RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JULY 2005
      DOCKET NUMBER:  AR20040008990


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Lawrence Foster               |     |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 a 1990 record of proceedings
under Article 15 of the Uniform Code of Military Justice be expunged from
his military personnel file thereby resulting in the deletion of that same
information from FBI (Federal Bureau of Investigation) files.

2.  The applicant states that he believes the record is unjust because it
is the only time in his entire life that he was ever involved in a domestic
dispute.  He states that the incident is preventing him from obtaining a
security clearance.

3.  In a letter to the Army’s Crime Center, included with his request to
this Board, he noted that he was involved in an altercation with two
American civilians, whom he suspected were having a relationship with his
spouse.  He states that he went to the home of one of the civilians and
found his wife.  He states that words were exchanged and a physical
altercation ensued.

4.  The applicant states that he left the civilian residence, and was
subsequently requested by the military police to return with them to the
place where the incident had taken place.  After being identified by the
civilians he was taken back to the military police van and when one of the
civilians verbally provoked him, he inadvertently kicked one of the
military police as he (the applicant) was attempting to step out of the
van.  He states that he was subsequently charged with aggravated assault,
simple assault, and assault on a military police.

5.  The applicant states that he received a “company grade article #15” and
that his punishment included reduction to pay grade E-1, forfeiture of pay,
and 45 days of extra duty.  However, he notes that because of his exemplary
military record, “within three months of the incident [he] was promoted
back to E4, and continued to serve in [his] position as a Military Police
Officer on a secured NATO [North Atlantic Treaty Organization]
installation.”  He states he completed his enlistment and was honorably
discharged in 1991.

6.  He states that except for this one incident he has no other
disciplinary record, has never been arrested, and does not have a criminal
record.  He notes he was not aware that he had “an FBI file until [he] had
applied for a position with a security company.”  He notes that he was told
that his name would remain in the NCIC (National Crime Information Center)
database for between 30 to 40 years.




7.  He submits no evidence in support of his request but asks that his
honorable service in the Army and the United States Marine Corps be taken
into consideration.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 October 1991.  The application submitted in this case
is dated
5 October 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.  Records available to the Board indicate that the applicant served an
initial period of active duty as a military policeman with the United
States Marine Corps between September 1979 and September 1983.  On 7
October 1987 he returned to active duty with the United States Army and was
assigned to a military police company in Germany.  By June 1988 he had been
promoted to pay grade E-4.

4.  In April 1990 the applicant was punished under Article 15 of the
Uniform Code of Military Justice (UCMJ).  The specifics of his misconduct
were identified on a “continuation sheet” which was not included in records
available to the Board.  However, his punishment included reduction to pay
grade E-1, forfeiture of $362.00 pay per month for 2 months, and 45 days of
extra duty.

5.  The applicant appealed.  The appeal was denied and it was noted that
the “proceedings were conducted in accordance with law and regulation and
the punishment imposed is not unjust or disproportionate to the offenses
committed.”

6.  Although the UCMJ action does not indicate the date the incident, which
resulted in the applicant’s charges occurred, an 8 January 1990 memorandum





notes that on that date the applicant was temporarily disqualified from the
PRP (Personnel Reliability Program).  His records, however, do not indicate
that the applicant was ever assigned to another unit.

7.  It was not until April of 1991 that the applicant had regained his rank
of specialist (E-4).

8.  On 15 October 1991 the applicant was honorably discharged in pay grade
E-4.  He was authorized full separation pay, his separation code was
recorded as “JBK” and his reenlistment code was “3C.”  The codes indicate
that the applicant was involuntarily separated from active duty because he
was ineligible for, barred from, or otherwise denied reenlistment when he
was separated at the completion of his enlistment contract.

9.  The applicant’s record does confirm that he was awarded an Army Good
Conduct Medal in October 1990 and an Army Achievement Medal in 1988.

10.  The NCIC is maintained by the Criminal Justice Information Services
Division of the FBI.  It is a computerized index of criminal justice
information and is available to Federal, state, and local law enforcement
and other criminal justice agencies.  The purpose for maintaining the NCIC
system is to provide a computerized database for ready access by a criminal
justice agency making an inquiry and for prompt disclosure of information
in the system from other criminal justice agencies about crimes and
criminals.  This information assists authorized agencies in criminal
justice and related law enforcement objectives, such as apprehending
fugitives, locating missing persons, locating and returning stolen
property, as well as in the protection of the law enforcement officers
encountering the individuals described in the system.  Data contained in
NCIC is provided by the FBI, federal, state, local and foreign criminal
justice agencies, and authorized courts.  Categories of individuals covered
by the system include those individuals who have been charged with a
serious and/or significant offense.

11.  Department of Defense Directive 7730-45, which provided for the
“Statistical Report of Criminal Activity and Disciplinary Infractions in
the Army Forces” and is currently titled the “Defense Incident-Based
Reporting System.”  That directive requires that Department of Defense
components comply with the crime reporting requirements of the Uniform
Federal Crime Reporting Act of 1988 (28 United States Code, Section 534).




12.  28 United States Code, Section 534 provides for Federal and State
criminal justice agencies to enter information into criminal information
databases for arrests, convictions, and arrest warrants for stalking or
domestic violence.

13.  Army Regulation 190-27 establishes the policies and procedures for the
Army’s participation in the NCIC and Army Regulation 190-45 includes that
requirement to report individual offenders to various databases, including
the NCIC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s UCMJ action was conducted in accordance with
appropriate laws and regulations.  There is no evidence of any error or
injustice.

2.  Although the exact offenses committed by the applicant were not in
records available to the Board, the fact that he was reduced from pay grade
E-4 to E-1 is an indication that the offenses were serious.  Additionally,
contrary to his contention, that he was restored to pay grade E-4 within 3
months of the incident is not true.  It took almost a year before he had
regained his lost rank.

3.  The applicant argues that this was the only incident of domestic
violence he has ever been involved in, and as such relief is warranted.
However, the fact remains that it was an incident, for which he was
punished, and for which the requirement existed to enter the incident in
appropriate criminal information databases under Army Regulations, a
Department of Defense Directive, and the Uniform Federal Crime Reporting
Act of 1988.

4.  While the continued presence of that information in appropriate law
enforcement files may cause a hardship for the applicant there is no
indication that it was an erroneous or invalid action or that the report
was not filed appropriately within the guidelines established by governing
regulations.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 October 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 October 1994.  The applicant did not 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

___TK___  ___JM __  ___LF___  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.




                                  ______Ted Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008990                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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