document that was used solely by the witnesses for the Army during his separation board hearing at the 99th Army Reserve Personnel Command in Pittsburgh, PA in 2003.

	c.  During the separation board hearing, two witnesses for the Army reiterated what they had read in the Statement of Reasons document generated by the DSS investigator during a regularly-scheduled security clearance investigation.  This was clearly a violation of U.S. Code whereas the evidence that was submitted was hearsay.  

	d.  The evidence generated by the DSS investigator was proven to be wrong prior to his final report being submitted.  The DSS investigator issued false statements on the investigative report after he had personally provided him with evidentiary statements to counter his claims.  

	e.  During the time of the investigation, the DSS investigator made false statements even though he had provided the investigator with evidentiary statements to counter his claims; however, nothing was done.  

4.  In April 2014, he submitted an addendum to his application in which he states:

	a.  At the Involuntary Separation Review Board hearing conducted by the 99th Army Reserve Command (ARCOM) in Pittsburgh in 2003, the primary witnesses for the government were merely reiterating what they read in the DSS investigator's statement of reasons.  These Statements of Reason were generated on him during an investigation of his background for his retaining his secret security clearance.

	b.  He addressed the Statement of Reasons list generated by the DSS investigator during the investigation since there were issues the investigator reported that were simply incorrect.  He provided the investigator with documented evidentiary proof that most of the issues he listed in the statement of reasons were unfounded.

	c.  There were signed letters as well as photographs generated by those involved in a direct manner.  These individuals' letters negated all the questionable issues listed.  

	d.  He has secured the aid and assistance of a retired E-9 personnel expert in the compilation of the packet to this Board that is currently in the queue for analyst review.  This retired E-9 was central in the editing of the packet.

	e.  He feels that grave mistakes in procedure were made during the entire investigation and ultimate review board hearing that culminated in his losing his clearance.  

5.  He provides the following documents:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Orders D-10-533509, dated 14 October 2005, discharging him from the USAR
* Chronological Summary of Events
* Orders M-343-0010, dated 9 December 2001, ordering him to active duty in support of Operation Noble Eagle 
* Orders 02-154-00001, dated 3 June 2002, reassigning him to USAR Element, Joint Forces
* Army Discharge Review Board (ADRB) - Case Report and Directive (page 3 of 4 pages)
* ADRB letter, dated 20 September 2011
* Headquarters, 80th Regional Support Command Orders 01-212-004, dated 8 November 2001, reassigning him to Headquarters, Atlantic Command
* Amendment Orders T-08-114709A01, dated 24 August 2001
* Orders T-07-113138, dated 20 July 2001, ordering him to active duty special work (ADSW)
* Statement of Reasons 
* Letter, dated 13 June 2002, from Financial and Auditing Practitioner, Office of Customer Services, Commonwealth of Virginia, Department of Taxation
* Letter, dated 16 January 2002, from Financial Litigation Agent, U.S. Attorney, Eastern District of Virginia
* IRS Form 656 (Offer of Compromise)
* Court documents
* Letter, dated 26 February 2002, from the Commonwealth of Virginia, Department of Social Services
* Court documents regarding child support
* Some unlisted information not included in the original clearance request form
* Letter, dated 18 March 2002, from Moore's Lumber and Building Supplies
* Letter, dated 15 March 2002, verifying relief from his position
* Three documents indicating issues with his estranged girlfriend
* Summary of remarks
* Three statements regarding upgrade of involuntary discharge and security clearance
* Orders 141-0066, dated 21 May 2002, releasing him from active duty
* Administrative Separation Board Proceedings, dated 22 May 2004

6.  On 24 June 2014, he provided a copy of his DD Form 214 for the period ending 24 May 2002.  

CONSIDERATION OF EVIDENCE:

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

2.  The applicant's request for removal of his security clearance based on flawed, misrepresented, and incomplete information is acknowledged.  However, a review of his personnel documents in the interactive Personnel Electronic Records Management System revealed:

   a.  On 29 July 2008, the ABCMR (Docket Number AR20070010756, dated 29 July 2008) denied his request for reinstatement of his revoked security clearance and reinstatement in the USAR.  
   
