BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090010337 


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)) be expunged from his official military personnel file (OMPF).

2.  The applicant states he received an Article 15 while in the Army and it was reported to the FBI.  He states that the Article 15 is nothing more than an administrative reprimand, not a criminal offense, and carries no weight.  He states it does not even compare to a traffic ticket.  He states the information in the database is affecting his employment.

3.  The applicant provides no additional evidence in support of his request.

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.  Evidence of records show the applicant enlisted in the Regular Army (RA) on 22 July 1980.  He served through a series of reenlistments until 30 June 1998, when he was retired by reason of voluntary early retirement.

3.  The applicant’s file contains an August 1994 General Officer Memorandum of Reprimand (GOMOR) imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for using a government owned vehicle for unofficial purposes and knowing that his spouse gave a woman (an Army enlistment candidate) a powdery substance in an effort to aid the enlistment candidate with weight loss.  The reprimand was imposed following an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.  The reprimand is filed in the restricted portion of the applicant’s OMPF.  The applicant was serving in pay grade E-6 at the time he received the reprimand.

4.  On 11 January 1996, the applicant accepted an Article 15 for one charge consisting of two specifications alleging violations of Article 134, UCMJ.  The first specification alleged adultery on or about 4 November 1994.  The second specification alleged that the applicant rendered a false sworn statement on or about 25 August 1995 when he denied having a consensual sexual relationship with the person with whom he committed the alleged adulterous offense.  His punishment included forfeiture of $750.00 per month for two months.  He did not appeal the punishment.  The applicant was serving in pay grade E-7 at the time he was punished under Article 15 of the UCMJ and the DA Form 2627 was filed in the performance portion of his OMPF.

5.  During the processing of this case, a staff of the Board completed an FBI check.  The U.S. Department of Justice, FBI, Criminal Justice Information Services Division, located at Clarksburg, WV, provided the staff member a document confirming, in pertinent part, that on or about 25 August 1995 the applicant was arrested and titled for the following charges:  Rape and Sodomy.  This document also contains the following entry:

Court –
	Charge-Rape 
	Sentence- 
	/ Unable to associate disposition with charge
	Charge–Sodomy

	Sentence-
		Field Grade Article 15 in Jan 96, Received a Letter of Reprimand and 
   fined $750 by 2 months / Unable to associate disposition with charge

6.  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 sergeant (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.

7.  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.

8.  Army Regulation 195-2, paragraph 4-3d(1) states that the disclosure of criminal information originated or maintained by CIDC 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the titling action in NCIC and DCII should be removed and that the NJP he received should also be removed from his record because the offense was not criminal and carries no weight has been carefully considered.

2.  There is no evidence, and the applicant has not provided any which would warrant the removal of the UCMJ action from his OMPF.  The UCMJ action was properly filed in the applicant’s OMPF without any indication of error or injustice.

3.  The evidence in this case includes an FBI record that shows the applicant was charged with rape and sodomy in August 1995.  Based on the date of the false swearing offense noted above, it appears the applicant was first reported as having raped and sodomized the woman with whom he was ultimately found to have committed adultery.  However, that fact does not render the titling decision improper.  The authorities need only have had a reasonable belief that the offenses had been committed and that the applicant was the perpetrator of those offenses.  There is no mistaken identity in this case.  The titling simply serves as a historical record of law enforcement activities related to the applicant.

4.  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.

5.  However, the manner in which the information is portrayed on the FBI record would suggest to readers that the applicant’s UCMJ action stemmed from the sodomy charge, when in actuality the applicant was punished for adultery and false swearing.  Such information could result in unfair treatment and create an unintended injustice.  As such, while the titling action was and continues to be valid, the information contained under the heading of “court” on the FBI record should be corrected to more accurately portray the final basis for the applicant’s punishment.

6.  In this case it would be appropriate to inform the FBI of the correct disposition of the titling charges by having that agency delete the entry “Charge-Rape Sentence- / Unable to associate disposition with charge Charge–Sodomy Sentence-Field Grade Article 15 in Jan 96, Received a Letter of Reprimand and fined $750 by 2 months / Unable to associate disposition with charge” and replacing it with the entry “Field Grade Article 15 received in January 1996 for adultery and false swearing, received a fine of $750.00 per month for 2 months.”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the Crime Record Center’s report to the FBI to delete the entry “Charge-Rape Sentence- / Unable to associate disposition with charge Charge–Sodomy Sentence-Field Grade Article 15 in Jan 96, Received a Letter of Reprimand and fined $750 by 2 months / Unable to associate disposition with charge” and replacing it with the entry “Field Grade Article 15 received in January 1996 for adultery and false swearing, received a fine of $750.00 per month for
2 months.”

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the UCMJ action from his OMPF.



      __________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)                                         AR20090010337



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ABCMR Record of Proceedings (cont)                                         AR20090010337



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