IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009398 


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 correction of his military records by expunging from the U.S. Army Crime Records Center all documents concerning his use of cocaine.

2.  The applicant states he participated in a drug screen urinalysis conducted by his unit in 1991.  Eight persons were determined to have been positive for use of drugs.  He was told that he was not one of those eight persons.  This occurred at the same time as his expiration term of service (ETS); therefore, he never followed up on it.  He wants this record invalidated and removed from his records.  The applicant further states that this record was discovered on a criminal background search.  As a result, he lost his job.  Now he is unemployed and trying to live on less than a $1,000.00 per month unemployment.  He fears he will lose his house and become a homeless veteran if his records are not purged.

3.  The applicant provides copies of his resume; employment termination notice, dated 15 October 2009; unemployment benefits payment form, dated
25 February 2010; funeral notices for his brother and wife; a letter of support from a retired 1st sergeant, dated 1 November 1999; three letters from the U.S. Army Crime Records Center, Fort Belvoir, VA, dated 6 October, 16 November, and 10 December 2009; DA Form 5180-R (Urinalysis Custody and Report Record), dated 15 April 1991; and a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 6 May 1991.


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.  In 1987, the applicant enlisted in the U.S. Army Reserve (USAR).  In September 1987, he was ordered to active duty for training (ADT).  He successfully completed his initial training and he was awarded military occupational specialty (MOS) 75C (Personnel Management Specialist).  He was released from ADT on 29 January 1988.

3.  On 5 February 1989, the applicant was advanced to the rank/grade of specialist (SPC)/E-4.

4.  On 25 January 1991, the applicant was ordered to active duty as a member of the USAR in support of Operation Desert Shield/Desert Storm.  His Reserve unit was the 1018th U.S. Army Reception Battalion located at Fort Dix, NJ.

5.  A DA Form 5180-R, dated 15 April 1991, indicates the applicant underwent a unit urinalysis screening on 21 March 1991, resulting in a positive test for cocaine.

6.  On 25 April 1991, the applicant accepted nonjudicial punishment (NJP) for wrongful use of cocaine, the use of which was detected by biochemical testing of his urine sample submitted on 21 March 1991.  The punishment included a reduction to private first class (PFC)/E-3, and a forfeiture of $481.00 pay per month for 1 month (suspended).

7.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was reduced to PFC/E-3, effective 25 April 1991.

8.  On 25 April 1991, the applicant was released from active duty.  He had completed 3 months and 1 day of creditable active duty service and he had completed the period for which he was ordered to active duty.

9.  A DA Form 3881, dated 6 May 1991, indicates he was suspected of the wrongful use of cocaine and he was informed of his legal rights.  The applicant chose not to be questioned or to say anything.

10.  Orders D-06-548377, issued by the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 13 June 1995, honorably discharged the applicant from the USAR, effective on that same date.  The orders indicate his rank at the time of his discharge was PFC.

11.  The evidence provided by the applicant includes:

	a.  a letter, RE:  Termination of Employment - Criminal History, dated
15 October 2009, that states his employment was terminated because of a disqualifying criminal conviction.  The letter does not provide specifics regarding the conviction.

	b.  a letter of support from a retired 1st sergeant, dated 1 November 2009.  The author purports to be a retired U.S. Army 1st sergeant, who recalls the events surrounding a drug test administered by the 1018th Reception Battalion in 1991/1992.  The author states he was a member of this unit for more than
10 years and had served as the 1st sergeant of Company B from 1991 to 1996.  He recalls that there was some controversy concerning the drug test but he did not know the particulars.  The only personnel who would know all of the facts relating to the test would be those in the direct chain of command for the Soldiers who were tested.  He provided the names of the Headquarters and Headquarters Company commander and 1st sergeant, but did not know how to find them since both had long since left the service.

	c.  a letter from the U.S. Army Crime Records Center, dated 6 October 2009,  sent to the applicant in response to his request for release of information from the files of the U.S. Army Criminal Investigation Command (USACIDC).  The applicant was informed that his request for information was denied; however, his record was updated to add a disposition pertaining to his 6 May 1991 arrest.  That disposition reads: "Non-Judicial Punishment Field Grade Article 15 dated  25 Apr 91, Forfeiture $481.00 per month for 1 month (suspended if not vacated before 25 Oct 91), Reduced from E-4 to E-3."  The letter also advised the applicant that records are maintained for a period of 40 years and then destroyed.  He was also advised that he could appeal to the Secretary of the Army for release of additional information but that any such appeal had to be submitted through the U.S. Army Crime Records Center no later than
6 December 2009.

	d.  a letter from the U.S. Army Crime Records Center, dated 16 November 2009, sent to the applicant in response to his request for amendment of information in the files of the USACIDC, as provided for in the Freedom of Information Act (FOIA).  He was informed that his being reported as a subject, was based upon probable cause that indicated he had committed an offense.  Requests to amend USACIDC reports of investigation (ROI) are granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.  The burden of proof is on the individual.  No action was taken to review his ROI.  He was advised to submit a request to the U.S. Army Crime Records Center, along with new and relevant information.

	e.  a letter from the U.S. Army Crime Records Center, dated 10 December 2009, sent to the applicant in response to his FOIA request for amendment of information in the files of the USACIDC.  The applicant was provided copies of DA Forms 3881 and 5180-R with the names of law enforcement, as well as names, social security numbers and other personal information pertaining to third parties redacted.  He was informed that these documents were a part of records that are exempt from the disclosure provisions of the FOIA.  Again, he was provided guidance about how to submit an appeal, and that he had a 60 day period from the date of the letter if he wished to do so.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to expunge from the U.S. Army Crime Records Center all documents concerning his use of cocaine.  He further states that he was not one of the Soldiers who tested positive.

2.  The available records clearly show that the applicant was identified as having tested positive for cocaine.  Furthermore, he accepted NJP for this very same misconduct.

3.  The DA Form 3881, dated 6 May 1991, refers to an investigation of the applicant's possible use of cocaine, but does not specify if this action was based on the previous urinalysis results.  Furthermore, there is no available evidence showing that he was arrested or charged for using cocaine.

4.  As a result of the applicant's inquiry, his record was updated to show that he had received NJP for using cocaine.
5.  A letter provided by the applicant indicates that he was terminated from employment because of a criminal conviction.  However, this letter does not state that his use of cocaine in 1991 was that criminal act.

6.  The available evidence fails to show any error or injustice.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100009398



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ABCMR Record of Proceedings (cont)                                         AR20100009398



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