   b.  on an unknown date, he submitted a request for reconsideration of the Board's previous decision.  On 1 September 2009, the Board denied his request.  At that time, he was informed that since his request had been reconsidered, he was not eligible for further reconsideration of this same matter by this Board.  However, he had the option to seek relief in a court of appropriate jurisdiction.  
   c.  On 14 June 2012, he submitted another request for reconsideration of the Board's previous decision.  In a letter, dated 7 February 2013, the Board informed him that his request for reconsideration was the final administrative action taken by the Secretary of the Army.  Since he was not eligible for further reconsideration by this Board, his request was returned without action.  He was informed that the ABCMR would not consider any future request for reconsideration of this matter.  Again, he was informed that he has the option to seek relief in a court of appropriate jurisdiction.  Therefore, this portion of his request pertaining to reinstatement of security clearance and reinstatement in the USAR will not be further discussed in this Record of Proceedings.  

3.  The applicant's request for issuance of DD Form 214 for his period of active duty.  He was issued a DD Form 214 covering his period of active duty from 6 December 2001 to 24 May 2002.  Therefore, this portion of his request is not further discussed in this Record of Proceedings.  

4.  The applicant was born on 14 December 1953.  After completing prior enlisted service in the U.S. Navy Reserve and the Virginia Army National Guard (VAARNG), he was appointed as a second lieutenant in the 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.  

5.  He was promoted to first lieutenant on 13 June 1988 and to captain on 12 June 1992.

6.  He was apparently separated from the ARNG on an unknown date as he was reappointed as a first lieutenant in the VAARNG on 12 December 1989.  On an unknown date, he resigned his commission and was discharged from the VAARNG on 1 September 1991.  On the following date, he was transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  

7.  His service records in the HRC Command-Soldier Management System (SMS) show he completed 50 percent of CGSC/Intermediate Level (date unknown).  A second entry indicates he was enrolled in the CGSC.  

8.  He was promoted to major (MAJ) on 3 January 2000.  

9.  He provided the following orders which indicate:

   a.  Orders T-07-113138, dated 20 July 2001, published by the USAR Personnel Command, he was ordered to Active Duty Special Work (ADSW) on 23 July 2001 (for 33 days) for U.S. Joint Forces Command support.  

	b.  Orders M-343-0010, dated 9 December 2001, published by Headquarters, 81st Regional Support Command, he was ordered to active duty as a member of his Reserve Component on 8 December 2001 for mobilization for Noble Eagle.  These orders indicate he was ordered to active duty for 365 days.

	c.  Orders 141-006, dated 21 May 2002, published by the U.S. Army Transportation Center, Fort Eustis, VA, he was released from active duty with an effective date of 24 May 2002.  

	d.  Orders D-10-533509, dated 14 October 2005 and published by HRC, he was discharged from the USAR on 14 November 2005 with service characterized as general.  

10.  A review of his personnel records in the Interactive Personnel Records Management System (iPERMS) revealed he received:

   a.  An OER for the period 1 January 2001 through 7 November 2001.  This report shows he was rated as an Engineer Officer.  His rater evaluated him as "Outstanding Performance, Must Promote" with the following comments: "MAJ [applicant's name] has completed Phase I of the Command General and Staff College and has accepted an active duty tour at Joint Forces Command at Fort Monroe, Virginia.  MAJ [applicant's name] seeks positions of greater responsibility and prestige and has the drive to [be] doing bigger and better things…"
   
   b.  An OER for the period 12 November 2001 through 24 May 2002.  This report shows he was rated as a Project Engineer.  His rater evaluated him as "Outstanding Performance, Must Promote" with comments "…In addition, he completed Phase II of the Army's CGSC, with plans to attend Phase III..."

11.  The contested report is a Relief for Cause OER covering the period 25 May through 10 June 2002.  This report indicates the applicant was rated as an Engineer Officer within the U.S. Joint Forces Command, J-4 Engineer Section.  The contested report shows:

	a.  The rater is listed as LTC RAO, Executive Officer, and he digitally signed the report on 17 September 2002;

	b.  The SR is listed as Colonel (COL) TRS, Commander, and he digitally signed the report on 17 September 2002;

	c.   In item Part IId, the contested report was a referred report and the applicant indicated he submitted statements.  He stated:

   (1)  The comments made in Part Vb (rater) were taken from a report 
generated by a DSS investigator and were being appealed to the Central Clearance Facility (CCF).
   
