APPLICANT REQUESTS:  In effect, that any and all derogatory information pertaining to his having been charged with possession and use of hashish be expunged from all Army Criminal Investigation Division (CID) files and any other records under his name.

APPLICANT STATES:  The CID report is false, that he was never charged with possession of hashish; his actual involvement in the case is misrepresented.  He had informed his command that his roommate in the barracks kept and used illegal drugs.  The CID investigated his roommate, found his information to be correct, and arrested him.  However, the CID decided not to prosecute his roommate in exchange for his roommate’s cooperation and testimony in the arrest of the suppliers of his illegal drugs.  However, in that process his roommate found out that he had been instrumental in his arrest.  His roommate then retaliated against him by falsely implicating him as a conspirator in the ring of illegal drug users.  The applicant contends that at no time was he placed under arrest, told that he was being charged with anything, or given any written charges.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Regular Army on 7 June 1988 for 4 years, was awarded the military occupational specialty of psychiatric specialist, and was promoted to pay grade E-4.

While assigned to an Army hospital in Germany, he was the subject of a CID Report of Investigation (ROI).  That ROI shows that the applicant was titled (the subject of a CID investigation) with six other enlisted soldiers for their involvement with illegal drugs.  The applicant was titled for wrongful possession and use of hashish.

The ROI stated that the basis for the investigation was the testimony of a soldier who was pending disciplinary action as a result of a separate CID investigation.  That soldier had been promised immunity in exchange for his testimony.

During the investigation the soldier who had been granted immunity implicated two soldiers, neither being the applicant, as illegal drug users.

In the process of the investigation, one soldier made a sworn statement that she had used illegal drugs with the applicant and the other soldier made a sworn statement that he had witnessed the applicant using illegal drugs.  Neither of these soldiers had been granted immunity from prosecution.

The ROI specifies that at 0955, 23 October 1989 the applicant “was advised of his legal rights by [a CID investigator].  [The applicant] invoked his rights, requesting legal counsel.”

The completed CID ROI was forwarded to the applicant’s commander, who determined that there was insufficient evidence to warrant taking any type of disciplinary action against the applicant.

On 6 June 1991 the applicant was separated from active duty with an honorable discharge under the fiscal year 1991 early release program.  He had 3 years of creditable service and no lost time.

Army Regulations 195-1 and 195-2 sets forth the policies and procedures for conducting CID investigations and completing ROI’s.  Section 3 states that, upon determination that an offense has been committed and that there is probable cause to believe that a certain individual has committed the offense, that individual will be entered in the title (subject) block of the ROI.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:
1.  The CID investigation is silent on the applicant being an informant in the case.  Although he may have been the informant in the separate investigation mentioned in the CID report in question, there is no evidence to that affect.

2.  The applicant had been identified as using illegal drugs by two soldiers, neither being the informant.  This fact is in direct contravention to the applicant’s statement to the Board.

3.  Also, the CID report shows that he had his rights read to him and he exercised his right at that time to remain silent and to talk to an attorney.  Those circumstances do not support the applicant’s contention that he was never led to believe that he was being charged with any offense in conjunction with the investigation.

4.  Therefore, the Board is satisfied that the applicant was correctly titled as the subject of the offenses in question on the CID ROI.

5.  The fact that the applicant’s commander did not believe that there was sufficient evidence to take disciplinary action against him does not necessarily indicate that he was innocent of the charges.  It only means that there was insufficient evidence to take the case to court.

6.  The Board notes that in civil offenses records of charges brought against a person is retained indefinitely on Federal Bureau of Investigation (FBI) records, regardless of the disposition of the charges.  This is done by the FBI, as it is with the Army, for historical purposes.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director