IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090008614 


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, removal of information from U.S. Army Criminal Investigation Command (USACIDC, also known as CID) records. 

2.  The applicant states, in effect, that while in Kuwait he injured his back.  The injury intensified, requiring him to be placed on morphine and other legal pain killers, and he was shipped to a medical hold company for evaluation.  He indicates his health records show he went from moderate normal pain medications recommended and prescribed by Army health professionals to extraordinary and much more health-invasive medications to alleviate his physical agony.  It is his knowledge and opinion that repeated treatment with these types of drugs may have led him to where he was at the time prior to and after he was honorably separated from active duty.         

3.  The applicant states that while awaiting a medical board he was granted leave for a few days and he went to Florida to visit a friend.  He claims that he was in a lot of pain with his back even with the medications provided by the Army doctors, that he could not get relief, and that he used cocaine to self medicate.  When he returned to his unit, he tested positive for cocaine on an urinalysis and he was given an Article 15.  He points out that this was his first offense, that his overall performance was good, and that he was provided a fairly serious punishment for the crime.  He goes on to state that he was not provided a substance abuse recovery program or a medical board and that after his discharge he went to the Department of Veterans Affairs (DVA) and completed a substance abuse recovery program.  He contends that the DVA rated him for degenerative arthritis of the spine (20 percent) and tendon inflammation (0 percent), that he is being treated for bi-polar disorder, and that he was diagnosed by the DVA with traumatic brain injury.     

4.  The applicant further states that during a background search for employment he discovered that the Army CID provided a statement that he had been arrested for criminal possession and use of an illegal substance which appeared under a Federal Bureau of Investigation (FBI) finger print site.  This information caused him to not obtain the job.  He indicates that he has been through a lot in the service of the nation, that he has injuries sustained in the service of the nation, and that he is being labeled under the CID and FBI report as if he were a common criminal. 

5.  The applicant provides an MRI [Magnetic Resonance Imaging] report, DVA medical records, a DA Form 2173 (Statement of Medical Examination and Duty Status), a DA Form 3349 (Physical Profile), numerous medication fact sheets, service medical records, a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), a certificate of completion, character reference statements, a Noncommissioned Officer Evaluation Report, awards and decorations, a letter of appreciation, a letter of commendation, and recommendations for appointment in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Coast Guard and the Army National Guard, the applicant enlisted in the U.S. Army Reserve (USAR) on 15 September 2001.  He was ordered to active duty on 7 December 2003 for mobilization for Operation Iraqi Freedom.  He was promoted to staff sergeant effective 16 May 2004. 

2.  The applicant provided a DA Form 2173, dated 22 September 2004, which shows he hurt his back while working at the Joint Military Mail Terminal in Kuwait during March 2004.  He was issued a permanent profile on 26 January 2005 for low back pain and sciatica. 

3.  A DA Form 2627, dated 28 March 2005, shows that nonjudicial punishment was imposed against the applicant for using cocaine.  His punishment consisted of a reduction to E-5, a forfeiture of $1212.00 pay for 1 month, extra duty for 
30 days, and restriction for 30 days.  

4.  On 22 July 2006, the applicant was honorably discharged from the USAR for being medically disqualified.  

5.  The applicant's Official Military Personnel File does not contain any information related to the CID record/report in question. 
6.  Army Regulation 195-2 prescribes Department of the Army policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention and dissemination of criminal information.  In pertinent part, it states that requests to amend CID reports of investigation will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  The burden of proof to substantiate the request is upon the individual.  Requests to delete a person’s name from the title block will be granted only if it is determined that probable cause did not exist to believe that the person so titled committed the offense.  The regulation further states that the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual or the results of such action.  Requests for deletion or amendment of CID investigative reports should be forwarded to the Director, U. S. Army Crime Records Center, ATTN:  CICR-FP, 6010 6th Street, Building 1465, Fort Belvoir, VA  22060-5585.

7.  Army Regulation 195-2, paragraph 4-3d(1) states that the disclosure of criminal information originated or maintained by CID may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  

8.  Department of Defense Instruction (DODI) 5505.7, 7 January 2003, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simply stated, is if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the Government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the CID report is not available, the applicant contends that a statement is recorded on CID and FBI records which indicate he had been arrested for criminal possession and use of an illegal substance.  

2.  In accordance with pertinent regulations, the decision by the CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual, or the results of such action.  If at the time of the investigation of an alleged offense reason existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  The applicant has provided no evidence to show that the CID’s decision to conduct the report of investigation and title him was in error.

3.  Disclosure of criminal information originated or maintained by the CID may be made to any Federal law enforcement agency that has an investigative or law enforcement interest in the matter disclosed.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  The applicant has provided no evidence to show that the disclosure was in contravention of any law, regulation, or directive, as applied to law enforcement activities.

4.  Since there appears to be no case for mistaken identify in his case, there is no basis to remove him from the title block CID report.

5.  The applicant's contentions have been noted; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with his application or the evidence of record why the criminal record in question should not remain a matter of record. 

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)                                         AR20090008614





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ABCMR Record of Proceedings (cont)                                         AR20090008614



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