RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 July 2005
      DOCKET NUMBER:  AR20040009324


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. John T. 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 the Army change the "code" it
provided to the Federal Bureau of Investigation (FBI) to delete the
reference to distribution of a controlled substance.

2.  The applicant states that while in advanced individual training (AIT)
she came up positive on a urinalysis for cocaine use.  She was given a
field-grade Article 15.  She deeply regrets the choice she made but it was
not a habit, only a one-time use.  She has had an excellent military record
since then, including several medals earned while she was mobilized in
2003.

3.  The applicant states that her employer recently discovered, from FBI
records, that she has a felony on her records and intends to fire her.
They are not concerned with the charge of wrongful use, but they have no
proof that she did not earn the other charges.  The Army entered the code
112a ("wrongful use, possession and distribution") on her records.  She has
been told that the Army does not separate charges but uses one code that
contains several charges grouped together.  She realizes that this problem
cannot be resolved in the time allotted by her employer; however, she is
more concerned with the possibility that she may have problems obtaining
other employment.

4.  The applicant provides an FBI Identification Record and a 7 December
2004 letter from the U. S. Army Criminal Investigation Command (CID), Crime
Records Center (CRC).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Army Reserve on 20 January 1999.
She was ordered to active duty for training on 11 August 1999.

2.  The applicant's Article 15 is not available (apparently it was directed
to be filed in local files only).  However, in their 7 December 2004 letter
CID's CRC informed the applicant that their records reflected she was
listed as the subject in a CID Report of Investigation (ROI) for wrongful
use and possession of cocaine and that she had received an Article 15 under
the Uniform Code of Military Justice (UCMJ) with a punishment of an oral
and a written reprimand, a forfeiture of $502.00 pay for 2 months, extra
duty for 30 days, and restriction for 30 days.
She was informed that retention of this criminal history data in the
National Crime
Information Center (NCIC) conforms to Department of Defense policy and her
name would remain in the NCIC.

3.  The FBI Identification Record shows the applicant was charged on 30
June 2000 with a violation of "Article 112A, UCMJ:  Wrongful use,
possession, and distribution of a controlled substance."  It also shows she
received non-judicial punishment under Article 15 for a charge of "Article
112a, UCMJ:  Wrongful use, possession, and distribution of a controlled
substance."

4.  The applicant was released from active duty for training on 15 December
2000.

5.  The Manual for Courts Martial United States (1998 edition) describes
Article 112a as "Wrongful use, possession, etc, of controlled substances."

6.  Army Regulation 195-2 prescribes Department of the Army policy on
criminal investigation activities and constitutes the basic authority for
the conduct of investigations and the collection, retention and
dissemination of criminal information.  In pertinent part, it states that
requests to amend CID ROIs will be granted only if the requestor submits
new, relevant, and material facts which would warrant such a revision.
Requests to delete a person’s name from the title block will be granted
only if it is determined that probable cause did not exist to believe that
the person so titled committed the offense.

7.  Army Regulation 195-2, paragraph 4-3d(1) states that the disclosure of
criminal information originated or maintained by CID may be made to any
Federal, State, local, or foreign law enforcement agency that has an
investigative or law enforcement interest in the matter disclosed, provided
the disclosure is not in contravention of any law, regulation, or directive
as applied to law enforcement activities.  Disclosures under this paragraph
to a non-Department of Defense law enforcement element is a routine use
under the Privacy Act.

8.  Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling
and Indexing of Subjects of Criminal Investigations in the Department of
Defense, states that titling ensures investigators can retrieve information
in an ROI of suspected criminal activity at some future time for law
enforcement and security purposes.  Titling or indexing alone does not
denote any degree of guilt or innocence.

DISCUSSION AND CONCLUSIONS:

1.  Although the Article 15 referred to by the applicant is not available,
records at the CID's CRC reveal that she was the subject in a CID ROI for
wrongful use and possession of cocaine.  Those records do not reflect that
she was investigated for a charge of distribution of a controlled
substance.

2.  The CID CRC's reporting of the applicant's offense and punishment to
the FBI was not improper and the applicant is not requesting that her name
be removed from the titling action.  However, not only has the use of
"code" 112a worked to the applicant's detriment, but it appears to have
been improperly reported.

3.  The correct description of Article 112a in the Manual for Courts
Martial United States (1998 edition) is "Wrongful use, possession, etc, of
controlled substances" and not "Wrongful use, possession, and distribution
of a controlled substance" as was provided to the FBI.

4.  In this case, at the least it would have been more appropriate to
inform the FBI of the exact wording of the Article of the UCMJ under which
the applicant was charged (i.e., "Wrongful use, possession, etc, of
controlled substances").  In any case, it would be more equitable to inform
the FBI of the exact offense for which an individual is punished (i.e,.
"Wrongful use and possession of a controlled substance").

BOARD VOTE:

__tsk___  __jtm___  __lf____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
amending the Crime Record Center's report to the Federal Bureau of
Investigation to show the applicant was charged with a violation of Article
112a, Uniform Code of Military Justice (i.e., "Wrongful use and possession
of controlled substances") and that she accepted non-judicial punishment
under Article 15 of the Uniform Code of Military Justice for "Wrongful use
and possession of a controlled substance".




            __Ted S. Kanamine_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009324                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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