IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100018195 


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 Official Military Personnel File (OMPF) and the Defense Central Investigations Index (DCII) and National Criminal Information Center (NCIC) record be sealed or expunged of a special court-martial conviction pertaining to him for disorderly conduct.

2.  He states he is currently incarcerated and is seeking relief in order to improve his chances with the Parole Commission.  He states his record should be sealed/expunged due to the length of time that has passed since he was in the military; the length of time he was imprisoned as a result of the charges; and the fact that he was ultimately issued an "honorary" discharge from the Army.  He also contends his Federal charge sheet contains an error because it refers to the arrest of a person named C_____s P____r W____y and his name at the time was C_____s W____y.

3.  He provides copies of:

* a Judgment on the Plea of Guilty Before the Court Waiver of Jury Trial, dated 14 March 1997
* a U.S. Department of Justice, Federal Bureau of Investigation (FBI) record of charges, dated 1 May 1968

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's record shows he was inducted into the Army of the United States 10 February 1966.  The highest rank he achieved during his active duty service was private first class/pay grade E-3.  However, at the time of separation he held the rank/pay grade of private/E-1.

3.  A review of his record shows he served under the name of C_____s W____y, the evidence does not indicate that he used a middle name.  His record contains a DA Form 3027 (U.S. Army Request for National Agency Check) which shows his father's last name as O'____y and his mother's maiden name as P____r.  He submitted this application using the name C_____s W____y O'____y.

4.  His disciplinary history includes acceptance of nonjudicial punishment for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by breaking curfew and being derelict in performance of his duty in that he was absent from flag detail.

5.  His record contains Special Court-Martial Order Number 5, dated 8 December 1966, which shows he was tried and found guilty of violating Article 128 of the UCMJ by unlawfully inflicting an injury upon another Soldier by striking him and kicking him in the face.

6.  His record contains Special Court-Martial Order Number 4, dated 17 August 1967, which shows he was tried and found guilty of violating Article 116 of the UCMJ by causing a breach of the peace by wrongfully shouting and banging on his wall locker in the troop billets.  His record also contains a Summarized Record of Trial which shows he personally acknowledged his receipt of a copy of the above-described record of trial on 26 August 1967 by authenticating the form with his signature.

7.  A DD Form 493 (Extract of Military Records of Previous Convictions), dated 16 November 1967, and a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) further corroborate he was tried and convicted by the aforementioned special courts-martial.

8.  On 12 December 1967, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with a general under honorable conditions discharge after completing1 year, 8 months, and 2 days of creditable active service with 61 days of lost time.

9.  The applicant provides a U.S. Department of Justice, FBI record of charges, dated 1 May 1968, on which the name C_____s W____y appears four times and the name C_____s P____r W____y appears once.  The applicant contends the charge for C_____s P____r W____y, which was contributed by the Police Department of El Paso, TX, on 14 May 1966, does not pertain to him.

10.  He provides a Judgment on Plea of Guilty Before the Court Waiver of Jury Trial, pertaining to The State of Texas versus [the applicant's name], in the 205th District Court of El Paso County, TX, dated 14 March 1997.  This form shows he pled guilty to and was found guilty of the offense of Assault.  As a result, he was confined in the El Paso County Detention Facility for a period of 28 days.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.  When discovered by the custodian or requested by the Soldier concerned, transfer documents mistakenly filed in the performance or service section to the restricted section of the OMPF.  

12.  Table 2-1 (Composition of the OMPF) of Army Regulation 600-8-104 provides that court-martial orders are to be filed in the performance portion of the OMPF when there is an approved finding of guilty on at least on specification.  If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the performance portion of his OMPF and transfer them to the restricted portion.

13.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

14.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

15.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

16.  DOD Instruction 5505.7 and Army Regulation 195-2 (Criminal Investigation Activities) contain the authority and criteria for titling decisions.  The regulation states, in pertinent part, that 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 there is a complete lack of credible evidence to dispute the initial titling determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his OMPF, DCII, and NCIC records should be sealed or expunged of the special court-martial conviction that pertains to disorderly conduct.  These contentions were carefully considered and determined to lack merit.

2.  The record shows he had multiple disciplinary infractions.  In spite of his indiscipline, the applicant's chain of command was willing to allow the applicant to remain on active duty and continue to serve.  The evidence shows he was not responsive to the rehabilitative efforts of his command.

3.  His record is void of any evidence and he has not provided any evidence showing Special Court-Martial Order Number 4, dated 17 August 1967, which shows he was tried and found guilty of causing a breach of the peace was either erroneously or unjustly issued.  Additionally, his record also contains evidence that he personally acknowledged receipt of a copy of the record of trial on 
26 August 1967 by authenticating the form with his signature.  Therefore, it would be inappropriate to either relocate or expunge this order from the performance portion of his OMPF.

4.  The evidence shows both of the above documents were properly administered in accordance with applicable regulations and they are properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

5.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit evidence that shows the documents in question that are filed in the performance section of his OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and they should be retained in his OMPF.  Therefore, there is no basis for granting the applicant's requested relief.

7.  He contends the U.S. Department of Justice, FBI record of charges, dated 
1 May 1968, is in error because the charge associated with the name C_____s P____r W____y does not pertain to him due to the fact he does not have a middle name of P____r.  However, evidence shows his mother's maiden name is in fact P____r.  Therefore, it appears her maiden name was simply included in his name and there is no error.  However, even if this is an erroneous entry, this Board lacks the authority to seal or expunge an FBI record.

8.  By law and regulation, 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 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.

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)                                         AR20100018195



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018195



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1