IN THE CASE OF:	  

		BOARD DATE:	      20 AUGUST 2009

		DOCKET NUMBER:  AR20090011562 


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 that all unsubstantiated derogatory information related to him from 1990 to 2003 be removed from law enforcement files.

2.  The applicant states that the unfavorable information consists of unproven charges that were declined for consideration of criminal justice proceedings and/or closed favorably.  He goes on to state that there is no instance of nonjudicial punishment, court-martial offenses, or actions to suspend or deny access to classified information.  He also states that the unsubstantiated information should not be allowed in his official military personnel file (OMPF) and directly violates the objective of Army Regulation 600-37 (Unfavorable Information), paragraph 1-4c, which states, "Prevent adverse personnel actions based on unsubstantiated derogatory information."  He also states that he desires the unsubstantiated information be removed so that he can serve as a command sergeant major (CSM).

3.  The applicant provides a three-page memorandum explaining his application, documents related to his removal from the CSM Selection List, 10 letters of recommendation, and copies of 10 Noncommissioned Officer Evaluation Reports (NCOER).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 May 1987 for a period of 3 years and 16 weeks and training as a fire support specialist.  He completed his one-station unit training at Fort Sill, Oklahoma, and was transferred to Germany.
2.  He has remained on active duty through a series of continuous reenlistments; has served tours in Germany, Korea, Saudi Arabia, Bosnia, and Afghanistan; and was promoted to the rank of sergeant major (E-9) on 1 January 2007.

3.  On 25 November 2008, a memorandum was dispatched from the Human Resources Command - Alexandria (HRC-ALEX), Virginia, to the applicant's commander informing the commander that the applicant had been recommended for appointment to the rank of CSM by a Department of the Army Promotion Selection Board that convened on 3 June 2008; however, he was subsequently referred by the Army G-1 for removal consideration from CSM appointment due to the derogatory information in his history files.  The commander was advised that the applicant had until 24 December 2008 to submit character statements and/or a rebuttal in his behalf.  The documents being considered were provided to the applicant at that time.

4.  On 30 March 2009, the applicant's commander was advised that a Department of the Army Enlisted Standby Advisory Board that convened on 3 February 2009 recommended that he be removed from the CSM Selection List and the Director of Military Personnel Management approved the recommendation.  He was also advised that he would be eligible to compete in subsequent boards provided he was otherwise eligible.

5.  The documents used in consideration of the applicant's removal from the CSM Selection List consisted of documents maintained by the Criminal Investigation Command that included Commander's Report of Disciplinary or Administrative Action and Military Police Reports related to apprehension for domestic disturbance on 26 August 1990, apprehension for carrying a concealed weapon on 15 October 1994, apprehension for simple battery and disturbing the peace on 1 January 1995, apprehension for domestic disturbance on 29 June 1996, apprehension for domestic disturbance on 5 June 1997, apprehension for a domestic disturbance and assault of his spouse on 7 January 2004, and involvement in a traffic accident on 19 April 2007.  A review of his OMPF failed to show any of the documents related to those offenses filed in his OMPF.

6.  Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for Criminal Investigation Command 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.

7.  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.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides in paragraph 4-18, in effect, that Department of the Army officials will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform in a higher grade.  Other derogatory information received by Headquarters, Department of the Army, but not filed in the OMPF, if it is substantiated, relevant, and might reasonably and materially affect a promotion recommendation may be considered.

DISCUSSION AND CONCLUSIONS:

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

2.  Although the applicant claims that the unfavorable information consists of unsubstantiated derogatory information, he has not provided any evidence to show that the reports in question were not based on incidents that actually occurred and that the incidents recorded on Criminal Investigation Command records have incorrectly listed him as an involved party.

3.  Accordingly, there appears to be no case for mistaken identity in his case and no mistake made at the time the reports were completed and, therefore, no basis to remove those records from law enforcement files.

4.  While the applicant claims that the information contained in the law enforcement files is not indicative of his true performance and potential, that in itself does not serve as a basis to remove or alter documents in official investigations that are properly filed.
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/investigation in question should not remain a matter of record.

6.  The applicant's contention that the derogatory information should not be filed in his OMPF has been considered; however, there is no evidence in the applicant's OMPF to show that the documents in question are filed in his OMPF.

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.



      ____________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)                                         AR20090011562



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ABCMR Record of Proceedings (cont)                                         AR20090011562



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