IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130001697 


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 correction of his military records by removing his record of nonjudicial punishment (NJP) from the Army Crime Records Center (CRC) files.  In the alternative, he requests that the NJP in question be moved to the restricted and sealed section of his Army Military Human Resource Record (AMHRR).

2.  The applicant states he has exhausted all administrative remedies afforded by the existing law or regulations.  He humbly requests that the Army Board of Correction of Military Records (ABCMR) request that the CRC remove the record of NJP from the National Crime Information Center (NCIC) data base.

	a.  He notes that a letter, dated 29 October 2011, from the Case Management Division, Army Review Boards Agency, advised him his case would be administratively closed because the ABCMR is unable to remove a Report of Investigation from Federal Bureau of Investigation (FBI) Files.

	b.  However, after further investigation into this matter, he would like to bring to the ABCMR’s attention two qualifying factors that would warrant consideration of his request for removal of NJPs from FBI records.

	c.  First, the following information is provided at http://arba.army.pentagon.mil/ Unfavorable.cfm, under the section entitled “Name Titling in Army Records and FBI Records.”  “If the CRC denies the applicant’s previous request, then an application can be made to the ABCMR using DD Form 149 or an online application to request removal of the titling.  Include with the application a photo copy of all documents sent to the CRC and the reply from the CRC.”  Therefore, the Case Management Division’s administratively closing his case was unduly harsh and should warrant due consideration.

	d.  Second, under the ABCMR’s prior ruling in DOCKET NUMBER AR2000042469, dated 13 March 2001, the ABCMR ruled in favor of removing an applicant’s NJP titling from FBI records for the same exact offense as requested in his own case and under very similar circumstances and rationale.  He therefore would pray that the ABCMR reconsider his request to have his case heard on its merits as heard in the above referenced case.  In his case, like the applicant in DOCKET NUMBER AR2000042469, he received an NJP in 2001 after testing positive on a urinalysis test.  He was reduced to pay grade E-1, forfeited approximately $800.00, and received 45 days of extra duty and restriction. However, he was retained in service due to his strong work ethic and otherwise high retainability in the service as a productive Soldier.

	e.  Like the applicant in DOCKET NUMBER AR2000042469, he completed his enlistment, returned to college, got married, and began a civilian career.  He reentered the Army in 2007 in order to fight for his country.  He served in Iraq from 2008 to 2009.  He received another honorable discharge in 2010 and he is currently finishing up his final year of law school at New England School of Law in Boston, MA.  He will be applying for admission to the Massachusetts and New Hampshire Bar Associations in order to practice law as a district attorney.

	f.  Like the applicant in DOCKET NUMBER AR2000042469 who worked for a gaming company that potentially would have a number of background checks performed on him, which would disclose a record indicating that he may have been arrested by some unstated law enforcement agency for wrongful possession and use of marijuana; so too will the applicant be burdened by such a revelation in his record.  In his most humble opinion, he believes that the great burden on his own future legal career would be greatly reduced if he did not have to explain to civilian employers how he was never arrested or criminally charged with any crime; but yet, how a criminal record for possession of marijuana shows up on his FBI record, which was adjudicated by an NJP.  Civilian employers do not understand military justice.  He believes that it should not be a matter for which he is burdened to explain at every job interview he has with a law enforcement agency.

3.  The applicant further states he was a good Soldier, proud of his unit, but immature, and made a huge mistake.  He prays that his record would be changed, not because it is incorrect, and not because what he did was not wrong; but rather, because of the inordinately harsh impact on his civilian career that is currently being felt as he attempts to begin his career as a public prosecutor and a potential National Guard Officer.  He believes that NJP was not intended to have a permanent or long lasting effect on young Soldiers.  The potential consequences of the NJP are far greater than the punishment that his commander thought appropriate when requesting to retain him in service and not kick him out for such an offense.

4.  He contends that the Department of Defense (DOD) now believes a Soldier should not suffer the potential consequences of a permanent criminal record for a violation punished by an NJP.  He argues that paragraph 9 of the referenced ABCMR decision states the DOD policy in effect in 1992 required that the applicant’s offense be entered into the NCIC data base.  That policy had changed.  Company grade NJPs were no longer reported to the NCIC; however, there were no instructions concerning individuals whose violation had already been reported to the NCIC.

5.  The applicant states in 2011 he was blind-sided at an interview for an internship with a local district attorney’s office.  He was asked to explain why he had a possession of marijuana arrest on his FBI NCIC record check.  He subsequently requested that the Army CRC Center remove or amend his criminal record in the database.  Similarly, he also stated that he was never arrested.  He only tested positive for marijuana on a urinalysis.  However, just like the individual in DOCKET NUMBER AR2000042469 he firmly believes that any civilian employer would likely believe that he was actually arrested for such an offense as possession of marijuana in 2001 as was the case in his job interview for the local district attorney’s office.

