IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20080019273 


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 his Defense Central Investigations Index (DCII) and National Criminal Information Center (NCIC) records be cleared.

2.  The applicant states, in effect, that although there is no error or injustice on his military records, he has a Federal Bureau of Investigation (FBI) identification record related to an incident that occurred while he was in the Army in 1997.  He claims that prior to deploying to Kuwait in February 1997, he and his friend used marijuana and cocaine.  They had a urinalysis test the morning after and learned he had tested positive after he was in Kuwait.  He states his chain of command gave him the option of staying in or getting out of the Army, and he elected to stay.  He states that when he returned to the United States, he was brought in for questioning and fingerprinting by the U. S. Army Criminal Investigation Command (USACIDC, also known as CID).  He further indicates he is unsure why there are two charges listed on his FBI report, but he only used marijuana and cocaine once, which was prior to his deployment in February 1997.  

3.  The applicant further indicates that the non-judicial punishment (NJP) he received under Article 15 of the Uniform Code of Military Justice (UCMJ) for the drug use offenses in question was listed on the FBI report as court action.  The punishment imposed by the Article 15 was a reduction in rank, forfeiture of half his monthly salary for two months, and 45 days of extra duty, which he completed in Kuwait.  

4.  The applicant states he regrets the choice he made years ago; however, since that time, he successfully completed his tour in the Army, which included additional deployments to Bosnia and Afghanistan, and he was honorably discharged.  He also received a bachelor's degree in accounting while raising two children as a single father and is currently taking his CPA (Certified Public Accountant) exam for the State of North Carolina.  He states there have been no convictions with the law since this incident and he is requesting these charges be expunged by striking them from his record in order to allow him to apply for government jobs, bank jobs, and other opportunities that are not currently available to him.  He states that given the time that has passed and his personal accomplishments since this incident, he believes his request is fair.  

5.  The applicant provides the following documents in support of his application:  Certificate of Birth, dated 13 March 1972; Social Security Administration – Social Security Number Printout, dated 20 November 2008; College Transcript, issued on 21 July 2008; Driver License and Department of Veterans Affairs Identification Card; Pay Stubs (January 2008-Present); Consent Order for Child Custody and Child Support, dated 20 March 2006; his Children's Certificates of Live Birth and Social Security Cards; DA Forms 4833 (Commander's Reports of Disciplinary or Administrative Action), dated 15 April 1997 and 14 May 1997; DD Forms 214 (Certificate of Release or Discharge from Active Duty), effective 12 May 1999 and 7 February 2004; FBI Identification Record, dated 12 August 2008; and  third-party support letters.  

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 he initially enlisted in the Regular Army (RA) and entered active duty on 13 May 1996 and was trained in and awarded military occupational specialty (MOS) 14S (Avenger Crewmember).  His record shows he was promoted to the rank/grade of specialist (SPC)/E-4 on 1 May 1998, and this was the highest rank/grade he held during this enlistment.  

3.  The DA Forms 4833 on file show the applicant received NJP for the wrongful use of cocaine and marijuana between 1 November 1996 and 25 March 1997, and for the wrongful use of cocaine on 4 February 1997.  The information on these reports indicate two separate NJP actions were taken based on two separate offenses.

4.  On 12 May 1999, the applicant was honorably released from active duty (REFRAD), in the rank of SPC.  The DD Form 214 he was issued at the time shows he was separated by reason of completion of required active service after completing 3 years of active military service.  It also shows he earned the 
Army Achievement Medal (2nd Award), Army Service Ribbon, North Atlantic Treaty Organization (NATO) Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 8 February 2001, the applicant enlisted in the RA for 3 years and reentered active duty in the rank of SPC.  He continuously served until 
7 February 2004, when he was honorably discharged by reason of completion of required active service.  The DD Form 214 he was issued at the time shows he held the rank of private (PV2)/E-2, which he had been reduced to on 15 October 2003, and that he completed a total of 6 years of total active military service.  The National Defense Service Medal was the only additional award the applicant earned during this period of active duty service.  

6.  The applicant provides an FBI record that lists his wrongful use of cocaine with an arrested/received date of 18 June 1997, and his wrongful use of cocaine and marijuana with an arrested/received date of 14 July 1997.  Separate NJP actions are listed for each listed offense with a different punishment imposed by each of the NJP actions.  

7.  The applicant provides third-party letters attesting to his good post-service conduct, employment history, and character.  He also provides documents confirming his employment and status as a sole parent.  

8.  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 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 contention that his FBI (DCII/NCIC) record should be cleared to allow him to pursue employment opportunities based on his entire record of service and the time that has passed since the offenses was carefully considered.  However, although the applicant's post-service conduct and accomplishments are noteworthy, these factors are not sufficiently mitigating to support granting the requested relief.  

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 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.  

3.  The evidence of record confirms the applicant was cited for the wrongful use of marijuana and cocaine between 1 November and 25 March 1997, and for the wrongful use of cocaine on 4 February 1997, which appears to have resulted in two separate Article 15 actions.  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.  The applicant is advised that he should attempt to resolve any inconsistencies he believes exists between the offense(s) he committed and what is listed on the FBI report through the CID, 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)                                         AR20080019273



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ABCMR Record of Proceedings (cont)                                         AR20080019273



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