ABCMR Proceedings (cont)                                                        AR2002076094

PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 FEBRUARY 2003                  
	DOCKET NUMBER:   AR2002076094

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Ms. Deborah L. Brantley | | Senior Analyst

  The following members, a quorum, were present:

| Mr. Raymond V. O'Connor, Jr. | | Chairperson
| Ms. Gail J. Wire | | Member
| Mr. Robert J. Osborn II | | Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that information in Part III (Statement of Law Violations and Previous Conditions), on his 1996 Department of the Army Form 3286 (Statements for Enlistment), related to his 1993 vandalism offense be expunged from the document.  He states that the General Sessions Court of Montgomery County, Tennessee ordered his criminal record expunged on 
17 June 2002.  He notes that the order states that all public records of the arrest and court case are to be destroyed.  In support of his request he submits a copy of the 1993 arrest warrant and the 2002 order for expungement.  

3.  Information available to the Board indicates the applicant initially entered active duty in June 1989.  He executed reenlistment contracts in 1992, 1996, 1999 and 2002.

4.  In preparation for his 1996 reenlistment action, the applicant completed a Department of the Army Form 3286.  Item 6c of that form asks the soldier to respond by marking "yes" or "no" to the question; "Have you ever been arrested, cited, charged or held by Federal, State, County, City or other law enforcement authorities or by Juvenile Court or Juvenile Probation Officials for any violation of any Federal Law, State Law, County or Municipal Law, Regulation or Ordnance?"

5.  In response to the question the applicant marked "yes" and indicated in item 7 of the form that the offense was "vandalism" and the date and place of the offense was "10 Mar 93, Clarksville, TN, USA."  The applicant indicated that the disposition of the offense was "Settled out of court.  Paid $500.00 damages."  The 1993 warrant submitted in support of the applicant's request to this Board indicates that the charge related to vandalism of another individual's car by the applicant.

6.  In June 2002 the General Session Court of Montgomery County, Tennessee, acting on a petition from the applicant, "dismissed in settlement" the applicant's 1993 vandalism charge.  The document notes that the "defendant named above is entitled to have all PUBLIC RECORDS relating to the offense listed above expunged according to the Tennessee Code Annotated (TCA) provision marked below."  The line "Charge has been dismissed (TCA 40-32-101)" was marked.  The document also noted that:

It is ordered that all Public Records relating to such offense above referenced be expunged and immediately destroyed upon payment of all cost to clerk and that no evidence of such records pertaining to such offense be retained by any municipal, county or state agency, except non-public confidential information retained in accordance with TCA 10-7-504 and TCA 38-6-118.

7.  TCA 40-32-101 relates to the destruction or release of records and notes that; "All public records of a person who has been charged with a misdemeanor or a felony, and which charge has been dismissed…shall, upon petition by that person to the court having jurisdiction in such previous action, be removed and destroyed without cost to such person…."

8.  TCA 40-32-102 states that the "chief administrative official of the municipal, county or state agency and the clerk of the court where such records are recorded shall remove and destroy such records within a period of days from the date of filing a petition authorized by 40-32-101.

9.  TCA 10-7-504 states that, "All investigative records of the Tennessee bureau of investigation…shall be treated as confidential and shall not be open to inspection by members of the public."  That same provisions also notes that, "The records, documents and papers in the possession of the military department which involve the security of the United States and/or the state of Tennessee, including, but not restricted to, national guard personnel records, staff studies and investigation, shall be treated as confidential and shall not be open for inspection by members of the public."

10.  TCA 38-6-11 provides for the Tennessee bureau of investigation to establish an "expunged criminal offender and pretrial diversion database."  Such database shall consist of "the name, date of birth, social security number, charging offense, date of dismissal, and date of expungement of a criminal offender…."

11.  Army Regulation 601-280, which establishes the policies and procedures for reenlistment, states that the Department of the Army Form 3286 is designed to preclude the possibility of erroneous reenlistments, broken reenlistment commitments, and misunderstandings concerning entitlements, assignments and other matters relating to the reenlistment contract.  Part III (Statement of Law Violations and Previous Conditions) will be completed by all applicants who enlist or reenlist in the Regular Army.  Offenses not previously waived and/or documented, to include those occurring on the current term of enlistment or reenlistment, will be listed.  The information is used to determine the soldier's eligibility for reenlistment and will not be used for any other purpose.  The soldier must provide the information requested regardless of any information he may have received that he is not required to reveal the information in order to reenlist. It also notes that this information must be explained to prevent confusion of soldiers who have "Expunged Records."

12.  Under the Freedom of Information Act and Privacy Act, access to military records by the general public, without the consent of the servicemember, is limited to the individual's name, service number, rank, dates of service, awards and decorations, and place of entrance and separation.

CONCLUSIONS:

1.  The information contained on the applicant's Department of the Army Form 3286 was correct at the time the form was completed in association with the applicant's 1996 reenlistment action.  The question on the form asks whether the soldier has ever been "arrested, cited, charged, or held" and provides an opportunity for the individual to indicate the disposition of the arrest, citation, or charge, in item 7 of the form.  The fact that the charge was subsequently dismissed in settlement by the state of Tennessee does not, in and of itself, create any error or injustice.

2.  The Board notes that the expungement action by the General Sessions Court of Montgomery County, Tennessee was directed at public records in municipal, community or state agencies and does not compel Department of the Army, a military department of the federal government to expunge information in its records.

3.  The Board also notes that under the Freedom of Information Act and Privacy Act the information contained in the applicant's 1996 reenlistment action would not be releasable to the general public and as such would not be considered a "public record."  Additionally, the Board notes that the information was used entirely for reenlistment eligibility determination and cannot be used for any other purposes.  The Board contends that as such, the retention of that information on his 1996 enlistment document would not create any future error or injustice.

4.  However, notwithstanding the foregoing, the Board does conclude, in the interest of equity, and to ensure that the applicant's records reflect an accurate summation of his 1993 vandalism charge, that it would be appropriate to annotate the disposition portion of item 7 on the applicant's 1996 Department of the Army Form 3286 document to show that the vandalism charge was dismissed in settlement in 2002.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by annotating item 7 on the applicant's 1996 Department of the Army Form 3286 document to show that the vandalism charge was “dismissed in settlement in 2002.” 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RVO__  __GJW __  ___RJO_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O'Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID | AR2002076094
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 20030213
TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE | YYYYMMDD
DISCHARGE AUTHORITY | AR . . . . .
DISCHARGE REASON |
BOARD DECISION | GRANT
REVIEW AUTHORITY |
ISSUES         1. | 112.00
2. |
3. |
4. |
5. |
6. |