IN THE CASE OF:	  

		BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120004588 


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 his name from the titling block of U.S. Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI) 
03-CID112-XXXXX-XXX.

2.  The applicant states the battalion-wide urinalysis was more than 9 years ago. He completed his nonjudicial punishment (NJP), including extra duties, forfeiture of pay, and restriction.  He is employed as a nurse, but the unfavorable information prevented him from obtaining a job in the Justice Department.  He was instructed by the Human Resources Department that the charge must first be expunged before employment is granted.  He would like to have this removed from his record.  He has never gotten into any trouble before or after that incident.  He would like an opportunity to move past that mistake one day.

3.  The applicant provides:

* email from the South Carolina Department of Corrections, dated 3 December 2010
* results of a Federal Bureau of Investigation (FBI) identification record, dated 16 August 2011
* letter from his attorney to the U.S. Army Crime Records Center 
(CICR-FP), dated 28 December 2011 
* letter from USACIDC, dated 6 February 2012, with USACIDC ROI 
03-CID112-XXXXX-XXX as an enclosure
* his nursing license information for the State of Georgia

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.  He enlisted in the Regular Army on 25 February 2002.

3.  On 1 May 2003, USACIDC ROI 03-CID112-XXXXX-XXX stated:

	a.  Probable cause was established to believe that the applicant committed the offense of wrongful use of marijuana when on 16 January 2003 he provided a urine sample which was tested and found positive for the presence of tetrahydrocannabinol, the active ingredient in marijuana.

	b.  He was advised of his rights, which he waived and provided a sworn statement wherein he confessed he used marijuana while on leave in South Carolina.

4.  On 16 July 2003, he accepted NJP for wrongfully using marijuana.

5.  On 20 August 2003, he was discharged by reason of misconduct.  He completed 1 year, 4 months, and 18 days of active service that was characterized as under honorable conditions.

6.  On 6 June 2005, the Army Discharge Review Board (ADRB) upgraded the characterization of his discharge to honorable.  The board found the immediate commander's recommendation to retain the applicant, circumstances surrounding the discharge, and his post-service accomplishments mitigated the discrediting entry in his service record.  The board voted to grant full relief in the form of an upgrade of the characterization of his service to fully honorable.

7.  On 28 December 2011, he requested through counsel that CICR-FP remove his name from the titling block of USACIDC ROI 03-CID112-XXXXX-XXX.  Counsel argued the action of the ADRB demonstrated the allegation of marijuana use was erroneous and that the records relating to this allegation were inequitable.

8.  On 6 February 2012, USACIDC denied his request.

	a.  Decisions made by the ADRB do not negate the legal standards for titling and indexing.

	b.  Counsel was notified that the governing Department of Defense (DOD) Instruction (DODI) establishing policies and procedures for reporting criminal history data to the FBI and National Crime Information Center (NCIC) for military service members required reporting members investigated by DOD criminal investigative organizations for commission of certain offenses and who are subjects of resultant judicial or nonjudicial military proceedings.  Counsel was further informed that retention of the applicant's criminal history data in the NCIC conformed to DOD policy and that his name would remain in the NCIC.

	c.  All names of individual subjects of criminal investigations by DOD organizations shall be listed in the Defense Clearance and Investigations Index (DCII).  Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense.

	d.  Requests to amend USACIDC ROI's will be granted only if the individual submits new relevant and material facts that are determined to warrant revision of the report.  The burden of proof to substantiate the request rests with the individual.  Requests to delete a person's name from the titling block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject.

9.  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 in 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.

DISCUSSION AND CONCLUSIONS:

1.  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 in 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 applicant has failed to provide evidence satisfying this standard for removal.

2.  The evidence of record confirms that the results of a USACIDC investigation provided a sufficient legal basis for the applicant to be titled for wrongful use of marijuana.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process and that the rights of the applicant were protected throughout the process.

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)                                         AR20120004588



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ABCMR Record of Proceedings (cont)                                         AR20120004588



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