IN THE CASE OF:	  

		BOARD DATE:	          20 August 2009

		DOCKET NUMBER:  AR20090004658 


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 United States Army Criminal Investigation Command (USACIDC, also known as CID) records reflecting that there was insufficient evidence against him to charge him with the offense of larceny of private property.

2.  The applicant states that CID stated that the allegation was unfounded as he was unaware that the calling card was stolen.

3.  The applicant provides a letter from his counsel, dated 11 March 2009, and a copy of a Commander’s Report of Disciplinary or Administrative Action (DA Form 4833), dated 7 August 1992, showing that there was insufficient evidence against him on the charge of larceny of private property.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s record be cleared of all allegations regarding the accusation of using an unauthorized calling card.

2.  Counsel states that in 1992, while in Japan, the applicant was accused of using an unauthorized calling card.  He states that the applicant was not aware that the person who lent him the calling card was not the rightful owner of the calling card, that the DA Form 4833 states "insufficient evidence," and the Judge Advocate General (JAG) advised against the action.  He states that it is unjust that this incident remains on the applicant’s record as he has been denied a gun permit.  He states that the applicant faces other risks if this unfounded allegation is not removed immediately.

3.  Counsel provides no additional information.

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.  On 8 August 1990, the applicant enlisted in the Regular Army in Newark, New Jersey, for 4 years in the pay grade of E-4.  He successfully completed his training as an infantryman.

3.  The applicant was honorably released from active duty on 7 August 1994 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, at the completion of his required active service.  He had completed 4 years of net active service this period.  He enlisted in the Army National Guard and was transferred to Company B, 6th Battalion (Light), 297th Infantry Regiment, Fairbanks, Alaska, to complete his service obligation in the Alaska Army National Guard.

4.  Information related to the CID investigation in question is not available and the applicant has not provided any information related to the incident in question other than the DA Form 4833, dated 7 August 1992, which reflects that he was titled for the offense of larceny of private property and that the JAG advised against taking action against him due to insufficient evidence.

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 may have committed a criminal offense or 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.  The applicant and his counsel contend that information contained in CID records reflecting that there was insufficient evidence to take action against him on the charge of larceny should be removed.

2.  The contentions of the applicant and his counsel have been noted.  However, according to the DODI, 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.

3.  The DODI also provides that 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 may have committed a criminal offense or 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.

4.  As previously stated, 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.  Based on the information provided by the applicant, the JAG determined that there was insufficient evidence to take action against him for larceny due to insufficient evidence, not because there was credible evidence that he did not commit the crime.
5.  There appears to be no case of mistaken identity in his case and no mistake made at the time of titling and, therefore, no basis to remove him from the title block of the CID report.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004658



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ABCMR Record of Proceedings (cont)                                         AR20090004658



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