   (2)  The comments made in Part VIIc (SR) were made as a result of the 
DSS investigator's statement of reasons and were also being appealed to CCF.  
   
   (3)  Although the OER is a referred document, there was no 
accompanying DA Form 67-9-1 (Support Form).  

		(4)  The rating period was after he had been involuntarily separated from the service on 24 May [2002] and he was not present for observation.

		(5)  The comments made in Part IVa (Character) did not reflect his character at all.

		(6)  He was involved in conversations with Readiness Command and was not advised of the final decision regarding the outcome of the OER appeal.

	d.  The applicant did not sign the report;

	e.  The rater placed an "X" in the "No" boxes in Part IV, a.1 (Honor), a.2 (Integrity), a.3 (Courage), a.4 (Loyalty), a.5 (Respect), a.6 (Selfless-Service), and a.7 (Duty); b.1 (Attributes) for Mental and Emotional; b.2 (Skills) for Conceptual; and b.3 (Actions (Leadership)) for Decision-Making, Assessing, Building, and Learning;

	f.  In Part Va (Performance and Potential Evaluation (Rater)), the rater marked the entry "Other" and made the following comments:

MAJ [applicant's name] was mobilized by USJFCOM Joint Task Force Civil Support as a by name request to support Operation Noble Eagle and Enduring Freedom.  He was assigned to this unit solely for mobilization purposes.  Once assigned and mobilized on 8 December 2001, USJFCOM initiated the security management process.  The US Army Central Personnel Security Clearance Facility announced their intent to revoke his security clearance on 8 January 2002.  Their 'Statement of Reasons' included eight pages identifying a long history of deliberate omission, concealment, false statements, and deceptive or illegal financial practices.  The US Army Central Personnel Security Clearance Facility considered MAJ [applicant's name]'s rebuttal and revoked his security clearance on 17 May 2002.  While MAJ [applicant's name] has the right to appeal to the Personnel Security Appeals Board (PASB) and the Defense Office of Hearings and Appeals (DOHA), this process can take up to one year.  The suspension and subsequent security clearance revocation flags this officer and he is no longer eligible to work at this headquarters.  The commander, MAJ [applicant's name]'s senior rater, directed this relief for cause.  

   g.  In Part VII (SR), the SR placed an "X" in the "Other" box and the "No" box indicating a completed DA Form 67-9-1 was not received with this report and considered in his evaluation and review.  The SR made the following comments:

The US Army Central Personnel Security Clearance Facility revoked MAJ [applicant's name] security clearance on 17 May 2002 identifying a long history of deliberate omission, concealment, false statements, and deceptive or illegal financial practices.  MAJ [applicant's name]'s actions and personal conduct violate Army Values and his Oath of Commission as an Officer.  I therefore initiated appropriate flagging action and this relief for cause effective 10 June 2002.  I notified MAJ [applicant's name] of the reasons for this relief telephonically and by memorandum.  I also advised MAJ [applicant's name] of the Officer Evaluation Redress Program and provided him a copy of Chapter 6, AR 623-105 for reference should the US Army Central Personnel Security Clearance Facility approve his appeal and reinstate his security clearance.  I did not ask for or require an OER support form from MAJ [applicant's name] due to the circumstances and timing of this relief for cause evaluation.  Declined to sign.  

12.  A review of the applicant's military record in the iPERMS revealed the applicant's contested OER was filed in the performance section of his OMPF.

13.  On 20 June 2003, he was notified of initiation of elimination proceedings under the provisions of chapter 2, paragraph 2-12, subsections (a), (b), (c), (d), (f), (j), and (o) Army Regulation (AR) 135-175 (Separation of Officers), dated 28 February 1987 by reason of misconduct, moral or professional dereliction.  He was directed to show cause for retention in the Army.


