BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110011506 


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:

The applicant submits his request, statement, and supporting documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's record be corrected to expunge any entry regarding him in the National Crime Information Center (NCIC).

2.  Counsel states the applicant was entered into the NCIC after he resigned in lieu of court-martial from the U.S. Military Academy (USMA) in April 2002.  His NCIC entry shows he was arrested or received on 3 November 2000 for use of a controlled substance and making a false official statement.  The disposition of both charges is that on 18 May 2001 the applicant "resigned in lieu of [court-martial]; received general discharge under honorable conditions."  His case did not meet the requirements for transmission to NCIC.  The entry should, therefore, be removed.

3.  Counsel states, in part:

	a.  Army Regulation 195-1 (Army Criminal Investigation Program) requires that information on subjects be transmitted to NCIC when military justice action has been initiated and disposition is not anticipated within 60 days.  Paragraph 
5-14(a)(1) states initiation is defined as referral of court-martial charges.  In a cadet resignation case, disposition is not expected within 60 days.  Therefore, information on subjects should only be transmitted upon referral of court-martial charges.

	b.  Army Regulation 195-1, paragraph 5-14(a)(2), states that final disposition of judicial proceedings shall be transmitted to NCIC within 15 days of the disposition.  Because judicial proceedings are not defined in this second paragraph, one must look to the preceding paragraph to determine if judicial proceedings were initiated.  As Army Regulation 195-1, paragraph 5-14(a)(1), defines the initiation of judicial proceedings as referral of court-martial charges, if there is no referral, there is no judicial proceeding upon which to report disposition.

	c.  Army Regulation 190-45 (Law Enforcement Reporting), paragraph 4-10, states initiation of a court-martial is referral of charges or receipt of a request for discharge in lieu of trial by court-martial.

	d.  The applicant's court-martial charges were never referred to court-martial; therefore, he never should have had the disposition of his case reported to NCIC.  Without an initiation of judicial proceedings, there is no proceeding upon which to report the final disposition.  While it is true that Army Regulation 190-45, paragraph 4-10, states that criminal history data will be transmitted to the Criminal Justice Information System (CJIS) when a commander receives a request for discharge in lieu of trial by court-martial, Army Regulation 195-1 is more restrictive than Army Regulation 190-45.  Where the Army promulgates a more restrictive regulation, the Army must follow the more restrictive rules it has set out for itself.

4.  Counsel provides:

* a supplemental statement
* a DD Form 458 (Charge Sheet)
* memoranda pertaining to his resignation from the USMA
* the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and a General Discharge Certificate
* the applicant's academic transcripts from two civilian universities
* a ChoicePoint Consumer Report
* a letter from the Director, Crime Records Center, U.S. Army Criminal Investigation Command (USACIDC, also known as CID), Fort Belvoir, VA
* a Federal Bureau of Investigation (FBI) Identification Record
* a copy of a portion of Title 28, Code of Federal Regulations, part 16
* five letters of support



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's USMA cadet record is not available to the Board for review.  This case is being considered using the documents provided by counsel.

3.  The applicant enrolled in USMA on 29 June 1998.

4.  A DD Form 458 shows three charges were preferred against him on 21 December 2000:

	a.  charge I – violation of the Uniform Code of Military Justice (UCMJ), Article 107 (False Official Statements), by making a false official statement to a special agent with intent to deceive on or about 3 November 2000;

	b.  charge II – violation of the UCMJ, Article 112a (Wrongful Use, Possession, etc., of Controlled Substances), by wrongfully using ketamine, a schedule III controlled substance, between on or about 20 October and on or about 3 November 2000; and

	c.  charge III – violation of the UCMJ, Article 133 (Conduct Unbecoming an Officer and a Gentleman), by wrongfully and dishonorably engaging in a course of criminal conduct by making a false official statement and wrongfully using ketamine.

5.  The DD Form 458 shows the applicant was informed of the charges against him on 21 December 2000, and the sworn charges were received by the summary court-martial convening authority on 22 December 2000.  Section V (Referral:  Service of Charges) shows no entries, indicating the charges were not referred for trial by court-martial.

6.  On 15 February 2001, in a memorandum for the Superintendent, USMA, the applicant voluntarily tendered his resignation from USMA in lieu of trial by court-martial.

7.  In a memorandum to Headquarters, Department of the Army, dated 29 May 2001, the Superintendent, USMA, recommended approval of the applicant's resignation in lieu of trial by court-martial and recommended his discharge under other than honorable conditions.

8.  On 12 March 2002, the Assistant Secretary of the Army (Manpower and Reserve Affairs) approved the recommendation to accept the applicant's resignation from USMA in lieu of trial by court-martial and directed issuance of a general discharge under honorable conditions.

