IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20160000753 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x___ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20160000753 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from the applicant’s official military records Orders 226-02, issued by U.S. Army John F. Kennedy Special Warfare Center School, dated 13 August 2012, that revoked award of the Special Forces Tab. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending his Officer Record Brief. _____________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. IN THE CASE OF: BOARD DATE: 27 March 2018 DOCKET NUMBER: AR20160000753 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 the removal of Orders 226-02, dated 13 August 2012, which revoked award of the Special Forces (SF) Tab, from his official military personnel file and correction of Section VIII (Awards and Decorations) of his Officer Record Brief (ORB) to show he consistently retained the SF Tab. 2. The applicant states this correction would show he had continuous possession of the SF Tab. He asserts the command action revoking his SF Tab was not supported by the facts, was not in accordance with the law and regulations, and was arbitrary and capricious, resulting in an error and injustice. 3. He defers his list of evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant’s record by removing from his record Orders 226-02, dated 13 August 2012, which revoked his SF Tab, and adding the SF Tab to his ORB, Section VIII. 2. Counsel states: a. The applicant successfully completed the SF Detachment Officer Qualification Course (SFQC) in April 2012 and was awarded the SF Tab by Permanent Orders (PO) 089-134, dated 29 March 2012. In August 2012, the applicant’s command revoked his SF Tab under Army Regulation 600-8-22 (Military Awards), paragraph 1-31c(9)(f). In February 2013 his command denied his appeal. However, the factual basis upon which the command decided to revoke his tab was constitutionally protected activity. Such lawful and protected activity cannot be the basis for an adverse administrative action. b. He graduated with honors from Georgetown University in 2005 while participating in the Reserve Officers' Training Corps (ROTC). In ROTC, he was ranked 24th out of more than 4,000 ROTC cadets nationwide. He was commissioned on 20 May 2005. He graduated from Infantry Officer Basic Course in 2006 as the honor graduate. In addition to his initial military schooling, he successfully completed the U.S. Army Airborne School; Mountain Warfare School; Ranger School; Air Assault School; the Maneuver Captains Career Course; Survival, Evasion, Resistance and Escape (SERE) School; and the SFQC. c. He served on active duty in the Regular Army for approximately 8 years beginning in September 2005. During his service in the infantry, he deployed twice to Iraq in combat infantry battalions, serving in 2006 as a platoon leader in Mahmudiya and in 2008 as a company executive officer and battle captain in Shulla, Baghdad. His service in combat zones included leading more than 100 combat patrols as a platoon leader where he earned the Combat Infantryman Badge for direct contact with enemy forces. He also served as an assistant operations officer for an air assault infantry battalion. In that role, he assisted the S-3 in planning operations and served as a night battle captain in Iraq for 5 months, during which time he expertly coordinated the efforts of multiple units and assets, overseeing medical evacuation (MEDEVAC) operations, and managing critical information during 1,500 patrols and named operations. d. His military records reflect his adherence to Army values as well as his abilities, including his mental, conceptual, and tactical skills, his leadership qualities, and his decision-making, executing and learning capacity. He has been described as among the top three or top 25 percent of officers evaluated by his rater, as well as one of the most tactically competent officers that his senior rater had served with in his 20 years of service. He was widely respected by both his peers and subordinates. In his evaluations, he was assessed as having all the traits needed to successfully command a SF Operational Detachment Alpha Team and heralded as one of our Army's future stars. e. While in training as a student for the SF in February 2011, the applicant suffered a brain contusion as a result of physical injuries sustained during his participation in SERE training, which was a part of the SFQC. SERE training is designed to simulate conditions a Solder may experience should he become a prisoner of war or be required to escape and evade behind enemy lines. SERE training is rigorous, but Soldiers should not be subjected to actual physical abuse during the course of the training. The applicant was abused during the course and was struck on the head on multiple occasions. He previously had experienced head trauma as a high school football player, which was noted in his military records and was reported to his SERE instructors. During training he experienced severe headaches after being repeatedly struck by cadre. Rather than have him seek medical attention, his SERE instructors asked him if he wanted to quit. He indicated that he did not, but reported the prior head trauma anticipating the instructors would reduce the severity and number of the blows to his head; they did not. As a result, he suffered significant and life-threatening brain bilateral subdural hematomas. He initially was placed in an intensive care unit and was hospitalized for 9 days. No one from his chain of command visited him in the hospital during the first 5 days. While hospitalized, he was administered the medication Phenergan intravenously every 6 hours to control his nausea caused by the severe headaches. As a result of the Phenergan, he suffered permanent damage to all but the deepest veins in both of his arms. f. In spite of this, he excelled in the SFQC, and on 5 April 2012, he was awarded the SF Tab by PO 089-134, dated 29 March 2012. His peers ranked him number one in his class four times consecutively. He achieved the best language score, the best overall physical fitness score, and was the top ranked student in Small Unit Tactics (SUT). His SUT instructor commented that he was the best officer he had ever seen coming through the course. During Robin Sage, the culminating exercise in the course, the master sergeant commented that the team led by the applicant had performed better than any team he