MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002074012

         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. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		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 name be removed from the title block of a Criminal Investigation Division (CID) investigation report making reference to a court-martial at Fort Benjamin Harrison, Indiana.

APPLICANT STATES: In effect, that he recently discovered, while applying for a Federal job, that his records make reference to a court-martial at Fort Benjamin Harrison, however, the charges/allegations were never brought to trial.

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

He enlisted in Raleigh, North Carolina, on 25 August 1987, for a period of 4 years and training as an administrative specialist. He successfully completed his training and was transferred to Hunter Army Airfield, Georgia, where he was promoted to the pay grade of E-4 on 1 October 1988.

On 18 March 1989, he was transferred to Germany. He reenlisted on 7 August 1991 for a period of 4 years and assignment to Fort Benjamin Harrison. He departed Germany on 1 October 1991 and was transferred to Fort Benjamin Harrison in accordance with the terms of his reenlistment contract.

On 14 December 1993, the applicant’s commander initiated a recommendation to bar the applicant from reenlistment. He cited as the basis for his recommendation that nonjudicial punishment (NJP) had been imposed against the applicant on 23 July 1992, for forgery. His punishment was suspended. He also included copies of an informal investigation dated 28 July 1992 and a CID Report of Investigation dated 12 November 1993.

The applicant elected to submit a statement in his own behalf in which he asserted that the bar to reenlistment was unwarranted and unjust punishment. He further stated that in regards to the previous investigations and NJP, he never admitted guilt because he did not commit the offenses as charged. He went on to state that he accepted NJP on the advice of counsel and all of the punishment was suspended by the imposing officer. He also stated that in regards to his current legal situation, no case had been proven and because he was innocent, he had requested trial by court-martial. As a minimum, he requested that the bar to reenlistment be suspended until the outcome of his Article 39a session.

The applicant’s group commander (a colonel) provided a memorandum to accompany the bar to reenlistment request which indicated that the applicant had accepted NJP on 23 July 1992 for forgery and on 6 December 1993, he declined NJP for larceny and conspiracy charges and demanded a trial by court-martial. He further indicated that after reading the final CID report, he believed that the applicant committed the offenses and had requested trial by court-martial. He recommended that the bar be approved.

The appropriate authority approved the bar to reenlistment on 12 January 1994.

On 6 August 1995, the applicant was honorably discharged on the expiration of his term of service. He had served 7 years, 11 months and 12 days of total active service and was paid one-half separation pay in the amount of $6,281.40.

A review of the available records fails to show a copy of the NJP imposed against the applicant for larceny. His records do contain a memorandum from the Central Personnel Security Clearance Facility (CCF) at Fort Meade, Maryland, which indicates that the applicant appealed the revocation of his security clearance and the CCF reinstated his clearance after he provided proof that the charges against him had been dismissed.

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.

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 assertion that he was unjustly titled by the CID without ever having been proved guilty, is without merit. Individuals who are the subject of an investigation are titled without regard to innocence or guilt. All of the individuals involved in the alleged incident were titled yet not all were deemed to have committed an offense.

3. Although the applicant has asserted his innocence throughout the entire process, the issue before the Board is not one of guilt or innocence, but whether or not he was properly titled in a CID investigation. Based on the available evidence of record and 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. In regards to the applicant’s innocence, there is insufficient information in the evidence made available to the Board to ascertain with any degree of certainty if the CID erred in its assessment of the applicant’s involvement and the Board will not attempt to second-guess investigators on the scene. Inasmuch as the Army has a need to maintain such records and since it is clear that the applicant was the subject of an investigation, the Board finds no error or injustice in titling the applicant as a subject of an investigation.

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

__kwl ___ ___dh___ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074012
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 328	134.0000/REM DER INFO
2.
3.
4.
5.
6.