IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20110023518 


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 his criminal history record located at the U.S. Army Crime Records Center (CRC), Fort Belvoir, VA be amended from "felony assault consummated by a battery" to "assault consummated by a battery."

2.  The applicant states when he attempted to buy a weapon in Nebraska, he received a letter from the Lancaster County Sheriff's Office stating a criminal history check revealed he had a felony conviction for aggravated assault.  He was denied an application for a gun permit.

3.  The applicant further states he was court-martialed, but only for assault and battery, not aggravated assault; there was no felony conviction.  He submitted a request to the CRC to modify the Army's database, but his request was denied.  The CRC indicated he was convicted of aggravated assault by "boxer's fist," but this charge doesn't even exist.  He points out that at trial:

* although he was charged with "unlawfully pick up and throw" a Ms. J.D, he pleaded guilty to "unlawfully push" Ms. J.D.
* although he was charged with "commit an assault upon Private First Class S.R. by striking him on the head and back with his hands and feet and did thereby intentionally inflict grievous bodily harm upon him, to wit: a fractured vertebra," he pleaded guilty to unlawfully striking Private First Class S.R. on the head with his fist
* although he was charged with "unlawfully grab B.M. by the arm and throw him to the ground," he pleaded guilty to "unlawfully grab B.M. by the shirt and throw him to the ground"
4.  The applicant provides:

* 15 September 2009 letter from Lancaster County (NE) Sheriff's Office
* 20 July 2010 letter from Director, U.S. Army CRC
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action)
* 7 September 2010 memorandum from 22nd Legal Services Organization (Trial Defense Service), Grand Prairie, TX
* 23 February 2005 Department of the Army Report of Result of Trial

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 U.S. Army Reserve Delayed Entry Program (DEP) for 8 years on 27 July 1998.  On 20 August 1998, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 21 August 1998.  He was trained in and awarded military occupational specialty 19K (Armor Crewman) and served through two reenlistments before being discharged under honorable conditions (General Discharge, or GD).  

3.  While stationed with the 1st Infantry Division at Fort Riley, KS, the applicant’s record shows the following incidents:

* 28 January 2004 – assault W.A.R. and L.C.
* 13 June 2004 -  assault B.G.
* 17 July 2004 – assault Private First Class (PFC) S.R.
* 6 November 2004 – assault Ms. J.L.D.

4.  The applicant was charged with the above five assaults and was tried before a general court-martial on 23 February 2005.  The charge sheet read:

The Charge.  Article 128.  Plea:  Guilty.  Finding:  Guilty
Specification 1:  On or about 6 November 2004, assault J.L.D. by unlawfully picking her up and throwing her onto the street.  Plea:  Guilty except the words "unlawfully pick up and throw J.L.D. onto the street," substituting therefore the words, "unlawfully push J.D."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "unlawfully pick up and throw J.L.D. onto the street," substituting therefore the words, "unlawfully push J.D."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 2:  On or about 17 July 2004, assault PFC S.R. by unlawfully striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit:  a fractured vertebra.  Plea:  Guilty except the words "commit an assault upon PFC S.R. by striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit:  a fractured vertebra," substituting therefore the words, "unlawfully strike PFC S.R. on the head with his fist."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "commit an assault upon PFC S.R. by striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit:  a fractured vertebra," substituting therefore the words, "unlawfully strike PFC S.R. on the head with his fist."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 3:  On or about 13 June 2004, assault B.G.. by grabbing him by the arm and throwing him to the ground.  Plea:  Guilty except the words "by the arm," substituting therefore the words, "by the shirt."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "by the arm," substituting therefore the words, "by the shirt."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 4:  On or about 28 January 2004, assault W.A.R. by unlawfully striking him in the chest with an open hand and in the face with a closed fist.  Plea:  Not Guilty.  Finding:  Not Guilty.

Specification 5:  On or about 28 January 2004, assault L.C. by unlawfully striking him in the chest with an open hand.  Plea:  Not Guilty.  Finding:  Not Guilty.