had seen during the exercise. His academic evaluation report for the SFQC identified him as having demonstrated professional performance and he had tremendous potential for command. The same evaluator noted he would be an asset to the SF community. g. After graduating from the SFQC and being awarded the SF Tab, he attended a separate 3-week course of instruction called the Detachment Leaders Course. This course is not a prerequisite for the SF Tab. However, as part of the course, on 18 April 2012, he travelled with his class on temporary duty orders from Fort Bragg, NC, to the headquarters of the Central Intelligence Agency (CIA) in Langley, VA. The purpose of this trip was to receive an overview of CIA operations and meet with personnel assigned there. The trip also featured meetings with other government agencies and present and former government officials, including a discussion that the applicant had arranged for the benefit of this class with a former advisor to President Reagan. After his scheduled morning meeting at the CIA, he was released along with the rest of his class for lunch. They were encouraged to have lunch within the CIA and tour the facilities. The applicant and other members of his class were provided with unescorted access throughout the CIA. No restrictions were placed on him by the CIA staff or by his chain of command. h. In a prior deployment to Iraq, the applicant had met the then-General David Petraeus, who, at the time of the applicant’s visit to Langley, VA, was serving as the Director of the CIA. During the applicant’s lunch break, he decided to see if Mr. Petraeus might be available to meet with him. Having met with him briefly before in a deployed environment, he planned to say hello, thank the retired General for his support, and take the opportunity to engage with him on the subject of counter-terrorism operations, if he were interested. After receiving encouragement from and directions from a group of CIA employees, he made his way to Mr. Petraeus' office. The applicant intended to politely ask Mr. Petraeus' secretary if he might be free and have time to meet with him for a few minutes. As he entered the outer suite of the CIA Director's office, where he expected Mr. Petraeus’ secretary would be located, a CIA employee was exiting. He politely asked this employee if she were Mr. Petraeus' secretary. The employee said she was not and directed him to the office she was exiting. He entered the office, and saw Mr. Petraeus' secretary sitting at her desk and asked if Mr. Petraeus might be free to meet with him. After checking, the secretary politely informed him that Mr. Petraeus was not free, and then he thanked her for her time and voluntarily departed. At no point was the applicant rude, disrespectful, or asked to leave anyone's office. i. Later in the afternoon, upon learning he had requested to meet with Mr. Petraeus, his military supervisors reacted poorly to his actions. He was reprimanded by his chain of command for his action, which is a protected activity under the First Amendment to the United States Constitution. Although the rest of the class was staying in Washington, DC, for additional meetings, he was ordered to find his own way back to Fort Bragg, NC. Based on this instruction, he had to rent a car and drive himself back (the class had travelled by government transportation to Washington, D.C.). Upon his return to Fort Bragg, he was told he had been "stupid" and was a "piece of shit." The written record of his verbal counseling merely reflects that he was counseled because he attempted to conduct an unofficial office call with the CIA Director while on a student trip to the CIA headquarters. i. Notwithstanding this incident, he continued in the Detachment Leaders Course and was awarded a certificate of completion. At that point he was ready to depart Fort Bragg for his next assignment with an SF Detachment at Fort Carson, CO. The Commander, 10th SF Group, Fort Carson, CO, had requested the applicant by name for assignment to their unit. However, instead of allowing the applicant to move to his next assignment, his immediate chain of command decided to remove the applicant from the SF branch based upon the innocuous incident at the CIA. j. The applicant's immediate chain of command initially expressed their intent to request a general officer memorandum of reprimand (GOMOR), involuntarily transfer him from the SF branch, and adversely eliminate him from the Army. However, the chain of command did not proceed with these actions. Based on information such plans were likely dropped after the command understood the applicant's conduct did not support such adverse actions. Instead, his command notified him that they were suspending his transfer to his new assignment and revoking his SF Tab, which was awarded prior to the Detachment Leaders Course and his temporary duty at the CIA. The applicant did not find out about his command's intention to remove his SF Tab until 17 May 2012, the day he was scheduled to depart Fort Bragg, NC, and transfer to his then-pending assignment to Fort Carson, CO. The revocation of his SF Tab was based solely on the alleged events that occurred at the CIA. Ultimately, his SF Tab was revoked on 13 August 2012. k. In December 2012, the applicant submitted an appeal to have the revocation of his SF Tab rescinded and to be assigned to an SF detachment. He asked several times to meet with his senior leader in his chain of command under their open door policy for an opportunity to explain his side of the story, but he was denied that opportunity. On 11 February 2013 he was notified his appeal was denied. l. In March 2013, counsel for the applicant requested a copy of the full administrative record used to justify the personnel action, and counsel was provided with what was identified as the relevant documents. The applicant's former chain of command at Fort Bragg, NC, initially refused to provide a recommendation submitted by Major General (MG) EMR in response to the applicant's appeal; however, the recommendation was later provided in response to a request under the Freedom of Information Act (FOIA.) m. During the processing of his SF Tab revocation and appeal, the applicant continued to serve at Fort Bragg, NC, as a language school assistant, where he excelled. After his SF Tab was revoked, he was told by his SF branch managers he needed to find another job as he could not proceed to an assignment with a SF detachment. A senior employee at the Department of State requested the