IN THE CASE OF:	  

		BOARD DATE:	        15 OCTOBER 2008

		DOCKET NUMBER:  AR20080011416 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, the removal of information from Criminal Investigation Division (CID) records reflecting that she made a false statement. 

2.  The applicant states, in effect, that she was a young, stressed out private, and used bad judgment at the time that she made a false statement to her commander regarding what happened between her and her drill sergeant.  She goes on to state that she has now grown and matured and has never looked back on her mistake.  However, it has become an issue of concern for employment consideration because a background check with CID was conducted and revealed that she had made a false official statement.  She further states that she is now a true professional and is committed to the Army’s mission and she also desires to enlist in the Army Reserve.

3.  The applicant provides no additional documents with her application.  

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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 


provided in the statute of limitations, the ABCMR has elected to conduct a 
substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient basis to waive the statute of limitations for timely filing.

2.  The applicant was born on 10 March 1977 and enlisted in Raleigh, North Carolina on 14 February 2000, for a period of 3 years and training as a food service specialist.  She was married with two family members at the time.  She was transferred to Fort Jackson, South Carolina to undergo her basic combat training and then to Fort Lee, Virginia to undergo her advanced individual training (AIT).

3.  Although not explained in the available records, her records show that on 23 June 2000, the applicant was discharged under the provisions of Army Regulation 635-40, chapter 5, for disability that existed prior to service (EPTS).  She had served 4 months and 10 days of total active service and her service was uncharacterized.   

4.  The applicant’s Official Military Personnel File does not contain any information related to the CID investigation in question and the applicant has not provided any information related to the incident in question, other than to state that she provided a false statement to her commander.  

5.  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 or not 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 or innocence.  The criteria for titling is a determination whether 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.

6.  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.  Once an individual has been titled, the only basis to remove a name 
from the title block of a report is if it involves a case of mistaken identity or it was later determined a mistake was made at the time of titling in that credible information indicating that the subject committed a crime that did not exist. 

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.  Although the applicant has not elaborated on the nature of her false statement to her commander, she has admitted that she did in fact make a false official statement and that the incident is recorded on CID records that title her as part of an investigation conducted by that agency.

3.  Accordingly, there appears to be no case for mistaken identity in her case and no mistake made at the time of titling and therefore, no basis to remove her from the title block of the CID report.

4.  While the applicant may have learned from her past mistakes, that in itself does not serve as a basis to remove or alter documents in an official investigation that are properly filed.

5.  The applicant's contentions have been noted; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with her application or the evidence of record why the criminal record/investigation in question should not remain a matter of record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X____  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.



      _________XXX__________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011416



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ABCMR Record of Proceedings (cont)                                         AR20080011416



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