BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120006577 


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, in effect, that a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 2 July 2001, and a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI), dated 29 March 2001, be removed from his criminal history data file. 

2.  The applicant states:

* The Article 15 is a form of nonjudicial punishment (NJP) and the incident should not be listed in his criminal history
* He is unable to obtain gainful employment or pursue a successful career due this Article 15 being listed in his records
* The Article 15 is 11 years old and he has had no other incidents with law enforcement
* The incident did not result in an arrest
* The incident occurred while he was attending basic training
* He has the opportunity to achieve the rank of staff sergeant in the Army and to serve again as a Dallas firefighter   

3.  The applicant provides:

* Letter, dated 9 November 2010, from the Chief, Administrative Service Division, Freedom of Information Act Officer, Fort Jackson, SC
* Letter, dated 8 October 2010, from CID, Fort Belvoir, VA
* DA Form 4833 
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 (USAR) on 20 June 2000 for a period of 8 years.  

3.  A USACIDC ROI, dated 29 March 2001, established probable cause to believe the applicant committed the offenses of wrongful use, possession and distribution of marijuana, and false swearing. 

4.  A DA Form 4833, dated 2 July 2001, shows NJP (Article 15) was imposed against the applicant for possession of marijuana with intent to distribute, wrongful distribution of marijuana, and wrongful use of marijuana, on 23 March 2001.  His punishment consisted of a reduction to E-2 (suspended) and a forfeiture of pay.  

5.  On 28 August 2008, he was honorably discharged from USAR.  

6.  A review of the applicant’s Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, on the integrated Personnel Electronic Records Management System did not reveal a copy of the DA Form 4833 in question.  There is also no DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) contained in the AMHRR.

7.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes Department of the Army policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention and dissemination of criminal information.  In pertinent part, it states that requests to amend CID ROIs will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  The burden of proof to substantiate the request is upon the individual.  Requests to delete a person’s name from the title block will be granted only if it is determined that probable cause did not exist to believe that the person so titled committed the offense.  The regulation further states that the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual or the results of such action.  

8.  Army Regulation 195-2, paragraph 4-3d(1) states that the disclosure of criminal information originated or maintained by CID may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  

9.  Department of Defense Instruction 5505.7, 7 January 2003, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simply stated, is if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the Government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, in accordance with pertinent regulations, the decision by the CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual, or the results of such action.  If at the time of the investigation of an alleged offense reason existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  The applicant has provided no evidence to show that the CID’s initial decision to conduct the ROI and title him was in error.

2.  Disclosure of criminal information originated or maintained by CID may be made to any Federal law enforcement agency that has an investigative or law enforcement interest in the matter disclosed.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  The applicant has provided no evidence to show that the disclosure was in contravention of any law, regulation, or directive, as applied to law enforcement activities.

3.  In view of the foregoing, there is insufficient evidence on which to grant 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 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)                                         AR20120006577



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ABCMR Record of Proceedings (cont)                                         AR20120006577



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