MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 April 2002
         DOCKET NUMBER: AR2001064327

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. George D. Paxson		Member
Mr. Charles Gainor		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: What the applicant is requesting is unclear on her application, however, from her submission to the Army Discharge Review Board (ADRB) it appears that she is requesting that she be reinstated or that her discharge be upgraded to honorable and that her military records be either purged or sealed.

APPLICANT STATES: In effect, that her rebuttal to the revocation of her security clearance action in 1992 was not submitted for review nor did she receive the final notice of this action; that she had over 7 years of honorable service prior to the actions that resulted in her separation with a characterization of her service as having been under honorable conditions (general); that she did not have legal counsel until the current time, and that she is an honest citizen who deserves a second chance.

COUNSEL STATES: The counsel, Mr. G___ M___ listed on the application was contacted to determine if any additional evidence or argument was to be forth coming. Mr. M___ indicated that he is not nor has ever been counsel for the applicant in this or any other action before any military review board.

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

The applicant participated in the Army Reserve Officer Training Corps program at Fort Valley State College while obtaining her degree in criminology. On 21 March 1983, she was commissioned a Signal Corps second lieutenant in the Army Reserve (USAR). She was promoted to first lieutenant in 1985 and to captain in 1987.

In 1990, while serving overseas, the applicant came under investigation by the Criminal Investigation Division (CID) for possible involvement in illegal activities. The allegations were: misuse of her military mail privileges, mail fraud, trading in products with false marks, soliciting another to commit a crime, and making false statements. There is an indication that, as late as January 1997, there was some type of investigation still in progress on this matter.

There is no evidence that the applicant was ever formally charged with the commission of the offenses for which she was under investigation.

A Report to Suspend Favorable Personal Actions (FLAG) was initiated on 12 December 1990 based upon the reported adverse action and the applicant was relieved of all official duties. A second FLAG was initiated on 21 May 1991 based upon her being placed on the weight control program. The adverse actions FLAG was transferred with her HQDA (Headquarters, Department of Army) directed reassignment to Fort Hood on 7 February 1992.



On 8 September 1992, the applicant was notified that the US Army Central Personnel Security Clearance Facility, Fort Meade, Maryland, intended to revoke her security clearance. The reasons listed for this action were that “On 29 November 1990, you were titled with false official statement, misuse of the APO/FPO for black-marketing, and for black-marketing in Lovorno, Italy.” This memorandum further elaborates on the details and findings of the CID investigation as of that time.

The applicant acknowledged receipt of this notice on 15 September 1992. The date of receipt was originally incorrectly noted as 15 August 1992 and was corrected on the form. She indicated that she had been advised of her rights and that she would be submitting a statement on her own behalf within 60 days of the notice; however, no statement or rebuttal is of record.

On 2 November 1992, the applicant was notified that her file had been referred to the Department of Army Active Duty Board (DAADB), based in part on the above noted adverse actions, and that the DAADB had determined that she should be involuntarily released from active duty. The notice to the applicant, receipt of which was acknowledged 18 November 1992, stated that she would be released in not less than 5 days or more than 14 days after the receipt of the notice and that the board’s decision was final. The applicant acknowledged that she was to be released on 1 December 1992. There is no indication why she was retained on active duty beyond the 1 December 1992 date. There is no indication of any additional statement submitted by or on behalf of the applicant.

On 5 January 1993, the applicant was released from active duty with a transfer to the USAR Control Group (Reinforcement) under Army Regulation 635- 100, section XII, paragraph 3-49 for failure to meet minimum standards of retention, with a characterization of service as under honorable conditions (General).

A Security Clearance Facility memorandum, dated 20 June 1993, notified the applicant that, as no response or rebuttal had been received from her, her case was unfavorably adjudicated and her security clearance had been revoked. This notification included notice of her rights to appeal this decision. There is no evidence that the applicant exercised her right to appeal.

On 19 March 1996, the applicant was notified that she was released from the USAR Control Group (REINF) and assigned to the Retired Reserve due to promotion non-selection.

The applicant applied to the ADRB on 4 January 2002 and by unanimous decision, dated 15 March 2002, the ADRB voted to deny her any change in character or reason for her discharge.

Department of Defense Instruction (DODI) 5505.7 contains the CID authority and criteria for titling decisions. It states that titling alone does not indicate any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made an object of a criminal investigation. Simply stated, if there is reason to investigate, the subject of the investigation should be titled. DODI states generally, once a person has been indexed the name shall not be removed, except in the case of mistaken identity. That a person is subsequently found not to have committed the offense or that offense did not occur are not sufficient bases for removal.

Title 10 United States Code, section 1552, provides the Secretary of the Army, acting through the Army Board for Correction of Military Records, discretion to correct an Army record when it is necessary to correct an error or remove an injustice. CID records and hence titling decisions are Army records subject to this provision.

Army Regulation 635-100 provides the authority for the separation of commissioned and warrant officers from the Active Army. Paragraph 3-58a of this regulation, in effect at the time, specifically provided for the involuntary release of officers from active duty for misconduct, moral or professional dereliction, and/or when their degree of efficiency and manner of performance require release from active duty or elimination from the service. The regulation provided that when an officer’s conduct and performance warrants relief from active duty, then the officer’s records and all available evidence will be forwarded for consideration by the Department of the Army Active Duty Board (DAADB). The Secretary of the Army or his delegated agent acts on the recommendation of the DAADB and those decisions are final.

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 discharge proceedings were conducted in accordance with the law and regulations applicable at the time. The character of discharge is commensurate with the applicant’s overall record of military service.

2. There is no evidence that the applicant’s rights were violated, that the actions which lead to her release were improper, or that she submitted any information in rebuttal to either the loss of her security clearance or her involuntary release from active duty.

3. There is no evidence that the titling action was misapplied and as such there is no reason to purge the applicant’s records of any evidence surrounding these actions. The Board does not have the authority to seal the applicant’s military records even if it had a valid reason to consider doing so.

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.

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

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INDEX

CASE ID	AR2001064327
SUFFIX
RECON
DATE BOARDED	20020425
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.00
2.
3.
4.
5.
6.