IN THE CASE OF:	  

		BOARD DATE:	    17 May 2012

		DOCKET NUMBER:  AR20110022062 


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 his criminal history data be expunged from Federal Bureau of Investigation (FBI) records and that records pertaining to the charge be removed from Army records.

2.  The applicant states the Article 15, dated 10 January 1997, and records stemming from the charge should be expunged because they affect his ability to obtain employment.

	a.  He admits that he made a big mistake more than 15 years ago and he regrets it to this day.

	b.  He does not want his six years of honorable service overshadowed by the mistake.

3.  The applicant provides a copy of an FBI Criminal History Record.

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.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty in the Regular Army (RA) on 25 July 1989, was honorably released from active duty on 23 July 1993, and transferred to a U.S. Army Reserve unit.  He completed 3 years, 11 months, and 29 days of net active service this period.

3.  The applicant again enlisted in the RA on 1 February 1995 for a period of 3 years in the rank of specialist/pay grade E-4.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant received nonjudicial punishment (NJP) for willfully and unlawfully altering a public record (i.e., a college transcript from North Central Institute), in violation of Article 134, UCMJ.  It also shows:

	a.  on 7 January 1997, he was advised of his rights, along with the right to consult with legal counsel, and he was given 48 hours to make his decision; and

	b.  on 10 January 1997, he signed the Article 15 and indicated with his initials that he did not appeal the NJP.

	c.  The DA Form 2627 is filed in the applicant's official military personnel file (OMPF).

5.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows the commander approved the bar to reenlistment against the applicant on 30 January 1997, based on the record of NJP.

6.  On 6 February 1997, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-5b, based on his belief that he could not overcome the bar to reenlistment.  The separation authority approved the applicant's request on 28 February 1997.

7.  A DD Form 214 shows the applicant entered active duty this period on
1 February 1995 and he was honorably discharged in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-5b (non-retention on active duty).  He completed 2 years, 4 months, and
4 days of net active service this period.

8.  In support of his request, the applicant provides a copy of a U.S. Department of Justice, FBI Criminal History Record.  It shows the applicant was charged with fraud on 5 November 1996.  It also shows he received a field grade Article 15 on 10 January 1997 and the punishment that was imposed

9.  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 U.S. Army Criminal Investigation Command (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.

10.  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.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) serves as the authority for filing documents in the OMPF.

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  Table 2-1 authorizes the filing of a DA Form 2627 in the OMPF.

12.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) sets forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.

	b.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his criminal history data should be expunged from FBI records and that the DA Form 2627 pertaining to the misconduct should be removed from Army records.

2.  The evidence of record shows the DA Form 2627 was properly administered.

	a.  The applicant acknowledges that the NJP was not imposed in error nor was it unjust, and he takes full responsibility for his actions.

	b.  The evidence of record shows the DA Form 2627 is filed in his OMPF.

	c.  There is no evidence that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

3.  Based on the applicant's military service records and information provided by the applicant, it appears that the applicant was properly titled at the time he was cited for the offense in question and when the charge was preferred against him.

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

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

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

4.  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)                                         AR20110022062



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ABCMR Record of Proceedings (cont)                                         AR20110022062



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