BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110002395 


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 removal of a DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) from the records of the National Crime Information Center (NCIC).

2.  The applicant states that the DA Form 4833 incorrectly reflects the offenses of Assault (Domestic Disturbance and Spouse Abuse).  He goes on to state that he did not assault his wife and it is hindering his attempts to further his civilian career.  He goes on to state that he does not dispute that there was a family dispute but he was never convicted of the allegations. 

3.  The applicant provides:

* a DA Form 4833
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his discharge orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 May 2004.  He completed his one-station unit training as an armor crewman at Fort Knox, KY and was transferred to Fort Hood, TX for his first and only duty assignment.

2.  He deployed to Iraq from 28 November 2005 through 6 November 2006, he was promoted to the rank/grade of sergeant (SGT)/E-5 on 1 April 2007.


3.  The applicant’s record shows he was issued a General Officer Memorandum of Reprimand (GOMOR) on 4 June 2008 for driving while under the influence of alcohol (DWI) and driving with a revoked license.

4.  He again deployed to Iraq from 15 June 2008 through 31 May 2009.

5.  On 29 August 2009 military police were called to his quarters to investigate a domestic disturbance involving the applicant and his spouse.  The applicant was under the influence of alcohol and had shoved his spouse three times, threw a bottle of hot sauce at her, and threatened to kill her if she did not leave him alone.  He also trashed his quarters.

6.  The applicant was removed from his quarters, taken to the military police station, and subsequently released to his unit with a 72-hour no-contact order.  He was also enrolled in the ASAP (Army Substance Abuse Program) and Anger Management training.  The 1st Cavalry Division trial counsel opined that there was sufficient probable cause to believe that the applicant had committed the offense of simple assault under Article 128 of the Uniform Code of Military Justice (UCMJ).

7.  On 18 October 2009, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c for misconduct - commission of a serious offense.  He cited the applicant’s DWI and being involved in a physical domestic disturbance as the basis for his recommendation.

8.  After consulting with defense counsel the applicant waived his rights and declined to submit a statement in his own behalf.

9.  On 27 October 2009, the appropriate authority approved the recommendation for discharge and directed the applicant be furnished a General Discharge Certificate.

10.  Accordingly, on 23 November 2009, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12C, for misconduct - commission of a serious offense with issuance of a General Discharge Certificate.  He completed 5 years, 6 months, and 6 days of creditable active service.

11.  A review of his interactive Personnel Electronic Records Management System (iPERMS) file failed to show the presence of the DA Form 4833 in question.


12.  Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID titling decisions.  It states 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 innocence.  The criterion for titling is a determination that credible information exists that a person:

	a.  may have committed a criminal offense or

	b.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with his application or the evidence of record why the criminal record in question should not remain a matter of record.

2.  It appears that based on the information provided by the applicant and reflected in his official record, the applicant was properly titled for the offenses listed on the DA Form 4833.  Fort Hood authorities received credible information that a domestic disturbance occurred and assault was involved.

3.  It also appears that he was properly titled at the time and there appears to be no case for mistaken identity in his case; therefore, there is no basis to remove the DA Form 4833 from the records of the NCIC. 

4.  While the applicant may have learned from his past mistakes that in itself does not serve as a basis to move or remove properly filed documents from his official record.
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20110002395



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ABCMR Record of Proceedings (cont)                                         AR20110002395



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