MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002076111

         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:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, 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 record be corrected to show he never received nonjudicial punishment (NJP) for the use of either LSD or marijuana; and that his name be removed from the National Crime Information Center (NCIC) (Federal Bureau of Investigation-FBI) database.

APPLICANT STATES: In effect, that he recently applied for a substitute teaching position and went through the required background check. To his surprise, the check came back showing that while he was serving in the Army at Fort Campbell, Kentucky, he was found guilty of using a narcotic called LSD and was punished for it, which is not true.

The applicant claims that what actually happened was that in March 1996, while he was serving at Fort Campbell, several soldiers living in his barracks were caught using LSD. As a result, agents from the Criminal Investigation Division (CID) rounded up everyone living and present on the floor and took them in for questioning. He claims that the CID behavior was Gestapo like to say the least. As an example, he claims that they were held for 24 hours and never offered any food or drink. He also claims that while at the CID office, several soldiers and he were questioned about any knowledge they had pertaining to the soldiers they had arrested, and during this process they were all photographed and fingerprinted. He states that he asked the CID agents what this was for, and he was told that the photo and fingerprints were going to be entered into a database to check their backgrounds.

The applicant states that based on the events outlined, he requested a copy of the investigation from the Criminal Investigation Command (CIC), Fort Belvoir, Virginia, and he has enclosed pertinent documents from this file for the Board’s use. He claims that the background check stated that he was charged with the wrongful use of LSD, that he received NJP and as a result was reduced in grade to E-1, forfeited $427 per month for two months, and received 45 days of extra duty. However, he claims that none of this is true. Upon his separation from the Army, he received a separation document that confirms that he was honorably separated in the grade of E-4, and was issued a reentry (RE) code of RE-1, which indicates that he was fully eligible for reenlistment.

The applicant indicates that he contacted his Senator’s office to obtain a copy of his pay records and his personnel file for the time frame that he was supposed to have been reduced and forfeited pay. The personnel record contains no NJP record and the pay records show he was never reduced or forfeited pay. Once he obtained these records, he contacted the CIC and requested that his name be removed from the NCIC database. However, he was informed that the CIC would not take this action because there is a commander’s NJP report on file that showed that he testing positive for THC (marijuana) on a urinalysis test and accepted NJP for this offense.

The applicant claims that he knows nothing of the NJP action, and that he never appeared before the unit commander to accept NJP. He obtained a copy of this report and discovered that the social security account number (SSAN) listed on it was not his. He states that if he had come up positive on a urinalysis, he was never told about it. However, for some reason CIC personnel feel this commander’s report is enough to keep his name in their database. In response to his request that he be shown some NJP action or any paperwork with his signature showing an actual conviction, not an accusation, CIC personnel failed to reply. He claims that what he believes is key here is whether he is being punished for a conviction or an accusation. In his opinion, being punished for a conviction, even if false, is one thing, but being punished for an accusation is unconstitutional. This is not to mention that the Army entered information into a database that informed possible employers that he had tested positive for LSD and this information has stayed there for six years, and now CIC is saying that it was in fact THC (marijuana) that he tested positive for, which shows that it is obviously okay to accuse someone of a crime they did not commit. He claims that the background check also showed that he was questioned (arrested and received) by CID agents, when in fact he was convicted of nothing and was just talked to. He questions how information like this could be put out there when he was just sitting in a barracks and the next thing you know is that you are being questioned by the CID, about somebody you don’t even know, and as a result you are entered into a database that tells the world you were interrogated, not convicted, but just interrogated. He asks if any of this sounds constitutional.

The applicant states that it is his understanding that the NJP process consists of the unit commander and the subject signing and then a copy is filed in the personnel file, one in the field file, and the other with the finance office. He asks if this is the case, where are these forms in his permanent record. He claims that he does not know what happened at Fort Campbell, but he does know that he has been given a bad reputation, which is impacting his chances of becoming a Technology Education teacher. He states that he gave the 101^st Airborne Division blood, sweat, and permanent nerve damage to his right eye, and he has worked hard in college to reach his goals and his dream of becoming a teacher. However, now the very organization he served is about to ruin him. He concludes that he has worked too hard for this to happen and it is just not fair.

The applicant concludes by requesting that his name be removed form the NCIC database and that he be provided documentation that this has occurred. He also asks that his fingerprints be removed from the database along with any other incriminating information. He requests that the Board expedite its process so that he will not be denied employment based on background investigations. In support of his application, he has provided a copy of his personnel records and the CID investigation files that he received from his Member of Congress.

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

He served on active duty for 4 years from 18 September 1992 through
17 September 1996, at which time he was honorably separated at the expiration of his term of service (ETS).

The separation document (DD Form 214) issued to the applicant upon his separation confirms that he held the rank and pay grade of specialist/E-4 (SPC/E-4) on the date of his separation, and that he was issued an RE-1 code, which indicates that he was fully eligible for reenlistment.

