IN THE CASE OF:	   

		BOARD DATE:	  9 April 2015

		DOCKET NUMBER:  AR20140004719 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

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

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for correction of his military records to show:

* he was commissioned as a major (MAJ)/O-4, Finance Corps, in August 2006
* he was authorized incentive bonuses based on the 2006 Commissioned Officer Program
* his enrollment in the Student Loan Repayment Program and payment of loans for him and his wife
* he was authorized pay as a MAJ/O-4 with 20 years of service
* he was offered the option to transfer to another military department

2.  The applicant states:

	a.  he reenlisted in the Illinois Army National Guard (ILARNG) on 13 December 2005 and was assigned to the 1244th Transportation Unit, North Riverside, IL.

	b.  he enlisted for attendance at the Officer Candidate School (OCS) program and was officially assigned to the OCS program in the Springfield, IL 129th Regional Training Institute (RTI) in March 2006.  He began his security clearance process at that time.

	c.  he completed all the appropriate forms needed to begin the security clearance process, which included a Standard Form (SF) 86 (Questionnaire for National Security Positions).  He fully completed the SF 86 and submitted it to the 129th RTI Personnel Department.  About the same time, he had his fingerprints taken at Hickory Hills Police Station in Hickory Hills, IL, which is the place where he was living at the time.  He submitted his fingerprints along with the SF 86 to the 129th RTI Personnel Department.  

	d.  he doesn't recall if he was asked to provide any release forms for medical, law enforcement, financial or any other records.  However, his initial Chapter 2 Medical Examination was done in Illinois on 1 April 2006 after he was already assigned to the OCS program.  

	e.  he didn't learn that the 129th RTI Personnel Department in Illinois didn't follow-up on anything he had done for his security clearance until he spoke with the Personnel Security Manager in New Mexico.  Nothing had been entered into the security system by the 129th RTI.  

	f.  he did everything he was supposed to do to get his security clearance and there were no other actions he knew he could have taken to speed up the process.  

3.  The applicant provides an affidavit and a legal brief.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel reiterated that:

   a.  the applicant enlisted in the ILARNG after serving in the Regular Army and the U.S. Army Reserve (USAR).  On 13 December 2005, the applicant reenlisted in the ILARNG to attend OCS, which began at the 129th RTI in March 2006 in Springfield, IL.  
   
   b.  the applicant was selected and was fully qualified for commission as an officer in the ARNG.  However, administrative delay caused the granting of his security clearance to become delayed for over 2 years.  By the time his clearance was granted, the applicant was too old to complete the necessary steps again to be commissioned.  

   c.  by the time the applicant's security clearance was processed, his Certificate of Completion had expired.  Since the applicant was over the maximum age permissible to attend OCS again, he was ineligible for commission.  
   
   d.  the applicant attended OCS from 12 June through 27 August 2006.  He successfully completed the requirements, graduated, and was issued a Certificate of Completion.  The certificate was valid for a period of 2 years.  At this point, the only outstanding requirement needed for commissioning was a Secret security clearance, which required a personnel security investigation (PSI).
   
   e.  the Government did not complete the PSI for the applicant until 14 November 2008, which was over 2 years from the date he completed OCS and over 3 months after his OCS completion certificate expired.  Although the PSI was clear and the applicant was granted an Interim Secret security clearance, he was too old to re-enroll in OCS and complete the requirements prior to becoming 42 years old (the age cut-off for his method of commissioning).

	f.  the applicant transferred to the New Mexico ARNG (NMARNG) sometime in July 2008 and he later spoke to his new unit's Personnel Security Manager.  The Personnel Security Manager informed him about failure of the ILARNG to follow-up with the security information and to begin the process for a clearance.  

	g.  the applicant petitioned this Board to correct an injustice created by the processing delay.  On 19 March 2013, this Board stated that "[the applicant's name] must assume responsibility for his lack of action."  The Board found that, "[h]ad he been more diligent in the pursuit of his security clearance from the beginning, it is highly likely it would have been processed within the 2-year limitation" and he would have been commissioned.  The Board found there was no error or injustice in the applicant's case and recommended denial of his request.

