IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120007101 


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, removal of a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 12 June 1992, and a DA Form 3975 (Military Police Report (MPR)), dated 12 May 1992, from the files of the U.S. Army Criminal Investigation Command (USACIDC, also known as CID).

2.  The applicant states:

	a.  he had background checks done on him by the Columbus, GA Police Department and the U.S. State Department for jobs.  His background states he had a military criminal record.  He applied to CID to change his record with no luck.  It is not a military criminal record.  He received a DA Form 4833 but no action was taken against him.  All items were cleared and the matter was resolved.

	b.  this is showing up as a criminal record in his background that has stopped him from receiving job offers.

	c.  he served honorably for 20 years with no other infractions during his career.

3.  The applicant provides:
 
* a letter from CID, Quantico, VA, dated 19 March 2012
* a DA Form 4833, dated 18 May 1992
* a DA Form 3975 (MPR), dated 12 May 1992
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 Regular Army on 6 June 1988 and he remained on active duty through continuous reenlistments.

3.  A DA Form 3975, dated 12 May 1992, shows the applicant wrongfully appropriated a car from Budget Rent-A-Car during the period 6 March 1992 to 
2 April 1992.  An investigation determined that sufficient evidence existed to list the applicant in the title section of this report for the offense of wrongful appropriation of private property.

4.  A DA Form 4833, dated 12 June 1992, shows that no action was taken against the applicant for wrongful appropriation of a private motor vehicle.  The form states "Service member has PCSed (permanent change of station) to CONUS [Continental United States].  Debt has been cleared."

5.  On 30 June 2008, he retired by reason of sufficient service for retirement in the rank/grade of master sergeant (MSG)/E-8.

6.  A review of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), on the interactive Personnel Electronic Records Management System (iPERMS) does not contain a copy of the DA Form 4833 or DA Form 3975 in question.

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.  It states that requests to amend CID report of investigations will be granted only if the requestor submits new, relevant, and material facts that would warrant such a revision.  The burden of 


proof to substantiate the request is placed 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 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.  This regulation further states in paragraph 4-3d(1) 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, subject:  Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, dated
7 January 2003, states 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.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling simply states, 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 the MPR to 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 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 an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120007101



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ABCMR Record of Proceedings (cont)                                         AR20120007101



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