BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100014913 


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, the information in Federal Bureau of Investigation (FBI) and National Crime Information Center (NCIC) records reflecting that he had a charge pending for cocaine use be modified or expunged from those records.

2.  The applicant states, in effect, that he was not afforded a court-martial to defend himself due to the immediate full post deployment to Saudi Arabia and no investigation was conducted and the charge was still pending 17 years after his discharge.  He goes on to state that he wrote to get more information on the charge so that he could get it modified or removed from his records, which prompted the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) to send the charge to the NCIC.  He continues by stating that his discharge was upgraded to a general discharge 18 months prior.  He continues by stating that he has been a nurse since 1994 and has taken numerous drug tests and has not failed any; however, the presence of those records is hampering his ability to get employment as a nurse and serves as an injustice.   

3.  The applicant provides:

* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of his Army Discharge Review Board (ADRB) Case Report and Directive


* A copy of his diploma from the School of Practical Nursing
* A copy of a letter requesting copies of his records from the CID and a response from the CID

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 was born on 29 June 1966 and enlisted in the Regular Army on 1 November 1989 for a period of 2 years and 14 weeks under the Army College Fund enlistment option.  He completed his one-station unit training as a light weapons infantryman at Fort Benning, Georgia and was transferred to Fort Campbell, Kentucky on 16 February 1990 for his first and only duty assignment.

3.  On 24 August 1990, charges were preferred against the applicant for the wrongful use of cocaine.

4.  After consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf in which he requested that he be given a general discharge so that he could continue to pursue his education.



5.  The appropriate authority (a major general) approved his request and directed that he be discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on 29 August 1990, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 9 months, and 29 days of total active service. 

7.  On 15 May 2005, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 31 March 2006 the ADRB upgraded his discharge to a General Discharge. 

8.  A copy of the final report of investigation was obtained from the Army Crime Records Center which indicates that the applicant tested positive for cocaine, that he was advised of his rights and he elected to exercise his rights.  The commander’s report of disciplinary or administrative action taken indicates that the applicant was discharged under Army Regulation 635-200, chapter 10 on 29 August 1990.  The applicant’s name and social security number match his official records.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID 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 (a) may have committed a criminal offense or (b) 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.

11.  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. 

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 has not elaborated on the modifications he desires to be made, he admitted that he did in fact use cocaine in his request for discharge and the fact that he was discharged is recorded on CID records that title him as part of an investigation conducted by that agency.

3.  Accordingly, there appears to be no case for mistaken identity in his case and no mistake made at the time of titling and therefore no basis to remove his name from the title block of the CID report.

4.  While the applicant may have learned from his past mistakes, that in itself does not serve as a basis to remove or alter documents in an official investigation 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.



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)                                         AR20100014913





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ABCMR Record of Proceedings (cont)                                         AR20100014913



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