BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007260


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 that his criminal history data be expunged from Federal Bureau of Investigation (FBI) records and that records pertaining to the charges be removed from all Army records and databases.

2.  The applicant states the documents pertaining to the cases in question have been closed and contain no convictions.  It is unjust to maintain this derogatory information in his records.  Maintaining this adverse information is preventing him from gaining qualified employment and successfully producing income to adequately care for his family.  It also has a negative impact on his character and integrity.  He adds, according to Department of Defense Instruction (DODI) 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), retention of this criminal history does not conform to the policy and should be removed.

3.  The applicant provides an "Attachment 1" that lists the charges relating to four cases, two Commander's Reports of Disciplinary or Administrative Actions with two U.S. Army Crime Records Center (USACRC) Numbers, and two Military Police (MP) Reports with MP Report Numbers, along with the following:

* three DA Forms 4833 (Commander's Report of Disciplinary or Administrative Action), dated 20 December 2011, 5 August 2010, and
15 January 2010
* U.S. Army Criminal Investigation Command (USACIDC), Fort Campbell Office, memorandum, dated 22 December 2011


* three DA Forms 3975 (Military Police Reports), dated 21 August 2011,
23 May 2010, and 28 November 2009
* five DA Forms 3975-1 (Military Police Reports - Additional Offenses), all dated 28 November 2009
* three DA Forms 3975-2 (Military Police Reports - Additional Subjects), one dated 21 August 2011 and two dated 28 November 2009
* two DA Forms 3975-3 (Military Police Reports - Additional Victims), dated 21 August 2011 and 28 November 2009
* fourteen DA Forms 3975-4 (Military Police Reports - Additional Persons Related to Report), four dated 21 August 2011, two dated 23 May 2010, and eight dated 28 November 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 July 2008 for a period of
4 years and 21 weeks.

2.  On 19 December 2011, the applicant's commander notified him of his intent to discharge him under the provisions of the Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 9 (Alcohol or Other Drug Rehabilitation Failure).

	a.  The separation action included a DA Form 4856 (Developmental Counseling Form), dated 19 December 2011, that shows the applicant was counseled by a noncommissioned officer for violating Article 112a of the Uniform Code of Military Justice (UCMJ), for wrongfully possessing and using controlled substances.

	b.  On 19 December 2011, the applicant acknowledged receipt of notification of the proposed separation action.

	c.  On 21 December 2011, the separation authority approved the separation action and directed the applicant's service be characterized as general, under honorable conditions.

	d.  The approved separation action is filed in the service portion of the applicant's Amy Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 15 July 2008 and he was discharged on 4 January 2012, under the provisions of Army Regulation
635-200, chapter 9, based on alcohol rehabilitation failure with a general discharge.  He completed 3 years, 5 months, and 20 days of net active service this period.

4.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal copies of the records/documents that the applicant submits with his application.  As such, there will be no elaboration on the contents of the records/documents.

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) serves as the authority for filing documents in the AMHRR.

	a.  Only those documents listed in Table B-1 (Authorized Documents) are to be filed in the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file.

	b.  It shows that approved separation actions and supporting documents
(e.g., the DA Form 4856) are filed in the service section of the AMHRR.

6.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions) sets forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.

	b.  Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.

7.  DODI 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense) serves as the authority and criteria for USACIDC titling decisions.  It 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.  Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  In other words, if there is a reason to investigate, the subject of the investigation should be titled.

8.  DODI 5505.7 also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation.  By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions.  Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity.

9.  DODI 5505.11 implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services (CJIS) Division of the FBI, by the DOD law enforcement organizations, for inclusion in the National Crime Information Center (NCIC) criminal history databases.  Paragraph 6 (Procedures) shows that dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his criminal history data should be expunged from FBI records and that records pertaining to the charges be removed from all Army records and databases.

2.  The records in question are not filed in the applicant's AMHRR.

3.  The evidence of record shows a DA Form 4856, dated 19 December 2011, is properly filed in the applicant's AMHRR as part of his approved separation action.  Therefore, there is no basis for removing the document from the applicant's AMHRR.

4.  Based on the information provided by the applicant, it appears he was properly titled at the time he was cited for the offenses in question and when the charges were preferred against him.  Records properly reflect the offenses for which he was charged.  There appears to be no case of mistaken identity in his case.  Therefore, there is no basis to remove the applicant's name from the title block of USACIDC records that serve to update FBI records.

5.  The government has an interest in maintaining the records in question.  The applicant has not shown through the evidence submitted with his application or the evidence of record why the criminal records in question should not remain a matter of record.

6.  In view of the foregoing, there is no basis for expunging the criminal history data from Department of the Army or FBI records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X___  __X______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  To ensure this decision results in no unintended or additional harm to the individual concerned, this Record of Proceedings and associated documents will not be filed in the individual's Army Military Human Resource Record.  However, this Record of Proceedings and all documents related to this appeal will be filed at the Army Review Boards Agency, Army Board for Correction of Military Records.



      _________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)                                         AR20120007260



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ABCMR Record of Proceedings (cont)                                         AR20120007260



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