14.  The specific reasons for his elimination were as follows: 

   a.  Discreditable, intentional failure to meet personal financial obligations based in part upon the following facts: 

   (1)  failure to file tax returns in 1999 and 2000;

   (2)  being found in contempt of court for failure to pay child support;

   (3)  issuing two (2) bad checks, an act for which he was arrested on 
25 October 1996;
   
   (4)  failure to pay attorneys fees, for which he was sentenced to 60 days in 
jail on 8 July 1999;

   (5)  failure to pay rent to his landlord between 1997 and 1998.

   b.  Mismanagement of personal affairs to the discredit of the service:
   
   (1)  operating a pyramid scheme (financial fraud);
   
   (2)  failure to pay his debts to Capital One Bank, the United States 
Government (tax obligations for which judgments exists), Retreat Hospital, Sprint PCS, and Northwest Financial Inc.

   c.  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.

   d.  Intentional omissions or misstatements of facts in official statements or records, for the purpose of misrepresentation by answering "No" to a question regarding delinquent financial accounts and unpaid judgments on a Security Clearance Application on 14 July 2001.

   e.  Acts of Personal Misconduct; specifically, traffic violations for reckless driving, disregarding traffic signs, driving without county decals, and driving with an expired license plate.

   f.  Conduct unbecoming an officer.

15.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  The record indicates the applicant consulted with legal counsel.
16.  On 15 March 2004, he was notified to appear before an Administrative Separation Board of Officers.  

17.  On 22 May 2004, he appeared with counsel before an Administrative Separation Board of Officers.  The Administrative Separation Board of Officers found that the applicant committed the misconduct stated in the memorandum of notification.  The board of officers recommended separation with a general, under honorable conditions discharge.  

18.  On 20 June 2005, a legal review was conducted and recommended that the board of officer's recommendation of the applicant’s elimination be accepted with issuance of a general, under honorable conditions discharge.  

19.  On 19 July 2005, the Commander, HRC approved the recommendation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

20.  On 13 October 2005, the separation authority approved the findings and recommendations of the board of officers that the applicant be separated and directed issuance of a General Under Honorable Conditions Discharge.

21.  On 20 September 2011, the ADRB denied his request for an upgrade of his general discharge to an honorable discharge.  

22.  His Chronological Statement of Retirement Points, dated 23 September 2013, shows he was credited with 17 years of qualifying service for retired pay at age 60.  A review of this statement shows he had 184 active duty points for the period 19 December 2000 through 18 December 2001 (1 qualifying year for retirement) and 194 active duty points for the period 19 December 2001 through 18 December 2002 (1 qualifying year for retirement).  

23.  On 15 October 2013, an advisory opinion was obtained from the Chief Army Personnel Records Division, HRC.  The official stated the applicant should be issued a DD Form 214 in accordance with AR 635-5 (Separation Documents) which states that a DD Form 214 will be issued for USAR Soldiers on active duty for 90 or more consecutive days.  The letter states his record indicates that he served 168 days of active duty, was ordered to active duty on 8 December 2001, and was released from active duty on 24 May 2002.  (A DD Form 214 which shows he served on active duty from 6 December 2001 through 24 May 2002, which is a period of 5 months and 19 days of active commissioned service was issued.)  

24.  On 20 November 2013, another advisory opinion was obtained from the Chief, Retired Pay Branch, HRC.  The advisory official stated that this office could only address the issues pertaining to actions within their jurisdiction.  

	a.  the applicant's AHRC Form 249-E (Chronological Statement of Retirement Points) reflects that he only has 17 years of qualifying time for retirement purposes.  

	b.  if the applicant feels that his AHRC Form 249-E is incorrect, he can submit the proper documentation (Leave and Earning Statements, DA Forms 1380 (Record of Individual Performance of Reserve Duty Training), and DD Forms 214 to that office in order to have this corrected.  

	c.  upon correction of the applicant's AHRC Form 249-E and if it reflects 20 or more years of qualifying service for retirement, he will be eligible to apply for retired pay.  He will receive credit for all service indicated on the AHRC Form 249-E and retired pay will be effective on the day that he turns 60 years of age.

	d.  a copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  On 20 November 2013, the applicant acknowledged receipt of the advisory opinion and submitted a request that he be given "administratively awarded remaining minimum required retirement points" in order that he receive a notification of eligibility letter for retired pay at the rank of MAJ/O-4 with 20 years of service."

