MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 May 2002
         DOCKET NUMBER: AR200106852

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

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Karen Y. Fletcher		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that the record of nonjudicial punishment (NJP) he accepted under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for the wrongful use of cocaine, be expunged from his criminal record.

APPLICANT STATES: In effect, that the NJP is extremely prejudicial and hindering his ability to obtain employment. He states that he is a 70 percent service connected disabled veteran who faces a lifetime of menial employment because of an error in judgement that occurred 12 years ago. In support of his application, he submits the following documents: a Veterans Administration (VA) rating decision, dated 15 May 2000; a copy of his retirement orders; and a letter of recommendation for job employment.

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

On 12 November 1986, the applicant enlisted in the Army for a period of 4 years and was trained and served in military occupational specialty (MOS) 27N (Forward Area Alerting Radar Repairer). The highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4).

On 25 July 1989, his unit commander notified the applicant that he was considering imposing NJP on him for the wrongful use of cocaine. The applicant was given the opportunity to submit any matters in mitigation, extenuation, or defense. On 1 August 1989, the applicant acknowledged receipt of the notification and elected not to demand trial by court-martial. He also elected not to submit matters in extenuation, mitigation, or defense and requested a closed hearing.

On that same day, the commander imposed the NJP, which included a reduction to the rank and pay grade of private/E-2, forfeiture of $391.00 pay per month for 2 months, and 45 days of extra duty. The commander directed that the Record of Proceedings Under Article 15, UCMJ (DA Form 2627), be filed in the applicant’s Official Military Personnel File (OMPF) and he advised the applicant of his right to appeal the punishment imposed within 72 hours.

The applicant elected to appeal the punishment imposed and on 4 August 1989, the applicant’s appeal was forwarded to the Division Staff Judge Advocate (SJA). The SJA opined that the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed. Subsequent to this legal review, the group commander denied the applicant’s appeal.

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On 18 June 1990, the applicant was honorably released from active duty by reason of permanent disability. His disability rating was 40 percent and he held the rank and pay grade of private first class/E-3 on the date of his separation.

During the processing of this case, an advisory opinion was requested of and obtained from the United States Army Criminal Investigation Command (CIC). It stated that a laboratory screening process had detected the use of cocaine by the applicant after a urinalysis examination. The applicant accepted NJP for this offense offered by his unit commander. His unit commander found him guilty of the wrongful use of cocaine and adjudged punishment. The applicant appealed this punishment and after a legal review, the appeal was denied. It further indicated that the applicant does not contest the accuracy of the record, rather he requests it be expunged because of its impact. The advisory opinion concludes that the applicant was properly titled and there is sufficient evidence to establish probable cause to believe the applicant committed the offense. Therefore, the report of investigation and subsequent titling action should not be revised or expunged.

On 18 January 2002, the CIC advisory opinion was forwarded to the applicant in order for him to have the opportunity to respond. His counsel responded that it had been 13 years since the offense, the applicant has not committed any other drug offenses, and he is no longer in the Army and this indication on record negatively affects his procurement of employment. Counsel comments that
13 years is sufficient punishment for the offense and given the applicant’s disabled veteran status, this indication on record aggravates his financial hardship.

Department of Defense Instructions (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense), dated 14 May 1992, contains the CID’s authority and criteria for titling decisions. It states, in pertinent part, that titling ensures investigators can retrieve information in an investigation of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by attorneys.

DODI 5505.7 further indicates that titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible evidence exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. Information is deemed credible if considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity had occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred. Simply stated, if there is reason to investigate, the subject of the investigation should be titled.

The DODI also directs that judicial or adverse administrative actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the contentions of the applicant and his counsel and it finds these claims are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that a laboratory screening process detected the use of cocaine by the applicant after a urinalysis examination, and there was probable cause to believe the applicant committed the offense of wrongful use of cocaine. The applicant accepted NJP for this offense, his unit commander found him guilty of the wrongful use of cocaine and adjudged punishment, and the applicant’s appeal of the NJP was denied.

3. Therefore, the Board finds that the Titling action was accomplished in accordance with the applicable DOD Instruction and Army regulations, and the equity considerations raised by the applicant are not sufficiently mitigating to warrant the requested relief. Therefore, the Board concludes that there is an insufficient evidentiary basis to support amending or removing the titling action from his record at this time.

4. 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.

5. 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

___MDM_ ___LE___ __KYF__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060852
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/23
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	126.0400
2.
3.
4.
5.
6.