BOARD DATE:	  2 August 2011 

		DOCKET NUMBER:  AR20100029361 


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  The applicant requests arrest case #0803XXXXXX be rescinded, in effect, that her name be removed from the titling block of a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI).

2.  The applicant states, in effect, that at no time while serving in the Armed Forces or otherwise has she ever been arrested.  She was escorted by the CID for questioning while undergoing action under the Uniform Code of Military Justice (UCMJ) but she was never taken into custody.  She was told upon leaving the military the only information released to the Federal Bureau of Investigation (FBI) would be investigation of cocaine use, but never a conviction. She acknowledges the misdemeanor, but contests the arrest record.

3.  The applicant provides:

* a letter, dated 9 July 2010, from the Department of Human Services, State of Utah
* her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 9 September 2009
* A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 
18 June 2008
* a confidential polygraph report
* a letter, dated 2 October 2009, from Headquarters, 36th Engineer Brigade, Fort Hood, TX to the Texas Army National Guard
* a DA Form 67-9 (Officer Evaluation Report) with ending date of 29 June 2009
* a letter, dated 7 May 2009, to her defense counsel from the Forensic Toxicology Drug Testing Laboratory, Tripler Army Medical Center (TAMC), HI 
* her curriculum vitae

CONSIDERATION OF EVIDENCE:

1.  She was commissioned a second lieutenant in the U.S. Army Reserve on 
11 June 2005.  She was ordered to active duty on 16 August 2005 for 4 years.

2.  On 18 June 2008, she accepted nonjudicial punishment (NJP) for:

* wrongful use of cocaine on or between 29 February and 3 March 2008
* wrongful use of cocaine on or between 24 - 28 March 2008

3.  On 9 September 2009, she was discharged by reason of substandard performance.  She completed 4 years, 2 months, and 11 days of active service that was characterized as honorable.

4.  The letter, dated 9 July 2010, from the Department of Human Services, State of Utah, requested additional background information from the applicant.  The letter stated a preliminary investigation showed she may have a criminal history.  Specifically, her background screening included:

* Misdemeanor, Wrongful Use of Cocaine, 03/27/2008, U.S. Army Fort Belvoir
* The letter does not state it was a record of arrest

5.  The staff of the ABCMR requested a copy of the arrest case #0803XXXXXX from the USACIDC, U.S. Army Crime Records Center.  The USACIDC provided a copy of ROI 08-CID034-XXXXX-5L6, dated 28 March 2008. The applicant is the subject of the CID ROI.  According to the ROI Summary:

* On 3 March 2008, she submitted a urine specimen during the conduct of a unit urinalysis, which subsequently tested positive for cocaine
* On 27 March 2008, her commander reported that she tested positive for a controlled substance during a unit urinalysis
* On 27 March 2008, she was interviewed and requested a lawyer
* The Commander's Report of Disciplinary Action was pending
* This was considered a final report

6.  On 30 June 2011, the staff of the ABCMR notified the applicant the USACIDC provided the Board a sanitized CID COI 08-CID034-XXXXX-5L6.  She was advised the record was not a record of arrest, but an ROI of her testing positive for cocaine use on or about 3 March 2008.

7.  On 3 July 2011, she responded and stated she knew there was a case for the cocaine use.  She stated she was never arrested for her infraction.  Her query is more with the verbiage translating from the military into the civilian sector.  

8.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that 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 Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  

DISCUSSION AND CONCLUSIONS:

1.  The case number provided by the applicant is not a record of arrest.  The number provided is a CID ROI for her use of cocaine.  Therefore, she is in effect requesting that her name be removed from the titling block of the CID ROI.

2.  By law and regulation, 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 a complete lack of credible evidence to dispute the initial titling determination.  The applicant has failed to provide evidence satisfying this standard for removal.  

3.  The evidence of record confirms that the results of a CID investigation provided a sufficient legal basis for the applicant to be titled for wrongful use of cocaine.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process.  

4.  In view of the foregoing, 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 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)                                         AR20100029361



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ABCMR Record of Proceedings (cont)                                         AR20100029361



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