IN THE CASE OF:	

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080015289 


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, that a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) imposed on 15 December 1988 be corrected to show she used marijuana instead of cocaine.  She also requests, in effect, that a U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 17 January 1989, be removed from her criminal history data file. 

2.  The applicant states, in effect, that as a civilian the only criminal history she has is from the Army which indicates that she was arrested and convicted of possession and use of cocaine.  She claims that in the civilian world this is equivalent to a felony charge (even though she received an Article 15 which is nonjudicial punishment and not a conviction).  She goes on to state that 20 years ago she had a bad urinalysis which tested positive for cocaine and that when confronted with the positive urinalysis for cocaine she was confused because she did not use cocaine.  She admitted to using marijuana.  She contends that she took a polygraph test to prove that she did not use cocaine and that it was determined that she passed the polygraph test based on an inconclusive result; however, her admission of using marijuana warranted an Article 15.  She points out that after receiving the Article 15 she felt her Army career was over and that her sergeant enrolled her in a drug/alcohol rehabilitation center following a domestic incident wherein she had alcohol in her system.    

3.  The applicant also states that since her polygraph test results were inconclusive for cocaine use, she feels her record should indicate the use of marijuana since that is what she admitted to using.  She also claims that since her Article 15 was imposed over 20 years ago it should be completely removed from her records so she can move on with her life.  She contends that she had no clue this record even existed and that she was not aware that she had a criminal history until recently when she accepted an offer for the dream job of a lifetime and her fingerprint results revealed this information.   

4.  The applicant provides a letter, dated 11 August 2008, to the U.S. Army Crime Records Center; an undated letter from the CID, Fort Belvoir, Virginia; a CID Report of Investigation; a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action); a driver license; a Social Security card; a letter, dated 
20 October 2006, from the National Personnel Records Center, St. Louis, Missouri; and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 9 October 1985.  She served as an administrative specialist and attained the rank of specialist four on 
9 December 1987.  

3.  A DA Form 2627, dated 15 December 1988, shows that nonjudicial punishment was imposed against the applicant for using cocaine detected by biochemical testing of a urine sample which she submitted to military authorities on 26 October 1988.  Her punishment consisted of a reduction to E-3 (suspended), a forfeiture of $150.00 pay per month for 2 months, and extra duty for 30 days.  

4.  The applicant provided a CID Report of Investigation, dated 17 January 1989, which states, in pertinent part, the investigation revealed that she possessed and used cocaine on 26 October 1988 which was detected through unit urinalysis. 

5.  On 14 June 1989, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure.  

6.  There is no evidence of record which shows the applicant used marijuana. 

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 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.  Requests for deletion or amendment of CID investigative reports should be forwarded to the Director, U. S. Army Crime Records Center, ATTN:  CICR-FP, 6010 6th Street, Building 1465, Fort Belvoir, VA  22060-5585.

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.  Department of Defense Instruction (DODI) 5505.7, 7 January 2003, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that 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.  There is no evidence of record, and the applicant has provided no independent evidence except for her statement, which shows she used marijuana instead of cocaine in 1988.  Even if her polygraph test was inclusive, the urinalysis test revealed cocaine use.  It is possible her marijuana had been laced with cocaine without her knowledge.  Therefore, there is no basis for granting her request to amend the DA Form 2627 imposed on 15 December 1988 to show she used marijuana.

2.  In accordance with pertinent regulations, the decision by the CID 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.  If at the time of the investigation of an alleged offense reason existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  The applicant has provided no evidence to show that the CID’s initial decision to conduct the ROI and title her was in error.

3.  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.  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.

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)                                         AR20080015289



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ABCMR Record of Proceedings (cont)                                         AR20080015289



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