The applicant’s Official Military Personnel File (OMPF) contains no record of court-martial or NJP. In addition, the Leave and Earnings Statements (LESs) provided by the applicant for the period 1 April through 30 September 1996, show that he was paid as a SPC/E-4, and they are void of any entries indicating that he forfeited any pay as a result of a NJP action during this period.

On 21 November 1995 and on 18 March 1996, the Chief, Office of Substance Abuse, Human Resources Division, provided separate memorandums to the applicant’s unit commander. These documents contained lists of the unit’s soldiers whose urine specimens, that had been collected on 2 October 1995 and 8 March 1996 respectively, had tested positive for THC (marijuana). The applicant’s name was included in both the lists contained in these documents. In addition, in March 1996, the applicant was the subject of an investigation in regard to the wrongful use of hallucinogens (LSD).

The record confirms that separate law enforcement investigations found, after consulting with a legal representative of the Office of the Staff Judge Advocate (OSJA), that there was probable cause to believe the applicant committed the offenses of the wrongful use of marijuana on two separate occasions in 1995 and 1996, and the wrongful use of hallucinogens in 1996. The applicant was questioned during these investigations, and after being advised of his rights, in each case, he invoked those rights by signing statements indicating that he did not want to give up his rights and that he wanted a lawyer.

A Commander’s Report of Disciplinary or Administrative Action on file, dated
13 June 1996, which was signed by the applicant’s unit commander, indicated that NJP action had been taken against the applicant for the offense of the wrongful use of marijuana. It also indicated that punishment imposed consisted of an oral reprimand, a forfeiture of $427.00 per month for two months, and
45 days of restriction. This report referred to the correct corresponding Military Police (MP) report number pertaining to the applicant, and the subject name line contained the applicant’s correct name, grade, and date of birth. However, the SSAN listed substituted the number 3 for the number 8 in the ninth digit of the SSAN.
Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM. Paragraph 3-37 contains instructions on the disposition of the DA Form 2627 and it states, in pertinent part, that for soldiers in the rank of SPC or CPL and below, the DA Form 2627 will be filed locally in unit nonjudicial punishment files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the soldier's transfer to another GCMCA, whichever occurs first.

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 titling action be removed from NCIC-DCII and that the Commander’s Report of Disciplinary or Administrative Action on which it was based be removed from his record
because it does not pertain to him, as evidenced by it containing the incorrect SSAN. However, the Board finds insufficient evidence to support these claims.

2. By law and regulation, 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 DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.

3. The evidence of record confirms that separate law enforcement investigations established probable cause to believe that the applicant committed the offenses of the wrongful use of marijuana in 1995 and 1996, and the wrongful use of hallucinogens in 1996. The Board concludes that the findings of these investigations provided a sufficient legal basis to support the titling action in question.

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4. Notwithstanding the applicant’s contention that he was never made aware of the fact that he tested positive for marijuana on a unit urinalysis, the record confirms that he was informed of both of these positive findings during separate law enforcement investigations. In fact, the record confirms that he signed statements refusing to answer questions and invoking his right to a lawyer during these investigations. While he may disagree with the result, these facts make it clear that he was both aware and properly notified of these positive findings.

5. Although the Commander’s Report of Disciplinary or Administrative Action on file contains an incorrect digit in the applicant’s SSAN, all other identification data contained on the form, to include name, date of birth, and unit, all correctly identify the applicant as the subject of the report. Further, the law enforcement investigation report numbers referred to in it corresponds to the investigations pertaining to the applicant. Thus, the Board concludes that the SSAN error was administrative in nature, and that the preponderance of the evidence verifies that this report pertained to the applicant.

6. In addition, the Board also considered the applicant’s claim that the NJP action never took place, as evidenced by the NJP record not being on file in his OMPF, and by his pay and separation documents containing no indication of a reduction or forfeiture of pay. However, the Board finds that this evidence provided by the applicant fails to clearly establish that the NJP action in question never actually took place.

7. By regulation, NJP actions on soldiers in the grade of E-4 and below are filed locally, and are destroyed upon a member’s departure from the unit. The NJP records are not filed in the OMPF, which explains why there is no record of the NJP action in question on file in the applicant’s permanent record at this time. In addition, the fact that his pay records and separation document do not contain an indication that he was reduced or forfeited pay could just as easily have been the result of these portions of the NJP being suspended or of the NJP action not being properly processed prior to his separation. Therefore, the Board concludes these factors do not provide an evidentiary basis for granting the requested relief.

8. The applicant has failed to show that the titling decision was in error. He has also failed to show that removal of his name from the title block is necessary to remove an injustice.

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9. 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.

10. 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

__KAN__ __GJW _ __PHM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002076111
SUFFIX
RECON
DATE BOARDED	2003/01/03
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1996/09/17
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 281	126.0400
2.
3.
4.
5.
6.