RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060010129


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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:

The applicant's request, argument, and supporting documents are provided by
counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's record be corrected
by removing his name from the titling block of the Criminal Investigation
Division (CID) report, and that this information be relayed to the National
Criminal Information Center (NCIC) so his name can be removed from the NCIC
record, which titles him for larceny of Government funds, false official
statement, and submitting a false claim.

2.  Counsel states, in effect, that the Government lacked probable cause to
title the applicant for the offenses for which he was charged.  He claims a
recent decision by the Army Discharge Review Board (ADRB) determined the
applicant did not commit these offenses.  Counsel states that the titling
action involved allegations that the applicant attempted to submit a false
claim for damage to his boat and privately owed vehicle (POV).  The
applicant claimed his boat was damaged in storage after he and a friend had
driven to the storage facility to pick up the boat and noticed some damage
to the propeller.  Counsel states the dock manager was immediately notified
of the damage.  The applicant and his friend then remained in the
applicant's POV while the dock employee hooked up the boat, which was
required by the warehouse insurance policy.  He states that unfortunately,
when the applicant was guided out of the storage facility, the applicant
heard a loud noise and noticed the boat had come off the trailer hitch and
smashed into his POV, causing substantial damage.

3.  Counsel claims that the applicant immediately filed a claim for the
damage to his automobile and included a letter from his friend
substantiating the events.  Upon receipt of the claim, the claims examiner
contacted the van line regarding the damage.  To the surprise of no one,
the van line denied causing the damage and indicated that the applicant
himself hooked up the boat to the hitch, which directly contradicted the
testimony of the applicant's friend.  Counsel states that the CID became
involved and titled the applicant for attempted larceny of Government
funds, making a false official statement, and filing a false claim, all
based on this one incident.  As a result, the applicant now has a permanent
police record for what amounted to a single transaction with a van line,
and had to explain the circumstances of this incident when he renewed his
medical license, in discussions with civilian attorneys, when filling out
credit card applications, and when obtaining insurance.
4.  Counsel states that not only was the original titling action erroneous,
but the titling of three offenses for what was essentially one transaction
is equally egregious.  He states that the overwhelming evidence, as
provided by the applicant and an eye-witness, his friend, is that an
employee of the van line incorrectly hooked up the boat to the applicant's
POV and as a result the boat became dislodged and damaged the boat and the
applicant's POV.  As such, it was perfectly reasonable for the applicant to
file a claim for the damages.  The fact an employee of the van line later
tried to place the blame for the damage on the applicant does nothing to
change these facts.

5.  Counsel states that court-martial charges were preferred against the
applicant and based on the advice of his legal counsel, the applicant
voluntarily elected to request discharge in lieu of trial by court-martial
in order to avoid the loss of his medical license.  This request was
approved and the applicant was discharged under other than honorable
conditions.  Counsel states that in 2004, the applicant applied to the ADRB
for an upgrade of his discharge, and the ADRB ultimately determined his
discharge was inequitable and upgraded his discharge to fully honorable.
Counsel states that as such, new evidence now demonstrates that the actions
taken against the applicant were improper.  He further states that the
applicant filed a request to the United States Army Crime Records Center to
have this titling action reversed and the classic bureacratic response from
the Criminal Investigative Command was double speak, in effect, indicating
the applicant's name could not be removed from the NCIC because they had
put it on the NCIC.

6.  Counsel provides the following documents in support of the application:
 Brief; Criminal Investigative Command Letter, dated 8 May 2006;
Commander's Report of Disciplinary Action (DA Form 4833), dated 8 October
1997; and CID Report of Investigation (ROI), dated 2 August 1997.

CONSIDERATION OF EVIDENCE:

1.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.
2.  The applicant exhausted administrative remedies on this issue when his
request to expunge the records was denied by the Criminal Investigative
Command on 8 May 2006.  Therefore, his application to this Board has been
timely filed within the 3-year statute of limitations under the policy
outlined in the preceding paragraph.

3.  The applicant’s record shows he was appointed a captain in the Medical
Corps of the United States Army Reserve (USAR) on 20 May 1995, and entered
active duty in that status on 7 July 1996.

4.  On 2 August 1997, a CID ROI established probable cause to believe the
applicant had committed the offenses of fraud, attempted larceny of
Government funds, and false official statement.  During the investigation,
the applicant was advised of his legal rights, which he invoked, and he
requested a lawyer.  As a result, there is no statement from the applicant
included as part of the ROI.

