RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03707 INDEX CODE: 100.00 COUNSEL: YES HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show: 1. His access to classified information was not suspended in February 2005. 2. He was not transferred to the Individual ready Reserve (IRR) on 14 March 2008. _________________________________________________________________ APPLICANT CONTENDS THAT: His access to classified information was improperly suspended in February 2005 in violation of 5 United States Code (U.S.C.) Section 7392 (sic) and Air Force Instruction (AFI) 35-1 (sic). He was not allowed to participate in unit training assemblies (UTA’s) and subsequently was involuntarily transferred to the IRR. The investigation into a false derogatory report against him had not been completed prior to his involuntary transfer to the IRR. The order removing him from participating status and the involuntary transfer to the IRR are in violation of Air Force Manual (AFM) 36- 8001, Table 1.2, Note 3 and AFI 36-211 (sic), Para 3.5, Table 4.3, Rule 13. Additionally, the investigation presently remains open after 48 months in violation of AFI 31-501, Para 8.2.2.7. Title 5 U.S.C. 7932 (sic) prohibits removal of a service member prior to providing certain administrative due process rights including notice to the member with a statement of reasons (SOR) and an opportunity to rebut. Removal action may not proceed until the rebuttal to a SOR is reviewed. He was not given such due process; rather, he was issued a non-participation letter pending the outcome of the investigation of his clearance and then surreptitiously transferred to the IRR. In support of his appeal, the applicant provides copies of the undated Letter of Notification (LON), an Individual Mobilization Augmentee (IMA) reassignment request and, security clearance documentation. Applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Applicant is an IMA with the Air Force Reserve (AFR) attached to the National Air and Space Intelligence Center (NAISC). He was administratively assigned to the Readiness Management Group (RMG) which provides oversight and training for AFR IMAs. His full-time duties were as a contractor for the NAISC, in a different directorate. On 8 February 2006, his security clearance was suspended pending investigation into allegations from another Federal agency alleging improprieties with his personal conduct, possible criminal conduct, and misuse of information technology systems. The Air Force Consolidated Adjudications Facility (AFCAF) has shown the applicant’s clearance status as “Action Pending” since 26 October 2007. While his clearance was suspended, he was only allowed access to unclassified information. Given the nature of his duties, access to only unclassified information did not allow him to perform his duties fully. On 20 November 2006, the NAISC commander asked the Air Force Reserve Command (AFRC) to reassign the applicant from the NAISC. On or about 13 December 2006, the applicant was provided a LON indicating his commander’s intent to involuntarily transfer him to the IRR. The RMG commander cited AFI 36-2115, Table 4.2, Rule 2 – loss of unit attachment, Rule 3 – failure to meet AF standards by the loss of security clearance and, Rule 9 – IMA under consideration for discharge. The LON required acknowledgment of receipt and submission of statements of rebuttal to the LON within 15 calendar days of receipt. The LON was issued and mailed, certified mail, to the applicant. The applicant contends he never received the letter and the RMG contends while someone signed for the letter, it was eventually returned to the RMG as undeliverable. Based on the applicant’s contention he never received the LON, he was given an additional 15 calendar days to provide his acknowledgement of receipt and any rebuttal statements. On 27 March 2007, applicant submitted a response to the LON through counsel. On 14 March 2008, he was transferred to the IRR. The Point Credit Accounting and Reporting System (PCARS) shows the applicant has 13 years of satisfactory service towards a Reserve retirement at age 60. PCARS also indicates his final year of satisfactory service was Retirement Year Ending (RYE) 15 May 2006. _________________________________________________________________ AIR FORCE EVALUATION: RMG/CC recommends denial. RMG/CC admits it is not clear how much longer it will take to finalize the applicant’s security clearance status, but notes that the adjudication process falls solely within the province of the AFCAF. Regarding his contention he was not offered the due process protections of Title 5 U.S.C. Section 7932 (sic) which prohibits removal action prior to providing the member with an SOR and the opportunity to rebut, RMG/CC states Title 10 is the governing U.S. Code for members of the Armed Forces and not Title 5. Regardless, RMG/CC notes he was not “removed” from the AFR; he was transferred to a nonparticipating category where he remains a member. With respect to his contentions he was wrongly denied the opportunity to continue his AFR participation and was then improperly transferred to the IRR, RMG/CC cites AFI 36-2115, Para. 3.5 wherein is stated the Program Manager (PM) may initiate transfer to the IRR when the PM determines grounds exist for transfer. RMG/CC notes he was provided a LON, he responded through counsel, his response was considered, and he was transferred to the IRR with no due process violations. RMG/CC further notes even though his clearance had not been fully adjudicated prior to his transfer to the IRR, the PMs basis for the transfer action included Rule 2 of Table 4.3 in AFI 36-2115, – loss of unit of attachment, which did apply. RMG/CC’s complete evaluation, with attachments, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states the memorandum from the RMG/CC contends the applicant’s clearance was suspended based on information received from another agency but no one has provided any of the purported derogatory information nor has anyone identified the agency where this information allegedly came from. The RMG/CC’s assertions the applicant was provided with documents forming the basis for the allegations against him is untrue. Further, if the Government has evidence of the applicant receiving these documents, the Government should produce such evidence. Counsel notes applicant’s previous military counsel as having notified RMG that an investigation into the discovery of two classified file labels was concluded by 30 March 2005 just over 30 days after it began; however, the Government has not produced any documents to the applicant showing the basis for its allegations of criminal conduct, misuse of information technology systems, or any other security violations. They have also failed to adjudicate his clearance to this day. Counsel argues the RMG/CC’s statement that Title 5 does not apply in this instance is simply wrong. In fact, the Air Force’s suspension of his clearance was “piggy-backed” on the Defense Industrial Security Clearance Office’s (DISCO) unlawful suspension of his clearance. Therefore, DISCO’s suspension is unlawful as it failed to provide the applicant with evidence of its reasons for suspending his access in the form of a required SOR. Counsel states RMG has done nothing to compel AFCAF to adjudicate the closed investigation. In fact, the only action taken by AFCAF – in response to the applicant filing in Federal court in October 2007 – was to change the status of his adjudication from “pending investigation” to “action pending”. Soon after, in March 2008, he was involuntarily transferred to the IRR after not having received minimum due process rights or having been provided with a SOR he could respond to. Finally, counsel states the Air Force’s purposeful refusal to investigate and adjudicate the false derogatory reports against the applicant denies his due process rights under the Fifth Amendment. Applicant’s complete response, with attachments, is at Exhibit D. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, with regard to the restoration of his clearance, it must be noted this Board lacks the authority to grant or deny any application for correction of military records relating to or affecting a security clearance or access to classified information. The BCMR is limited to advising the Secretary in those instances where it is determined that an error or injustice has indeed occurred. That said it appears the applicant has not exhausted all of the administrative remedies available to him as required in that the adjudication of his clearance is clearly ongoing. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-03707 in Executive Session on 5 January 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Sep 08, w/atchs. Exhibit B. Letter, RMG/CC, undated, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 5 Dec 08. Exhibit D. Letter, Counsel, dated 5 Jan 09, with atchs.