IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100028301 


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 the Standard Form (SF) 86 (Questionnaire for National Security Positions) which shows his criminal arrest and related charges be removed from his military record.  He also requests that his eligibility for a security clearance be restored.

2.  The applicant states in 2001 a court order sealed and expunged the arrest record and all other records pertaining to the incident.  He subsequently entered the military on 13 August 2002; therefore, the arrest record should never have been listed as part of his official military record.  The court order expressly states that for all matters of law the arrest never happened.  Further, he contends he was denied a security clearance based on the merits of this event.

3.  The applicant provides the following:

* Oregon Judicial Department, Twentieth Judicial District, Washington County Trial Courts, Hillsboro, Oregon, Expungement Order, dated
29 January 2001
* District Court of Oregon, Order to set aside a record of arrest, dated
11 January 2001
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 27 February 2004
* Headquarters, 416th Theater Engineer Command, Orders Number 
10-165-00032, dated 14 June 2010
* DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 12 June 2002, and allied documents
* SF Form 86, undated

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 available records show the applicant enlisted in the Regular Army on 
13 August 2002 and he was honorably released from active duty on 27 February 2004.

3.  His official military personnel file (OMPF) contains an SF Form 86.  The applicant responded "YES" to the following questions:

   a.  Question 21 (Your Police Record - Felony Offenses) of his application reads, "Have you ever been charged with or convicted of any felony offense?  (Include those under the Uniform Code of Military Justice).  For this item, report information regardless of whether the record in your case has been "sealed"  otherwise stricken from the record.  The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of Title 21, U.S. Code (USC) 844 or Title 18, USC 3607.  

   b.  Question 26 (Your Police Record - Other Offenses) in the last 7 years, have you been arrested for, charged with, or convicted of any offense(s) not listed in modules 21, 22, 23, 24, or 25? (Leave out traffic fines of less than $150.00 unless the violation was alcohol or drug related).  For this item, report information regardless of whether the record in your case has been "sealed' or otherwise stricken from the record.  The single exception to this requirement is for certain convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of Title 21, USC 844 or Title 18, USC 3607. 


4.  He disclosed the following offenses for both questions:

* First degree sodomy, dropped, 11 April 1999
* First degree sex abuse, dismissed, 11 April 1999

5.  The applicant provides a copy of his court order from the Judicial District Court of the State of Oregon, dated 1 January 2001, that shows his record of arrest for sexual abuse on 11 April 1999 was set aside.  It was ordered, adjudged, and decreed, for all purposes of law, he had not been previously arrested. 

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authority.  

7.  Table 2 of the regulation pertains to the composition of the OMPF.  It states, that allied documents will be filed with the DD Form 4 on the Performance Fiche.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was denied a security clearance because his 
SF Form 86 lists offenses that were expunged from his record prior to entering the military; however, the disclosure of all charges and convictions is mandatory.  His security clearance application clearly states that even offenses that have been stricken must be disclosed with the only exception that certain drug convictions expunged by a Federal Court may be withheld.  Consequently, security clearance applicants must list all applicable dismissed charges and convictions even if the record was sealed, expunged, or otherwise stricken from a State or local court record.

2.  A State criminal court has no jurisdiction to limit the inquiries made by the Army in assessing an applicant's suitability for a clearance.  

3.  Therefore, no error or injustice exists in regards to the disclosure of his expunged criminal arrests or charges and his SF Form 86 was properly filed.  

4.  In view of the above, the applicant's request should be denied.


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)                                         AR20100028301



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ABCMR Record of Proceedings (cont)                                         AR20100028301



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