2.  Counsel argues that:

	a.  the applicant bore no responsibility for the delay in processing his security clearance.  The over 2-year delay was solely attributable to the military.  The delay in processing the applicant's security clearance is the sole reason the applicant was prevented from commissioning.  This Board's determination that "there is no error or injustice in this case" should be reconsidered.

	b.  the applicant continues to suffer from the errors and injustices caused by the military's untimely processing of his security clearance.  This Board must recommend the correction of these errors and injustices.

	c.  although the applicant has the initial burden of proving an error or injustice by a preponderance of the evidence, the military correction boards "have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief."  A correction board's failure to correct an injustice is arbitrary and capricious violation of its mandate.  Counsel cited excerpts from court case Yee v. United States [206 Ct. C1. 388, 398 (1975)] (citations omitted).  

	d.  the function of a military correction board is to recommend action to correct error or injustice, "[t]he two things are not the same."  Counsel references court case, Reale v. United State [208 Ct. c1. 1010, 1011 (1976)], stating "Error means legal or factual error."  "Normally, it is such that a court of law could correct it whether the soldier or sailor had first applied to a Correction Board, or not."  "If the board when asked, fails to correct such an 'error,' courts will correct it on judicial review."  "'Injustice,' when not also 'error,' is treatment by the military authorities, that shocks the sense of justice, but is not technically illegal."  The applicant's case contains both errors and an injustice.

	e.  the responsibility for the untimely processing of the applicant's security clearance belonged solely to the military and has adversely affected the applicant.  When a military member has suffered because of an error made solely by the military, an injustice has occurred.  Counsel cites excerpts from the court cases on Duhon v. United States [198 Ct. C1. 564, 571 (1972)] and Caddington v. United States [147 Ct. C1. 629, 634 (1959)].

	f.  the military's failure to process a security clearance application in a timely manner constitutes an error.  The applicant was fully qualified to receive a Secret security clearance.  The Government was aware of the security clearance processing delay problems at least as far back as 2004 when the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004 was passed.  Counsel makes reference to the guidance in the IRTPA as it relates to processing a security clearance.

   g.  the responsibility for the error belongs to the agency, not the individual applicant.  In order to deny the applicant's claim, this Board essentially held that the processing delay error was the fault of the applicant, not the military.  The Board's prior decision that shifted the responsibility for the processing delay to the applicant was made in error.
   
   h.  both the Army's regulations along with the U.S. Code make it clear that the responsibility for processing a security clearance rests with the agency making the request, not with the individual member.
   
   i.  the Army's procedures for processing security clearances are governed by Army Regulation (AR) 380-67 (Personnel Security Program).  As the regulation makes clear, the responsibility to process an application rests solely with the people who hold the positions listed in AR 380-67, paragraph 11-2, not the individual applicants.  The regulation places the responsibility to initiate requests for personnel security investigations on the commanders, Army Staff heads, and supervisors for implementing the personnel security provisions of AR 380-67.  The responsibility for the adjudication and granting of security clearances is with the commander of the Army Central Clearance Facility.  Finally, the Defense Investigative Services Personnel Investigations Center is responsible for the actual investigation of the individual applicant.  Additionally, the U.S. Code in the form of the IRTPA makes it clear that the agency bears the responsibility for processing security clearances.  

	j.  the Board's decision that denies the military bears responsibility for the processing of the applicant's application and places the responsibility for processing the application upon the applicant is arbitrary and capricious.

	k.  the Board's decision that the applicant's own actions slowed down the processing of the application is in error as the decision is not supported by substantial evidence.

	l.  by placing the responsibility on the applicant of the security clearance to ensure timely processing of his application, the Board went against applicable Army regulations and placed an undue and impermissible burden on the applicant.  Counsel cites excerpts from the court cases on Wagner v. United States [365 F.3d 1358, 1361-62 (ct. C1. 2004)] (citing Service v. Dulles, 354 U.S. 363, 388, (1957)), Carmichael v. United States [298 F.3d 1357, 1373-74 (Fed. Cir. 2002)], Vogue v. United States [844 F.2d 776, 779 (Fed. Cir. 1988)], and Casey v. United States [8 C1. Ct. 234, 238 (1985)].

