RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 October 2006
      DOCKET NUMBER:   AR20060002745


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Ronald Gant                   |     |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, the removal of his name from the
title block of two United States Army Criminal Investigation Command
(USACIDC) Reports of Investigation (ROI).

2.  The applicant states, in effect, that he was unjustly titled by the
USACIDC in Panama, where he was a drilling Naval Reservist (USNR), for the
wrongful purchase of duty free merchandise, conspiracy to contraband, and
the wrongful possession of duty free merchandise and exceeding established
limitations.  He goes on to state in a five-page letter to his
congressional representative the circumstances surrounding the allegations
against him and contends that he was denied his due process.  He further
contends that the information is incorrect and that he only attended one
hearing on the issues at hand in March 1994.  He goes on to state that the
erroneous information/allegations against him that are contained in the
reports of investigations (ROI) are affecting his ability to attain
employment because it affects his security clearance.  He also states that
he held a secret security clearance until his retirement in Korea on 8
September 2001.

3.  The applicant provides copies of letters to his congressional
representative explaining his problem, a copy of his request for copies of
the ROIs, copies of redacted ROIs, copies of a Commander’s report of
disciplinary or administrative action (DA Form 4833) and a Certificate from
the Republic of Panama Ministry of Economy and Finance dated 4 January
2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 May 1994.  The application submitted in this case was
received on 23 February 2006.

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 was born on 22 December 1939 and on 10 September 1993,
while the applicant was residing as a civilian in Panama and serving in the
USNR in the pay grade of E-7, a military police report was initiated with
the applicant listed as the subject of investigation.  The report indicates
that the investigation revealed during the period of August 1991 and August
1993, that the applicant had purchased a total of $40,025.00 of property
from the DRMO (Defense Reutilization and Marketing Office -formerly known
as the property disposal office) and that he had failed to pay Panamanian
taxes.  The applicant was titled for that offense and issued a Letter of
Instruction (LOI).

4.  It appears that the applicant did not comply with the LOI to schedule a
hearing with the garrison commander because on 22 October 1993, the
Commander, United States Army Garrison, Fort Clayton, Republic of Panama,
cited the applicant for the wrongful purchase of duty free merchandise and
conspiracy to contraband.  He banned the applicant from all military
installations for 1 year on 27 October 1993.

5.  On 8 February 1994, the applicant dispatched a letter to the Contraband
Control Office in which he indicated that he would not submit to
interrogation regarding his exchange purchases and invited officials to
proceed with charges and to inform him of the hearing date.  He also
requested copies of all files maintained by that office and a list of all
charges against him.

6.  On 6 March 1994, the applicant was again titled as a subject of
investigation  in a Military Police Report (DA Form 3975) for exceeding
established limitations and the wrongful possession of duty free
merchandise.  During a check of layaways at the furniture store at Albrook
Air Force Station, investigators of the United States Army Southern Command
(USASOUTHCOM) Contraband Control Unit reviewed purchases and found that the
applicant had made purchases at that store.  Further investigation revealed
that he had been barred from all installations and that he had continued to
make purchases at military installations and that he had exceeded his
established limitations.  Initial attempts to locate the applicant,
including by his USNR unit commander proved futile and the applicant was
titled in absentia and a BOLO (be on the look-out) order was issued for the
applicant.

7.  On 25 March 1994, the applicant was found guilty at contraband court of
the wrongful possession of duty free merchandise, exceeding established
limitations and of failure to obey a written regulation.  The court revoked
his exchange privileges indefinitely.

8.  On 17 May 2004, the USACIDC provided the applicant copies of the
reports in which he was cited, per his request.  There is no indication in
the evidence available to the Board to show that he ever appealed to that
agency to have his name removed from those reports.

9.  Department of Defense Instruction (DODI) 5505.7 serves as the authority
and criteria for CID titling decisions.  It states, in pertinent part, that
titling ensures investigators can retrieve information in a report of
investigation of suspected criminal activity at some future time for law
enforcement and security purposes.  Whether to title an individual is an
operational decision made by investigative officials, rather than a legal
determination made by lawyers.  Titling or indexing alone does not denote
any degree of guilt.  The criteria for titling are a determination credible
information exists that a person (a) may have committed a criminal offense
or (b) is otherwise made the object of a criminal investigation.  In other
words, if there is a reason to investigate, the subject of the
investigation should be titled.

10.  The DODI also directs that judicial or adverse actions shall not be
taken solely on the basis of the fact that a person has been titled in an
investigation.  By implication the DODI does not prohibit consideration of
titling in making judicial or administrative decisions, but does prohibit
using titling as the sole basis for those decisions.


DISCUSSION AND CONCLUSIONS:

1.  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 applicant has failed to
submit evidence that would satisfy this requirement.

2.  The applicant’s contention that he was unjustly titled by the law
enforcement officials appears to be without merit.  Individuals who are the
subject of an investigation are titled without regard to innocence or
guilt.  In this case, all of the individuals involved in the alleged
incident were titled and were deemed to have committed an offense.

3.  Although the applicant asserts his innocence, the issue before the
Board is not one of guilt or innocence, but whether or not he was properly
titled in a Military Police investigation.  Based on the evidence submitted
by the applicant as well as the evidence of record, the Board finds that he
was properly titled, that there is no case of mistaken identity, and that
there is no basis to remove his name from the title block of the
investigation.

4.  In regards to the applicant’s innocence, there is insufficient
information in the evidence made available to the Board to ascertain with
any degree of certainty if the law enforcement officials erred in its
assessment of the applicant’s involvement and the Board will not attempt to
second-guess investigators on the scene.  Inasmuch as the Army has a need
to maintain such records and since it is clear that the applicant was the
subject of an investigation, the Board finds no error or injustice in
titling the applicant as a subject of an investigation.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 September 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 September 2004.  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

__MD___  ___JR___  ___RG __  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.




                                  ______Melinda Darby_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002745                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A. . . . .                            |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.328    |134.0000/REM CID TITLE                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]