IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20080005940 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, in effect, all records of non-judicial punishment (NJP) be removed from his Official Military Personnel File (OMPF), all records related to the suspension of his security clearance be removed from the Joint Personnel Adjudication System (JPAS) and his Officer Record Brief (ORB), and reinstatement on active duty as an O-6. 2. The applicant, in effect, defers to his counsel. 3. The applicant provides a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 21 March 2005, with Continuation Sheet Number 1; DA Form 67-9 (Officer Evaluation Report [OER]) for the period from 19 April 2004 through 16 March 2005; Headquarters, Joint Task Force (JTF) Guantanamo (GTMO), U.S. Naval Base, Guantanamo Bay, Cuba, memorandum, dated 21 March 2005, subject: Reprimand; Headquarters, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba, memorandum, dated 12 March 2005, subject: Notification of Relief for Cause and Referral of Adverse Information; Applicant’s Declaration, dated 13 November 2006; 5 pages of extracts from an Investigator’s Report, undated; DA Form 2823 (Sworn Statement), Melissa L. S______, dated 28 February 2005; DA Form 2823 (Sworn Statement), Heather S.G. C________, dated 2 March 2005; DA From 3881 (Rights Warning Procedure/Waiver Certificate), Heather S.G. C________, dated 2 March 2005; Voluntary Statement, Tammy L. H_____, dated 3 March 2005; and DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 4 March 2005. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, processing priority of the applicant’s request that is equivalent to a case filed on 4 December 2006. 2. Counsel states, in effect, that the applicant’s request for correction of his records has run a convoluted course. Counsel adds that the original application was returned by the Army Board for Correction of Military Records (ABCMR) on exhaustion grounds stating that the Department of the Army Suitability Evaluation Board (DASEB) was the appropriate office for the applicant to petition. However, upon application to the DASEB, the applicant was informed that the ABCMR was the responsible Army organization for the consideration of requests from former Soldiers that pertain to the removal of an Article 15 (i.e., NJP) from the OMPF. In addition, in its letter, the DASEB advised that the ABCMR had agreed to take the case back for processing. Accordingly, counsel resubmits the application to the ABCMR on behalf of the applicant. 3. Counsel states that there are 3 material errors that were prejudicial to the applicant’s substantial rights, as follows: (1) the NJP was deficient because the Army failed to prove that the applicant’s conduct prejudiced good order and discipline. Counsel also states that “[a]ny pleas that resulted from the command investigation were improvident because [the] applicant’s conduct could not have satisfied the prejudice element of adultery;” (2) the applicant “was erroneously told that Colonel’s Division could not reassign him because of his suspended security clearance. With his PCS [permanent change of station] leave dwindling, applicant relied on that misinformation to decide to retire before the CCF [Central Clearance Facility] provided him written notice of his suspended clearance, before the clearance could be adjudicated, and before he could accrue the time in grade to retire as a colonel;” and (3) the applicant “was never notified of the government’s intent to suspend his security clearance. He never had an opportunity to respond to the suspension. As such, he was denied the basic protections articulated in 32 CFR 154.55.” a. Counsel provides a chronological summary of events, from 4 March 2005 through 31 (sic) April 2005, that relates to documents submitted as enclosures to the DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552). The chronological summary includes information pertaining to the applicant’s suspension from duties; his interview with the investigator to whom he admitted a sexual relationship with 2 women; the advice he received from Legal Assistance, Fort Benning, Georgia; notification of his relief for cause; notification of Article 15 proceedings; his guilty pleas on 21 March 2005 to Article 133 and Article 134 and his punishment; information on a pending assignment to the Rapid Fielding Initiative (RFI) in the Army G-3 (provided to the applicant by the Commander, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba); information that suspension of his security clearance precluded his assignment to the RFI billet and that all colonel (O-6) positions require a security clearance (provided to the applicant by the Colonel’s Division, U.S. Army Human Resources Command (USA HRC)); rumors within the Military Police (MP), Field Grade Assignments Office, USA HRC, of the adultery charges and being “black balled”; conversation with the Deputy Commander, CCF, concerning his security clearance; assignment to the U.S. Army Criminal Investigation Division (CID) Command and submission of his application for retirement; information that his security clearance was suspended in the JPAS and that this was a “local” and temporary suspension (provided by the J2 at Guantanamo Bay); the absence of any written notification being received concerning suspension of his clearance; that CCF “apparently entered a loss of jurisdiction into JPAS” after submission of his retirement papers; and the applicant’s retirement as a lieutenant colonel “on 31 (sic) April 2005.” b. Counsel states that the applicant never admitted, and the government failed to prove, that the applicant’s conduct was prejudicial to good order and discipline. He refers to language in Article 134, UCMJ, and asserts that because the charge sheet does not allege any conduct prejudicial to good order and discipline, that it is difficult to determine how the government intended to satisfy that element of Article 134. He also states that there is insufficient evidence in the command investigation to prove that the applicant’s conduct was prejudicial to good order and discipline. (1) Counsel acknowledges that the applicant’s rank and position weigh in favor of prejudice; however, he adds that factor alone is not sufficient. Counsel offers that the co-actors’ ranks and positions weigh against prejudice because they were an officer and contractor and not in the