3.  Counsel further argues that:

   a.  the previous Record of Proceedings stated at paragraph 6 that, "The applicant must assume responsibility for his lack of action.  Had he been more diligent in the pursuit of his security clearance…"there is nothing for the applicant to pursue and there is no need to be diligent in pursuing that which is not his responsibility."  

	b.  the applicant's role in the process is extremely limited.  Based on AR 380-67, paragraph 5-6, the applicant's responsibility was to provide "appropriate investigative forms, provide fingerprints of a quality acceptable to the Federal Bureau of Investigation (FBI), and execute a signed release authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency."  The applicant completed all these steps in a timely manner.
	c.  there is no provision in AR 380-67 which places the responsibility to timely processing on the applicant and nowhere in the regulation is there a mechanism that would allow an applicant to attempt to speed up the process.  It is unjust for the Board to shift the responsibility for timely processing to the applicant then use this as a reason to deny his claim.  

	d.  the Board also found that certain actions by the applicant caused the 
2-year delay in processing.  However, the record lacks any evidence of causal connection between the applicant's actions and the 2-year delay.  Since there is no substantial evidence of a causal connection, the Board's decision is in error.  

	e.  the Board found that "After all of his transfers and subsequent assignment with the NMARNG, his security clearance was finally processed, but the delays caused the process to exceed the 2-year limit associated with the OCS completion certificate to become qualified and receive Federal recognition or become ineligible for appointment."

	f.  while there is evidence on the record of the applicant's transfers and there is evidence of the 2-year delay in processing his clearance, the Board's finding of causal connection between the two is not supported by substantial evidence of record.  Counsel cites excerpts from the court case on Peoples v. United States [101 Fed. C1. 245, 263 (2011) (citations omitted].

	g.  it is unclear from the previous Record of Proceedings exactly how the Board found substantial evidence of a causal connection between the applicant's actions and the 2-year delay.  The applicant left Illinois in search of employment and he transferred from one state ARNG to another one.  However, nothing on the record suggests that either action would have an adverse impact on the timeliness of the clearance processing.  

   h.  the Board's conclusion is an assumption that a move by the applicant somehow had an effect on the processing times.  An assumption is insufficient to rise to the level of "substantial evidence" of causal connection.  Counsel contends that "an assumption does not rise to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
   
   i.  Counsel discussed the basis of "substantial evidence" and cited excerpts from the court case on Bray v. United States [515 F.2d 1383, 1391, 207 Ct. C1. 60 (Ct. C1. 1975)].  Counsel further discussed the Board's conclusions as they related to assumptions and he also cited excerpts from the court case on Universal Camera Corp. v. National Labor Relations Board [NLRB] [340 U.S. 474, 477 (1951)].

	j.  based on the applicant's affidavit, the ILARNG did not even start the security process; therefore, a move could not have affected its processing.  Even if the ILARNG had started the process, the clearance should have only been a "paper case" that would not have required his presence.  All that is required for a Secret security clearance of an incoming commissioned officer is a Department of Defense (DOD) National Agency Check (NAC) and written inquiries (DNACI).

   k.  the applicant's case was a NAC to conform with Appendix B-1 of AR 380-67, a credit check, and an employment check.  Paragraph B-2 of appendix B of AR 380-67 dictates the scope of the DNACI that must be performed.  An NAC required nothing other than a review of the Defense Central Index of Investigations and the Federal Bureau of Investigation records.  
   
   l.  being out of state nor transferring would have had any effect on the processing of the security clearance.  There is no causal connection between the applicant being present in Illinois and the delay in processing his security clearance.  Counsel quoted remarks made by the applicant regarding the evidence and information he had provided to the ILARNG for assistance in security clearance process.  The applicant's sworn affidavit is the best available evidence of his participation in the clearance process.
   
   m.  the applicant was fully qualified to commission.  He had already been selected to commission and was educationally qualified, medically qualified, was within age limitations, and had successfully completed OCS.  The only component preventing him from being commissioned was a Secret security clearance.
   
   n.  the applicant had no control over the process and could exert no control over the process.  He was fully qualified and had been selected to commission, but he became ineligible due to the military's administrative delays.  The delays caused the applicant to forever be ineligible.  The fact that the military could make such a mistake with such permanent ramifications on the applicant is what shocks one's sense of justice.  Counsel cited excerpts from court case on Yee v. United States [206 Ct. C1. 388, 397 (1975)] and Perry v. Department of the Army, 2013 U.S. Dist LEXIS 115852, 11-12 (US Dist Ct MD GA).

4.  Counsel concludes that:

	a.  the applicant is suffering from errors and injustice originally caused by the military's administrative delay in processing his security clearance in a timely manner.  It is the Board's legal and moral duty to recognize those errors and injustices and correct them.

	b.  the regulations dealing with maximum age limitations can be waived.  Based on the errors and injustices in the applicant's case, the age limitation should be waived and relief should be granted.  According to National Guard Regulation (NGR) 600-100, paragraph 7(b)(2)(e)(1), maximum age limitations can be waived.  The applicant is over age due to administrative delay.  The Board failed to consider this regulation

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120012910 on 12 March 2013.

