IN THE CASE OF:
BOARD DATE: 13 March 2012
DOCKET NUMBER: AR20120000917
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 removal of drug violations from his record.
2. The applicant states he was never charged, read a list of charges, received punitive action, and the only time he set foot in a court room was to testify at his roommates trial. He states this violation would make it impossible for him to continue a career in the medical field after his discharge.
3. The applicant provides the following documents in support of his request:
* Self-authored letter,
* Commanders report of disciplinary or administrative action
* U.S. Army Criminal Investigation Command (USACIC) letter
* Two third-party support letters
CONSIDERATION OF EVIDENCE:
1. The applicants record shows he enlisted in the Regular Army and entered active duty on 6 February 2001. His record is void of any record of non-judicial punishment (NJP) or court-martial (CM), and of any documents related to the drug related incidents in question.
2. The applicant provides a commanders report of disciplinary or administrative action that indicates he was referred to his commander for action for the offenses of the wrongful use of cocaine and wrongful use of hallucinogens on 1February 2002; and the wrongful use of dangerous drugs on 24 June 2002. It further shows the commander elected to take no NJP or CM action for these offenses.
3. The applicant also provides a USACIC letter, dated 17 August 2011 in which the Deputy Director, Crime Records Center informs the applicant his request to correct information from the USACIC files was reviewed and failed to provide evidence to support amendment of the Military Police Report (MPR) or Report of Investigation (ROI) on file.
4. Department of Defense Instructions (DODI) 5505.7 contains the authority and criteria for titling decisions. It states, in pertinent part, 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 Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to remove titling actions from his record because it impacts his employment opportunities was carefully considered. However, this factor is not sufficiently mitigating to warrant the requested relief. The applicant does not dispute the validity of the underlying misconduct in his application.
2. The evidence of record confirms that applicant was cited for the wrongful use of cocaine, wrongful use of hallucinogens, and wrongful use of dangerous drugs and that a USACIC ROI found sufficient evidence to title him for these offenses in spite of the commanders decision not to take disciplinary or administrative action against the applicant for the cited offenses. Although the applicant failed to provide the ROI or MPR that cited him for the offenses, procedurally in order to cite the applicant for the offenses, the ROI would have had to use credible evidence to believe he committed the offenses in question. Absent evidence to the contrary, there is presumption of regularity attached to the ROI and MPR in question.
3. By law and regulation, 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 Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.
4. Therefore, notwithstanding the commanders decision not to take action against the applicant for the offenses in question, it is concluded there is insufficient evidence to satisfy this removal criteria in this case.
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) AR20120000917
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