5.  The ROI included statements from three witnesses, which in effect
indicated that the applicant hooked up his boat himself, with some help
from an employee, and drove down the ramp when the boat came off the hitch
and went forward into the applicant's truck.  They also indicated that the
propeller on the applicant's boat was not damaged during this incident, and
that it was damaged prior to the boat going into storage.  Two of the
witnesses related that they heard the applicant admit that he had damaged
the propeller going over rocks at a lake, but that he was going to file a
claim to be reimbursed for the damage.  Another witness admitted to helping
the applicant put the ball hitch on his truck, but that he did not know how
to work the locking device and told the applicant he would have to do that
himself, to which the applicant replied he would take care of it.

6.  On 15 May 1997, the Staff Judge Advocate opined there was probable
cause to believe the applicant had committed the offenses of fraud,
attempted larceny of Government funds, and false official statement.

7.  On 8 October 1997,a Commander's Report of Disciplinary or
Administrative Action (DA Form 4833) was completed by the applicant's unit
commander.  This report indicated the applicant had accepted non-judicial
punishment under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) and that he was being processed for administrative
separation in lieu of trial by court-martial.

8.  The applicant's record is void of a separation packet containing the
specific facts and circumstances surrounding the applicant's separation
processing.  The record does include a separation document (DD Form 214),
which shows on
7 July 1996, he was separated under the provisions of paragraph 3-13, Army
Regulation 600-8-24, in lieu of trial by court-martial, and that he
received an under other than honorable conditions (UOTHC) discharge.  It
also shows he completed a total of 1 year, 11 months, and 10 days of active
military service.

9.  An Army Discharge Review Board (ADRB) Case Report and Directive
(OSA Form 172), dated 21 October 2005, shows the ADRB determined the
applicant's discharge was inequitable because his misconduct was mitigated
by service of sufficient length and merit to warrant an upgrade of the
discharge being reviewed.  The ADRB specifically indicated that the
applicant's misconduct was not condoned and that the upgrade action was
based on his overall record of service and not because they made a
determination that he was not guilty of the offenses in question.  The
ADRB, by majority vote, elected to upgrade the characterization of his
discharge to honorable and to change the reason for separation to
Miscellaneous/General Reasons.

10.  On 11 January 2006, the applicant's counsel submitted a request for
amendment of the CID ROI pertaining to the applicant because the Government
lacked probable cause to title the applicant for the offenses in question.


11.  On 8 March 2006, the Director, Crime Records Center, United States
Army Criminal Investigation Command, notified the applicant's counsel that
the governing Department of Defense Instruction (DODI) establishing
policies and procedures for reporting criminal history data to the FBI and
NCIC for military service members required reporting members investigated
by DOD criminal investigative organizations for commission of certain
offenses and who are subjects of resultant judicial or non-judicial
military proceedings.  Counsel was further informed that retention of the
applicant's criminal history data in the NCIC conformed with DOD policy and
that his name would remain in the NCIC.

12.  DODI 5505.7 contains the authority and criteria for titling decisions.
 It states, in pertinent part, that titling only requires credible
information that an offense may have been committed.  It further indicates
that regardless of the characterization of the offense as founded,
unfounded, or insufficient evidence, the only way to administratively
remove a titling action from the Defense Central Investigations Index
(DCII) is to show either mistaken identity or a complete lack of credible
evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that the Government
lacked probable cause to title the applicant for the offenses for which he
was charged was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  By law and regulation, titling only requires credible information that
an offense may have been committed.  It further indicates that regardless
of the characterization of the offense as founded, unfounded, or
insufficient evidence, the only way to administratively remove a titling
action from the Defense Central Investigations Index (DCII) is to show
either mistaken identity or a complete lack of credible evidence to dispute
the initial titling determination.  The applicant and his counsel have
failed to provide evidence satisfying this standard for removal.

3.  The evidence of record confirms that the results of a CID investigation
provided a sufficient legal basis for the applicant to be titled for fraud,
attempted larceny of Government funds, and false official statement, as
confirmed by the command staff judge advocate on 15 May 1997.  Absent
evidence to the contrary, it is concluded that all requirements of law and
regulation were met in the titling process, and that the rights of the
applicant were protected throughout the process.

4.  Counsel's claim that the recent ADRB decision determined the applicant
did not commit the offenses in question was also carefully considered.
However, the ADRB Case Report and Directive pertaining to the applicant
clearly shows the ADRB action to upgrade the characterization of the
applicant's service and to change the narrative reason for his separation
was based solely on equity based on his overall record of service.  The
ADRB clearly stated its actions did not condone the applicant's misconduct.
 As a result, it provides insufficient support to grant the relief now
requested by the applicant and his counsel.

5.  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 and his
counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WFC_  __EEM __  __RMN__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____William F. Crain____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010129                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1998/01/13                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Misc-Gen Reasons                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  281  |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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