applicant’s chain of command. In addition, neither the applicant nor his co-actors had a military spouse. Counsel also states that there is no evidence that the relationship had any negative impact on either the applicant’s or the co-actors’ ability to do their jobs. He further states that the only allegation of misuse of government time or resources is evidence that a government email system was used, which was quite minimal and not palpable within the context of Article 134. (2) Counsel states that the applicant’s conduct was neither persistent nor flagrant and he admitted to having 3 affairs: one with Lieutenant Melissa L. S______, an officer; one with Ms. Heather S.G. C________, a contractor; and one with Ms. Tammy L. H_____. Counsel refers to the co-authors’ sworn statements regarding the relationships they each had with the applicant and points out that the affairs were short and discreet. (3) Counsel states that there is no evidence in the command investigation that the applicant’s adulterous relationships had a negative impact on the unit. Counsel also points out that the investigation did not find any disparate treatment between officers and enlisted personnel or that the applicant’s conduct had an “obvious and measurably divisive effect on unit or organization discipline, morale, or cohesion within the meaning of Article 134.” In addition, counsel asserts that “because of the discrete (emphasis added) nature of the conduct, it did not bring discredit on the armed forces or prejudice good order and discipline.” (4) Counsel acknowledges that the command investigation did express concerns about the importance and sensitivity of the applicant’s billet and damage that his conduct could cause in the Global War on Terror. However, counsel asserts that “there is no evidence on the record that [the applicant’s] conduct brought any prejudice or discredit to the Service or Global War on Terror” and that “[t]his type of concern is the exact reason that the drafters of the UCMJ require a direct and palpable link to prejudice.” (5) Counsel concludes that, based on the deficiencies outlined, the DA Form 2627 should be removed from the applicant’s OMPF and the suspension of his security clearance should also be removed from the JPAS and his ORB. c. Counsel states the applicant was involuntarily retired at the O-5 pay grade. (1) Counsel asserts that following the applicant’s relief from command, Headquarters, Department of the Army (HQDA), was unable to issue him new orders and cited a requirement that all colonels must possess a security clearance to receive orders. However, Army Regulation 600-37, paragraph 4-4(a)(5), “is clear that when a commander learns of derogatory information that requires suspension of a security clearance, he should reassign the Soldier to a non-sensitive position.” Counsel argues that, given the applicant’s 30 years of service and qualifications, HQDA should have been able to find him a non-sensitive billet. (2) Counsel states that the essence of this issue is whether the applicant “voluntarily” retired and that this issue has been the subject of extensive litigation in federal courts. Counsel acknowledges it is settled that no relief is available for a separation or retirement that is truly voluntary, and that retirements and separations are presumed to be voluntary. He also cites 3 specific federal cases. However, counsel adds that in McIntyre v. United States, 30 Federal Claims (Fed. Cl.) 207 (1993), “determination of whether a specific…retirement qualifies as voluntary requires an examination of all the facts and circumstances.” (3) Counsel states the Courts have identified multiple circumstances that could serve to rebut the presumption of voluntariness. He also states, in the applicant’s case, the circumstances were “government misrepresentation and the time pressure that resulted from his availability of leave and the Army’s unwillingness to issue him orders.” Counsel concludes by stating, the “applicant was forced to retire early because the Army informed him that they could not reassign him because of the suspended clearance.” (4) Counsel states that “[t]he test for voluntariness is not a subjective standard, rather it is an objective reasonable person standard” and he cites 2 specific federal cases. Counsel adds that in Kim v. United States, 47 Fed. Cl. 493, 501 (2000), “[e]stablishing that the agency intentionally deceived the employee, however, is not required for the court to declare a resignation voluntary (sic) [involuntary]. The misleading information can be negligently or even innocently provided; if the employee materially relies on the misinformation to his detriment, his retirement is considered involuntary.” (5) Counsel states that prior to the applicant’s departure from Guantanamo Bay he was told by his commanding general that he would be reassigned to the RFI. However, following his departure, orders were not issued because of the suspended security clearance. Counsel also states that the applicant was in daily contact with the Colonel’s Division between 25 March 2005 and 28 March 2005 and was advised to continue in a leave status pending an assignment. He further contends, “[e]ventually [the applicant] was told that the Army could not reassign a colonel without a security clearance.” Counsel adds that the applicant was subsequently assigned to the CID command for purposes of retirement. (6) Counsel states that, by 12 April 2005, the applicant’s clearance had been suspended for nearly 3 weeks and he had not received any written notice. Counsel adds the applicant believed the suspension of his clearance was local and would not have any outside impact on his career, and he did not discover that the suspension was problematic until he was denied reassignment. Counsel further states that “[w]ith his leave dwindling, his clearance mired in bureaucracy, no orders, and an Army unwilling to explain his options, applicant had little choice but to retire.” (7) Counsel concludes by stating, “i[f] afforded the proper notification, applicant would have responded appropriately to the security clearance suspension. Moreover, he would have stayed on active duty long enough to address the suspension of his clearance and possibly even to accrue the time in grade required to retire as a colonel.” d. Counsel states that there was lack of notice to the applicant regarding suspension of his security