6.  The applicant states the Army CRC informed him on 12 May 2011, just like in DOCKET NUMBER AR2000042469, that they had advised the FBI to change the disposition of his Report of Investigation (ROI) to read: "Administered Non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), restricted for 45 days and extra duty for 45 days."  He requests the ABCMR, like in DOCKET NUMBER AR2000042469, help remove his Article 15 from the NCIC database as an unnecessary and undue burden to his civilian career based on a single mistake made over 10 years ago.  In the alternative to removing the NCIC titling record of his NJP, he requests that the NJP in question be moved to his most restricted and sealed military file so that it would not be reported to any outside agency.  He bases his whole request on the following conclusions drawn so gratefully by the ABCMR under DOCKET NUMBER AR2000042469 which states, “The Board notes that nonjudicial punishment under Article 15, UCMJ, is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by a record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The applicant’s transgression in 1992 should not burden him throughout his life, preventing him from gaining employment or retaining his current job.  The Board notes that had he received a urinalysis test in a civilian environment, and tested positive for marijuana, the results of that test would not have been reported to the NCIC.”

7.  The applicant provides copies of:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending 10 May 2003 and 9 July 2010
* DD Forms 2624 (Specimen Custody Document - Drug Testing) dated
9 March and 20 March 2001
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated       26 March 2001, three Redacted copies
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated       26 March 2001, applicant's copy
* Agent's Investigative Report, dated 29 March 2001
* U.S. Army Criminal Investigation Command (CID) ROI, dated 2 April 2001
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 20 June 2001
* Commonwealth of Massachusetts Criminal History Systems Board, dated 13 December 2010
* Letters, CID, dated 7 April 2011 and 20 July 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's AMHRR does not contain documents for the period 11 May 1999 to 10 May 2003.  Accordingly, the subject NJP and associated records are not available to the Board for review.  However, the applicant has provided sufficient documents for the Board to conduct a fair and impartial review of this case.

2.  On 11 May 1999, the applicant was over age 21 and enlisted in the Regular Army.

3.  DD Forms 2624, dated on 9 and 20 March 2001, report the applicant underwent a urinalysis screening on 5 February 2001 that resulted in a positive test for the use of Methylenedioxyl-N-Methylamphetamines (MDMA, otherwise known as ecstasy).

4.  A DA Form 3881, dated 26 March 2001, shows the applicant, then a private first class/pay grade E-3, was informed that he was suspected of the wrongful use, possession, and distribution of illicit drugs.  He was advised of his legal rights.  He indicated that he did not desire to give up his rights and requested a lawyer.

5.  An Agent's Investigative Report, dated 29 March 2001, reported that the applicant underwent a urinalysis that was conducted on 5 February 2001 and he tested positive for MDMA.

6.  A memorandum from the CID, dated 2 April 2001, notified the applicant's commander that he had been identified as having wrongfully used hallucinogens. This determination was based on his positive urinalysis test.

7.  A DA Form 4833 dated 20 June 2001, from the applicant's commander to the Director, CRC, reports the applicant's offense as the wrongful use of hallucinogens.  He had accepted NJP resulting in his reduction from pay grade E-3 to pay grade E-1; a forfeiture of $521.00 pay for 2 months, and 45 days of extra duty and restriction.

8.  On 10 May 2003, the applicant was honorably released from active duty in the rank of specialist, pay grade E-4.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement).

9.  On 26 June 2007, the applicant again enlisted in the Regular Army.  On 1 July 2008, he was promoted to sergeant, pay grade E-5.  He was discharged on 
9 July 2010 due to completion of required active service.

10.  A Criminal History Record, as of 13 December 2010, shows the applicant had been charged with the wrongful use of a controlled substance.  The charge was disposed of via the NJP described in the preceding paragraph.

11.  On 7 April 2011, the Director, CRC, Fort Belvior, Virginia, wrote a letter to the applicant in response to his request to correct information in the files of the CID.

	a.  A copy of the ROI discussed in paragraph 5 above was enclosed but had been redacted to remove names of law enforcement personnel, as well as names, social security numbers, and other personal information pertaining to third parties.

	b.  The director advised the applicant of Department of Defense Instruction (DODI) 5505.11 that establishes policies and procedures for reporting criminal history data to the FBI NCIC for all military members investigated by DOD criminal investigative organizations for the commission of certain offenses and who are subjects of resultant judicial or non-judicial military proceedings.  Reporting information to the NCIC depends on the offense committed and the punishment received.  NCIC records reflect that he was listed as the subject in the aforementioned ROI for wrongful use of a controlled substance.

	c.  He was also informed that the information pertaining to him receiving NJP had been sent to the FBI to update the NCIC.  Given the facts of his case, retention of this criminal history data conformed to DOD policy and his name would remain in the NCIC.  He was informed that he had not submitted any new or relevant information needed to amend the ROI.

	d.  The ROI responsive to his request was completed after July 1992.  At the time the ROI was completed the legal standard for titling and indexing an individual as the subject of a criminal investigation was established by DODI 5505.7, paragraph 6-1, which provided that organizations engaged in the conduct of criminal investigations would place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports.

	e.  Once a person is properly titled and indexed in the Defense Clearance and Investigations Index (DCII), that person's name will only be removed in the case of a mistaken identity, or if a mistake was made at the time of titling.

	f.  The applicant was informed that no action would be taken to review his ROI at that time for amendment.  He was advised that he would have to submit a request for such an amendment with new and relevant information to the Director, CRC.

