IN THE CASE OF:	  

		BOARD DATE:	       27 AUG 2009

		DOCKET NUMBER:  AR20090004856 


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:

The applicant's request, argument, and supporting documents are provided by counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the U.S. Army Crime Records Center (CRC) entry be corrected to show he was not convicted and did not receive a punitive discharge. This request is based on the dismissal of the applicant's general court-martial charges and the disproportionate impact this titling decision has had on the applicant.  

2.  Counsel states that on or about 6 August 1992 and contrary to his pleas, the applicant was convicted by a General Court-Martial that sentenced him to a bad conduct discharge, confinement for 3 years, a forfeiture of all pay and allowances, and a reduction to private (PVT)/E-1.  Counsel also states that:

	a.  in February 1994, the U.S. Army Court of Criminal Appeals reviewed the applicant’s allegation of undue command influence and that the president of the court-martial engaged in ex parte communications, and ordered a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A, 147, 37 C.M.R. 411 (C.M.A. 1967).  A Fort Leavenworth, KS, trial judge subsequently conducted the bulk of the hearing but was reassigned.  His successor completed the hearing and found no command influence or improper ex parte communications.  He returned the record to the U.S. Army Court of Criminal Appeals;

	b.  the U.S. Army Court of Criminal Appeals reviewed the record and ordered additional briefs and heard oral arguments.  The Court then determined that the applicant provided sufficient evidence to raise the issue of unlawful command influence and that the burden of proof accordingly shifted to the Government.  As the Government could not disprove beyond a reasonable doubt the existence of unlawful command influence, on 26 March 1996, the Court ordered the findings of guilty and the sentence be set aside and authorized a new hearing if the Government elected to do so.  On 22 March 1996, the new court-martial convening authority issued a new General Court-Martial Order dismissing the charges as a rehearing was not practicable;

	c.  the applicant received his DD Form 214 (Certificate of Release or Discharge from Active Duty) and all back pay and allowances for the 18 months he was imprisoned and the 1,027 days he was on parole.  He further assumed that all administrative issues were resolved until he tried to obtain a home loan in 1997 and discovered that he was still listed as having a bad conduct discharge, but this was resolved with outside assistance.  Additionally, in February 2008, he became the CEO (Chief Executive Officer) of a company that had a contract with the U.S. military in Iraq.  As he tried to obtain his Common Access Card (CAC), he discovered that the Defense Eligibility Enrollment Reporting System (DEERs) still had him on active duty and in confinement.  He again obtained outside help to remove this clerical error from DEERS.  However, the Office of The Adjutant General at Fort Leavenworth was unable to remove the information from the applicant’s background check listing him as convicted felon.  He also attempted to obtain a gaming license in his home State but was ineligible as a local police check reflected him as a convicted felon.  He ended up being asked to resign his position as a CEO and his other consulting job, thus forfeiting several high-paying jobs; 

	d.  he contacted the U. S. Army Criminal Investigation Command (USACIDC, also known as CID) and received a response from that command’s Deputy Staff Judge Advocate (JAG) who informed him that his successful court-martial appeal only means that his conviction, and the consequences thereof, such as the record of conviction, loss of pay and allowances, and his punitive discharge, would be set aside, which they were (emphasis added).  Yet, he continues to suffer the stigma of having a felony conviction; and

	e.  the CID has a responsibility to maintain accurate information to convey to Federal, state, and local law enforcement agencies and must update his file to reflect his overturned conviction.  The Army has a responsibility to correct the record by amending the CRC Center’s report to the Federal authorities. The applicant has suffered being stigmatized, not having a fair trial, and most recently the loss of a lucrative job.
3.  Counsel provides a copy of the U.S. Army Court of Criminal Appeals decision, dated 26 March 1996; a copy of the U.S. Army Court of Military Review order, dated 24 March 1994, a copy of General Court-Martial Order Number 13, issued by Headquarters, U.S. Army Combined Arms Center (USACAC), Fort Leavenworth, on 22 August 1996; copies of two job termination letters; a copy of the CID SJA letter, dated 4 December 2008, to his Member of Congress; a copy of an email, dated 16 December 2008, from the CID Deputy SJA; and a copy of the Criminal History Report, in support of the applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 4 years on 3 May 1988.  He completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 11C (Indirect Fire Specialist).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.  He was assigned to 1st Battalion, 29th Infantry at Fort Benning, GA.  

2.  The applicant’s records also show he was awarded the Army Good Conduct Medal, National Defense Service Medal, Army Achievement Medal (2nd Oak Leaf Cluster), Army Service Ribbon, Parachutist Badge, and the Driver and Mechanic Badge with Driver-T [for tracked vehicles] Bar.

3.  On 6 August 1992, the applicant pleaded not guilty at a general court-martial to one specification of wrongfully receiving stolen military property valued over $100.00 between 8 and 9 October 1991; one specification of false swearing on or about 20 April 1992; and one specification of wrongfully disposing of military property valued at over $100.00 between 8 October 1991 and 2 April 1992.  The Court found him guilty of all charges and specifications except the one specification of wrongfully receiving stolen military property and sentenced him to a bad conduct discharge, confinement for 3 years, forfeiture of all pay and allowances, and reduction to PVT/E-1.  The sentence was adjudged on 6 August 1992.

4.  On 16 December 1992, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

5.  On 24 March 1994, the U.S. Army Court of Military Review ordered the record of trial returned to The Judge Advocate General for such actions as is required to conduct a limited hearing pursuant to United States v. DuBay 17 U.S.C.M.A. 147, 37 C.M.R. 411 (C.M.A. 1967) and that at the conclusion of the proceedings, the record, with an authenticated verbatim transcript of the hearing, would be returned to The Judge Advocate General for further review by this Court.