applicant by name to fill a military position at the State Department, but this request was denied by the officers at the SF branch; he was instead given orders to report to Fort Polk, LA. His initial report date was 4 January 2013, which was later amended to 1 March 2013 in order to give his local command additional time to process his appeal. On 12 February 2013, he was notified through an interactive Personnel Electronic Records Management System (iPERMS) message that amended orders requiring him to report to Fort Polk, LA, on 1 March 2013 had been added to his Army Military Human Resource Record. On 21 February 2013, he submitted a request for release from active duty. This was later resubmitted multiple times at the Army's request and was re-characterized as an unqualified resignation. The SF branch and the applicant's chain of command supported approval of his resignation, which was accepted on 26 July 2013. He was discharged on 12 October 2013. n. The revocation of the applicant’s SF Tab was fundamentally based on false events that occurred at Langley, VA, on 18 April 2012. The inaccurate description of events was contained in a developmental counseling form and was based on incorrect hearsay transmitted by members of his chain of command. Those members had overreacted to the situation and were verbally abusive to him. The misinformation consisted of the applicant being escorted back to his group after he was unable to meet with Mr. Petraeus and that he had insulted a high-ranking CIA officer whom the applicant mistook for the Director's secretary. The applicant disputed these inaccuracies on multiple occasions, explaining the events occurred when students were released for a 2-hour lunch break, he had not been escorted or forcibly removed from the Director’s office, and he acted respectfully at all times. However, this evidence was ignored, and he ultimately had his SF Tab unjustly revoked, which was not supported by the record or Army regulation. o. The extent to which this inaccurate view of the facts prejudiced the decision-making process is revealed by the 3 January 2013 recommendation submitted by MG EMR. In his recommendation, MG EMR incorrectly characterizes the applicant's activities as breaking away from his group trying to see "General Petraeus…twice," and having "offended the Assistant Deputy Director of the CIA by mistaking her as one of the front office secretaries." These unsupported and inaccurate characterizations simply were not the facts of the situation. The counseling statements reciting these inaccurate assertions were created by persons who had no direct knowledge of the applicant's request to meet with Mr. Petraeus, since they were not present when he politely asked to meet with him. p. Moreover, additional comments made by MG EMR in his recommendation concerning the applicant's appeal suggest that additional considerations unrelated to the purported facts influenced the command's decision in this case. MG EMR's recommendation notes that he "agreed to take [the applicant] against all recommendations from the medical community" and "that [h]is duty would have been limited as he had a previous head injury that would prevent him from jumping, combative training, etc." These comments are a reference to the serious medical emergency he sustained when he was subjected to physical abuse during the SERE training by being struck repeatedly on the head by SERE cadre. Despite his injury, the applicant completed the SFQC and was awarded the SF Tab. If, notwithstanding the award of the SF Tab, he were medically disqualified from performing duties as a SF officer, then the command could and should have instituted and completed the medical evaluation board (MEB)/physical evaluation board (PEB) process; however, the command did not. Accordingly, these alleged medical considerations and the prior circumstances of the applicant's head injury should have played no role in the command's analysis which led to the revocation of his SF Tab. q. Additionally, the comment by MG EMR that another senior officer, Brigadier General (BG) CH, stated that he "also does not want this Soldier in his Regiment" is of concern. First, MG EMR does not identify the factual basis for why BG CH purportedly felt this way. If BG CH's thought process was influenced by a mistaken view of the facts or by medical considerations that were irrelevant to the decision, injecting this hearsay assessment of whether the applicant should continue to serve in the SF branch merely compounded the errors in the process. BG CH's purported personal belief that he did "not want this Solider in his Regiment" simply should have had no bearing on the decision to revoke the applicant's SF Tab. r. The decision to revoke an SF Tab cannot be based on an arbitrary or capricious application of facts or law or on an unreasonable interpretation of law or regulations. Army Regulation 600-8-22 authorizes revocation of a SF Tab in six instances. Generally, each of these six instances falls into one of the two general circumstances: (1) Loss of some prerequisite qualification for continued participation in the SF branch (such as a medical disqualification, loss of the Parachutist Badge, or withdrawal from the SF branch); or (2) Misconduct (such as court-martial, administrative elimination, or conduct that reflects a lack of integrity or professionalism.) s. The applicant's chain of command based the revocation of his SF Tab on the provision of Army Regulation 600-8-22, paragraph 1-31c(9)(f). In order to revoke a SF Tab under this paragraph, a service member must have engaged in an act that was "inconsistent with the integrity, professionalism, and conduct” of an SF Soldier. This provision might be viewed as a "catch-all" provision, but it must be read reasonably and in light of the other regulatory provisions justifying revocation of a SF Tab. t. The two other regulatory provisions most closely related to paragraph 1-31c(9)(f) are paragraphs 1-31c(9)(d) and (e). These paragraphs require a showing of conviction by court-martial, administrative elimination, or commission of other "offenses." Clearly, these provisions are designed to capture various forms of misconduct. While the "catch-all" provision may not require the Army to court-martial or administratively eliminate the offending Soldier before an SF Tab revocation is justified, the substance of this provision clearly is oriented towards misconduct. The plain meaning of paragraph 1-31c(9)(f) requires a Soldier to engage in conduct