IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100024394 


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 with a bad conduct discharge be removed from his Official Military Personnel File (OMPF).

2.  The applicant states he was recently considered for a position that required a background check.  He was told he didn't get the job because his background check came back showing that he had been absent without leave (AWOL), confined by military authorities for 14 months, and discharged with a bad conduct discharge.

   a.  He states that while serving in Panama with the U.S. Army he was arrested for theft of a rental vehicle.  He had rented the vehicle and kept it 3 days past the date that it was supposed to be returned.  He spent 3 or 4 days in a Panama jail.

   b.  More than a year later, he was court-martialed and sentenced to confinement.  After 4 months of time served, the convening authority released him from confinement and allowed him to return to duty.

   c.  He retired from the U.S. Army in the rank of sergeant first class (SFC)/pay grade E-7.

3.  The applicant provides copies of a court-marital order and his retirement documents.
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 and entered active duty in the Regular Army on
26 August 1981.  He was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he was assigned to Panama on three occasions, as follows:

* from 26 July 1983 through 27 July 1985
* from 8 December 1986 through 26 September 1987
* from 3 January 1990 through 3 January 1995

   b.  item 18 (Appointments and Reductions) he was promoted to SFC (E-7) on 1 April 1997.

4.  The applicant was arraigned at a general court-martial that convened in September 1987.

   a.  He pled guilty and he was found guilty of the charges and specifications of:

       (1)  on or about 10 May 1987, larceny of a 1987 Hyundai vehicle of a value of more than $100.00;

       (2)  on or about 10 December 1986, issuing a worthless check in an amount of $100.00;

       (3)  on or about 20 January 1987, issuing a worthless check in an amount of $98.95;
       (4)  from 27 January to 21 February 1987, issuing 8 worthless checks in the total amount of $800.00; and

       (5)  from on or about 4 August to on or about 6 August 1987, being AWOL.

   b.  On 29 September 1987, he was sentenced to a bad conduct discharge, confinement for 2 years, and reduction to E-1.

   c.  On 24 December 1987, by Headquarters, United States Army South, General Court-Martial Order Number 14, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for four months, and reduction to E-1 and, except for the bad conduct discharged, ordered it executed.

5.  On 19 May 1988, by Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 283, the unexecuted portion of the approved sentence was remitted.  Having successfully completed the Military Instruction Course, the applicant was returned to duty.

6.  Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas, General Court-Martial Order Number 47, dated 26 August 1988, announced that the provisions of Article 71(c) had been affirmed.  It shows the applicant had successfully completed the Military Instruction Course and was returned to duty, and that the unexecuted portion of the approved sentence to a bad conduct discharge, confinement for 4 months, and reduction to the grade of E-1 was remitted.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty in the rank of SFC (E-7) on 31 October 2001 based on sufficient service for retirement and transferred to the U.S. Army Reserve Control Group (Retired).  He completed 20 years,
2 months, and 5 days of net active service and 4 months and 12 days of total prior inactive service.

8.  The applicant did not provide a copy of the FBI record(s) 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.

9.  Officials at the USACIDC provided copies of a Military Police Report (MPR) (90-MPC025-4578W-5Q5) and three (3) Reports of Investigation (ROI)
(87-CID029-46711-7F2, 82-CID016-09144-7G3, and 02-CID036-24570-7F2).

   a.  MPR 90-MPC025-4578W-5Q5 shows the applicant was involved in a three vehicle accident on 10 May 1990.  A routine National Crime Investigation Check (NCIC) revealed that his driver's license was suspended.  He was arrested and held on $1,000.00 bond.  The attached DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) shows the applicant was found guilty and fined $329.00.

   b.  ROI 87-CID029-46711-7F2 shows an investigation revealed the applicant wrote 45 worthless checks in the total amount of $2,248.95 during 1985-1987, in violation of Article 121 (Larceny) and Article 123 (Uttering Worthless Checks), Uniform Code of Military Justice (UCMJ).  The attached DA Form 4833 shows that a bad conduct discharge was adjudged, he was reduced from E-5 to E-1, and confined for 2 years.

   c.  ROI 82-CID016-09144-7G3 shows an investigation revealed the applicant made a false statement on 20 January 1984 relating to the status of a motor vehicle he had purchased.  The attached DA Form 4833 shows that nonjudicial punishment was imposed against the applicant under Article 15, UCMJ, and he was reduced from E-3 to E-2 (suspended for 14 days) and forfeited $157.00 for one month.

   d.  ROI 02-CID036-24570-7F2 shows an investigation established probable cause to believe that the applicant committed the offenses of:

* Fraud Against the United States (Article 132, UCMJ)
* Larceny of Government Funds (Article 121, UCMJ)
* Theft (Title 18, U.S. Code, section 641)
* False Statements (Title 18, U.S. Code, section 1001)

       (1)  The applicant resided in Government-provided quarters and failed to stop Basic Allowance for Housing (BAH) entitlement, which he knew he was no longer authorized; he received $32,760.93 in BAH to which he was not entitled; he knowingly submitted a false statement to the Defense Military Pay Office; and he stole $1,748.92 in reimbursement funds for a permanent change of station, which he never completed.

       (2)  The ROI shows the applicant was allowed to retire from the U.S. Army, though he was forced to repay the substantial debt (prorated over 65 months) through his retired pay.

10.  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.

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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that 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 and subsequently remitted, he successfully finished sufficient service for retirement, and he honorably retired from the U.S. Army.

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 various times he was arrested with the charges for which he was found guilty and 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 ROIs which serve 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 regulation.  The purpose of filing court-martial records in the OMPF is to permanently document the offense(s) for which the Soldier was convicted.  Therefore, there is no basis for removing the documents from the applicant's OMPF.

4.  The applicant's military service records properly reflect the offenses for which he was charged, the offenses for which he was convicted, the approved punishment that was imposed by the general court-martial, and that the approved sentence was subsequently remitted.  However, the DA Form 4833 in USACIDC ROI 87-CID029-46711-7F2 does not show the approved sentence or that the unexecuted portion of the approved sentence to a bad conduct discharge, confinement for 4 months, and reduction to grade E-1 was remitted.  Therefore, it would be appropriate to correct the USACIDC record to show the action taken by the convening/approving authority.

5.  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 records 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 or 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 record (i.e., ROI 87-CID029-46711-7F2) to show the approved sentence of a bad conduct discharge, confinement for 4 months, and reduction to grade E-1, and that the sentence was remitted on 19 May 1988.


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)                                         AR20100024394



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ABCMR Record of Proceedings (cont)                                         AR20100024394



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