25.  On 29 November 2013, an advisory opinion was obtained from the Chief, Officer Promotions Special Actions, HRC who stated:

	a.  their office cannot affirm if the applicant's request for consideration for promotion to LTC beyond 2005 has merit.  

	b.  based on review of the documents available to their office, they have affirmed that the applicant was considered by the Fiscal Year (FY) 2005 board, but was a non-select.  

	c.  one probable mitigating factor could have been his coding of "NM" for not meeting the minimum military education requirement per AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), table 2-2.

	d.  further speculation of the applicant's non-selection are unknown because statutory requirements set forth in Title 10, U.S. Code, section 14104 prevent disclosure of board proceedings to anyone outside the promotion board in question.

	e.  in addition, due to his current non-military status, an approval for a special selection board (SSB) (with a retroactive military education waiver) should only be considered after the ABCMR has received a response to the applicant's other issues.  If an SSB is directed, any promotion or associated back pay and allowances will only occur upon a favorable outcome that leads to promotion.  

	f.  a copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  His service record is void of his response to this advisory opinion.

26.  AR 600-8-104 (Army Military Human Resource Record Management (AMHRR)) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by, among other agencies, the ABCMR and Department of the Army Suitability Evaluation Board (DASEB).

27.  AR 623-105 (Evaluating Reporting System) at the time prescribed the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 67-9.

   a.  It states the primary function of the ERS is to provide information to Headquarters Department of the Army (HQDA) for use in making personnel management decisions.  Components of this information include, evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   b.  It states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.
	c.  It defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	d.  It states any report with negative comments in Part Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to HQDA.

   e.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the Soldier must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the Soldier.

	f.  It states a Relief for Cause report is required when an officer or warrant officer is relieved for cause regardless of the rating period involved.  Relief for Cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.

	g.  It states that if rating officials become aware of information that would have resulted in a lower evaluation of the rated officer, they will submit an addendum to the previous report.

28.  AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  It gives reasons (or ones similar) that require an officer’s record to be reviewed for consideration of terminating appointment.  Standing alone, one of these conditions may not support elimination; however, this derogatory information combined with other known deficiencies form a pattern that, when reviewed in conjunction with the officer’s overall record, requires elimination:

* punishment under the Uniform Code of Military Justice (UCMJ), Article 15
* conviction by court-martial
* final denial or revocation of an officer’s secret security clearance by appropriate authorities acting pursuant to Department of Defense Directive 5200.2-R and AR 380-67 (Personnel Security Program)
* Relief for Cause OER under AR 623–105, paragraph 3–32 
* adverse information filed in the OMPF in accordance with AR 600–37
* failure of a course at a service school

29.  AR 135-175, in effect at the time, provided policy, criteria, and procedures for the separation of Reserve officers of the Army.  

   a.  Paragraph 1-6 stated maximum consideration of all events and circumstances leading to the discharge is essential in determining the type of discharge certificate to be furnished or recommended.  The type of discharge certificate to be furnished will be based solely on the officer's behavior and performance of duty during the current period of service when (1) actually performing active duty, active duty for training, or inactive duty training; or (2) actively participating in or under an obligation to participate in Reserve activities, and the behavior relates directly to the officer's Reserve status.  An honorable discharge is a separation with honor.  The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.  A general discharge is a separation under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.
   
   b.  Paragraph 1-13d stated section 1163(a) of Title 10, U.S. Code precludes the involuntary separation of officers with 3 or more years of commissioned service except on the approved recommendations of a board of officers convened by competent authority or as otherwise provided by law.  Paragraph 
1-13f states section 1163(c) of Title 10, U.S. Code precludes the separation of an officer for cause under conditions other than honorable unless discharged under conditions other than honorable pursuant to "…(2) approved findings of a board of officers convened by competent authority….

	c.  Chapter 2 prescribed the criteria and procedures governing the involuntary separation of Reserve officers when their retention is not in the best interest of the service.  The retention of officers whose performance of duty or conduct is substandard, deficient in character, or is otherwise unsuited for military service cannot be justified.  

   d.  Paragraph 2-8 stated HQDA will take final action on the recommendations of boards of officers for USAR officers based on the reasons given in paragraphs 2-10 through 2-14.  Area commanders will forward these cases with the recommendations and remarks to the Commander, HRC.
   
   e.  Paragraph 2-12 authorizes the involuntary separation of officers due to moral or professional dereliction to include:

* mismanagement of personal affairs to the discredit of the service
* mismanagement of personal affairs detrimentally affecting the performance of duty of the officer concerned
* acts of personal misconduct 
* conduct unbecoming an officer

Officers discharged may be furnished an honorable or general discharge certificate or other than honorable conditions discharge.  A board of officers will convene to determine if officers will be retained in the Army.  Respondents must be prepared to present evidence in their own behalf before the board.  When the findings have been determined, the recommendations will be limited to the following:  retention or involuntary separation.  Recommendations for involuntary separation of an officer must also include a recommendation for the type of discharge certificate of the type of discharge issued.