constituting a breach of integrity or professionalism in order to support revocation of the SF Tab. While not defined by the regulation, the widely understood and commonly accepted definition of integrity relates to honesty and morality, and the definition of professionalism relates to skill and competence in job-related tasks. u. The actual circumstances of the applicant's request to meet with Mr. Petraeus reflect neither a breach of integrity nor a lack of professionalism. To be sure, had he actually intended to insult a CIA official, or had he actually been forcibly removed from the CIA Director’s office, Army Regulation 600-8-22 would authorize the revocation of his SF Tab based upon such misconduct. But a simple and polite request to meet with a government official or another officer, even a high ranking, retired one, is neither a breach of integrity nor lack of professionalism. Likewise, an inquiry into someone's identity is not offensive or unprofessional. Accordingly, paragraph 1-31c(9)(f) does not justify the revocation of his SF Tab. v. The United States Constitution guarantees an individual right for all Americans to freely associate with others, to assemble in order to promote and pursue ideas, to petition the government, and to engage in freedom of expression. These are fundamental rights, and because of the protections of the United States Constitution, the Army cannot take adverse action against United States citizens as a result of the lawful pursuit of these activities. When the applicant politely asked to speak with Mr. Petraeus to associate and exchange ideas, he was engaged in the exercise of his First Amendment rights. w. United States service members may lawfully be subjected to some additional regulations of their constitutional rights than would citizens who are subject to military control; however, United States service members do not forfeit all of their constitutional rights by virtue of their military service. Military restrictions on the right of Soldiers to engage in First Amendment protected activity must be necessary for the accomplishment of the military’s mission. (Parker v. Levy, 417 U.S. 733 (1974)). Thus, restrictions on participation in organizations that advocate violence; discriminate on the basis race, sex, creed, religion, or national origin; or seek to enroll military members in a union, may be permissible. Likewise, speech constituting a clear and present danger to military discipline, such as disparaging comments about public officials, comments directed to a person that might incite violence, or speech intended to entice desertion or advocate the overthrow the United States government, may also be regulated. x. Less extreme manifestations of free speech and assembly, however, remain protected activity within the military. This is true even if some individuals in the chain of command might view the exercise of those rights as less than ideal. Department of Defense (DOD) regulations recognize that the right of expression is to be “preserved to the maximum extent possible (DOD Directive 1325.6 [Handling Dissident and Protest Actives Among Members of the Armed Forces], dated, 1 October 1996 [which is obsolete], and DOD Instruction 1325.06 [Handling Dissident and Protest Activities Among Members of the Armed Forces], dated 22 February 2012).” y. The applicant did not direct contemptuous or disrespectful words towards any person. His activity did not violate any order of a superior officer or any directive or regulation of the U.S. Army. He was polite and cordial at all times. When he learned Mr. Petraeus was unavailable to meet with him, the applicant thanked the secretary for her time and departed. This is not misconduct and it is not conduct that reflects adversely on the applicant’s integrity or professionalism. In short, the applicant’s SF Tab was stripped from him because he asked to speak to another person. 3. Counsel provides the following attachments: * Letter of Petition from the Law Offices of Williams and Connolly, LLP, Counsel for Applicant, dated 23 November 2015 * PO 089-134, issued by the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, NC, dated 29 March 2012 * Declaration by Applicant, dated 20 November 2015 * Commander, U.S. Army Human Resources Command (HRC), Fort Knox, NY, subject: Separation – Unqualified Resignation, dated 26 July 2013 * DA Form 67-9 (Officer Evaluation Report (OER)) for the period from 1 May 2008 thru 30 April 2009 * medical records from Firsthealth of the Carolinas, Moore Regional Hospital, dated 2 February 2011 * DA Form 1059 (Service School Academic Evaluation Report) for the period from 26 April 2010 through 5 April 2012 * Memorandum for Record, Charlie Company, 4th Battalion, 1st Special Warfare Training Group (SWTG) (Airborne), (USAJFKSWCS), Fort Bragg, NC, subject: Applicant Counseling, dated 19 June 2012 * Memorandum For Applicant, 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, subject: Revocation of SF Tab, dated 22 June 2012 * DA Form 4187 (Personnel Action), dated 22 June 2012 * Memorandum for Commander, 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, subject: Request for Issuance of GOMOR, undated * Orders 138-807, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, NC, dated 17 May 2012 * Memorandum thru Commander, issued by 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, dated 22 June 2011 * Memorandum for Commander, issued by 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, subject: Revocation of SF Tab, dated 22 June 2012, (approval) * Summary Sheet, subject: SF Tab Revocation, applicant, dated 2 July 2012 * Orders 226-02, issued by USAJFKSWCS, Fort Bragg, NC, dated 13 August 2012 * Memorandum for Commander, issued by USAJFKSWCS, Fort Bragg, NC, subject: Revocation of SF Tab, dated 13 August 2012 * Memorandum for Commander, U.S. Army Special Operations Command (USASOC), Fort Bragg, NC, subject: Request for Reinstatement of SF Tab for applicant, dated 3 December 2012 * Memorandum for Applicant, issued by Headquarters, USASOC, Fort Bragg, NC, subject: Request for Reinstatement of SF Tab, dated 8 February 2013 (denial) * Orders 334-823, issued by U.S. Installation Management Command, Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, NC, dated 29 November 2012 * Orders 366-92, issued by U.S. Installation Management Command, Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, NC, dated 31 December 2012 * DA Form 4856 (Developmental Counseling Form), dated 19 April 2012 * administrative records * Memorandum for Commander, issued by USAJFKSWCS, Fort Bragg, NC, subject: Recommendation on Request for SF Tab Reinstatement for applicant from MG R, dated 3 January 2013 (denial) * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant entered active duty on 10 September 2005 as a second lieutenant (2LT) in the Regular Army (RA). 