MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 March 2002
         DOCKET NUMBER: AR2002067817

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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 Criminal Investigation Division (CID) drug use conviction notice be removed from his records.

APPLICANT STATES: In effect, that he was never found guilty of drug use charges, never received nonjudicial punishment (NJP), never was reduced in rank, was never court-martialed, and the only action taken against him was that he attended an administrative separation board. In an additional statement he prepared for the Board, the applicant indicates that he needs to have the changes as soon as possible due to the fact that he will lose his job, which will cause irreparable harm to him and his family. He claims that the Commander’s Report of Disciplinary or Administrative Action (DA Form 4833) on file contains an erroneous guilty entry in the judicial findings portion of the form. He contends that this entry is untrue because he never accepted NJP or underwent a trial by court-martial. As a result, he claims this entry should be deleted and all appropriate corrections should be made to his military records and he requests that his application be expedited.

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

He entered the Army on 23 May 1984 and continuously served on active duty for 14 years, 10 months, and 17 days until 9 April 1999, at which time he received a general, under honorable conditions discharge (GD), under the provisions of paragraph 14-12c(2) (Commission of a Serious Offense-Abuse of Illegal Drugs), Army Regulation 635-200, by reason of misconduct.

The evidence of record includes a Specimen Custody Document-Drug Testing (DD Form 2624), dated 19 October 1998, that confirms the applicant tested positive for THC (marijuana) and a law enforcement investigation established that the applicant had used marijuana sometime during the fall of 1998.

A Commander’s Report of Disciplinary or Administrative Action (DA Form 4833), dated 12 April 1999, prepared by the applicant’s unit commander is also on file and indicates that administrative action was taken against the applicant based on his wrongful use of marijuana. This report confirms that an administrative separation board was convened to consider separation of the applicant. The board recommended separation with a general, under honorable conditions discharge (GD) and after the applicant unsuccessfully appealed the separation action, the board recommendation was approved and the applicant was separated with a GD.

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The DA Form 4833 also clearly indicates that the action taken against the applicant was administrative in nature and the resultant action was an administrative discharge. However, it does contain an entry in the judicial findings portion of the report that gives the incorrect impression that there was a guilty judicial finding; however, this entry was not used as a basis for any further disciplinary or titling action.

Department of Defense Instructions (DODI) 5505.7 contains the authority and criteria for titling decisions. It states, in pertinent part, that titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

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 request of the applicant that the CID drug use conviction be removed from his records and the guilty judicial finding entry contained in the DA Form 4833 be deleted and his records corrected accordingly. However, the evidence of record confirms that a law enforcement investigation established that he used marijuana sometime in the sometime during the fall of 1998. An administrative separation board convened to consider his separation for this offense, it recommended that he be separated with a GD, and he was discharged accordingly in accordance with applicable regulations.

2. The Board does find that the guilty entry in the Judicial Findings portion of the
DA Form 4833, dated 12 April 1999, pertaining to the applicant is inappropriate; however, this error was harmless and did not result in a subsequent disciplinary or titling action. Therefore, while this will not result in his name being removed from law enforcement records that resulted from any titling action, the Board will direct an administrative correction be made to delete this entry from the DA Form 4833 in question.

3. DOD guidance specifies that to administratively remove a subject’s name from the DCII, mistaken identity or a complete lack of credible evidence to dispute the initial titling determination must be shown. Therefore, in view of the facts of this case, and the failure of the applicant to provide evidence that satisfies this burden of proof, the Board finds no basis for removing or amending any titling action that may have resulted from a CID investigation conducted on the applicant.

4. Although the applicant’s relief request is unclear, it appears he may be seeking to remove his name from the title block of the CID Report of Investigation (ROI) that resulted in his name being included in law enforcement records for this marijuana offence. If this is the case, he is advised that in order to address this issue he may request a copy and/or amendment of the CID Report of Investigation (ROI) through the United States Army Crime Records Center, United States Army Criminal Investigation Command, 6010 6^th Street,
Fort Belvoir, Virginia. This is an administrative remedy option to which he is entitled, and that he may still wish to pursue.

5. 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.

6. 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.

NOTE: The Army Review Boards Agency, Support Division, St. Louis, will administratively correct the DA Form 4833, dated 12 April 1999, pertaining to the applicant, by inserting the document in the OMPF with a Memorandum for Record that amends the Judicial Findings Portion of the form by deleting the check mark contained in the Guilty box, thereby confirming that no judicial action was taken in this case.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO__ _ _JPI__ __RKS DENY APPLICATION

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

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INDEX

CASE ID	AR2002067817
SUFFIX
RECON
DATE BOARDED	2002/03/07
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1999/04/09
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Misconduct-Abuse of illegal drugs
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 267	123.0700
2.
3.
4.
5.
6.