IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100007058 


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 criminal history data be expunged from Federal Bureau of Investigation (FBI) records and that records pertaining to his conviction by a general court-martial be removed from his Official Military Personnel File (OMPF).

2.  The applicant states he served in the U.S. Army from September 1972 until December 1975 and he was initially assigned to the 101st Airborne Division, Fort Campbell, KY.

	a.  He states he was arrested and charged under the Uniform Code of Military Justice (UCMJ) for possession of a controlled substance.  He was convicted and sentenced to 6 months confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS, and a bad conduct discharge.

   b.  He states the incident was a "wake-up call" for him, he changed his ways, and his sentence was shortened to 4 months.  When he appeared before the parole board, he asked to be allowed to finish his term of service in order to get an honorable discharge and have his record expunged.

   c.  He states he successfully finished his term of service with the 5th Training Brigade, Fort Knox, KY, and he received a Raiders Certificate for exemplary service.  He also received an honorable discharge.


   d.  He states that after he was discharged he attended college and he obtained a Veterans Administration (VA) home loan, and that his military record was never a problem.

   e.  He states he recently applied for a concealed [weapons] carry permit in Ohio.  The Ashland Sheriff's Office called him and asked him about the bad conduct discharge.  He adds that the sheriff accepted the applicant's honorable discharge that is on file in Ashland; however, it was then he realized his record had never been expunged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  The applicant enlisted in the Regular Army on 19 September 1972 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 71B (Clerk Typist).

3.  The applicant was arraigned at a general court-martial that convened in October 1974.

   a.  He pled not guilty and he was found guilty of the charge and specification of, on or about 28 June 1974, violating a lawful general regulation by wrongfully having in his possession a controlled substance, to wit:  28 tablets of phendimetrazine.
   
   b.  On 22 October 1974, he was sentenced to forfeiture of $175.00 per month for 4 months, confinement at hard labor for 4 months, and a bad conduct discharge.

   c.  On 11 December 1974, by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, General Court-Martial Order Number 81, the convening authority approved the sentence.  He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  The applicant was confined in the U.S. Disciplinary Barracks, Fort Leavenworth, pending completion of appellate review.

4.  On 28 January 1975, by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, General Court-Martial Order Number 91, the applicant was restored to duty pending completion of appellate review.  The portion of the sentence adjudging forfeitures no longer would apply to the applicant's pay and allowances becoming due thereafter.

5.  Headquarters, Fort Leavenworth, message, dated 13 March 1975, subject:  [Applicant's Court-Martial], notified the Commander, Fort Knox, that the Secretary of the Army directed the unexecuted portion of the applicant's sentence be suspended or remitted, whichever was appropriate, and that the applicant would then complete the unserved portion of his current enlistment.

6.  On 18 April 1975, by Headquarters, U.S. Army Armor Center, Fort Knox, Special [sic] Court-Martial Order Number 49, the unexecuted portion of the sentence to forfeit $175.00 per month for 4 months, confinement at hard labor for 4 months, and bad conduct discharge from the Army was remitted.

7.  Upon consideration of the entire record, on 11 July 1975, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved, including that pertaining to the applicant's restoration to duty and remission of forfeitures.

8.  On 10 November 1975, the provisions of Article 71(c) having been complied with, the modified sentence restoring the applicant to duty with forfeitures deferred until the sentence was ordered into execution was affirmed.  The unexcuted portion of the sentence to forfeit $175.00 per month for 4 months, confinement at hard labor for 4 months, and a bad conduct discharge having been remitted, the sentence as modified was ordered executed.

9.  A DA Form 2-2 (Insert Sheet to DA Form 2 - Record of Court-Martial Conviction) provides a summary record of the applicant's court-martial.

10.  The applicant's DD Form 214 shows he was honorably released from active duty on 8 December 1975 based upon completion of required service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to 


complete his remaining Reserve obligation.  At the time he had completed 2 years, 11 months, and 14 days of net active service, with 98 days of time lost from 22 October 1974 through 27 January 1975.

11.  The applicant did not provide a copy of the FBI record he is requesting to be expunged.  Therefore, in the processing of this case a staff member contacted the U.S. Army Criminal Investigation Command (USACIDC), Fort Belvoir, VA, to ascertain what the applicant's records contained.

   a.  Officials at the USACIDC provided a copy of Report of Investigation (ROI) 74-CID033-1x3x9-5L3 showing the applicant was apprehended on 28 June 1974 and a search of the applicant revealed a medicine bottle containing yellow tablets.  A USACIDC laboratory examination revealed the 28 tablets contained phendimetrazine, which is listed on Schedule III of Public Law 91-513.

	b.  The applicant was convicted of violating a lawful general regulation by wrongfully having in his possession a controlled substance, to wit:  28 tablets of phendimetrazine.  He was sentenced to forfeiture of $175.00 per month for
4 months, confinement at hard labor for 4 months, and a bad conduct discharge.

12.  Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense) serves as the authority and criteria for USACIDC 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 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 are a determination that 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.

13.  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.


14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) serves as the authority for filing documents in the OMPF.  It states when there is an approved finding of guilty on at least one specification, the court-martial order will be filed in the performance portion of the OMPF.  If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial will be filed in the restricted portion of the OMPF.  It also instructs that a DA Form 2-2 will be prepared.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his criminal history data should be expunged from FBI records and that records pertaining to his conviction by a general court-martial should be removed from his OMPF because his sentence was modified, he successfully finished his term of service, and he received an honorable discharge.

2.  Based on the applicant's military service records and information provided by officials at the USACIDC, it appears that the applicant was properly titled at the time he was arrested with the charge for which he was convicted.  There appears to be no case for mistaken identity in his case.  Therefore, there is no basis to remove the applicant's name from the title block of the USACIDC report which serves to update FBI records.

3.  The applicant was convicted pursuant to a duly constituted general court-martial, and the court-martial orders and record of court-martial conviction are properly filed in the applicant's OMPF in accordance with the applicable Army regulations.

4.  The applicant's military service records properly reflect the offense for which he was titled/charged with, the offense for which he was convicted, and the approved punishment that was imposed by the general court-martial.  However, the USACIDC record does not show the clemency action taken by the Secretary of the Army.  Therefore, it would be appropriate to correct the USACIDC record to show the clemency action taken by the Secretary of the Army.

5.  Although the applicant contends that the court-martial conviction has served its purpose and the court-martial orders and record of court-martial conviction should be removed from his records, the purpose of filing the records of court-martial records is to permanently document the offense for which he was convicted.  In addition, while it appears the applicant may have learned from his past mistake, that in itself does not serve as a basis to remove documents from his OMPF that are properly filed.
6.  The government has an interest in maintaining the records in question.  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.  Therefore, in view of the foregoing, there is no basis for removing the documents in question from his OMPF or expunging the criminal history data from Department of the Army of FBI records.

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 annotating his USACIDC records to show the clemency action taken by the Secretary of the Army on his sentence.

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 removing records pertaining to his conviction by a general court-martial from his OMPF and expunging his criminal history data from Department of the Army or FBI records.




      _______ _ 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)                                         AR20100007058



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)