30.  AR 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides that:

	a.  Mandatory selection boards will be convened each year to consider Army Reserve officers in an active status for promotion to captain through LTC.

	b.  In order to be promoted to LTC an individual must have completed 7 years of time in grade as a MAJ and the military education requirement is 50% completion of CGSC or equivalent on or before the convening date of the respective promotion board.  This regulation also specifies that promotion consideration/reconsideration by an SSB may only be based on erroneous non-consideration or material error that existed in the record at the time of consideration.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

31.  Title 10, U.S. Code, sections 12731 through 12739 authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for deletion of his Relief for Cause OER for the period 25 May 2002 through 10 June 2002 is acknowledged and there is sufficient evidence to grant this portion of the requested relief.  

	a.  The applicant was ordered to active duty on 6 December 2001 and was released from active duty on 24 May 2002.  

	b.  The contested report is a Relief for Cause OER covering the period 25 May 2002 through 10 June 2002.  This report shows he was rated as an Engineer Officer within the U.S. Joint Forces Command, J-4 Engineer Section.  However, he was relieved of duties and issued a Relief for Cause OER for a position that he was no longer occupied.  

	c.  It is noted that the "No" blocks in Part IVa (Honor, Integrity, Courage, Loyalty, Respect, Selfless-Service, and Duty) and Part IVb (Decision-Making, Assessing, Building, and Learning and Part Va and VII make references to the applicant's actions that occurred outside of the rating period.

	d.  Therefore, based on the evidence provided and regulatory guidance, the applicant's inappropriate actions should have been referenced in an addendum to the previous rating period.  Therefore, it would be appropriate to remove the contested report. 

2.  The applicant's request for deletion of the orders directing his relief from his tour of active duty for "Operation Support" based on removal of his security clearance and the contested report is acknowledged.

	a.  The evidence of record shows the applicant was ordered to active duty on 6 December 2001 in support of Operation Noble Eagle.  

   b.  The applicant's rater stated on the contested report that the applicant's security clearance was revoked on 17 May 2002 and the senior rater directed issuance of the relief for cause report.  
   
   c.  Orders 141-0006 were published by the U.S. Army Transportation Center on 21 May 2002 and released him from active duty, effective 24 May 2002.  
   
   d.  Based on the revocation of the applicant's security clearance and Relief for Cause OER, he was appropriately issued orders releasing him from active duty.  Therefore, there is no basis for deleting Orders 141-0006, dated 21 May 2002.  

3.  The applicant's request for deletion of his discharge from the USAR pursuant to a board of officers consequent to the removal of his security clearance and relief from active duty is acknowledged.  

   a.  Notwithstanding the erroneous issue of the Relief for Cause OER, his inappropriate actions are not negated.  On 20 June 2003, the appropriate notice was issued to the applicant advising him that he would be considered by a separation board for involuntary separation action for numerous acts of misconduct pursuant to AR 135-175.  

   b.  The evidence of record shows the applicant acknowledged he was aware of the commander's intent to initiate involuntary separation action against him.  He requested a hearing before a board of officers and he elected to appear before the board.

   c.  The board of officers found that the applicant engaged in the misconduct stated in the memorandum of notification.  The board recommended the applicant be involuntarily separated with a general discharge.  It appears his service was appropriately characterized as general based on his overall military service record.  
   
   d.  The applicant's service record is void of evidence that indicates his release from the USAR was in error or unjust.  Therefore, there is no basis for deleting his discharge from the USAR.
   
   e.  Orders were issued discharging the applicant from the USAR effective 14 November 2005.  The issuance of an honorable discharge is conditioned on proper military behavior giving due regard to the grade held and the capabilities of the officer concerned.  A general discharge is a separation under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.  
   
   f.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation and discharge process.  Therefore, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  
   