clearance. (1) Counsel cites Consolidated Federal Regulation (CFR) 32 (National Defense), Subpart H (Unfavorable Administrative Actions), paragraphs 154.55 (Requirements) and 154.56 (Procedures), and maintains the applicant was not afforded the full range of protections contained therein. (2) Counsel acknowledges that the suspension of the applicant’s security clearance by his commander was within the commander’s purview; however, he asserts, “the allegations of adultery did not impeach his trustworthiness to the extent that a suspension of his clearance was necessary.” Counsel adds that the applicant is not asking the Board to review the decision to suspend his security clearance; however, “[h]e asks the Board to address the issue of lack of notice.” Counsel maintains that the “[a]pplicant was prejudiced because he was not afforded any of the procedural protections in 32 CFR 154.56(b). (3) Counsel concludes by stating the “[a]pplicant was forced to make uninformed career changing decisions because the Army suspended his security clearance and then refused to cut him orders to a command.” The applicant requests removal of the suspension of clearance from the JPAS and his ORB. 4. Counsel provides two Gary M____, James C___ & Associates, Attorneys-at-Law, memoranda, dated 27 July 2007 and 4 April 2008, along with a 14-page Supplemental Statement, undated. CONSIDERATION OF EVIDENCE: 1. The applicant's military service records show he enlisted in the U.S. Army Reserve (USAR) on 22 December 1975 and entered active duty in the Regular Army (RA) on 6 January 1976. Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 95B (Military Policeman). The applicant attained the rank of Sergeant (SGT)/pay grade E-5 and was honorably discharged on 10 March 1982 for appointment as a Reserve commissioned officer. 2. The applicant’s military records show he accepted appointment as a Reserve commissioned officer, in the rank of Second Lieutenant/pay grade O-1, as a member of the MP Corps, effective 11 March 1982. The applicant was promoted to the rank of Lieutenant Colonel (LTC)/pay grade O-5, effective 1 October 1998 and he served in support of Operation Iraqi Freedom from 11 January 2004 to 1 August 2004. He was promoted to the rank of Colonel (COL)/pay grade O-6, effective and with a date of rank (DOR) of 1 September 2004. 3. The applicant's military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 21 March 2005, with Continuation Sheet Number 1. This documentation shows that NJP was imposed by the commander against the applicant for the Charge: Article 134 (Adultery), UCMJ, 3 specifications; and the Charge: Article 133 (Conduct Unbecoming an Officer and Gentleman), UCMJ, 1 specification. The DA Form 2627 shows that the applicant did not demand trial by court-martial in the Article 15 proceedings; he requested a closed hearing; a person to speak in his behalf was not requested; and matters in extenuation, mitigation, or defense were not presented. The DA Form 2627 also shows that, in a closed hearing, all matters presented in defense, mitigation, and/or extenuation were considered by the commander. The punishment imposed by the commander was written reprimand and forfeiture of $4,288.00 pay per month for 2 consecutive months. The commander also directed that the DA Form 2627 be filed in the performance portion of the applicant’s OMPF. The applicant signed the document in Item 7 and also indicated with his initials that he did not appeal the Article 15. This documentation is filed in the performance portion of the applicant’s OMPF. 4. The applicant's military service records contain a copy of Headquarters, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba, memorandum, dated 21 March 2005, subject: Reprimand, that shows the Commander, JTF GTMO, U.S. Naval Base, Guantanamo, Bay, Cuba, issued his written reprimand of the applicant for conduct unbecoming an officer and for committing adultery; this conduct being in violation of Articles 133 and 134, UCMJ. This document is filed in the performance portion of the applicant’s OMPF. 5. The applicant's military service records contain a DA Form 67-9 (OER) for the period from 19 April 2004 through 16 March 2005, prepared by Brigadier General (BG) Jay W. H___, Commander, JTO GTMO. Part I (Administrative Data), block h (Reason for Submission) contains the entry “Relief for Cause.” Part III (Duty Description), block a (Principal Duty Title) contains the entry “Joint Detention Operations Group Commander.” Part V (Performance and Potential Evaluation), block a (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion), shows that the applicant’s rater placed an “X” in the “Unsatisfactory Performance, Do Not Promote” block. Block b (Comment on Specific Aspects of the Performance and Potential for Promotion, Refer to Part III, DA Form 67-9 and Part IVa, b, and c, DA Form 67-9-1) shows that the rater entered the sentence, “[p]erforming rater and senior rater function in accordance with paragraph 2-21 of AR 623-105.” This document is filed in the performance portion of the applicant’s OMPF. 6. The applicant's military service records contain a Service Computation for Retirement (Automated), dated 31 May 2005, that was prepared during the applicant’s retirement processing. Item 26 (RA Grade) contains the entry “COL” and Item 29 (Highest AD [Active Duty] Grade Held) contains the entry “O5.” 7. The applicant’s military service records contain a copy of Headquarters, U.S. Army Garrison, Fort Belvoir, Fort Belvoir, Virginia, Orders 151-0003, dated 31 May 2005. These orders show the applicant was serving on active duty in the rank of colonel and was assigned to Headquarters, U.S. Army CID Command, Fort Belvoir, Virginia. These orders also show that he retired from active duty on 31 May 2005 and he was placed on the retired list, effective 1 June 2005, in the grade of LTC with a DOR of 1 October 1998. These orders further show that the statute authorizing retirement was Title 10, United States Code (USC), sections 3911 and 1370. 8. The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty). This document shows that the applicant was honorably retired on 31 May 2005 based on sufficient service for retirement and the authority cited was Army Regulation 600-8-24, paragraph 6-14c(1). This document also shows that he was credited with completing 23 years, 2 months, and 20 days net active service this period; 6 years, 2 months, and 5 days total prior active service; 0 years, 0 months, and 14 days total prior inactive service; and 3 years, 1 month, and 13 days foreign service. Item 21 (Signature of Member Being Separated) of the DD Form 214 shows the applicant placed his signature in this item indicating he had reviewed the information recorded on the document. 