BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110011046 


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 that an arrest and conviction for an Article 128 (assault) contained in the Federal Bureau of Investigation's (FBI's) National Crime Information Center (NCIC) Database be removed.  He also requests that the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be transferred from the performance portion of his official military personnel file (OMPF) to the restricted portion.

2.  The applicant states:

	a.  Currently, the FBI's NCIC Database shows he has an arrest and conviction for an assault on 25 September 2007.

	b.  It is not true because he received nonjudicial punishment (NJP) instead of a court-martial conviction.

	c.  He was interviewed several times in reference to the incident, but he was never placed in custody, detention, or under arrest.

	d.  He did not elect to take his charges to a court-martial, he accepted the Article 15.

	e.  The Article 15 should show no record of an arrest or conviction, because a conviction is indicative of a judiciary process.


	f.  NJP by definition means that there is no judiciary punishment.

	g.  According to Army Regulation 27-10, a commanding officer gives an Article 15 in order to protect a Soldier's record of service from unnecessary stigma resulting from a court-martial conviction.

	h.  He has been denied several government jobs requiring a Top Secret clearance due to the incorrect records.

	i.  His integrity has been questioned due to the fact that he answered "No" to questions regarding having ever being arrested or convicted in the past.

	j.  The Article 15 is a stigma because of the incorrect verbiage about the arrest and conviction.

	k.  He has proven himself to his chain of command and the Federal government by earning enough trust from them to be promoted to sergeant as well as being hired by the Department of Justice in September 2010.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the Transportation Security Administration (TSA).

CONSIDERATION OF EVIDENCE:

1.  The applicant requests that an arrest and conviction for an Article 128 (assault) contained in the FBI's NCIC Database be removed.  There is no evidence in the available record nor has he submitted any evidence showing he attempted to contact the Defense Central Investigations Index (DCII) for removal of the allegedly false information.

2.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states 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 DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The DCII can be contacted through the U.S. Army Criminal Investigation Command (USACIDC), U.S. Army Crime Records Center, 6010 6th Street, Fort Belvoir, Virginia 22060.  He may request consideration of this portion of his application once he has exhausted his administrative remedies.  Accordingly, this issue will not be discussed further in these proceedings.

3.  The applicant enlisted in the Regular Army on 6 July 2005.  He completed training as an infantryman.  He was promoted to sergeant, pay grade E-5, on      1 August 2009.

4.  He was honorably released from active duty on 15 November 2009, due to the completion of his required active service.  The DD Form 214 he received shows he had service in Djibouti from 6 March 2007 through 6 June 2008.

5.  A review of the interactive Personnel Electronic Records Management System (iPERMS) fails to reveal an Article 15 contained therein.

6.  The applicant submits an undated letter from the TSA notifying him that a preliminary review of his background investigation as an applicant for a TSA Federal Air Marshal position had been conducted.  He was told that included in the process was a review of his response to a letter of interrogatory.  He was told that based on the results of his preliminary background investigation, he was found ineligible to begin employment with the TSA.  The TSA Office of Security cited disruptive or violent behavior and employment misconduct or negligence as a basis for his ineligibility.  In the letter the applicant was told that FBI records disclosed that the U.S. Naval Investigative Service, Headquarters, Washington Navy Yard submitted his fingerprints to the FBI on 25 September 2007 for UCMJ Article 128 (assault).

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM.  It states that the decision whether to file a record of NJP on the performance portion of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed.

8.  The Military Justice regulation further stipulates that with the exception of summarized proceedings, Article 15 proceedings are recorded on a DA Form 2627, which will be filed in either the permanent section or restricted section of the OMPF on those Soldiers in the rank of sergeant and above.  Local filing of these documents is authorized only for Soldiers in the rank of corporal/specialist and below.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  A review of the iPERMS fails to reveal an Article 15 contained therein.  As a specialist, pay grade E-4, his Article 15 proceedings may have been filed locally.
3.  In view of the foregoing, 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)                                         AR20110011046



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ABCMR Record of Proceedings (cont)                                         AR20110011046



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