MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 May 2003
         DOCKET NUMBER: AR2002083222

         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. Arthur A. Omartian		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Roger Able		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 all references on file at the Criminal Investigation Division (CID) and other agencies relating to a 1989 titling action based on an allegation of assault consummated by a battery, to include any entries in criminal justice databases and reports of investigation (ROI), be expunged from the record.

APPLICANT STATES: In a joint statement signed by her and her husband, that they would like the Board to expunge from their records all references to a
24 September 1989 domestic dispute incident. At the time, they were informed that the incident would remain in their record for five years, provided there were no further incidents. However, they now understand that it will remain in their record for forty years.

They further state that they regret the dreadful day of the incident and have made enormous steps to ensure that they never are involved in an incident of that magnitude again. They claim they have found that during the period of the incident they lacked the training needed for a successful marriage and did not realize the detrimental effects of harming one another. Through counseling and understanding their relationship has matured to a secure level. They also claim that this has provided them the ability to mentor other couples in marriage seminars. In addition, they have served as youth pastors, and are active members of the Army Family Team Building program.

They further indicate that they are now pleading with the Board to consider having the record expunged because the forty year rule allows no room for growth and continues to hurt their future. They state that the incident haunts the wife when she applies for employment that require background checks, and possibly hurts the husband, the soldier, in competing for promotions and in his career. They also state that they would like to adopt a child and are very concerned that this will disqualify them. They further comment that the military justice system in many ways does not see potential of a relationship, but only the facts at hand. The facts that were recorded on that day are not in dispute. However, their hope is that the Board will consider the information provided and render a favorable decision on their behalf.

In support of their application, they provide supporting letters from church officials attesting to their good character. In addition, they provide a memorandum from the Director of Enlisted Personnel, United States Army Personnel Command (PERSCOM), that approved the applicant’s husband’s request to become a drill sergeant.

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

She and her husband were the subjects of a CID investigation based on a domestic dispute that occurred on 24 September 1989. The CID investigation summary indicates that the investigation disclosed that they became involved in a verbal altercation, which turned physical when they slapped each other. They were apprehended and transported to the station where they were further processed and released to the applicant’s unit.

On 26 September 1989, the CID investigator coordinated with a member of the Staff Judge Advocate’s office, who determined there was sufficient evidence to title both the applicant and her spouse for assault consummated by a battery.

On 24 November 1989, the husband’s unit commander completed a Commander’s Report of Disciplinary or Administrative Action (DA Form 4833) pertaining to the action taken against them based on the CID investigation. This report indicates that administrative action had been taken and that they were attending family counseling at Social Services, Wuerzburg Hospital.

They requested amendment to the military police report through the Criminal Investigation Command (CIC), Fort Belvoir, Virginia. On 16 May 2001, the Director, Crime Records Center, CIC, denied this request.

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 to remove the assault consummated by battery titling action against them from the record because it hinders their employment and career opportunities. However, while the Board understands the logic for the request, these factors do not provide a sufficient evidentiary basis to support granting the requested relief.

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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 Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. The Board finds no evidence has been presented that satisfies this regulatory removal criteria.

3. The evidence of record confirms that the results of a CID investigation provided a sufficient legal basis for the subjects to be titled. Thus, the Board finds that they were properly titled for assault consummated by battery in accordance with the applicable laws and regulations. The Board is satisfied that all requirements of law and regulation were met in the titling process, and that the rights of the subjects were protected throughout the process. Society has a paramount interest in preventing and documenting domestic abuse. In a case such as this, where the facts are not in dispute, the applicant’s burden is even greater to establish the harm that results in injustice.

4. In the opinion of the Board, the applicant’s claim of harm is speculative at best, and it concludes that she has failed to provide evidence of any tangible harm. In fact, her husband was approved for drill sergeant duty in spite of the titling. Therefore, the Board finds the applicant has demonstrated no injustice resulting from the continued titling and as a result, she is not entitled to relief as a matter of equity.

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 subjects have 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.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

____RA__ __TP____ __AO____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083222
SUFFIX
RECON
DATE BOARDED	2003/05/15
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1. 281	126.0400
2.
3.
4.
5.
6.