12.  On 20 July 2011, the Deputy Director, CRC, wrote a letter to the applicant in response to his request to have his name removed from the FBI NCIC.  He was informed that the records in the CID listed him as the subject in an ROI.  A complete review of his records showed the retention of his criminal history data conformed to DOD policy.  The applicant was advised that he had exhausted his remedies to correct the entry in NCIC through the CRC; but he could appeal to this Board.

13.  A review of the Record of Proceedings (ROP) for DOCKET NUMBER AR2000042469, dated 13 March 2001 shows the following:

	a.  The individual in that case requested removal of his NJP from the NCIC data base.

	b.  That individual had accepted NJP in 1992 for the use of marijuana.  His offense was discovered as a result of a positive urinalysis.  His punishment included a reduction to private/pay grade E-2; a forfeiture of $400.00 pay; and 
45 days of extra duty and restriction.

	c.  On 8 May 1992, that individual was released from active duty and transferred to the USAR where he completed his service obligation and was discharged in 1997.

	d.  The evidence indicates that an official at the CRC stated the DOD policy had changed in 1992 and no longer required that the individual’s offense be entered into the NCIC data base.  It further stated that NJP's given by company commanders were no longer reported to NCIC; however, there were no instructions governing individuals whose violations had already been reported to NCIC.

	e.  The CRC had advised the FBI to change the disposition of that individual's record to show he had received NJP and the imposed punishment.

	f.  The Board granted that individual’s request, as an exception to policy, contending that the recent change may have represented an enhancement of his rights.

14.  Army Regulation 27-10 (Military Justice) provides that NJP is imposed to correct minor misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  The term “minor” includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial.  It does not include misconduct of a type that, if tried by GCM, could be punished by a dishonorable discharge or confinement for more than 1 year.  This is not a hard and fast rule.  The circumstances of the offense might indicate that NJP would be appropriate even in a case falling outside of these categories.

15.  Table 3-1 of Army Regulation 27-10 states a company grade commander can only reduce E-1s – E-4s by one grade; field grade commanders can reduce two grades.

16.  Under UCMJ, the maximum punishment allowed for wrongful use and/or possession of MDMA is a punitive discharge and confinement for 5 years. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by removing his record of NJP from the Army CRC files.  In the alternative, he contends that the NJP in question should be moved to the restricted and sealed section of his AMHRR.

2.  The available evidence clearly shows the applicant was investigated for the wrongful use, possession, and distribution of MDMA, not for the use of marijuana, as he contends.  He was subsequently offered NJP for the use of hallucinogens, an offense serious enough to have warranted a trial by general court-martial.

3.  Unfortunately, the applicant's NJP or any associated documents are not available in his AMHRR.  It appears by the two-grade reduction he received the NJP was imposed by the battalion commander.  There is no evidence of any appeal action.

4.  The applicant's contention that his case is identical to another case in which the Board granted relief in 2001 is without merit.  The referenced case dealt with a different offense and happened at about the time there was a change in filing procedures.  The only similarities were the use of urinalysis testing and the degree of punishment.

5.  The applicant is of the belief that the imposing commander did not intend for the NJP to have a long-lasting effect on his life.  However, his commander was the person who provided CID the disposition data for his wrongful use of hallucinogens and resulting NJP.

6.  The applicant admits that what he did was wrong.  However, he contends he was a good Soldier who was immature and made a huge mistake.  He wants the NJP removed not because it is incorrect; but rather, because of its inordinately harsh impact on his civilian career.  The applicant was approximately 23 years of age at the time of his misconduct.  He had completed almost 2 years of active service and he knew, or should have known, that the use of hallucinogens was wrong and could have a permanent impact on his life.

7.  The applicant argues that had he been a civilian in 1992 and tested positive for marijuana use, it would not have been reported to the NCIC.  His argument is without merit.  First, he tested positive for using MDMA.  Second, had he been investigated by civilian authorities, similar records of his crime would have been generated and filed in accordance with the laws of his local community.

8.  In the applicant's case, officials at CID have informed the applicant in two separate letters that his case was reviewed and found to have been filed in the NCIC in compliance with the current DOD policy.  There is no evidence showing that what was done in the applicant's case was in error, unjust, or would result in unnecessarily harsh or unfair treatment.

9.  In view of the above, the applicant's request should be denied.

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)                                         AR20130001697



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ABCMR Record of Proceedings (cont)                                         AR20130001697



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