RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 April 2005
      DOCKET NUMBER:  AR20040003933


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that all references on file at the
Criminal Investigation Division (CID) and other agencies relating to a 10
October 1995 larceny charge and a 28 April 1995 charge of theft be expunged
from his record.

2.  The applicant states, in effect, that he believes it is unjust to have
these two charges on his permanent record because he was found innocent of
both.  He claims that at the completion of the investigations into both of
these incidents, he was found innocent of both charges.  He claims that
because these charges remain on his permanent record, he has lost a job and
he fears they will continue to cause problems in the future.

3.  The applicant provides a self-authored statement and an employment
termination letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 March 1997.  The application submitted in this case was
received on 8 July 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 14 July 1987.  He was trained in, awarded and served
in military occupational specialty (MOS) 75H (Personnel Specialist) and the
highest rank he attained while serving on active duty was sergeant (SGT).

4.  The record further shows that the applicant accepted nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separate occasions.

5.  On 5 September 1995, the applicant accepted NJP for the following three
offenses:  failing to go to his prescribed place of duty, making a false
official statement, and stealing 4th of July festival tickets.  The
applicant elected not to demand trial by court-martial and chose to have
his unit commander resolve the matter through an open hearing.  After
considering all matters of defense, mitigation, and/or extenuation, the
unit commander imposed the following punishment:  forfeiture of $349.00, 14
days extra duty and 14 days of restriction (suspended).  The applicant
elected not to appeal the NJP action.

6.  On 2 January 1997, the applicant accepted NJP for wrongfully using
marijuana between 10 November and 3 December 1996.  The applicant elected
not to demand trial by court-martial and chose to have the matter settled
in an open hearing before his unit commander.  The unit commander, after
considering all matters presented in defense, mitigation and/or
extenuation, imposed the following punishment:  reduction to specialist
four, 45 days extra duty (15 days suspended) and forfeiture of $697.00.
The applicant elected not to appeal the NJP action.

7.  On 9 March 1997, the applicant was separated from the Army with a
general, under honorable conditions discharge (GD).  The separation
document (DD Form 214) issued to him at the time confirms the authority for
his separation was paragraph 14-12c, Army Regulation 635-200 and the reason
for his separation was misconduct (commission of a serious offense).

8.  The applicant provides a letter from the Social Security
Administration, dated 8 May 2003.  This letter informed the applicant of
the proposed action to terminate his employment.  It stated that the action
was based on the results of a background investigation from the Officer of
Personnel Management.  The background investigation revealed that the
applicant had accepted two Article 15s and that a 10 August 1995
investigation summary established a probable cause that he committed the
offense of larceny by stealing $2,026.40 while working as a festival
cashier at a 4th of July Festival.

9.  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 AND CONCLUSIONS:

1.  The applicant’s request to remove all titling actions from his record
because it impacts his employment opportunities was carefully considered.
However, this factor is not sufficiently mitigating to warrant the
requested relief.

2.  The evidence of record confirms that applicant accepted NJP for the
offenses of the wrongful use of marijuana and larceny based on the theft of
4th of July Festival tickets.  It further shows that an initial CID
investigation conducted in August 1995, established probable cause to
believe he committed the offense of larceny by stealing $2,026.40.

3.  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.  Therefore, notwithstanding the final
determination of the August 1995 larceny investigation or the lack of
action taken by his commander for this offense, it is concluded that there
is insufficient evidence to satisfy this removal criteria in this case.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 March 1997.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 8
March 2000.   However, he failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LCB_  ___LJO__  ___RJW_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003933                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/19                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1997/03/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  281  |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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