3. PO 121-2812, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 1 May 2006, show he successfully completed Ranger Training and was awarded the Ranger Tab on 5 May 2006. 4. PO 235-094, issued by Headquarters, Headquarters, Multi-National Division (Baghdad), Camp Liberty, Iraq, show he was awarded the Combat Infantry Badge on 2 August 2006 for participating in ground combat operations under enemy hostile fire in support of Operation Iraqi Freedom (OIF). 5. Order Number 044-112, issued by HRC, dated 13 February 2007, shows he was promoted to the rank/grade of first lieutenant (1LT) with an effective date of 10 March 2007. 6. Order Number 294-046, issued by HRC, dated 20 October 2008, shows he was promoted to the rank/grade of captain (CPT) with an effective date of 1 November 2008. 7. Counsel for the applicant provides a DA Form 67-9 for the period 1 May 2008 thru 30 April 2009, which shows the applicant received an evaluation while assigned to Headquarters and Headquarters Company, 1st Battalion, 502ndd Infantry Regiment, Fort Campbell, KY, as the Assistant Operations Officer. He received the following ratings/comments: a. Rater is a major/pay grade O-4: Outstanding Performance, Must Promote. b. "[Applicant] is one of the top 3 officers that I rate. He is an extremely technically and tactically proficient officer…" c. "He is a leader who will accomplish the mission. During OIF 07-09, [he] served as the night battle captain for [5] months, expertly coordinating the efforts of multiple units and assets, overseeing MEDEVAC operations and managing critical information during 1,500 patrols and named operations." d. "…was selected through Special Forces Assessment and Selection for attendance to the Qualification Course. [He] is a dedicated, physically and mentally though, and constantly improving officer who engages in relentless self study and improvements… He will be a valuable asset to either his Special Forces team or his next battalion." e. Senior rating by a lieutenant colonel/pay grade O-5: “Best Qualified.” f. Comments: "[He] ranks among the top 25% of captains I currently senior rate… one of the most tactically competent officers I’ve served with in my 20 years of service. He has an adept ability to absorb a magnitude of information and provide a simplified summary very quickly… is widely respected by both his peers and subordinates. He is one of our Army’s future Stars. He will win in combat." 8. Counsel for the applicant provides a medical document from the Firsthealth of the Carolinas, Moore Regional Hospital, dated 2 February 2011. A physician noted the following: a. The applicant was admitted into the hospital as a SF student in training and received numerous blows to the head (open hand strikes, at least 30 times as reported by the applicant) in a 2-day period, resulting in acute subdural hematoma. His chief complaints were headache, profuse vomiting, being dazed, and almost blacking out. b. He was admitted for observation and neurologic checks and received a computerized tomography (CT) scan. c. Prior history revealed that he experienced the same pain when he was playing high school football (received multiple concussions) and collapsed on the football field. He did not require surgery, but apparently he was intubated, and it appeared he had been in some sort of respiratory arrest. With this current event, the applicant states, he did not pass out, but recognized the same pain and, therefore, was brought to the hospital. d. Diagnosis: Brain injury. A CT scan revealed a right subdural hematoma, measuring 1.4 centimeters and a left subdural hematoma measuring 3.5 millimeters (bilateral subdural hematomas). He also had evidence of a tentorial hematoma. He was given fluid intravenously for hydration and medication intravenously to control his vomiting. 9. PO 089-134, issued by USAJFKSWCS, dated 29 March 2012, show he was awarded the SF Tab. 10. Counsel for the applicant provides a DA Form 1059, for the period ending on 5 April 2012, which shows, he “Achieved Course Standards” for SFQC and completed the SERE Level C course and the Special Operations Language Training (SOLT) Russian Course. In addition, the evaluation stated, “[he] demonstrated professional performance throughout the entire SF Detachment Officer Qualification Course. He takes charge, issues clear guidance, and fosters a team environment… his performance indicates that he will be an asset to the SF Community.” 11. Counsel for the applicant provides a DA Form 4856, dated 19 April 2012, which shows the applicant received a counseling statement from the Commander, SFQC Phase IV, based on his behavior at the George Bush Center for Intelligence, CIA, Headquarters, in Langley, VA on 18 April 2012. The counseling was for leaving his group and traveling to the 7th floor of the building and attempting to meet, uninvited, with the CIA Director (Mr. David Petraeus), and having to be escorted back to the Special Warfare Center group. In addition, while at the CIA office, a woman he mistakenly thought was Mr. Petraeus' secretary was, in fact, the Assistant Deputy Director of the CIA. Furthermore, the counseling statement noted: a. His actions have placed future course visits to the CIA in jeopardy, have tarnished the image of the SF Regiment, and his actions were all about him. He wanted to meet Mr. Petraeus, and saw an opportunity and made a poor decision. He did not consider the second order effects or the perception his action would have on the group. b. His actions demonstrated that SF officers don’t understand military or government protocol, and that he did not understand his operational environment. c. A general officer was called to the 7th floor to explain the applicant's actions, and his actions may have cost the headquarters the ability to visit the CIA and certainly have cost the SF access to a "no escort required badge," which will limit the number of students the school will be able to take to the CIA office in the future; and d. He has demonstrated in the absence of guidance that he cannot be trusted to do the right thing. He has to be watched and constantly supervised to ensure he does not do something unprofessional. This is not the hallmark of a Green Beret. He has tarnished the reputation of the SF community and for young student officers to get valuable training in the future. Continued actions like this will cause others to lose all respect for him. When bullets start to fly, his team will likely disregard his orders since they cannot trust him in training, which leads to people being killed. 