PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 November 2000
	DOCKET NUMBER:   AR2000042150

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests adjustment of his date of rank to master sergeant from 24 February 2000 back to 1 February 1999.

3.  The applicant states, in effect, that his security clearance was erroneously taken away from him on the basis of false allegations, and as a result, he was unfairly denied his promotion for more than a year.  In support of his application he provides a redacted copy of the findings and recommended decision of an Administrative Judge of the Defense Legal Services Agency, Defense Office of Hearings and Appeals (DOHA), a copy of a psychological assessment report, and memorandums from the United States Army Central Personnel Security Clearance Facility (USACCF) showing both intent to revoke and final revocation of his security clearance.

4.  The applicant’s military records show that he enlisted in the Army on 23 June 1982 for 4 years.  He served in a series of assignments both in the United States and overseas and progressed up through the ranks to master sergeant.  At the time of his application to this Board he was still serving on active duty in the rank of master sergeant, E-8.

5.  On 28 August 1998 the USACCF published a memorandum to the applicant to inform him of the intent to revoke his security clearance.  This was a preliminary decision based upon the applicant being charged with assault, being punished under the provisions of Article 15, Uniform Code of Military Justice, for a verbal altercation with his ex-wife, and based upon information provided by his former wife, a co-worker and his neighbor.  The memorandum offered the applicant an opportunity to explain or refute the adverse action.

6.  On 31 March 1999 the USACCF published another memorandum to the applicant (referred to in subsequent paragraphs as a Letter of Revocation).  It informed him that after a thorough evaluation of his response to the earlier USACCF memorandum, his security clearance was revoked.  This was due to the applicant’s failure to furnish sufficient evidence to explain, refute or mitigate the factors upon which the action was based.  Furthermore, it stated that the applicant had not provided medical evidence to refute his diagnosis of a Personality Disorder with mixed features, a medical condition that is incompatible with the standard of conduct required for holding a security clearance.  The applicant was informed that before reinstatement of his security clearance can be considered, his command must provide medical evidence from a credentialed mental health professional rendering a favorable prognosis.  He was given the opportunity to appeal this decision directly to the Personnel Security Appeals Board, or to request a personal appearance before an Administrative Judge.

7.  A redacted copy of the DOHA Administrative Judge’s decision, dated           15 October 1999 shows that the applicant requested a personal appearance on 12 July 1999.  His request was referred to the DOHA for an expedited conduct of a personal appearance and timely completion of a Recommended Decision.  The case was assigned on 16 July 1999 and the applicant was given notice to appear on 10 August 1999.

8.  The Administrative Judge noted in his findings of fact that: (1) the removal of the applicant’s security clearance was based on alleged alcohol consumption, criminal conduct, and emotional, mental and personality disorders; (2) the applicant was charged with assault in August 1990, but the charges were dismissed since during the course of the alleged assault, he did not strike his wife but did argue with her, and (3) in December 1992 the applicant was involved in a verbal dispute with his former wife regarding her desire to enter a noncommissioned officer’s club improperly dressed.  The Administrative Judge found the co-worker’s statement about the applicant’s quality of work performance not credible due to its inconsistency with the documented good job performance and praiseworthy character statements over an extended period of time.  The judge also found that the applicant’s alleged abusiveness, his uncontrolled violence and refusal to accept counseling were unsupportable due to a lack of documentation showing that he had physically abused his wife.  The judge noted that had the applicant been as brutal as described by his former wife, there clearly would have been more documentation supporting at least some of her claims of physical abuse.  The Administrative Judge’s review of the 3 mental health professional’s evaluative reports showed that the government expert attached considerable weight to the former wife’s claims.  However, the Judge chose to believe the applicant’s mental health professional (a clinical psychologist employed by the United States Army as Chief of the Psychology Service) because her report was more persuasive, in that she had reviewed the USACCF investigative report, along with the two previous psychological evaluations of the government and the private psychologist, including the testing data.  Having done so, she found that all psychological tests produced results within normal limits and that the government expert’s evaluation and diagnosis was not supportable.  Further, the Chief of Psychology Service stated that she could not find the diagnosis “Personality Disorder, with Mixed Features” in the Diagnostic and Statistical Manual on Mental Disorders.  Additionally, she could find no objective data supporting a personality disorder, particularly because the former wife’s allegations substantially contradicted the favorable character opinions provided by the applicant’s command over the years.

9.  The Administrative Judge concluded that none of the disqualifying conditions
for alcohol consumption that may result in revocation of a security clearance applied to the applicant.  He also concluded that there was insufficient evidence to support his former wife’s criminal conduct claims.  Lastly, he concluded that the government expert’s diagnosis couldn’t stand because it was convincingly discredited by both applicant’s private psychologist and his more recent psychologist, who is employed as Chief of Psychology at a military installation.  Based on the thoroughness of her evaluation and report, and the fact that another expert arrived at the same conclusions that she did regarding the psychological test results, and in the absence of psychopathology, as well as a personality disorder, the judge found that the applicant had no personality or other mental condition.

10.  The Administrative Judge recommended that in light of all the circumstances presented by the record in this personal appearance case, it was clearly consistent with national security to grant or continue a security clearance for the applicant, and to permit employment in sensitive duties. Accordingly, he recommended to the United States Army Personnel Security Appeals Board (PSAB) that the Letter of Revocation previously issued be overturned.

11.  In the processing of this case, the staff of the Board obtained an advisory opinion from the Chief, Promotions Branch, Total Army Personnel Command (PERSCOM).  It opined that because the applicant did not hold the required security clearance on 1 February 1999, when promotions were made through his sequence number, he was not promotable.  On 22 March 2000 he was promoted with a date of rank 24 February 2000, the day his security clearance was reinstated.  Since he was not fully qualified for promotion until his security clearance had been reinstated, he was not entitled to a retroactive promotion.  It recommended denial of the applicant’s request for retroactive adjustment of his date of rank.  A copy of the opinion was provided to the applicant for his information and opportunity to submit a rebuttal statement.

12. On 5 September 2000 the applicant responded to the PERSCOM opinion discussed above.  He took exception to the denial recommendation and stated that some vital information had not been considered by PERSCOM.  He discussed specific reasons why his security clearance was revoked, stated he was not at fault, and was entitled to his promotion as of 1 February 1999.

13.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Paragraph 1-10f of this regulation provides, in pertinent part, that soldiers in rank from private first class (E-3) through master sergeant (E-8) are nonpromotable to a higher grade when they are without appropriate security clearance or favorable security investigation for promotion to the grade and military occupational specialty.  Soldiers will regain promotable status the day they receive the appropriate level clearance.

CONCLUSIONS:

1.  The applicant’s contention that USACCF unjustly revoked his security clearance is fully supported by the findings, conclusions and recommendation of the Administrative Judge, which resulted in his clearance being reinstated.

2.  Furthermore, the Administrative Judge took the position that there was no real evidence that the applicant ever had a mental condition disqualifying him to hold a security clearance.

3.  The advisory opinion only concerned itself with whether or not the applicant had a security clearance.  It did not consider the fact that the applicant’s security clearance was revoked on the basis of what was eventually determined to be unsubstantiated allegations.

4.  Therefore, if the unsubstantiated allegations had not occurred the applicant would have received his promotion to master sergeant (E-8) on 1 February 1999.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was promoted to the rank of master sergeant (E-8), with a date of rank and effective date of 1 February 1999.

BOARD VOTE:  

__GDP___  __ALR__  __BFH___GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___George D. Paxson___
		        CHAIRPERSON

INDEX

CASE ID	AR2000042150	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001107	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	131.04	
2.		
3.		
4.		
5.		
6.