2.  The applicant and his counsel provided new arguments that will be considered by the Board.

3.  The applicant was born on 2 March 1967 and he enlisted in the Regular Army on 5 November 1985 at the age of 18.  He was released from active duty on 4 November 1989.  On the following day, he was transferred to the USAR Control Group (Reinforcement).  He attained the rank of sergeant/pay grade E-5 and completed 4 years of creditable active duty service.  According to the applicant, he reenlisted in the ILARNG on 13 December 2005.  

4.  The applicant's service record contains a Certificate of Completion, dated 27 August 2006, which shows he attended OCS from 12 June to 27 August 2006.  He successfully completed the requirements of this school and graduated.

5.  Orders 277-052 published on 4 October 2006 show the applicant was transferred from the 1244th Transportation Company, ILARNG, to Company E, Brigade Support Battalion, Arizona ARNG (AZARNG) effective 25 September 2006.  His rank was staff sergeant/pay grade E-6.

6.  Orders 038-625 published on 7 February 2007 show the applicant was separated from the AZARNG and transferred to the USAR Control Group (Annual Training, effective 5 February 2007.  The National Guard Form (NGB) Form 22 (Report of Separation ad Record of Service) issued in connection with this separation shows the reason for separation was his failure to report to the AZARNG upon an interstate transfer.  

7.  Effective 16 February 2007, the applicant was further transferred to the USAR (Individual Ready Reserve).  Orders C-02-705568, U.S. Army Human Resources Command (HRC), dated 16 February 2007, show he had no security clearance.

8.  Orders C-07-812901, HRC, dated 3 July 2008, reassigned the applicant to the NMARNG effective that same date.  These orders show he did not have a security clearance.

9.  He reached age 42 on 2 March 2009.

10.  A NGB Form 22 effective 2 July 2009 shows the applicant was discharged in the rank of staff sergeant/pay grade E-6.  This form also shows he held an Interim Secret security clearance based on a personnel security investigation completed on 14 November 2008.

11.  On 12 May 2011, the Chief, Congressional Inquiries, responded in a memorandum to the applicant's U.S. Senator's inquiry concerning the applicant's commissioning in the ARNG.

	a.  The ARNG Human Resources Policy and Programs Division carefully reviewed the applicant's letter.  Clearly the applicant suffered from a series of unfortunate circumstances resulting from his divorce and inability to find suitable civilian employment.

	b.  Being granted a commission in any military service is a privilege, not an entitlement.  Particularly in the case of a commission in the ARNG, there are special considerations in the U.S. Constitution.

	c.  The applicant's inability to accept a commission within 2 years of completing OCS was a result of his financial problems and personal career decisions.

	d.  By the time the applicant's clearance was approved, he was too old to re-enroll in OCS and complete the requirements prior to becoming 42 years of age.  The age limit for initial appointment of an officer is based on statute.

	e.  The applicant's implication that he was entitled to receive a direct commission is without merit.  Article 1, section 8, of the U.S. Constitution reserves to the States the right to appoint officers in the militia.  The National Guard is the modern militia.  While there is no Federal mandate for a Soldier to have previously deployed in order to receive a direct commission, it was entirely within the purview of the Adjutant General (TAG), NMARNG, to have established such a standard for his State's National Guard.

12.  The applicant wrote a letter of appeal to his U.S. Senator wherein he responded to the comments provided by the NGB.  In summary he stated:
	a.  the failure of the ILARNG to schedule a security interview was the cause of not receiving a final security clearance in time to accept an appointment;

	b.  seeking employment and his divorce did not affect the ILARNG's ability to schedule an interview with the security investigator;

	c.  TAG, NMARNG, held deployment as one of his requirements for a direct commission; and

	d.  he believed TAG, NMARNG, discriminated against him because of his race.

13.  The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 September 2012, shows he enlisted in the ARNGUS for a period of 1 year beginning in the rank of staff sergeant/pay grade E-6.  He furthermore swore allegiance in the NMARNG for this same 1-year period of service.