9. In support of this request, the applicant and his counsel provide copies of the following documents. a. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 21 March 2005, with Continuation Sheet Number 1; DA Form 67-9 (OER) for the period from 19 April 2004 through 16 March 2005; and Headquarters, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba, memorandum, dated 21 March 2005, subject: Reprimand. These documents were previously introduced and considered in this Record of Proceedings. b. Headquarters, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba, memorandum, dated 12 March 2005, subject: Notification of Relief for Cause and Referral of Adverse Information. This document shows, in pertinent part, BG Jay W. H___, Commander, JTF GTMO, U.S. Naval Base, Guantanamo Bay, Cuba, confirmed that, on 4 March 2005, he had suspended the applicant from duties pending completion of an investigation. This document also shows that the commander notified the applicant he intended to relieve him from command, informed him the investigation revealed the applicant committed adultery with several women and his misconduct was widely known within his command, and he was advised “[y]our misconduct had a detrimental impact on good order and discipline in your unit and comprised your ability to command.” This document further shows that the applicant was afforded 72 hours to submit any response that he wanted the commander to consider. c. Applicant’s Declaration, dated 13 November 2006, that provides a chronological summary of events, from March 2005 through April 2005, that essentially forms the basis of the applicant’s input to his DD Form 149, Item 6 (I Believe The Record To Be In Error Or Unjust For The Following Reasons:), which was previously introduced and considered in this Record of Proceedings. d. Five pages of extracts from an investigator’s report, undated, that appear to be from the Investigating Officer’s (IO) report pertaining to the applicant. The extracts, in pertinent part, show the IO found the applicant’s conduct violated Article 134 (Adultery), Article 133 (Conduct Unbecoming an Officer), Article 92 (Violation of an Order through Misuse of a Government Computer), and Article 92 (Dereliction of Duty), UCMJ; the IO found no evidence of disparate UCMJ treatment between officer and enlisted personnel; the IO offered other relevant findings with respect to improper relationships, fraternization, and adultery; and the IO also provided his “Considerations in Making Recommendations.” e. A DA Form 2823 (Sworn Statement), Melissa L. S______, dated 28 February 2005, in which she documents, in pertinent part, that she had an inappropriate sexual relationship with the applicant. f. DA Form 2823 (Sworn Statement), Heather S.G. C________, dated 2 March 2005 and DA From 3881 (Rights Warning Procedure/Waiver Certificate), Heather S.G. C________, dated 2 March 2005, in which she documents, in pertinent part, that she had an inappropriate sexual relationship with the applicant and that he spoke of this relationship in the presence of several troops. g. Voluntary Statement, Tammy L. H_____, dated 3 March 2005, in which she documents, in pertinent part, that she flirted with the applicant and that he attempted to pursue a relationship for a few weeks. h. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 4 March 2005, which documents that Colonel John A. F______, United States Marine Corps, was appointed as an IO by BG Jay W. H___, Commander, JTF GTMO, Guantanamo Bay, Cuba. Section IV (Findings) of the DA Form 1574 shows, in pertinent part, that the investigation focused on a period time between September 2004 and February 2005 and the IO’s “investigation revealed direct and circumstantial evidence of several adulterous relationships among senior ranking military personnel and two contract employees in the command.” This item also contains the entry “See Findings Continued Next Page”; however, the applicant does not provide the continuation page(s). 10. Title 10, USC, Chapter 47 (Uniform Code of Military Justice), Article 133, provides that any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. Article 134 provides that, though not specifically mentioned in Chapter 47 of Title 10, USC, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. 11. The Manual for Courts-Martial (MCM), United States, Article 133 (Conduct unbecoming an officer and gentleman), lists the elements of conduct unbecoming an officer and gentleman, as follows: that the accused did or omitted to do certain acts; and that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer. 12. The MCM, United States, Article 134 (Adultery), lists the elements of adultery, as follows: that the accused wrongfully had sexual intercourse with a certain person; that, at the time, the accused or the other person was married to someone else; and that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Article 134 also states that commanders should consider all relevant factors, including but not limited to the following factors, when determining whether adulterous acts are prejudicial to good order and discipline or are of a nature to bring discredit upon the armed forces: the accused’s marital status, military rank, grade, or position; the co-actor’s marital status, military rank, grade, and position, or relationship to the armed forces; the military status of the accused’s spouse or the spouse of co-actor, or their relationship to the armed forces; the impact, if any, of the adulterous relationship on the ability of the accused, the co-actor, or the spouse of either to perform their duties in support of the armed forces; the misuse, if any, of government time and resources to facilitate the commission of the conduct; whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ; the negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; whether the accused or co-actor was legally separated; and whether the adulterous misconduct involves an ongoing or recent relationship or is remote in time. 13. Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM) and the Rules for Courts-Martial contained in the MCM. Chapter 3 (Non-judicial Punishment) implements and amplifies Article 15, UCMJ, and Part V of the MCM. Paragraph 3-2 (Use of non-judicial punishment) states that a commander should use non-judicial measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (see paragraph 1d(1), part V, MCM). Use of non-judicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that non-judicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for non-judicial punishment to have the proper corrective effect. Non-judicial punishment may be imposed to: correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. 14. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) provides U.S. Army policy guidance and procedures to operate a system to guard against the accidental execution of specified favorable personnel actions for Soldiers not in good standing. Paragraph 1-12 (Circumstances requiring a non-transferable flag) (i.e., the flag may not be transferred to another unit, except where consistent with paragraph 1-15) provides the specific actions and investigations that require a non-transferable flag, which include, in pertinent part, non-judicial punishment (i.e., remove the flag upon completion of punishment, to include any term of suspension) and a security violation for violation of Articles 94, 104, 106, 133, and 134 of the UCMJ (i.e., remove the flag upon direction from the Secretary of the Army). Paragraph 1-15 (Processing exceptions), in pertinent part, provides the following exceptions: reassignment (i.e., Soldiers in receipt of HQDA reassignment instructions may depart when their case moves into the punishment phase, if the punishment does not require the Soldier’s continued presence); advance or excess leave; and unqualified resignation, discharge or retirement. 15. Army Regulation 601-100 (Appointment of Commissioned and Warrant Officers in the Regular Army) prescribes policy, eligibility requirements, and administrative procedures for the appointment of commissioned and warrant officers in the Regular Army. Paragraph 1-8 (Security clearance) of this Army regulation states, in pertinent part, that individuals must have a Secret security clearance in accordance with Army Regulation 380-67. 16. Army Regulation 380-67 (Personnel Security Program) establishes policies and procedures to ensure the acceptance and retention of personnel in the Armed Forces of the United States Army; acceptance and retention of civilian employees in the DoD and DA; and granting members of the Armed Forces, Army, DA and DoD civilian employees, DA and DoD contractors, and other affiliated persons access to classified information and assignment to sensitive positions are clearly consistent with the interests of national security. a. Section III (Definitions), paragraph 1-327.1, defines suspension of access as the temporary withdrawal of a person’s eligibility for access to classified information. Access is suspended when information becomes known that casts doubt on whether continued access is consistent with national security interests. b. Section III, paragraph 1-328, defines unfavorable administrative action as an adverse action taken as the result of personnel security determinations and unfavorable personnel security determinations as defined in this regulation. c. Section III, paragraph 1-329, defines unfavorable personnel security determination as a denial or revocation of clearance for access to classified information; denial or revocation of access to classified information; denial or revocation of a Special Access authorization (including access to Special Compartmented Information); retention, nonappointment to or nonselection for appointment to a sensitive position; retention, nonappointment to or nonselection for any other position requiring a trustworthiness determination under this regulation; reassignment to a position of lesser sensitivity or to a nonsensitive position; and nonacceptance for or discharge from the Armed Forces when any of the foregoing actions are based on derogatory information of personnel security significance. d. Chapter 2 (Policies), paragraph 2-200 (Criteria for application of security standards), states that the ultimate decision in applying either of the security standards set forth in paragraphs 2-100 (General) or 2-101 (Clearance and sensitive position standard) must be an overall common sense determination based upon all available facts. The criteria for determining eligibility for a clearance or assignment to a sensitive position under the security standard shall include, but not be limited to, in pertinent part, acts of sexual misconduct or perversion indicative or moral turpitude, poor judgment, or lack of regard for the laws of society. e. Chapter 8 (Unfavorable Administrative Actions), paragraph 8-102 (Suspension), in pertinent part, provides that the commander may wish to suspend access on an “informal” basis while gathering information to determine whether or not formal suspension is warranted. This paragraph also states, if the commander has any doubts concerning the person’s current acceptability for access, the case will be referred to the Commander, CCF. It also states that a commander who suspends access to classified information will ensure the suspension is documented in the Field Determined Personnel Security Status data field of the Standard Installation/Division Personnel System (SIDPERS) personnel file. f. Chapter 8, paragraph 8-201 (Unfavorable administrative action procedures), in pertinent part, provides that no unfavorable administrative action shall be taken under the authority of this regulation unless the person concerned has been given a written statement of the reasons why the unfavorable administrative action is being taken. 17. Consolidated Federal Regulation (CFR) 32 (National Defense), Chapter 1 (Secretary of Defense), Part 154 (Department of Defense Personnel Security Program Regulation), Subpart A (General Provisions), section 154.3 (Definitions), in pertinent part, defines “adverse action” as a removal from employment, suspension from employment of more than 14 days, reduction in grade, reduction in pay, or furlough of 30 days or less.” 18. CFR 32, Chapter 1, Subpart H (Unfavorable Administrative Actions), section 154.55 (Requirements), in pertinent part, states that for purposes of this part, an unfavorable administrative action includes any adverse action which is taken as a result of a personnel security determination, as defined at section 154.3, and any unfavorable personnel security determination. 