4.  The applicant's request for credit for the active duty from which he was relieved is acknowledged.

	a.  The evidence of record shows he was ordered to active duty on 6 December 2001 and was released from active duty on 24 May 2002.  He was issued a DD Form 214 for this period of active duty which shows he was credited with 5 months and 19 days of active military service.

	b.  The applicant's Chronological Statement of Retirement Points shows he was credited with 84 active duty points for the retirement year ending 18 December 2001 and 194 active duty points for retirement year ending 18 December 2002.  In the absence of evidence to confirm he is entitled to additional active duty retirement points, it appears he has received appropriate credit for his period of active duty for the period 6 December 2001 through on 24 May 2002.

	c.  Since there is insufficient evidence to show he was improperly released from active duty or discharged there appears to be no basis to grant him credit for additional active duty.

5.  The applicant's request that he be awarded the minimum retirement points in order that he be issued a 20-Year Letter by HRC notifying him of his eligibility for retired pay for non-regular service at age 60 is acknowledged. 

	a.  The applicant's Chronological Retirement Points Statement shows he had 17 years of qualifying service for retirement at age 60 at the time of his discharge from the USAR on 14 November 2005.  

	b.  The law requires that a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  

   c.  His service record is void of evidence and he has not provided any evidence which shows he is entitled to any additional retirements points.  

	d.  Since there is insufficient evidence to show he was improperly released from active duty or discharged there appears to be no basis to grant him credit for additional active duty.

6.  The applicant's request for payment of pay and allowances that would accrued during such periods is also acknowledged.  However, again, since there is insufficient evidence to show he was improperly released from active duty or discharged there appears to be no basis to grant him additional pay and allowances.

7.  The applicant also requests consideration for promotion to LTC) by mandatory promotion boards that were conducted during the period(s).

	a.  The applicant was promoted to MAJ on 3 January 2000.  By regulation, In order to be promoted to LTC an individual must have completed 7 years of time in grade as a MAJ and the military education requirement is 50% completion of CGSC or equivalent on or before the convening date of the respective promotion board.  

	b.  Since the applicant did not complete 7 years of time in grade as a MAJ prior to his discharge, he was not eligible to be considered for promotion to LTC.

8.  The applicant contends he served his country with distinction as a member of the Armed Forces from 1981 until he was forced out of the military in 2003 because the board of officers relied on hearsay evidence presented that was taken from a seriously flawed DSS investigation.  However, the applicant was not "forced out of the military."  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  His service record is void of evidence which supports his contention that the board of officers relied on hearsay taken from the DSS investigation.

9.  With regard to the applicant's contentions pertaining to the DSS investigator background investigation, there is insufficient evidence that shows that the investigator conducted an unfair or inaccurate investigation based on the all the evidence and witness statements that were presented.  His service record is void of evidence which indicates that all the evidence he submitted were not fully considered.  Also, there is no evidence that shows the investigation was flawed or incorrect.

10.  With regard to the applicant's statements regarding his personal family and financial problems are also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  The corrections/compliances he has accomplished regarding his financial issues were noted.  However, these accomplishments alone are not sufficiently mitigating to warrant relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  removing the Relief for Cause OER for the period 25 May 2002 through 10 June 2002 from his OMPF; and

	b.  preparing and inserting a memorandum in the applicant's OMPF annotating 25 May 2002 through 10 June 2002 as non-rated time.

2.  The Board further determined 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:

	a.  deletion of the orders directing relief from his tour of active duty for "Operation Support" ( i.e., Operation Noble Eagle) as a member of the USAR based on removal of his security clearance and the contested report;

	b.  deletion of his discharge from the USAR pursuant to a board of officers consequent to the removal of his security clearance and relief from active duty;



	c.  credit for the active duty during which he was relieved and during which his supervisor was asking that his tour be extended;

	d.  upgrade of his general discharge to an honorable discharge;

	e.  credit for service towards retired pay for non-regular service;

	f.  award of  minimum retirement points in order that he be issued a 20-Year Letter by the U.S. Army Human Resources Command (HRC) notifying him of his eligibility for retired pay for non-regular service at age 60;

	g.  payment of pay and allowances that would have accrued during such periods; 

	h.  consideration for promotion to lieutenant colonel (LTC) by mandatory promotion boards that were conducted during the period(s).




      _______ _  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)                                         AR20130015615



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ABCMR Record of Proceedings (cont)                                         AR20130015615



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