14.  NGR 600-100, dated 15 April 1994 prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, transfers between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG.

	a.  Paragraph 2-7b(2)(e) states that waiver of the maximum age limitation of basic branch commissioned officers may be considered if the applicant:

		(1)  becomes over-age due to administrative processing;

		(2)  possesses outstanding potential, military experience, leadership, abilities, and/or educational qualifications that are clearly documented in the application;

		(3)  in exceptional cases, the State Adjutant General may waive the maximum age limitations to allow entry and participation in a Federal or State OCS program.  Age at date of commission may not exceed 32 years and 6 months (it appears this might have been changed later); and

		(4)  an original appointment as a second lieutenant must be made prior to the individual's 35th birthday.

	b.  Paragraph 2-7b(2)(f) states an applicant's age must be such that the officer can serve at least 20 years before Federal recognition will be terminated under mandatory removal requirements prescribed in NGR 635-100.

	c.  Paragraph 2-7i states that applicants must have a final Secret clearance prior to appointment or reappointment as commissioned officers in the ARNG.

	d.  Paragraph 2-11c states that graduates of an accredited OCS, including those of other services, may be appointed in the grade of second lieutenant.  Graduates who are not qualified for appointment at the time of graduation have 2 years from the date of the OCS completion certificate to become qualified and receive Federal recognition or become ineligible for appointment.

	e.  Paragraph 3-1a(4) states that processing applications for appointment and Federal recognition require verification of a security clearance being granted by the U.S. Army Central Personnel Clearance Facility indicating a final personnel security clearance of Secret or higher.

15.  AR 380-67, paragraph 5-6 states that it is incumbent upon the subject of each personal security investigation to provide the personal information required by this regulation.  At a minimum, the individual shall complete the appropriate investigative forms, provide fingerprints of a quality acceptable to the FBI and execute a signed release, as necessary, authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was initially accepted into OCS in March 2006, began the security clearance process, completed all the appropriate forms, and submitted all appropriate forms along with his fingerprints to the 129th RTI Personnel Department are acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.  

2.  The evidence of record shows the applicant attended OCS from 12 June to 27 August 2006 while he was a member of the ILARNG.  He successfully completed the requirements, graduated, and received a Certificate of Completion on 27 August 2006.  Evidence shows he was voluntarily transferred to the AZARNG the following month.  However, evidence indicates he never performed any Reserve duty with the AZARNG prior to his transfer to the IRR.  As such, it is reasonable to presume the ILARNG/AZARNG would not have proceeded with any security clearance processing during that time.  
 
3.  Based on NGR 600-100, graduates who are not qualified for appointment at the time of graduation have 2 years from the date of the OCS completion certificate to become qualified and receive Federal recognition or become ineligible for appointment.  Therefore, the applicant had until 26 August 2008 to have a final Secret clearance to become qualified for appointment as a commissioned officer in the ARNG.

4.  The applicant's contention that he doesn't recall if he was asked to provide any release forms for medical, law enforcement, financial or any other records is acknowledged.  Based on AR 380-67 he should have executed a signed release, authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency.  

5.  The applicant's NGB Form 22 for the period ending 2 July 2009 shows he held an Interim Secret security clearance on 14 November 2008.  However, by this date, the applicant's Certificate of Completion from OCS had expired and he was over the maximum age to re-enroll in OCS.  

6.  The applicant contends that he didn't find out until he arrived in New Mexico that the 129th RTI Personnel Department didn't follow-up on the paperwork he submitted for his security clearance.  It appears that following all of the applicant's transfers and subsequent assignment with the NMARNG, his security clearance was finally processed.  However, the delays caused the process to exceed the 2-year limit associated with his OCS completion certificate to become qualified and receive Federal recognition or become ineligible for appointment.  

7.  Counsel contends that the applicant bore no responsibility for the delay in processing his security clearance and the 2-year delay was solely attributable to the military.  However, it was the applicant's responsibility to submit appropriate forms, including SF 86, release form, certificate form, and fingerprint card to the appropriate authorizing agency to initiate the investigation process.  Even if the applicant provided the appropriate documentation upon entering the OCS program as he contends, his absence from an active Reserve status during what appears to be the entire 2-year period following the issuance of his completion certificate would likely have caused any processing of his security clearance to cease or at best not proceed in a timely manner.   

8.  Counsel also contends that the applicant continues to suffer from the errors and injustices caused by the military's untimely processing of his security clearance.  However, the preponderance of evidence does not indicate that an error or injustice exists in this case.  Moreover, though the ILARNG may have failed to promptly process his security clearance, his absence during the 2-year period following his OCS completion would have been a significant factor in delaying a Secret security clearance.

9.  Based on the foregoing, there is insufficient evidence to support the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x_____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120012910, dated 12 March 2013.



      _____________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)                                         AR20140004719



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ABCMR Record of Proceedings (cont)                                         AR20140004719



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