19. CFR 32, Chapter 1, Subpart H, section 154.55, subsection c (Suspension), provides, in pertinent part, that the commander or head of the organization shall determine whether, on the basis of all facts available upon receipt of the initial derogatory information, it is in the interests of national security to continue subject's security status unchanged or to take interim action to suspend subject's access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), if information exists which raises serious questions as to the individual's ability or intent to protect classified information or execute sensitive duties (or other duties requiring a trustworthiness determination) until a final determination is made by the appropriate authority designated in appendix F to this part. Whenever a determination is made to suspend a security clearance for access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), the individual concerned must be notified of the determination in writing by the commander, or head of the component or adjudicative authority, to include a brief statement of the reason(s) for the suspension action consistent with the interests of national security. Component field elements must promptly report all suspension actions to the appropriate central adjudicative authority, but not later than 10 working days from the date of the suspension action. The adjudicative authority will immediately update the DCII Eligibility and Access fields to alert all users to the individual's changed status. Every effort shall be made to resolve suspension cases as expeditiously as circumstances permit. Suspension cases exceeding 180 days shall be closely monitored and managed by the DoD Component concerned until finally resolved. Suspension cases pending in excess of 12 months will be reported to the DASD (CI&SCM) for review and appropriate action. A final security clearance eligibility determination shall be made for all suspension actions and the determination entered in the DCII. If, however, the individual under suspension leaves the jurisdiction of the Department of Defense and no longer requires a clearance (or trustworthiness determination), entry of the “Z” Code (adjudication action incomplete due to loss of jurisdiction) in the clearance eligibility field is appropriate. In no case shall a “suspension'” code (Code Y) remain as a permanent record in the DCII. 20. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. This document states that only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. This Army regulation also instructs, in pertinent part, that once placed in the OMPF, the document becomes a permanent part of that file and will not be removed or moved to another part of the OMPF, unless directed by appropriate authority. Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed by Item 5 of the DA Form 2627, or appropriate authority. This Table also directs, in pertinent part, if the DA Form 2627 shows punishment of written reprimand, it is filed in the OMPF. Table 2-1 further shows that the DA Form 67-9 is to be filed in the performance section of the OMPF. 21. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 22. Army Regulation 600-37, paragraph 4-4 (Resolution of unfavorable information in intelligence personnel security files), states when a commander learns of unfavorable information from intelligence, personnel security files, and security investigations, or any other credible source, he or she will, in pertinent part, reassign the person to a nonsensitve position. 23. Army Regulation 600-37, Chapter 7 (Appeals and Petitions), provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Policies and standards) of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. The authority to adjudicate such claims rests with the Army Board for Correction of Military Records, under Army Regulation 15-185, after the recipient has exhausted all other means for administrative remedy as contained in Army Regulation 27-10. 24. Army Regulation 600-8-24 (Officer Transfers and Discharges), in effect at the time, prescribed policies and procedures governing transfer and discharge of Army officer personnel. Chapter 6 (Retirements) applied to the non-disability retirement of active duty list commissioned officers and warrant officers on active duty. Section II (Voluntary Retirements), paragraph 6-14 (Approval authority), subparagraph c, provides guidance for retirement at 20 years of service, and subsection 1 states, in pertinent part, that an RA or USAR commissioned officer with 20 years Active Federal Service (of which 10 years is active commissioned service) may on his or her request and the approval of the Secretary of the Army be retired (Title 10, USC, section 3911). 25. Title 10, USC, Chapter 367 (Retirement for Length of Service), section 3911 (Twenty years or more: regular or reserve commissioned officers), in pertinent part, provides that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer. 26. Title 10, USC, Chapter 69 (Retired Grade), section 1370 (Commissioned officers: general rule; exceptions), provides the rules for retirement in the highest grade held satisfactorily and states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months. This section also provides, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander (O-4), a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years. 27. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. Paragraph 1-14 (Separation authorities) states that separation authorities will accomplish automatic grade determinations at the time of a Soldier’s separation. Paragraph 2-3 (Automatic grade determinations) provides that most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and regulation. For example, an officer will normally retire at the highest grade served, unless the officer failed to meet statutory time in grade requirements (emphasis added). 28. The Merriam-Webster Dictionary defines the word “discreet as showing good judgment; prudent; capable of observing prudent silence” and defines the word “discrete” as individually distinct; noncontinuous.” 29. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant and his counsel contend, in effect, that all records of NJP should be removed from the applicant’s OMPF, all records related to the suspension of his security clearance should be removed from his ORB and JPAS, and the applicant should be reinstated on active duty as an O-6. 2. Applicant’s counsel contends that the applicant’s affairs were “short and discreet.” Applicant’s counsel also contends that “because of the “discrete” nature of the conduct, it did not bring discredit on the armed forces or prejudice good order and discipline.” a. The evidence of record shows the applicant spoke of his relationship with Ms. Heather S.G. C________ in the presence of several troops (emphasis added). The evidence of record also shows that the applicant’s commander notified him he intended to relieve him from command because, in pertinent part, “his misconduct was widely known within his command.” Thus, while the applicant’s affairs may have been “short,” the evidence of record refutes that the applicant was “discreet” regarding the affairs. b. The evidence of record shows the applicant had inappropriate sexual relationships with at least two women. While this conduct may have been “discrete” (i.e., individually distinct), the evidence of record refutes that it was “noncontinuous.” Moreover, the evidence of record shows the applicant’s commander informed him that “[y]our misconduct had a detrimental impact on good order and discipline in your unit and compromised your ability to command.” Thus, it is reasonable to conclude that the applicant’s misconduct (i.e., which compromised the applicant’s ability to command) brought discredit on the armed forces. c. Therefore, in view of the foregoing, the evidence of record refutes counsel’s contentions regarding the applicant’s affairs. 3. Applicant’s counsel questions how the government intended to satisfy the element of Article 134 of conduct prejudicial to good order and discipline. (It is noted that the evidence of record shows that applicant’s counsel acknowledges that the applicant pled guilty to Article 134 and Article 133 on 21 March 2005.) a. The evidence of record shows that NJP was imposed by the commander against the applicant for, in pertinent part, violation of Article 134 (Adultery) of the UCMJ. The evidence of record also shows the applicant accepted punishment under Article 15 rather than demand trial by court-martial. b. Thus, in view of the foregoing, counsel’s question appears moot in that the applicant effectively foreclosed on the venue where the government would have had the opportunity to present evidence in support of the charge against the applicant and to satisfy the element of conduct prejudicial to good order and discipline. 4. Applicant’s counsel contends that if the applicant had been afforded the proper notification, the applicant would have responded appropriately to the security clearance suspension. Moreover, he would have stayed on active duty long enough to address the suspension of his clearance and possibly even to accrue the time in grade required to retire as a colonel. a. The evidence of record shows 32 CFR, Chapter 1, subsection 154.55c, states that whenever a determination is made to suspend a security clearance (emphasis added) for access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), the individual concerned must be notified of the determination in writing by the commander, or head of the component or adjudicative authority, to include a brief statement of the reason(s) for the suspension action consistent with the interests of national security. Component field elements must promptly report all suspension actions to the appropriate central adjudicative authority, but not later than 10 working days from the date of the suspension action. b. The evidence of record shows that Army Regulation 380-67 provides that the commander may wish to suspend access to classified information on an “informal” basis while gathering information to determine whether or not formal suspension is warranted (emphasis added). This paragraph also states, if the commander has any doubts concerning the person’s current acceptability for access, the case will be referred to the Commander, CCF. It also states that a commander who suspends access to classified information will ensure the suspension is documented in the Field Determined Personnel Security Status data field of the SIDPERS personnel file. c. The evidence of record shows that on 25 March 2005, the date the applicant left Guantanamo Bay, Cuba, he was informed of the “local” (i.e., “informal”) suspension of his security clearance. d. The evidence of record confirms the JPAS and SIDPERS data bases (i.e., applicant’s ORB) were updated to reflect the status (i.e., suspension) of the applicant’s security clearance. e. The evidence of record shows that no unfavorable administrative action shall be taken under Army Regulation 380-67 unless the person concerned has been given a written statement of the reasons why the unfavorable administrative action is being taken. This regulation defines unfavorable administrative action as an adverse action taken as the result of personnel security determinations and unfavorable personnel security determinations (emphasis added) as defined in this regulation. This regulation defines an unfavorable personnel security determination as a denial or revocation of clearance (emphasis added) for access to classified information. f. There is no evidence of record that a determination was made to revoke the applicant’s security clearance, which would have required notice to the applicant. Thus, the fact that an unfavorable personnel security determination had not been made (and an unfavorable administrative action had not been taken) under authority of Army Regulation 380-67, the requirement for the applicant to be given a written statement of the reasons why the unfavorable administrative action was being taken had not yet been arrived at in the applicant’s case. g. The evidence of record shows the applicant served on active duty for more than 29 years, was a senior U.S. Army officer in the MP Corps, and served as the commander of MP units during his military career. The mission and organization of MP units is such that they are primarily comprised of Soldiers of the MP Corps and, due to the sensitivity of their duties, Soldiers in the MP Corps are required to hold a security clearance. Thus, based on the applicant’s rank and years of experience, it is reasonable to conclude