IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090001456 


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 name be removed from the National Crime Information Center (NCIC) Federal Bureau of Investigation (FBI) database and that a DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)) received during the 1993-1994 time frame be expunged from his official military personnel file (OMPF).

2.  The applicant states, in effect, that he faced several charges while assigned at Fort Benning, Georgia, between the years 1993-1994.  He indicates that although the charges were dropped and he was never arrested, he received nonjudicial punishment (NJP) and the charges were entered into the NCIC FBI database, which should not have happened.  The applicant also states that he is unable to gain satisfactory employment and that evidence of the alleged charges should be expunged from his military record and the NCIC FBI database.

3.  The applicant provides no evidentiary documents in support of his 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 military record shows that he enlisted in the Regular Army and entered active duty on 21 October 1985.  He was trained in, awarded, and served in military occupational specialty 91J (Medical Supply Specialist).  The highest rank he attained while serving on active duty was staff sergeant, which he was promoted to on 30 June 1996.

3.  The applicant’s OMPF contains three DA Forms 2627 which show he accepted NJP on 9 December 1985, 7 December 2001, and 2 June 2004.  All involve the applicant leaving his appointed place of duty without authority.  The 7 December 2001 NJP also involved misuse of a government credit card in violation of a lawful general regulation.  The applicant’s record is void of any record of NJP for the 1993-1994 time frame.

4.  The applicant’s OMPF contains a DD Form 2239 (Record of Trial by Summary Court Martial) which shows he pled guilty and was convicted of two specifications of violating an unknown article of the UCMJ on 18 May 2004.  The DD Form 2239 does not include a charge sheet and does not identify the specific charge or specifications.  It does, however, indicate the resulting sentence was a reduction to sergeant (SGT) and that the record of trial was approved by the appropriate convening authority on 28 May 2004.

5.  On 28 December 2004, the applicant was honorably retired from active duty by reason of "disability, temporary."  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows he completed a total of 19 years, 2 months, and 8 days creditable active service.

6.  On 29 April 2008, a staff member of the Board obtained the applicant’s FBI record from the FBI, Criminal Justice Information Services Division to identify the alleged specific charges in question.  It shows he was arrested and/or charged with assault, kidnapping, rape, and robbery on 13 July 1992.  It also shows he received NJP and was sentenced to 14 days of restriction and extra duty and a forfeiture of $315.00 for unlawful possession of a hand gun and for the charge of robbery.  This report further shows the entry "Unable to Associate Disposition with Charge" for each of the four charges.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts Martial.  Paragraph 3-37 contains instructions on the disposition of the DA Form 2627 and states, in pertinent part, that for Soldiers in the ranks of SGT and above the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the Performance or Restricted portions of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final subject to review by superior authority.

8.  Department of Defense Instruction 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 contention that the titling action be removed from NCIC DCII and that the NJP he received during the period in question (1993-1994) be removed from his record because all the charges against him were dropped and because he was never arrested has been carefully considered.  However, the Board finds insufficient evidence to support a grant of relief.

2.  The evidence in this case includes an FBI record that confirms the applicant was charged with assault, kidnapping, rape, and robbery on 13 July 1992.  It also confirms he subsequently received NJP for unlawful possession of a handgun for which he was sentenced to restriction, extra duty, and a forfeiture of pay.  Each of these charges and NJP successfully establishes the basis for titling action.

3.  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.

4.  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.

5.  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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090001456



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ABCMR Record of Proceedings (cont)                                         AR20090001456



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