RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060011852 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie Smoot

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 any information relating to his general court-martial (GCM) conviction be expunged from his criminal history data file and other military records, or that the GCM conviction be overturned.

2.  The applicant states, in effect, that the information on his records is coming up on background checks and it is hampering him from being a productive member of society.  He continues that he was allowed to finish his military service and was honorably discharged.  The applicant further states that he is attending college and needs to do an internship in order to obtain his degree, but he is unable to do so because he keeps failing his background check. 

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 August 2002; and a three-page memorandum from Headquarters, I Corps and Fort Lewis, Staff Judge Advocate Post-Trial Recommendation, dated 21 November 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 April 2003.  The application submitted in this case is dated 23 August 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 enlisted in the Regular Army on 17 August 2000 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

4.  On 25 January 2002, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty and for willfully disobeying a superior commissioned officer.  

5.  On 18 July 2002, the applicant was convicted, contrary to his pleas, by a GCM of one specification of disobeying a lawful order from a warrant officer, one specification of using disrespectful language towards a warrant officer, two specifications of resisting apprehension, and three specifications of assaulting law enforcement officers.  His sentence consisted of a reduction to the grade of private/pay grade E-1; a forfeitures of $767.00 per month for three months; restriction to unit, place of duty, chapel, and dining facility for two months; and hard labor without confinement for three months.

6.  The applicant was honorably released from active duty on 16 August 2002, after completing 2 years of creditable active service with no lost time.

7.  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 the U.S. Army Crime Records Center (CRC) will receive and maintain the permanent files of Criminal Investigation Command (CID) and selected Military Police Investigation (MPI) reports of investigation.

8.  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.  

9.  Army Regulation 600-8-104 prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  It states court-martial orders will be filed on the performance fiche (commendatory and disciplinary (CD) section) when there is an approved finding of guilty on at least one specification. 

10.  In accordance with Title 10 of the United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial 
process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  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 the applicant's misconduct to the FBI in accordance with Army Regulation 195-2, paragraph 4-3(d)1.  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.

2.  The applicant's records show that he received an Article 15 and was convicted by a GCM of one specification of disobeying a lawful order from a warrant officer, one specification of using disrespectful language towards a warrant officer, two specifications of resisting apprehension, and three specifications of assaulting law enforcement officers.  His entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted and his military record, there is insufficient evidence to support the applicant's request for removal of the GCM documents from his records.

3.  Moreover, by law, the ABCMR may not disturb the finality of a court-martial to include overturning a conviction.  Therefore, the Board is precluded from overturning his conviction.  Because there is no evidence to show he was improperly tried and convicted, his GCM conviction is properly filed in his OMPF and in CRC files. 

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 April 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
27 April 2006.  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

__LDS __  __JLP  __  ___ES __  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.




____Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR20060011852
SUFFIX

RECON

DATE BOARDED
8 MAY 2006
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
126.0400.0000
2.

3.

4.

5.

6.