IN THE CASE OF:	  

		BOARD DATE:	    22 September 2011

		DOCKET NUMBER:  AR20110002773 


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 the charge of negligent homicide be removed from Army records.

2.  The applicant states the Army Discharge Review Board (ADRB) upgraded his discharge from a general discharge to an honorable discharge in 2006.

   a.  He states he was the driver of an automobile involved in an accident that caused the death of a fellow Soldier who was a passenger in the car.  Nine months later he was charged with "negligent homicide."

       (1)  He states he was the designated driver, there was no alcohol involved on his part that evening, he was traveling within the posted speed limit, and he was not negligent in his driving.  He adds that the stretch of Autobahn he was driving on where the accident occurred was deserted and it had no lighting to illuminate the signs and exits.  He acknowledges his vehicle's headlights were dirty and provided limited illumination, which prevented him from seeing the curve or exit.

       (2)  The Soldier who died was a passenger riding in the middle of the rear seat of the car and, unfortunately, there was only a lap belt for his position.  The other two passengers in the rear seat had three-point contact seat belts and they both survived the accident.

   b.  He requested discharge for the good of the service in lieu of trial by court-martial.  He was not tried or convicted by court-martial.

   c.  There was no evidence to prove he was operating a motor vehicle in a negligent manner causing the death of a passenger and the charge of "reckless driving" was dismissed due to inconclusive or insufficient evidence.  

   d.  In hindsight, he wishes he would have stayed in the Army and fought the charge.  However, he was scared and lacked confidence in his Army lawyer.

   e.  While attending a State of Texas Police Academy in Mesquite, TX, he discovered that the charge regarding "negligent homicide" is still in the FBI's National Crime Information Center (NCIC) database.  As a result, he is no longer eligible to attend the police academy.

   f.  He has attempted to have the record expunged through the U.S. Army Criminal Investigation Command (USACIDC, also known as CID), but without success.

   g.  He expresses regret for the accident that killed a fellow Soldier and friend and prays his request will be granted by the Board.

3.  The applicant provides a copy of a charge sheet and letter from the Chief, Criminal Law Division, Office of The Judge Advocate General.

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 in the Regular Army for a period of 3 years on 30 May 2002.

3.  A copy of the applicant's administrative separation packet is not filed in his Official Military Personnel File (OMPF).

4.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting an upgrade of his discharge and change to his reentry (RE) code.

5.  The ADRB review shows:

   a.  a CID Report of Investigation (ROI), dated 15 March 2004, indicated the applicant was charged with reckless driving resulting in personal injury, negligent homicide, and reckless driving (all acts occurring on 13 August 2003);

   b.  the specific facts and circumstances leading to his discharge were not in the available records; and

   c.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) was on file that indicated he was discharged on 2 September 2004 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with a characterization of service of general, under honorable conditions.

       (1)  He was awarded the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Global War on Terrorism Service Medal.  The highest grade he achieved was E-4.

       (2)  He had completed 2 years, 3 months, and 3 days of net active service for the period under review and 3 years, 5 months, and 21 days of total service.

   d.  The ADRB found that the overall length and quality of the applicant's service and the circumstance surrounding his discharge mitigated the discrediting entries in his service record.  Accordingly, the ADRB concluded the discharge was proper; inequitable as to characterization and changed the characterization to honorable; inequitable as to the reason and changed the reason to Secretarial Authority; and also changed the RE code to "1."

6.  A corrected DD Form 214 shows the applicant entered active duty on 30 May 2002 and he was honorably discharged on 2 September 2004 under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial authority.  He completed 2 years, 3 months, and 3 days of net active service this period, including 2 years, 2 months, and 15 days of foreign service.


7.  In support of his request, the applicant provides the following documents:

   a.  A DD Form 458 (Charge Sheet) that shows the applicant's company commander preferred court-martial charges against the applicant on 10 June 2004 for violation of:

       (1)  Article 134, Uniform Code of Military Justice (UCMJ), in that at or near Autobahn A6, Kilometer Marker 853.946, Germany, on or about 13 August 2003, he did unlawfully kill a Soldier by driving a motor vehicle in a negligent manner, and

       (2)  Article 111, UCMJ, in that at or near Autobahn A6, Kilometer Marker 853.946, Germany, on or about 13 August 2003, he did physically control a passenger car in a reckless manner by driving approximately 70 kilometers over the posted speed limit and did thereby cause said vehicle to injure three individuals.

   b.  A letter to the applicant from the Chief, Criminal Law Division, Office of The Judge Advocate General, Rosslyn, VA, dated 16 December 2010, that shows in response to the applicant's request, he was provided a copy of the
DD Form 458.  He was advised that if he was unsuccessful in amending his Army criminal investigative records, he could submit a request to the ABCMR.

8.  In the processing of this case a staff member contacted the USACIDC, Crime Records Center, Quantico, VA, to ascertain what the applicant's records contained.

9.  Officials at the USACIDC provided redacted copies of a CID ROI - Final/SSI/Joint - 00xx-2003-CIDxxx-3xxxx - 5xx/5xxx 5xxx, dated 15 March 2004; DD Form 458, dated 10 June 2004; and DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 11 October 2004.

   a.  The CID ROI shows the applicant was involved in an automobile accident at approximately 0445 hours, 13 August 2003, in the vicinity of Highway B-85, Ebermannsdorf, Germany.  It also shows the applicant was titled for negligent homicide (Article 134, UCMJ), careless or reckless driving with personal injury (Article 111, UCMJ), and traffic accident with private property damage (Article 109, UCMJ).

   b.  The DD Form 458 is a redacted copy of the same DD Form 458 the applicant provides.

   c.  The DA Form 4833 shows the applicant was titled for the offenses of negligent homicide, reckless driving resulting in personal injury, and damage to private property; he was referred for non-adverse personnel action (mental health evaluation); and judicial action (general court-martial).  It also shows in:

       (1)   item 13 (Judicial Findings) that the commanding officer indicated "Other";

       (2)  item 14 (Resultant Sentences, Punishments, or Administrative Action) the applicant was separated in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10; and

      (3)  item 15 (Remarks), "Solider was processed for a General Court-Martial. Based upon an agreement between the Government and the defense counsel of the [applicant], a separation in lieu of court-martial, under Chapter 10, was offered and accepted.  Charges and specifications were dismissed, without prejudice.  (See attached memorandum, Report of Discharge in Lieu of Trial by Court-Martial - SPC [Applicant's Name], 26 August 2004, Headquarters,
7th Army Training Command, Unit 28130, AE 09114-8130.)"  [The memorandum was not attached to the DA Form 4833.]

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.


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 the charge of negligent homicide be removed from Army records.

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 time he was cited for the offenses in question and when charges were preferred against him on 10 June 2004.

   a.  Records properly reflect the offenses for which he was charged.

   b.  Records show the applicant requested discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10, and he was discharged, effective 2 September 2004.

   c.  The DA Form 4833 in the USACIDC ROI shows the charges were dismissed without prejudice.

   d.  There appears to be no case of mistaken identity in his case.

   e.  Therefore, there is no basis to remove the applicant's name from the title block of the USACIDC ROI which serves to update FBI records.

3.  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 expunging the criminal history data from Department of the Army or FBI records.

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)                                         AR20110002773



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ABCMR Record of Proceedings (cont)                                         AR20110002773



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