9.  His DD Form 214 shows he received a general discharge on 12 March 2002.

10.  On 21 August 2009, ChoicePoint sent the applicant a Consumer Report.  The cover letter shows a ChoicePoint client requested a background search on the applicant.  The Consumer Report shows the background search revealed information included in an FBI Identification Record pertaining to the charges brought against him while he was a USMA cadet.  The Consumer Report shows the FBI Identification Record was updated on 14 August 2009 and indicated he had been charged with "wrongful use of a controlled substance – ketamine" and a "false official statement."  Under the subheading "court," the FBI Identification Record shows:

* no information regarding sentence for either charge
* for the first charge, the entry "5-18-2001 Guilty"
* for the second charge the entry "5-18-2001 Guilty resigned in lieu of [court-]martial and received [an] under other than honorable discharge"

11.  In a letter, dated 7 October 2009, the Director, Crime Records Center, CID, responded to a request from counsel to expunge criminal history data in the NCIC pertaining to Report of Investigation (ROI) 0124-00-CID081-5XXXX-5X.  The Director informed counsel the applicant would remain in the NCIC under the policies and procedures provided in Department of Defense (DOD) Instruction (DODI) 5505.11 for reporting criminal history data for all military service members investigated by DOD criminal investigative organizations for commission of certain offenses and who are subjects of resultant judicial or non-judicial military proceedings.  The Director noted a request had been submitted to the FBI to update the NCIC to show the applicant had resigned in lieu of trial by court-martial and received a general discharge and to remove the term "guilty."

12.  Counsel provides an FBI Identification Record that shows it was updated on 1 February 2010.  The document shows he was charged with "wrongful use of a controlled substance - ketamine" and "false official statement."  Under the subheading "court," it lists the charges again and shows no information regarding sentence for either charge.  Under each charge is the entry "resigned in lieu of court-martial; received general discharge under honorable conditions."

13.  Army Regulation 195-1, dated 12 August 1974, does not include a paragraph 5-14(a)(1) or 5-14(a)(2).  Effective 15 June 2009, Army Regulation 195-1 was incorporated into Army Regulation 195-2 (Criminal Investigation Activities).  Army Regulation 195-2 refers readers to Army Regulation 190-45 for procedures related to the NCIC.

14.  Department of Defense Instruction (DODI) 5505.11 states it is DOD policy that the Defense Criminal Investigative Organizations and other DOD law enforcement organizations shall submit to the CJIS Division of the FBI, as prescribed in the DODI and based on a probable cause standard determined in conjunction with the servicing staff judge advocate (SJA) or legal advisor if necessary, offender criminal history data for all members of the Military Services investigated for offenses listed in enclosure 2 of the DODI by Defense Criminal Investigative Organizations or other DOD law enforcement organizations.  The DODI advanced the requirement to submit offender criminal history data to the CJIS Division from the point when charges are referred to an earlier point when an agent or other law enforcement investigator determines that probable cause exists to believe that the subject has committed an offense.

15.  Enclosure 2 of DODI 5505.11 lists UCMJ Article 107 and 112a as offenses requiring submission of offender criminal history data to the CJIS Division, FBI.  Enclosure 4 (Procedures) states, if applicable, approval of a request for discharge, retirement, or resignation in lieu of court-martial will be recorded on the form submitted to the CJIS Division.

16.  Army Regulation 190-45, paragraph 4-10, establishes Army procedures for submitting criminal history data to CJIS when the Provost Marshal/Directorate of Emergency Services has completed a criminal inquiry or investigation.  The regulation states the policy only applies to members of the Armed Forces and will be followed when a military member has been read charges and the commander initiates proceedings for a special or general courts-martial.  Initiation refers to the referral of court-martial charges to a specified court by the convening authority or receipt by the commander of an accused Soldier's request for discharge in lieu of court-martial.  Final disposition of military judicial proceedings will be the action by the convening authority on the findings and sentence or final approval of a discharge in lieu of trial by court-martial.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's request that the applicant's record be corrected to expunge any entry regarding him in the NCIC.

2.  Three charges were preferred against the applicant, two of which were required to be submitted to the CJIS Division of the FBI based on a probable cause standard.  The available records do not include the ROI generated during the investigation that led to charges against the applicant.  In the absence of evidence showing otherwise, it must be presumed that an investigation revealed sufficient information to meet the probable cause standard.

3.  Counsel contends that because the charges against the applicant were not referred for trial by court-martial, no information should have been submitted to the FBI's CJIS Division.

4.  Under the provisions of DODI 5505.11, simply being investigated for certain offenses with a finding of probable cause requires submission of information to the CJIS.  DODI 5505-11 also provides that, if applicable, resignation in lieu of court-martial will be recorded as the final disposition on the appropriate form submitted to the CJIS.  Army Regulation 190-45 defines initiation of proceedings for a special or general court-martial as the referral of court-martial charges to a specified court by the convening authority or receipt by the commander of an accused Soldier's request for discharge in lieu of court-martial.

5.  Counsel contends a more restrictive standard existed and should have prevailed in this case; however, there is no evidence showing the Army employs a more restrictive standard than that promulgated by DOD.

6.  In view of the foregoing, there is no basis for granting the requested relief.

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 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)                                         AR20110011506



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ABCMR Record of Proceedings (cont)                                         AR20110011506



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