12. Orders 117-90, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, NC, dated 26 April 2012, show the applicant received permanent change of station orders to Fort Carson, CO, with a reporting date of 26 June 2012. 13. Orders 138-807, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Fort Bragg, Fort Bragg, NC, dated 17 May 2012, revoked Orders 117-90, dated 26 April 2012. 14. The evidence of record shows the applicant was counselled by the commanding officer of Charlie Company, 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, on 19 June 2012, for attempting to conduct an unofficial office call with Director Petraeus while on a student trip to the CIA offices. The applicant was also notified a flag had been initiated, his orders for his next assignment were being revoked, and he was being moved from the graduation section to another section until further notice from the command. 15. The evidence of record shows the applicant was notified by the 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, dated 22 June 2012, of the command’s intent to terminate his CMF 18 status and revoke his branch and SF Tab due to his deficiency in professional judgment during his student trip to the CIA offices. 16. The evidence of record includes a memorandum from the commanding officer of the 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, dated 22 June 2012, advising the applicant of his recommendation to terminate the applicant’s Career Management Field (CMF) 18 status and to revoke his SF Tab. This recommendation was based on the applicant’s actions and conduct, which called into question both his professional judgement and personal character. These actions were inconsistent with SF core attributes: integrity, courage, personal responsibility, and professionalism. 17. On 22 June 2012, the applicant’s battalion commander submitted a DA Form 4187 and recommended approval to the 1st SWTG, Fort Bragg, NC, to terminate his CMF 18 and SF Tab. 18. The evidence of record shows on 22 June 2012, the recommendation to remove the applicant’s CMF 18 status and SF Tab was approved by MG BSS, Commanding General, USAJFKSWCS 19. Counsel for the applicant provides a summary sheet regarding the applicant’s SF Tab revocation. The summary states on 18 April 2012, the applicant, while on a scheduled visit to CIA headquarters, attempted to visit the office of the CIA Director without an appointment or authorization from the 1st SWTG. Also during the visit, he approached and offended the Assistant Deputy Director of the CIA by mistaking her for a secretary. 20. Counsel for the applicant provides a memorandum issued by USAJFKSWCS for HRC, dated 13 August 2012, which approved the revocation of the applicant's SF Tab under the provisions of Army Regulation 600-8-22, paragraph 1-31c(9)(f), by PO. 21. Orders 226-02, issued by USAJFKSWCS, dated 13 August 2012, revoked PO 089-134, dated 29 March 2012, which had awarded the applicant the SF Tab. 22. Orders 334-823, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, Fort Bragg, NC, dated 29 November 2012, show the applicant received permanent change of station orders to the 162nd Infantry Brigade, Headquarters, Fort Polk, LA, with a reporting date of 4 January 2013. 23. Counsel for the applicant provides a letter by the applicant to USASOC, Fort Bragg, NC, dated 3 December 2012, in which he requested the reinstatement of his SF Tab. In his letter, the applicant stated the following: a. Some of the documents in his SF Tab revocation packet did not accurately reflect his actions on 18 April 2012 at CIA Headquarters. He intended to correct these inaccuracies and address the discrepancies between his initial rebuttal and the command’s account. b. Contrary to the accounts in his packet, he was not escorted or forcibly removed from Director Petraeus’ office. All of his interactions with the CIA employees were completely polite and cordial. Two CIA officers from the counter-terrorism center even agreed to discuss his idea for 45 minutes after he left the Director’s office; c. No one told him to leave at any time; no one approached him with any objections or admonishments at any point. d. Furthermore, he did not leave the Detachment Leaders Course group without permission; all the students were released for a 2-hour lunch break. He did not deny he displayed poor judgement, but felt he had learned his lesson. He still had a strong desire to serve the Regiment in any capacity. 24. Counsel for the applicant provides a memorandum issued by USAJFKSWCS, Fort Bragg, NC, dated 3 January 2013, which shows the applicant’s request for the reinstatement of his SF Tab was denied by MG EMR. In addition, the memorandum further stated, "As the [Commanding General], [U.S. Army Special Forces Command], I agreed to take [applicant] against all recommendations from the medical community. His duty would have been limited as he had a previous head injury that would have prevented him from jumping, etc. I concurred with MG S to revoke his tab after the incident at CIA. He exhibited extremely poor judgement after breaking away from his group and trying to see [General] Petraeus…twice. He also offended the Assistant Deputy Director of the CIA by mistaking her as one of the front office secretaries. I’ve discussed with [BG] CH and he also does not want this Soldier in his Regiment." 25. Orders 366-92, issued by Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 31 December 2012, amended Orders 334-823, dated 29 November 2012, for reassignment to Fort Polk, LA, to report with a no later than date of 1 March 2013. 26. Counsel for the applicant provides a memorandum issued by USASOC, Fort Bragg, NC, dated 8 February 2013, showing the applicant’s request for the reinstatement of his SF Tab was denied. 