6.  On 26 March 1996, the U.S. Army Court of Criminal Appeals issued a memorandum opinion on further review of the applicant's case to decide whether unlawful command influence affected the applicant's court-martial.  The Court found the Government had not met its burden of showing it did not.  Accordingly, the Court ordered the findings of guilty and the sentence be set aside and authorized a rehearing of the applicant's case by the same or a different convening authority.

7.  Headquarters, U.S. Army Combined Arms Center (USACAC), Fort Leavenworth, General Court-Martial Order Number 13, dated 22 August 1996, shows that after completion of all required post-trial and appellate reviews, the convening authority decided that a rehearing was not practicable and ordered all charges dismissed.  He also ordered all of the applicant’s rights, privileges, and property of which he had been deprived by virtue of the findings of guilty and sentence be restored.

8.  The applicant was honorably discharged on 30 August 1996 by reason of completion of required active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 8 years, 3 months, and 14 days of creditable active military service and he had 14 days of lost time.

9.  On 21 July 2008, by letter, the Director, CRC, USACIDC, notified the applicant that his name is listed as a subject in a Report of Investigation (ROI) 0644-__-CID__-_____ and ROI 0245-__-CID___-____.  He was also provided with a copy of the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 5 November 1992, pertaining to the second ROI for the offenses of false swearing, receiving stolen property, and larceny.  

10.  On 4 December 2008, by letter, the Deputy SJA, USACIDC, notified the applicant's Member of Congress that the applicant's name is listed as a subject in two ROIs:

	a.  ROI 0644-__-CID__-____ is a larceny case wherein the applicant conspired with another Soldier to drive the other Soldier’s car off post, set it on fire after removing various parts, and then reporting it stolen.  He was titled with communicating a threat, larceny of private property, and postal violations; and 

	b.  ROI 0245-__-CID___-____ is also a larceny case wherein the applicant is titled for larceny of government property (night vision devices), receiving stolen property, and false swearing.  

11.  CID also informed the Member of Congress that the investigation established credible information to believe that the applicant committed the larceny offenses and providing false information, and that a lack of prosecution by the Government does not affect the investigative process or the titling decision, or indicate an impropriety in the investigation.  Additionally, a successful appeal of his conviction on technical grounds unrelated to the facts surrounding his involvement in the commission of the underlying offenses does not have any bearing on the propriety of being titled as a result of the CID investigation that led to the court-martial.  The Deputy SJA also stated that the decision to title the applicant for his role in the larceny offenses for which he was later court-martialed appears proper and that no action would be taken to amend the applicant's records and that if new and relevant information was available, the request to amend the ROI could be resubmitted.  The Deputy SJA further provided the Member of Congress with information and/or documentation pertaining to requests for amendment of CID records. 

12.  There is no indication in the applicant's records that after having requested and obtained a redacted copy of the ROI, he made a written request to the Director, CRC to have all titling determinations against him removed.  

13.  Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the USACIDC elements. Chapter 4 of this regulation provides for the investigative records, files, and reports.  Paragraph 4-4(b) provides for amendment of USACIDC investigative command reports.  It states, in pertinent part, that USACIDC ROIs are exempt from the amendment provisions of the Privacy Act and Army Regulation 340–21 (The Army Privacy Program).  Requests for amendment will be considered only under the provisions of this regulation.  Requests to amend or unfound offenses in USACIDC ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.  The burden of proof to substantiate the request rests with the individual.  Requests to delete a person’s name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person’s name has been entered as a result of mistaken identity.  The decision to list a person’s name in the title block of a USACIDC ROI is an investigative determination that is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action.  Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.  Requests for access to, or amendment of, USACIDC investigative reports will be forwarded to the Director, U.S. Army Criminal Records Center at Fort Belvoir, VA. 

14.  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.  Counsel contends that the applicant's CRC entry should be corrected to show he was not convicted and did not receive a punitive discharge.

2.  The evidence of record shows that the applicant was suspected of committing serious offenses in his capacity as a Soldier and became the subject of an CID investigation.  The evidence of record further confirms that the convening authority convened a general court-martial that convicted him.  The U.S. Army Court of Criminal Appeals ordered the findings of guilty and the sentence set aside and/or that a rehearing be conducted by the same or a different convening authority.  However, after completion of all required post-trial and appellate reviews, the convening authority decided that a rehearing was not practicable and ordered all charges dismissed and all of the applicant’s rights, privileges, and property of which he had been deprived by virtue of the findings of guilty and sentence be restored.

3.  DOD policy specifies that titling only requires credible information that an offense may have been committed.  It further indicates that 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.  

4.  The CID titling action currently shows the applicant as a convicted person under the Uniform Code of Military Justice.  The Army Court’s action 
setting aside his conviction, and the decision of the convening authority not to retry the applicant, are very relevant to the charges and the applicant’s legal status.  While the applicant may have escaped conviction on a technicality, he, nonetheless, no longer has a conviction.  Accordingly, the CID titling action should be amended to show that the Army Court set the conviction and sentence aside. 

BOARD VOTE:

____X__  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned by:

	a.   amending only so much of the USACIDC ROI 0245-__-CID___-____ to show the applicant’s court-martial conviction and sentence were set aside; and

	b.  notifying all recipients of the original ROI of the change in the disposition of the individual's case.



      __________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)                                         AR20090004856



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ABCMR Record of Proceedings (cont)                                         AR20090004856



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