MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002072160

         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. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		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 he be untitled, and that his records be cleared of all derogatory information related to the nonjudicial punishment (NJP) imposed against him for drug use on 27 October 1988.

APPLICANT STATES: That while he admits to his wrongdoings, he worked with the Criminal Investigation Division (CID) and was told that after his punishment, the charges would be dropped and stricken from his records. He further states that he applied for a gun permit, in connection with employment, and was denied the permit because of his drug offense. He also states that he was stopped for a traffic violation and because he came up as a felon, he was detained and his car was searched. Additionally, he goes on to state that because he cooperated with the CID, his rank was restored to him. In support of his application, he submits a copy of the NJP imposed against him, a copy of a letter he sent to his congressional representative and a copy of a speeding ticket he received in Utah.

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

He enlisted on 16 August 1985 for a period of 4 years and assignment to Korea. He completed his training at Fort Leonard Wood, Missouri and was transferred to Korea on 8 January 1986, for duty as a structures specialist.

He completed his tour in Korea on 9 January 1987 and was transferred to Fort Eustis, Virginia. He was advanced to the pay grade of E-4 on 1 May 1987.

On 27 October 1988, NJP was imposed against him for the wrongful use of cocaine and marijuana. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction. The imposing commander directed that the record of NJP (DA Form 2627) be filed in the performance fiche of his Official Military Personnel File (OMPF). The applicant did not appeal his punishment.

On 2 December 1988, the applicant’s commander initiated a recommendation to bar him from reenlistment. He cited as the basis for his recommendation, the NJP imposed against the applicant for drug use. The applicant elected not to submit a statement in his own behalf and the bar to reenlistment was approved by the battalion commander on 14 December 1988. The applicant elected not to appeal the bar.

On 31 January 1989, the imposing commander (battalion commander) suspended the portion of NJP imposed on 27 October 1988, as pertained to his reduction to the pay grade of E-2, for a period of 6 months. Accordingly, his rank was restored to him and the commander directed that the action be filed in the performance fiche of his OMPF.

On 15 August 1989, he was honorably released from active duty (REFRAD) in the pay grade of E-4, due to the expiration of his term of service (ETS). He had served 4 years of total active service and was transferred to the United States Army Reserve Control Group (Reinforcement).

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.

AR 27-10 prescribes the guidelines for the filing of NJP. It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.

Paragraph 3-18 of that regulation provides, in pertinent part, that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense. If the commander decides to impose the punishment he or she will announce the punishment to the soldier and explain the soldier’s appellate rights and procedures.

Paragraph 3-23 of that regulation provides, in pertinent part, that the imposing commander, a successor in command or the next superior authority may remit, mitigate, suspend, vacate or set aside punishments imposed under NJP.

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. 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.

2. The applicant’s contention that he was told that all charges would be dismissed has been noted by the Board and it appears that after NJP was imposed against him, the charges preferred against him were dropped, because he was not tried by a court-martial. However, individuals who are the subject of an investigation are titled without regard to innocence or guilt. The imposing commander clearly directed that the record of NJP and supplementary actions be filed in the performance fiche of his OMPF. The applicant has failed to provide evidence to show that he was incorrectly titled or that the record of NJP was improperly filed in his OMPF.

3. Although the applicant has not provided the law enforcement records he contends are incorrect, the issue before the Board is whether or not he was properly titled in a CID investigation. Based on the evidence of record, as well as the evidence submitted by the applicant, the Board finds that he was properly titled, that there is no case of mistaken identity, and that there is no basis to remove his name from the title block of the investigation.

4. Although his records show no evidence that he was convicted of a felony offense while serving on active duty, that does not mean that he was not investigated for a felony offense or that a lesser punishment for such an offense was offered in lieu of trial by court-martial. Accordingly, the Board finds that it would have been appropriate that he be titled for an investigation for drug offenses.

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

___lem__ __tsk ___ ___fe ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072160
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 328	134.2800/REM CID TITLE
2.
3.
4.
5.
6.