the applicant was aware of security clearance processes and procedures, including the processing time normally required to adjudicate personnel security determinations. In this regard, it is noted the evidence of record shows that “suspension cases exceeding 180 days shall be closely monitored and managed by the DoD Component concerned until finally resolved. h. The evidence of record shows that the applicant’s access to classified information was informally suspended on 25 March 2005 and he retired from active duty on 31 May 2005, which equates to a period of 68 days. i. There is no evidence of record, and the applicant and his counsel fail to provide sufficient evidence, that an unfavorable personnel security determination was made to revoke the applicant’s security clearance, which would have required written notification, at that time. In this regard, the evidence of record does not support the contention that the applicant was prejudiced because he was not afforded procedural protections (i.e., written notification) and/or that he would have responded appropriately to the security clearance suspension. 5. By regulation, if the individual under suspension leaves the jurisdiction of the Department of Defense and no longer requires a clearance (or trustworthiness determination), the “Z” Code (adjudication action incomplete due to loss of jurisdiction) in the clearance eligibility field is appropriate. Thus, lacking evidence to the contrary, it is concluded the codes contained in the JPAS and SIDPERS data bases are correct and should not be changed or removed. 6. The evidence of record shows that the applicant’s commander notified the applicant of the charges against him; that he was considering whether he should be punished under Article 15, UCMJ; and that the applicant did not demand trial by court-martial in the Article 15 proceedings. The evidence of record also shows that the punishment imposed by the commander was written reprimand and forfeiture of $4,288.00 pay per month for 2 consecutive months, and he directed the documentation be filed in the performance portion of applicant’s OMPF. The evidence of record further shows that the DA Form 2627 and written reprimand are properly filed in the applicant’s OMPF. 7. The evidence of record shows that the applicant’s commander notified the applicant he had suspended the applicant from duties pending completion of an investigation; that he then informed him what the investigation had revealed, and that he intended to relieve the applicant of command. The evidence of record also shows that the commander completed a Relief for Cause OER relieving the applicant of his position as Commander, Joint Detention Operations Group, effective 16 March 2005. The evidence of record further shows that the DA Form 67-9 is properly filed in the performance portion of the applicant’s OMPF. 8. By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. The applicant provided insufficient evidence to show that the DA Form 2627 (Article 15), written reprimand, or DA Form 67-9 (OER) is untrue or unjust in this case. Therefore, it is concluded the DA Form 2627, dated 21 March 2005; Reprimand, dated 21 March 2005; and DA Form 67-9, with a “Thru Date” of 16 March 2005, are properly filed and should not be removed from the applicant's OMPF. 9. The evidence of record shows that when the applicant’s case moved into the punishment phase, he was reassigned and departed from Headquarters, JTF GTMO, Guantanamo Bay, Cuba on 25 March 2005. a. The evidence of record indicates that the applicant was in telephonic contact with Army officials of the Central Clearance Facility, and the Colonel’s Division and MP Corps Field Grade Assignments Office (USA HRC), concerning his security clearance and follow-on assignment. However, the applicant does not provide any documentary evidence (e.g., memoranda for record, records of telephone conversations, etc.) documenting the dates, times, Army officials he spoke with, and summary of the conversation(s) at the time of occurrence. b. The evidence of record shows that the applicant was assigned to Headquarters, CID Command, Fort Belvoir, Virginia on 12 April 2005. c The evidence of record shows the applicant requested voluntary retirement, effective 31 May 2005. d. The evidence of record shows the Declaration, dated 13 November 2006, that the applicant provides was prepared more than 19 months after his assignment to Headquarters, CID Command, on 12 April 2005. However, this document provides insufficient evidence to support the contention that Army officials intentionally, negligently, or innocently provided the applicant misleading information that he relied upon to his detriment with respect to his security clearance, assignment, continuation on active duty, or voluntary request for retirement. Thus, in view of all of the foregoing, there is insufficient evidence to support the contention that the applicant would have stayed on active duty long enough to address the suspension of his clearance and possibly even to accrue the time in grade required to retire as a colonel. 10. The evidence of record shows that the applicant’s retirement processing was accomplished in accordance with the applicable regulation and all requirements of law and regulation were met. The evidence of record confirms the reason and authority for the applicant’s honorable discharge for the purpose of his voluntary retirement based on sufficient service. 11. There is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption. In this regard, retirements are presumed to be voluntary and, in order to rebut the presumption of voluntariness, the applicant must show that his retirement was obtained by either duress or misrepresentation. In view of all of the evidence in this case, the applicant fails on both. Therefore, the Board concludes the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the retirement process. Therefore, the applicant is not entitled to reinstatement to active duty in the grade of colonel (O-6). 12. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, there is no justification for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ___X___ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _ ____X___ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080005940 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080005940 22 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1