IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20100027911 


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, reconsideration of his earlier request for correction of his records by expunging from the U.S. Army Criminal Investigation Command (USACIDC) U.S. Army Crime Records Center all documents concerning his use of cocaine.  

2.  The applicant makes the following contentions and provides the following information that requires reconsideration:

   a.  An attorney (a friend) initially performed a Bancroft Criminal Background Check and it showed he had been arrested in 1991 in Washington, DC for cocaine.
   
   b.  He was able to contact two members of his unit who allege a disparity among the test results.
   
   c.  The DA Form 3881 (Rights Warning Procedure/Waiver Certificate) does not show an arrest occurred because there was no arrest.  He did not choose not to be questioned, he was simply not questioned.  
   
   d.  He knows documents that will exonerate him from the allegations in which he was accused exist because he did not use any substances.
   
   
   
   e.  He was not guilty.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the offense because he was told it was not a conviction, it was merely a slap on the wrist. 
   
   f.  He was also told it was the best way to just be done with the situation and get out of the Army quickly.  He was given bad/false information that resulted in ruining his life.  

3.  He provides a certificate from the Court of the District of Columbia, Criminal Division and a document from the U.S. District Court for the District of Columbia, Washington, DC.  He also resubmitted his résumé as evidence.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009398 on 23 September 2010.  

2.  The applicant submitted documents from the Court of the District of Columbia, Criminal Division; the U.S. District Court for the District of Columbia; and DC Metropolitan Police Department as new evidence that will be considered by the Board.  

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 10 June 1987 in pay grade E-3.  On 9 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.

4.  He was advanced to the rank/pay grade of specialist (SPC)/E-4 on 5 February 1989.  

5.  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.

6.  A DA Form 5180-R (Urinalysis Custody and Report Record), dated 15 April 1991, indicates the applicant underwent a unit urinalysis screening on 21 March 1991, resulting in a positive test for cocaine.  Seven specimens were tested and the applicant’s social security number identified him as one of the Soldiers who tested positive.    
7.  On 25 April 1991, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of cocaine, the use of which was detected by biochemical testing of his urine sample submitted on 21 March 1991.  

8.  He was released from active duty on 25 April 1991 after completing 3 months and 1 day of creditable active duty service.  

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 form indicates the applicant chose not to be questioned or to say anything.

10.  Orders published on 13 June 1995 honorably discharged him from the USAR, effective on the date of the orders.  

11.  A letter from the U.S. Army Crime Records Center, dated 6 October 2009, was sent to the applicant in response to his request for release of information from the files of the USACIDC.  He 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 April 1991, a forfeiture $481.00 pay for 1 month (suspended if not vacated before 25 October 1991), reduced from E-4 to E-3."  The letter also advised him that records are maintained for a period of 40 years and then destroyed.  Additionally, he was advised that he could appeal to the Secretary of the Army for release of additional information but any such appeal had to be submitted through the U.S. Army Crime Records Center no later than
6 December 2009.

12.  The U.S. Army Crime Records Center advised a staff member on 4 August 2011 that the Federal Bureau of Investigation (FBI) owns the database and the use of the word “arrest” was in their database.  The U.S. Army Crime Records Center has no document that says the applicant was arrested, but does have the CID Report that indicates he had a positive urinalysis for cocaine and received an Article 15 for this offense.  

13.  The evidence he provided includes a:

	a.  Metropolitan Police Department Criminal History request, dated 22 October 2009 – no records found.



   b.  Certificate from the Court of the District of Columbia, Criminal Division, Washington, DC, dated 22 October 2009, which certified that a search had been made of court records, encompassing the period of 1963 for a criminal action involving the applicant.  After examining the paper records and computer records for a criminal action, no criminal record was found.  

	c.  Letter from the Clerk at the U.S. District Court for the District of Columbia, Washington, DC, dated 23 October 2009, indicated a search was made of both the Magistrate Index and the Criminal Index (for the period 1978 to the present) and no matters were found where the applicant was named as a defendant.  

14.  A letter from the U.S. Army Crime Records Center, dated 16 November 2009, was sent to the applicant in response to his request for amendment of information in the files of the USACIDC, as provided for in the FOIA.  He was informed that he was reported as a subject based upon probable cause that indicated he had committed an offense.  Requests to amend USACIDC ROI's 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.

15.  In a letter to the applicant from the U.S. Army Crime Records Center, dated 10 December 2009, in response to his FOIA request for amendment of information in the files of the USACIDC, he 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 disclosure under the provisions of the FOIA.  He was provided guidance on how to submit an appeal; he was also advised 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’s statements in regard to his request for expunging all documents concerning his use of cocaine from his records are acknowledged.  However, the evidence of record does not indicate that an error or injustice exists in this case.



2.  The applicant provided documents from the DC Metropolitan Police, Court of the District of Columbia and the U.S. District Court for the District of Columbia that failed to reveal criminal records involving his arrest for the use of cocaine.  It is noted those records would not reflect the matters disclosed by the Army’s records.  

3.  A DA Form 5180-R clearly identifies the applicant as testing positive for cocaine while he was in the military.  He accepted NJP under the provisions of Article 15 of the UCMJ for this offense.

4.  His service record is void of evidence and he has not provided any evidence which indicates that there was an error in the testing or Article 15 proceedings.  

5.  The DA Form 3881, dated 6 May 1991, refers to an investigation of the applicant's possible use of cocaine.  He elected not to be questioned or say anything during this investigation.  The applicant signed and initialed the DA Form 3881.  

6.  His service record is void of evidence which supports his contention that he was given bad/false information in regard to receipt of his Article 15.  

7.  Per information obtained from the U.S. Army Crime Records Center, the applicant’s concerns about records showing he was arrested on 6 May 1991 may best be addressed to the FBI.  

8.  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 to amend the decision of the ABCMR set forth in Docket Number AR20100009398, dated 23 September 2010.  



      _______ _   __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)                                         AR20100027911



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ABCMR Record of Proceedings (cont)                                         AR20100027911



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