PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          30 October 2001
	DOCKET NUMBER:  AR2001054765

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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, in effect, that his time served in the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR) be credited for retirement purposes.

3.  The applicant states, in effect, that in 1992 he was suspected of committing espionage and was investigated by the Federal Bureau Investigations (FBI), the Defense Investigative Service (DIS), and US Army Intelligence.  On 10 April 1993, his security clearance was suspended and he was placed in the IRR pending the outcome of the investigation.  In January 2001, he was cleared of all allegations after having fully cooperated with the investigation.  However, during the entire period he was under investigation he was denied the opportunity to earn retirement points and qualifying retirement years.  In addition, he was twice non-selected for promotion to the rank of major.  In support of his application, he submits copies of the following documents:  DA Form 4651-R (Request For Reserve Component Assignment or Attachment), dated 5 February 1993; Orders Number 81-8, dated 29 April 1993, issued by Headquarters, US Army Special Operations Command; Orders Number C-05-013494, dated 16 May 2000, issued by US Army Reserve Personnel Command (ARPERSCOM); and DA Form 
5248-R (Report of Unfavorable Information for Security Determination). 

4.  The applicant’s military records show that on 9 December 1992, he was commissioned a second lieutenant (2LT) in the USAR and has continuously served in that status since.  The highest rank he has attained during his USAR service is captain (CPT). 

5.  A DA Form 4651-R on file, dated 5 February 1993, confirms that the applicant’s commander requested he be relieved from his unit of assignment and involuntarily reassigned to the IRR under the provisions of chapter 2, 
Army Regulation 140-10, by reason of degree of efficiency and manner of performance.  

6.  Orders 81-8, dated 29 April 1993, issued by Headquarters, US Army Special Operations Command, shows that on 10 April 1993, the applicant was released from his unit and reassigned to the USAR Control Group (Reinf).

7.  Orders C-05-013494, dated by 16 May 2000, issued by ARPERSCOM shows that on 16 May 2000, the applicant was released from the USAR Control Group and assigned to the 391st Military Police Battalion.

8.  In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM, dated 23 April 2001.  ARPERSCOM officials opined that the applicant should be credited with the amount of retirement points required for a qualifying year of USAR service and that these points should be granted from 10 April 1993, the date of his involuntary transfer to the IRR, to the date he was cleared of all charges.  
9.  On 9 May 2001, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond, which he did with his concurrence on 17 May 2001. 

10.  On 8 August 2001, during the processing of this case a member of the Board staff conducted a telephonic Federal Bureau of Investigation (FBI) criminal records check and the results were negative. 

11.  During the processing of this case the Central Clearance Facility confirmed the applicant’s secret security was restored on 13 January 2001.

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he was unfairly denied the opportunity to earn retirement points and qualifying years of service for the entire period he was under investigation and finds this claim has merit. 

2.  The evidence of record confirms that on 10 April 1993, the applicant’s security clearance was suspended and he was involuntarily transferred to the IRR pending the outcome of an investigation, which ultimately cleared him of all allegations.  It is also clear that during the period the applicant was under a suspension of his security clearance and investigation he was unable to perform the service necessary to earn points and retirement service credit.  

3.  In view of the circumstances in this case, the Board concurs with the opinion rendered by ARPERSCOM officials that the applicant should be credited with the necessary retirement points required for a qualifying year in the USAR for the entire period he was under investigation. 

4.  Therefore, in the interest of justice and equity, the Board concludes that it would be appropriate to grant the applicant the necessary retirement points that would credit him with 8 qualifying years of USAR service for retired pay for the years 1993 through 2000. 

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 granting the individual concerned retirement points that would credit him with 8 qualifying years of USAR service for retired pay for the years 1993 through 2000.

BOARD VOTE:  

__CLA__  __AAO__  __HBO __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Celia L. Adolphi  __
						     CHAIRPERSON

INDEX

CASE ID	AR2001054765	
SUFFIX		
RECON		
DATE BOARDED	2001/10/30	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  334	135.0200	
2.		
3.		
4.		
5.		
6.