IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20080018948 


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, a change to the narrative reason for her separation and removal of her name from the title block of a report contained in the Defense Central Investigation Index (DCII) and National Criminal Information Center (NCIC).  

2.  The applicant states, in effect, that she worked hard to achieve the level of success she attained prior to her discharge, but unfortunately she made a wrong decision which resulted in the termination of her military career.  She states that since her discharge, she returned to the civilian sector and resumed being a productive member of society and of her community.  She claims to have maintained stable employment with an association that requires extensive background checks and the result of her background check indicated she was charged with a major crime, which could result in her dismissal.  She states that her employers have allowed her the opportunity to resolve the matter to secure her position with the association.  

3.  The applicant further states that while she does not deny the charge itself, she questions the nature and context of the charge.  She is requesting that the consideration be given to absolve (clean) her record.  She indicates that although she was rightfully punished for the act that cost her a military career and was separated from the Army for that, she does not believe she should continue to be punished.  She claims that in the past 12 years, she has worked hard to overcome obstacles she faced and wants to continue to achieve and succeed.  She believes having her record cleared would allow her to accomplish these goals.  
4.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) in support of 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 bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that she enlisted in the Regular Army and entered active duty on 5 November 1987.  She served in military occupational specialties (MOSs) 88N (Traffic Management Coordinator), 71G (Patient Administrative Specialist), and 31U (Signal Support Systems Specialist).  

3.  The applicant's record shows she was promoted to sergeant (SGT) on 
1 December 1992, and this is the highest rank she attained and held while serving on active duty.  

4.  On 21 June 1996, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing assault on an individual by stabbing him in the upper left shoulder with a dangerous weapon by a means likely to produce death or grievous bodily harm.  The punishment for this offense was a reduction to specialist (SPC) and forfeiture of $250.00 of pay per month for two months, which was suspended.  

5.  The applicant's record is void of a separation packet containing specific facts and circumstances surrounding her separation processing.  The record does include a properly constituted DD Form 214 that shows she was discharged under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force, on 20 July 1996.  It also shows that based on the authority and reason for her separation she was assigned a separation program designator (SPD) code of JCC and a reentry (RE) code of 3. 

6.  The applicant's DD Form 214 also shows she held the rank of SPC and had completed a total of 8 years, 8 months and 16 days of active military service at the time of her discharge.  It further shows that she received separation pay in the amount of $14,084.22.  

7.  During the processing of this case, a member of the Board staff completed a Federal Bureau of Investigation (FBI) check that confirmed the applicant was titled for aggravated assault.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-8, in effect at the time, provided the authority to separate members  under Headquarters, Department of the Army (HQDA) directed voluntary and involuntary early separation programs due to reduction in force, strength limitations, or budgetary constraints, upon the member's request.  

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JCC is the appropriate code to assign to Soldiers separated under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force, who were separated under a HQDA directed early separation program.  

10.  Department of Defense Instruction (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 applicant's contentions that the narrative reason for her separation should be changed and that her record should be cleared in order to allow her to continue her employment were carefully considered.  However, there is insufficient evidence to support these claims.  

2.  The evidence of record is void of a separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing.  However, the record does include a properly constituted DD Form 214 which identifies the authority and reason for the applicant's discharge and government/administrative regularity is presumed in the discharge process.  

3.  The applicant's DD Form 214 confirms she was discharged by reason of reduction in force and was assigned a SPD code of JCC, which confirms she discharged under a HQDA announced early separation program.  As a result, absent any evidence or record or assertions by the applicant to the contrary, it is presumed her discharge processing was accomplished in accordance with the applicable regulation, that all requirements of law and regulation were met, and that her rights were fully protected throughout the separation process.  As a result, there is an insufficient evidentiary basis to change the reason for her discharge.  

4.  The applicant also requested her record be cleared of information that showed on a background check conducted by her employer, which has been processed as a request that her name be removed from the DCIII and in turn NCII record, which titles her for aggravated assault, as evidenced by the FBI report provided.  

5.  The applicant's post service conduct and accomplishments are noteworthy; however, these factors do not provide a basis to clear her name form the DCII and NCIC record.  By law and regulation, titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The applicant has failed to provide evidence satisfying this standard for removal.  As a result, there is an insufficient evidentiary basis to support clearing the applicant's record of the offense she committed.  

6.  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 her counsel have failed to submit evidence that would satisfy this requirement.

7.  The applicant is advised that she should attempt to resolve any inconsistencies she believes exists between the language regarding the actual offenses she committed and the punishment she received from what is listed on the FBI report through the U. S. Army Criminal Investigation Command, United States Army Crime Records Center, 6010 6th Street, Fort Belvoir, Virginia 22060, which is the agency responsible for information on the DCII which is the basis for the NCIC and FBI report.


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.




      _______ _   _X______   ___
               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)                                         AR20080018948



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ABCMR Record of Proceedings (cont)                                         AR20080018948



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