RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 October 2004
      DOCKET NUMBER:   AR2004103075


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Marla J. Troup                |     |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 that the fingerprint cards and any information
relating to the wrongful use of a controlled substance (cocaine) be
expunged from his criminal history data file.

2.  The applicant states that he gave a positive urinalysis around July
2002 during a random drug screen.  About two weeks later, he had to report
to the     U. S. Army Criminal Investigation Command (CID).  A CID officer
met him, searched him and told him to empty his pockets, and then they went
to his office. The officer did not read him his rights or put him under
arrest.  The officer typed out some questions and he answered the
questions.  Then he was fingerprinted and let go.

3.  The applicant states that in October 2002, his battalion-level
commander explained that he was receiving an Article 15 and asked him if he
took the cocaine.  He told his commander he did.  His chain of command
vouched for him and then his commander handed down his punishment.  He was
not court-martialed nor was he brought before a judge for adjudication of
the charge.  Several months later he was sent to Iraq.  He returned home in
August and was honorably discharged in December 2003.

4.  In a letter from his Member of Congress, the Member stated that the
applicant tried to visit a friend in prison and was told he could not enter
because his name was listed on the Federal Bureau of Investigation's
(FBI's) National Criminal Information Center list.

5.  The applicant provides three character witness letters dated 16 January
2004, 21 January 2004 (from his father), and 22 January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 September 1999.

2.  The applicant apparently accepted punishment under Article 15, Uniform
Code of Military Justice on 23 October 2002.  The Article 15 is not
available.

3.  The applicant served in Kuwait and Iraq from 1 April through 2 August
2003 and was honorably released from active duty on 20 December 2003.

4.  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 Reports of Investigation (ROIs) will be granted only
if the requestor submits new, relevant, and material facts which would
warrant such a revision.  The burden of proof to substantiate the request
is upon the individual.  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.  The
regulation further states that the decision to title a person for an
offense is an investigative determination independent of any judicial,
nonjudicial or administrative action taken against the individual or the
results of such action.

5.  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, provide
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.

6.  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.  The criteria for titling, simply
stated, is if there is reason to investigate, the subject of the
investigation should be titled.  This is a very low standard of proof (mere
scintilla of evidence), far below the burdens of proof normally borne by
the Government in criminal cases (beyond a reasonable doubt), in adverse
administrative decisions (preponderance of the evidence), and in searches
(probable cause).

7.  Army Regulation 601-270 (Military Entrance and Processing Stations
(MEPS)) states that MEPS has the function to complete the DD Form 2280
(Armed Forces Fingerprint Card) or the Form 258 (FBI Applicant Fingerprint
Card).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was fingerprinted when he enlisted; therefore, any
additional fingerprint card in his records would not be detrimental to him
in any manner.

2.  The applicant discusses his "criminal history data file."  His Member
of Congress discusses the FBI's National Criminal Information Center list.
The Board has no authority to remove or amend records in any FBI files.  It
is presumed the applicant is requesting that the CID ROI and information
that he received an Article 15 related to that ROI be removed from the
records maintained by the CID's Crime Records Center.

3.  In accordance with pertinent regulations, the decision by the CID to
title a person for an offense is an investigative determination independent
of any judicial, nonjudicial or administrative action taken against the
individual, or the results of such action.  If at the time of the
investigation of an alleged offense probable cause existed to believe that
a particular person committed the alleged offense, the CID is justified in
titling that individual.  The applicant has provided no evidence to show
that the CID’s initial decision to conduct the ROI and title him was in
error and, in fact, he admits to the drug use.

4.  Disclosure of criminal information originated or maintained by CID may
be made to any Federal law enforcement agency that has an investigative or
law enforcement interest in the matter disclosed.  It appears CID may have
disclosed applicant's drug use to the FBI.  Disclosures under this
paragraph to a non-Department of Defense law enforcement element is a
routine use under the Privacy Act.  The applicant has provided no evidence
to show that the disclosure was in contravention of any law, regulation, or
directive, as applied to law enforcement activities.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __lf____  __mjt___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __Raymond J. Wagner___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103075                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041028                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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