MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 May 2002
         DOCKET NUMBER: AR2002066397

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Donald P. Hupman, Jr.		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 his records be corrected to show that he was never convicted of a felony.

APPLICANT STATES: In effect, that he is attending school to obtain a degree in the science of gunsmithing and while at the school, he attempted to purchase firearms needed as part of his training. However, the purchase required a background check and his purchases were denied because his criminal records from the Army indicate that he was convicted of a felony for violation of the National Firearms Act of 1934, for owning an illegal firearm. He goes on to state that he was never punished for that offense and has done everything he can to prove that he does not have a felony conviction or that he was never punished. In support of his application he submits a copy of the Criminal Investigation Division (CID) Report of Investigation.

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

He enlisted on 26 August 1997 for a period of 4 years, for training as an airborne infantryman, assignment to the 82d Airborne Division at Fort Bragg, North Carolina, and enrollment in the Army College Fund. He successfully completed his training and was transferred to Fort Bragg.

On 26 February 1999, based on information received from the Miami Field Office, a CID investigation was initiated to determine if the applicant had committed the offense of manufacture and possession of an automatic weapon without a license. Initially, when the applicant was advised and interviewed, he waived his rights and denied that he knew how to make an automatic weapon. Later that day he provided a sworn statement admitting that he had built a STEN automatic weapon from a kit that he had not registered or paid taxes on. He also indicated that the weapon was at his parent’s home and coordination was made with the local sheriff’s office to procure/confiscate the weapon.

Officials at the Bureau of Alcohol, Tobacco and Firearms indicated that they would not pursue charges against the applicant and the Assistant U.S. Attorney in Atlanta, Georgia deferred prosecution to the Army. The staff judge advocate’s office determined that there was probable cause to believe that the applicant had committed the offenses of manufacturing and possessing an automatic weapon. The chain of command indicated that they intended to handle the incident with means less than a court-martial. However, there is no evidence in the available records to show what punishment the applicant received for the offense.

On 12 September 1999, the applicant was honorably discharged in the rank of private first class, under the provisions of Army Regulation 635-40, for disability with severance pay. He had served 2 years and 17 days of total active service.

Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID titling decisions. It states, in pertinent part, that titling ensures investigators can retrieve information in a report of 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 lawyers. Titling or indexing alone does not denote any degree of innocence. The criteria for titling are a determination credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled.

The DODI also directs that judicial or adverse 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. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity.

Army Regulation 27-10 provides the filing instructions for a Record of Proceedings of Nonjudicial Punishment (DA Form 2627). It provides, in pertinent part, that the DA Form 2627 for personnel serving in the pay grade of E-4 and below, with less than 3 years of service, will be filed in local unit nonjudicial punishment (NJP) files for a period of 2 years, and then destroyed.

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 applicant has not provided evidence to show that Army records show that he was convicted of a felony and while the Board cannot determine with any degree of certainty exactly what transpired in this case, after the applicant admitted to the offenses for which he was investigated, the applicant’s commander indicated that punishment would be in a form less than that of a court-martial. Punishment less than a court-martial would indicate that some form of NJP was imposed; however, since the applicant was serving below the pay grade of E-4 with less than 3 years of service, any record of that punishment other than a final report of punishment by the commander to close the incident, in all likelihood would no longer be available. Inasmuch as NJP files are only maintained for a period of 2 years, it is reasonable to presume they were destroyed.



2. While the applicant maintains that he was never punished for the offense, he clearly admitted that he had committed the offense and it is reasonable to presume, in the absence of evidence to the contrary, that the commander who notified the CID investigators that the matter would be handled in a manner less than court-martial, did so.

3. While it is true that the applicant was not convicted of a felony for this offense, it must be presumed that some form of NJP was imposed against him. This presumption is made because it is very unlikely that without a commander’s report of action, the report/case would not have been closed. In any event, the CID report appears to be correct and the applicant has not provided any evidence, nor is there any present in his records to show that he was convicted of a felony offense.

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

__dh____ ___kan__ __mhm __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066397
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/14
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 328	134.0000/rem felony conv
2.
3.
4.
5.
6.