RECORD OF PROCEEDINGS


           IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050005603


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 his Article 15 be expunged from his records
or, in the alternative, that the "Distribution" and "Possession"
specifications be deleted from the Article 15.  He is requesting, in
effect, that the "Distribution" and "Possession" specifications be removed
from the U. S. Army Criminal Investigation Command's (CID's) Report of
Investigation (ROI).

2.  The applicant states the language contained in the Article 15, i.e.,
"wrongful distribution of marijuana" and "wrongful possession of marijuana"
leads potential civilian employers to believe the violation he committed
was much more serious than it actually was.  He stated he committed one
offense – he wrongfully used marijuana.  The applicant asserts it is
obvious one must literally possess something to use it; one must likewise
distribute something in order to share it.  However, he claims he did not
distribute or possess marijuana in the manner those charges imply.

3.  The applicant states that, in the civilian world, the word
"distribution," when associated with illegal substances, implies that one
is/was involved in the sale of illegal substances for profit.  His offense
had nothing to do with distributing anything in this sense; he simply
handed a marijuana cigarette to the Soldier who wanted it.  The same can be
said of the word "possession."  In the civilian world "possession," when
associated with illegal substances, implies that one has/had a consistently
maintained cache of an illegal substance in order to supply a habitual
pattern of drug use.  He only held a joint for a few seconds on one
occasion.

4.  The applicant states that the Article 15, by indicating he committed
three separate offenses during the commission of one offense, is not only
unjust but is a blatant misrepresentation of his character.  The Army saw
fit to present him with an "honorable" discharge upon the completion of his
service.   Because of that he doubts that his commanders thought his
offense was great enough to warrant a continuous negative effect upon him
for the remainder of his life.

5.  The applicant provides a court order changing his name; his DD Form
   214 (Certificate of Release or Discharge from Active Duty); and a DA
Form    4833 (Commander's Report of Disciplinary or Administrative Action)
with the related CID ROI.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 June 2000.  The application submitted in this case is dated
7 April 2005.
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 military records from his Regular Army service are not
available to the Board.  This case is being considered using reconstructed
records which primarily consist of the documents provided by the applicant.


4.  The applicant enlisted in the Regular Army on 14 June 1996.

5.  The applicant provided a CID ROI that indicates the CID Schweinfurt,
Germany, Resident Agency investigated a number of individuals, to include
the applicant, for several drug-related offenses.  The applicant was
investigated for the offenses of wrongful distribution of marijuana,
wrongful possession of marijuana, and wrongful use of marijuana.

6.  In a sworn statement to CID on 21 January 1999, the applicant stated he
had smoked marijuana once since joining the military, in December 1998 in
Wuerzburg, Germany.  He smoked the marijuana with two of the other Soldiers
and "a bunch of strangers."  He stated he just had it once and then passed
it to one of the other Soldiers.

7.  The applicant's Article 15 is not available.  The DA Form 4833 he
provided indicates he was given an Article 15 in May 1999 for the offenses
of wrongful distribution of marijuana, wrongful possession of marijuana,
and wrongful use of marijuana.  His punishment was a reduction from pay
grade E-4 to pay grade    E-3, an oral reprimand, forfeiture of one-half of
his pay for two months, extra duty for 45 days, and restriction for 45
days.

8.  On 13 June 2000, the applicant was released from active duty with an
honorable characterization of service after completing 4 years of
creditable active service.  He had subsequent service in the Army National
Guard.

9.  Black's Law Dictionary, sixth edition, defines "possession" as having
control over a thing with the intent to have and to exercise such control.
Possession, as necessary for conviction of the offense of possession of
controlled substances with intent to distribute, may be constructive as
well as actual.  The defendant must have had dominion and control over the
contraband with knowledge of its presence and character.  It defines
"distribution" as the giving out or division among a number, sharing or
parceling out, allotting, dispensing, apportioning.

10.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  In pertinent part, it states that,
for Soldiers in the ranks of Specialist or Corporal and below (prior to
punishment), the original Record of Proceedings under Article 15, UCMJ (DA
Form 2627) will be filed locally in unit nonjudicial punishment files.
Such locally filed originals will be destroyed at the end of 2 years from
the date of imposition of punishment or on the Soldier’s transfer to
another general court-martial convening authority, whichever occurs first.


11.  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.  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.

12.  Army Regulation 195-2, paragraph 4-3d(1) states 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.

13.  Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling
and Indexing of Subjects of Criminal Investigations in the Department of
Defense, states 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).

DISCUSSION AND CONCLUSIONS:

1.  As the applicant was an E-4 when he received the Article 15, the
Article 15 should have been filed in local files only and destroyed when he
separated.  The issue appears to be the fact a record of the misconduct for
which the nonjudicial punishment was imposed is maintained in CID files.

2.  Black's Law Dictionary is also used in "the civilian world," i.e., the
civilian court system.  By the applicant's own admissions, he met the legal
definitions of wrongful possession and wrongful distribution of a
controlled substance.  Therefore, the applicant's contentions provide an
insufficient basis on which to delete the "Distribution" and "Possession"
specifications from the CID ROI.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 June 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         12 June 2003.  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

__wdp___  __tmr___  __rjf___  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.




                                  __William D. Powers___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005603                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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