5.  The applicant was sentenced to be reduced to private (PVT/E-1), to forfeit $822.00 pay per month for 5 months, and to be confined for 5 months.

6.  On 23 February 2006, the applicant's commander initiated administrative action to kick him out of the Army for misconduct under the provisions of the Army Regulation 635-200, chapter 14.  He cited as justification the following events:

* driving while intoxicated
* disobeying a commissioned officer
* impersonating an NCO
* civil law enforcement citations for disorderly conduct
* his 23 February 2005 court-martial for assault
* failing to show proof of liability insurance
* a conviction for sexual battery upon S.D.

The commander recommended the applicant receive a GD.

7.  On 24 February 2006, the administrative discharge approving authority approved the applicant's separation with a GD.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing:

* an under honorable conditions (general) discharge
* under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense)
* 7 years, 2 months, 17 days of creditable active service
* 113 days of lost time

8.  After being denied a permit to possess a firearm or ammunition in Nebraska, the applicant appealed to the U.S. Army CRC to correct his criminal history record in such a way that he would be able to own and possess firearms.  On 20 July 2010, his request was denied.

9.  Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures and responsibilities on the preparation, reporting, use, retention, and disposition of the DA Form 3975 (Military Police Reports) (MPRs) and documents related to law enforcement activities.  It also implements the crime reporting 
requirements of the Uniform Federal Crime Reporting Act (Title 10, U.S. Code , Section 534 (10 USC 534)), the Brady Handgun Violence Prevention Act         (18 USC 922), and the Victim Rights and Restitution Act (42 USC 10601).  It states:

	a.  An incident will be reported as a founded offense when adequately substantiated by police investigation.  A person or entity will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person or entity committed a criminal offense.  The decision to title a person is an operational rather than a legal determination.  The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; but rather, ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes.

	b.  Offenses are codes on the DA Form 3975 with the offense code describing, as nearly as possible, the complaint or offense by using an alphanumeric code as provided in table 4-1.  This offense code list will be amended from time to time based on new reporting requirements mandated by legislation or administrative procedures.  Offense Code 5C1K – Aggravated Assault with a boxer's fist – Article 128, UCMJ is an authorized code.

	c.  Military Police Reports are forwarded to the U.S. Army CRC for processing and permanent filing.

10.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program.  It states in Chapter 5 the U.S. Army CRC will receive and maintain the permanent files of U.S. Army Criminal Investigation Command (USACIDC).  The Director, CRC, will ensure the retention and proper use of these records and furnish data and copies of files, documents, or information there from to persons or agencies authorized to receive such information.  The Director will refer requests to agencies controlling release of the requested information.  For crime records purposes, the Director will maintain liaison for the Commanding General, USACIDC, the Defense Security Services, Intelligence and Security Command, Defense Central Index of Investigations (DCII), the DOD National Agency Check Center, and other Federal agencies (including the Federal Bureau of Investigation's National Crime Information Center, or NCIC), as appropriate.

11.  NCIC is a computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons).  It is available to Federal, state, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year.

12.  The UCMJ does not classify offenses as petty offenses, misdemeanors, or felonies.  Whether an offense is considered within any of these classifications is a matter of other federal or state law definitions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his U.S. Army criminal history record be amended from "felony assault consummated by a battery" to "assault consummated by a battery."

2.  The applicant's criminal history record maintained by the U.S. Army CRC and reported through the DCII to the FBI NCIC does not state this is a felon.  The military does not classify offenses as petty offenses, misdemeanors, or felonies; if he is being denied a gun permit in Nebraska, it is because Nebraska has interpreted his military criminal history as felonious.

3.  The applicant is confusing the crime reporting and titling process used by Army law enforcement with the charges brought against him in his general court-martial.  Law enforcement titles and indexes offenses so the information can be retrieved at some future time for law enforcement and security purposes.  The act of titling and indexing does not connote any degree of guilt or innocence, nor does it necessarily have a direct correlation to the charges brought at trial.

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)                                         AR20110023518





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ABCMR Record of Proceedings (cont)                                         AR20110023518



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