27. The evidence of record shows the applicant received an OER for the period from 1 May 2009 to 5 April 2013, while assigned as the Operational Language Program Officer, Foreign Language Department, Special Warfare Education Group, USAJFKSWCS. He received the following rating: a. Outstanding Performance, Must Promote. b. "[Applicant] performed outstandingly as the… Operational Language Program Officer. He personally mentored students who were failing in language, raising their test percentages from the 30s to the 90s in only 2 weeks of coaching.” c. "He used his incredible language skills to produce operational products for classified operations and briefs. He maintained oral proficiency rating in four languages (two of which were self-study achieved with a 3/3 in French, a 2/2 in Russian, a 2/2 in Arabic, and a 1/1 in Farsi)." d. "Unlimited potential in Special Operations or Intelligence commands. Promote to Major and send to resident [Intermediate Level Education]. Ready for any follow-on assignment." e. Senior Rater: “Best Qualified” f. Comments: “[Applicant] is the most talented Captain that I have served with in 26 years of service. His extremely relevant and innovative ideas for enhancing learner potential, military-context language training, and life-long learning were transformed into reality through his remarkable intelligence, indefatigable drive[,] and superior professionalism. Outstanding senior leader potential.” 28. The applicant submitted a request for an unqualified resignation from the RA. The Commander, HRC, approved his request on 26 July 2013, with an effective date of 12 October 2013. 29. Orders 235-0283, issued by Headquarters, U.S. Army Garrison, Fort Bragg, dated 23 August 2013, discharged the applicant with an effective date of 12 October 2013. 30. Orders 255-83, issued by Headquarters, U.S. Army Garrison, Fort Bragg, dated 11 September 2013, revoked Orders 334-823, dated 29 November 2012 (the orders reassigning him to Fort Polk, LA). 31. On 12 October 2013, the applicant was honorably discharged. His DD Form 214 shows: a. Item 12c (Net Active Service This Period) –8 years, 1 month, and 3 days b. Item 12f (Foreign Service) – 1 year and 4 months (no days) c. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Iraq Campaign Medal with two campaign stars * Bronze Star Medal * Army Commendation Medal * Overseas Service Ribbon * Combat Infantryman Badge * SF Tab * Ranger Tab * Air Assault Badge d. Item 18 (Remarks) – "SERVICE IN IRAQ 20060621-20060920" and "SERVICE IN IRAQ 20071015-20081114." e. Item 25 (Separation Authority) – "A[rmy] R[egulation] 600-8-24, PARA[GRAPH] 3-5" f. Item 28 (Narrative Reason For Separation) –“MISCELLANEOUS/ GENERAL REASONS” 32. The applicant’s ORB is not available for review. 33. Counsel for the applicant provides a declaration from the applicant, dated 20 November 2015, wherein he recounts his military service including the schools he attended and deployments. While on an official trip to CIA Headquarters with his Army class he "decided to see if General David Petraeus, then Director of the CIA, might be available to meet with [me]… I planned to politely ask General Petraeus’ secretary if he might be free… As I entered the outer suite of the Director’s office, where I expected General Petraeus’ secretary would be located, a CIA employee was exiting. I politely asked if she were General Petraeus’ secretary." He further states, “My chain of command based the revocation of the Special Forces Tab on inaccurate descriptions of what took place at the CIA… my revocation packet contained inaccurate counseling statements, recommendations, and a DA Form 4187 that incorrectly recited that I 'left [my] ARSOP leader’s group,' 'attempted to meet uninvited with the [Director] CIA,' 'had to be escorted back to the SWC group,' and 'offended' a high ranking CIA officer." REFERENCES: 1. Army Regulation 600-8-22 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards including badges. a. Paragraph 1-31a (Revocation of badges, Ranger Tab, SF Tab and Sapper Tab) provides that commanders authorized to award combat and special skill badges are authorized to revoke such awards. An award, once revoked, will not be reinstated except by the U.S. Army Human Resources Command when fully justified. b. Paragraph 1-31b states revocation of awards of badges will be announced in permanent orders. c. Paragraph 1-31c states award of badges may be revoked under conditions identified in the regulation. d. Paragraph 1-31c(9) states the SF Tab may be revoked by the awarding authority (Commander, USAJFKSWCS) if the recipient – * has his Parachutist Badge revoked * initiates action which results in termination or withdrawal of the SF specialty or branch code prior to completing 36 months of SF duty * has become permanently medically disqualified from performing SF duty and was found to have become disqualified not in the line of duty * has been convicted at a trial by courts-martial or has committed offenses which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of SF duties * has committed any misconduct which is the subject of an administrative elimination action * has committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a SF Soldier, as determined by the Commander (paragraph 1-31c(9)(f)) 2. Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which includes the readiness and resiliency of the force, military and personal discipline and conduct. Commanders are responsible for everything their command does or fails to do. a. The proper use of the chain of command is vital to the overall effectiveness of the Army. Commanders must acquaint all their Soldiers with its existence and proper functions. Effective communication between senior and subordinate Soldiers within the command is crucial to the proper functioning of all units. Therefore, Soldiers will use the chain of command when communicating issues and problems to their leaders and commanders. b. Paragraph 2-2 states, "Commanders will establish an open door policy within their commands. Soldiers are responsible to ensure that the commander is made aware of problems that affect discipline, morale, and mission effectiveness." An open door policy allows members of the command to present facts, concerns, and problems of a personal or professional nature or other issues that the Soldier has been unable to resolve. The timing, conduct, and specific procedures of the open door policy are determined by the commander. He or she is responsible for ensuring that Soldiers are aware of the command’s open door policy. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 4. Department of the Army Pamphlet 600-8 (Military Personnel – Management and Administrative Procedures) provides the procedures for the management and administration of military personnel offices and support units and for functional and individual actions. This pamphlet applies to Active Army personnel, and to National Guard and Army Reserve personnel when serving on Federal active duty other than active duty for training. The ORB is maintained by the personnel records section of the military personnel office for officers in an active status. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. 6. Title 10, USC, section 1552, states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. DISCUSSION: 1. Counsel for the applicant contends the applicant’s SF Tab should be reinstated and added to his ORB in Section VIII (Awards and Decorations). In addition, he requests Orders 226-02, dated 13 August 2012, be removed from the applicant's OMPF. 2. Although the application indicates the applicant's desire to appear before the Board, there are sufficient records available for a fair and impartial review in this case without such an appearance. 3. The applicant’s prior officer evaluations show he was an outstanding performer, highly rated, with unlimited potential. He displayed a high degree of professionalism, technical skill, and leadership. Upon his acceptance into the SFQC, his senior rater rated him "best qualified" and one of the most competent officers he had served with in his 20 years of service. 4. Permanent Orders 089-134, dated 29 March 2012, awarded the applicant the SF Tab based upon his successful completion of the SFQC. 5. On 18 April 2012, while on an Army sponsored trip for the SF Detachment Leaders Course, the applicant states he sought a personal meeting with the CIA Director during his lunch break. The students were issued badges stating no escorts were required in the CIA buildings. He found and entered the CIA Director’s executive suite anticipating he would find the Director’s secretary. A woman was in the suite and appeared to be leaving the suite when, by his account, he politely asked her if she was the Director’s secretary. She indicated she was not a secretary. He then found the Director’s secretary and was informed the Director was not available to meet him. 6. On 19 April 2012, he was counselled and informed his conduct was unprofessional because he left his group and attempted to schedule a meeting with the CIA Director without having command or official authorization (as a member of the U.S. Army). The woman he approached in the executive suite was not a secretary. She was the Assistant Deputy Director of the CIA and appears to have been offended by the applicant’s inquiry into her professional status as a government employee. 7. Pursuant to Army Regulation 600-8-22, paragraph 1-31c(9)(f), the applicant’s command recommended the revocation of his SF Tab based on his conduct at the CIA Headquarters, which they noted was inconsistent with the integrity, professionalism, and conduct of a SF Soldier. 8. The applicant was notified by the 4th Battalion, 1st SWTG (Airborne), USAJFKSWCS, Fort Bragg, NC, dated 22 June 2012, of the command’s intent to terminate his CMF 18 status and revoke his SF Tab due to his deficiency in professional judgement. The recommendation was approved by the appropriate authority. 9. Orders 226-02, issued by USAJFKSWCS, dated 13 August 2012, revoked the applicant's SF Tab. 10. The applicant appealed the revocation. He submitted a letter to the USASOC, Fort Bragg, NC, dated 3 December 2012, requesting the reinstatement of his SF Tab. He disputed the events at the CIA headquarters as outlined by his chain of command, and stated he did not leave his group without permission because he was on an authorized lunch break. He acknowledged he used poor judgement and felt he had learned his lesson. 11. Army Regulation 600-20 states an open door policy allows members of the command to present facts, concerns, and problems of a personal or professional nature or other issues that the Soldier has been unable to resolve. Counsel for the applicant states the applicant requested to speak to senior leadership to explain his side of events while at the CIA headquarters; however, he was denied a meeting. It is the decision of the commanding officer or senior official as to whom he or she will speak to under the open door policy. There is no explicit obligation for a commanding officer or senior official to meet with each Soldier within his command who requests a meeting under the open door policy. 12. A memorandum issued by the USAJFKSWCS, Fort Bragg, NC, dated 3 January 2013, denied the applicant’s request for reinstatement of his SF Tab. 13. After the applicant had his SF Tab revoked and was awaiting new assignment orders, he was temporarily assigned to the USAJFKSWCS, Special Warfare Education Group, as a language instructor. His OER shows he was an outstanding performer, rated "best qualified," had "indefatigable drive and superior professionalism," and had "outstanding senior leader potential." 14. The applicant was issued follow-on orders to Fort Polk, LA; however, he submitted his request for an unqualified resignation. On 12 October 2013 he was honorably discharged. Notwithstanding the revocation of the orders awarding him the SF Tab, his DD Form 214 shows the SF Tab as an authorized badge. 15. Counsel for the applicant argues that the applicant’s First Amendment rights were violated and he violated no Army regulations. He opines the applicant, then a military officer, had the right to approach senior government officials acting in their official capacities without notice or an appointment under his right to "free speech." It appears his chain of command, as a result of his attempt to meet the CIA Director without their blessing, had cause to question his professional judgment. As noted in counseling he received on 19 April 2012, his attempt to meet the CIA Director was, at a minimum, disruptive, in that a general officer had to go explain his actions. Clearly, there was concern over his actions, as those actions led his chain of command to recommend removing him from CMF 18 in spite of his otherwise excellent performance. The evidence shows the issue was not necessarily his ability to perform well as an Army officer, rather his ability to perform well in CMF 18. 16. The applicant’s record in iPERMS does not contain a copy of his ORB. The ORB is not maintained for officers who are not in the Active Army. It is a management tool for officer in an active status. Because of his discharge, his ORB is no longer an active document and is not available to be updated. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000753 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000753 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2