IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100024196 


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, clemency and correction of his Army records by removing documents concerning his titling action and criminal activity.

2.  He states he was charged with conduct unbecoming of an officer for engaging in conversations he did not initiate about the murder of an individual.  He is a former Green Beret Soldier.  He contends another person asked for his opinion and he gave it to him.  The conversations were not a conspiracy to murder, nor were they meant to reflect truth or reality.

3.  He provided:

* the front side of a DA Form 4430-R (Department of the Army Report of Result of Trial)
* General Court-Martial Order Number 16, dated 8 May 1991
* a letter to him from the U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 27 January 1992
* a letter from the U.S. Army Criminal Investigation Command (USACIDC), dated 11 February 1992

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.  His record shows that after having prior enlisted service, he was appointed as a second lieutenant in the Iowa Army National Guard (IAARNG) on 27 July 1987.

3.  Orders A-04-000528, issued by the U.S. Total Army Personnel Command (TAPC), St. Louis, MO, dated 2 April 1990, show he was ordered to active duty for a period of 4 years to fulfill his active army requirement.  He was assigned to the William Beaumont Army Medical Center, Fort Bliss, TX with a reporting date of 20 June 1990.

4.  Item 3 (Summary of offenses, pleas, and findings) of a DA Form 4430-R, dated 3 April 1991, shows the applicant was charged with the offense of conduct unbecoming an officer by engaging in conversations and discussions to commit murder, in violation of Article 133 of the Uniform Code of Military Justice (UCMJ).  He entered a plea of guilty to the charge and its specifications and was found guilty of the same.  Item 3 further refers to the reverse side of the form which apparently reflected additional offenses, pleas, and findings; however, the reverse side of the form is not available for review.

5.  General Court-Martial Order Number 16, issued by Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, dated 8 May 1991, shows he pled guilty and he was found guilty of the following:

	a.  Charge I, violation of Article 133, for conduct unbecoming an officer and gentleman, by wrongfully engaging in discussions and conversations from
1 October 1990 through 7 November 1990 with SFC [sergeant first class] G, concerning a deal for the murder of an individual.

	b.  Charge II, violation of Article 134, specification 3, for knowingly importing or bringing into the United States merchandise contrary to law (anabolic steroids) between July and August 1990, in violation of Title 18, U.S. Code, section 545.


6.  Sentence was adjudged on 3 April 1991, and he was sentenced to:

* forfeiture of $1,500.00 pay per month for 6 months
* payment to the United States of a fine of $7,000.00
* military confinement for a period of 6 months

7.  On 8 May 1991, the sentence was approved and ordered executed, except the portion as it pertained to paying the fine. 

8.  His record contains a TAPC message, dated 11 July 1991, which announced the acceptance of his unqualified resignation in lieu of elimination.  It directed the applicant's issuance of a general discharge under the cited authority of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 3.  There is no copy of his resignation in the available records.

9.  On 1 August 1991, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged with an under honorable conditions character of service in accordance with Army Regulation 635-120, chapter 3, by reason of miscellaneous reasons (unqualified resignation).  His DD Form 214 also shows he completed 5 years and 29 days of creditable active service and 8 years,
10 months, and 17 days of prior inactive service.  

10.  He provided a copy of a letter from the U.S. Disciplinary Barracks, dated 
27 January 1992.  This letter confirms his inmate profile at its facility from 5 April to 22 May 1991.  No discipline and adjustments boards were conducted and he posed no custody, discipline, or control problems during his stay. 

11.  The letter from the USACIDC shows he requested an amendment to his military personnel record on 24 January 1992.  He was listed in the title block of USACIDC numbered 90-CID014-xxxxx-xxxxxxx for solicitation to commit murder, and wrongful possession and distribution of a controlled substance.  The letter noted a DA Form 4833 (Commander’s Report of Disciplinary or Administrative Act ) reflected that he underwent a general court-martial and was found guilty of conduct unbecoming of an officer by engaging in conversations to commit murder and for importation of merchandise contrary to law.

12.  The letter also stated the fact that a serious offense was charged and adjudicated as a lesser offense does not warrant any revision of data on file.  As a result, his request for amendment of his records was denied. 


13.  Army Regulation 635-100, chapter 5, in effect at the time, prescribed the means and procedures to eliminate officers from the Army for misconduct, moral or professional dereliction.  Paragraph 5-11 stated the reasons which authorized elimination of an officer due to misconduct, moral or professional dereliction or in the interest of national security included intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation; acts of personal misconduct (including, but not limited to, acts committed while in a drunken or drug intoxicated state); and conduct unbecoming an officer.

14.  Army Regulation 635-120 (Officer Resignations and Discharges), in effect at the time, prescribed procedures whereby an officer on active duty may tender his or her resignation or be discharged.  Chapter 4 stated that an officer who has been recommended for elimination from the service by a General Court-Martial convening authority may tender a resignation in lieu of elimination action.  If resignation is accepted under this chapter, an officer was not entitled to separation pay unless he or she was notified in writing that he or she must show cause for retention and subsequently made the request.  A tender of resignation or request for discharge would automatically suspend elimination action.  The officer concerned would remain within his or her current major command until final determination on the tender of resignation is made by Headquarters, Department of the Army. 

15.  Department of Defense Instruction (DODI) Number 5505.7, dated 7 January 2003, provides that the titling of an individual or entity is an operational rather than a legal decision.  The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence.  The listing of a subject's name and other identifying information in the Defense Clearance and Investigations Index (DCII) only indicates that a report of investigation concerning that person or entity was created.  Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation.  Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if a later finding is made that shows the subject did not commit the offense under investigation.  Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and the DCII when the wrong person's name was placed in the report of investigation or into the DCII; or when a mistake was made in the credible information at the time of the titling and/or indexing indicating that the subject committed a crime.  If a determination is made that a subject's identifying information requires removal or correction, investigating organizations shall remove such information as soon as possible, and shall make appropriate corrections to all reports of investigation and the DCII.


16.  Army Regulation 195-2 (Criminal Investigation Activities), effective 
30 October 1985, provides that individuals listed in the title block of reports of investigation who have no action taken against them will be notified that their name will remain in the title block of the report and that the report will be indexed.  This regulation also requires that such individuals be informed of the purposes for which the reports are used and the fact that such use may have an impact upon their military or civilian careers.  Individuals will be informed that they may submit a request for amendment of the report in accordance with paragraph 4-4 of this regulation.

17.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided documentary evidence or convincing argument to show that the listing in the title block of USACIDC number
90-CID014-xxxxx-xxxxxxx is illegal, unethical, and/or tainted due to criminal acts committed by U.S. Army personnel.

2.  His record shows was charged with and found guilty of offenses punishable under the UCMJ.  As a result of his actions, he was sentenced to forfeiture of pay and military confinement.  A copy of his voluntary unqualified resignation is not in the available record; therefore, there is a presumption of government regularity in the fact that he was approved for his unqualified resignation and he was appropriately discharged with a general discharge.

3.  Titling is an administrative action based on credible evidence showing that a subject committed a criminal offense.  Once titled, the person remains titled even if it is later determined the person did not commit the offense under investigation.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, he is not entitled to the requested relief. 

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)                                         AR20100024196



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ABCMR Record of Proceedings (cont)                                         AR20100024196



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