IN THE CASE OF:	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007178 


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 her 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 that when she was on active duty (in August 1999) she was taking a prescribed medication.  The medication caused a positive reading on a urinalysis sample that she provided.  As a result, she was listed as the subject of a criminal investigation.  After an investigation, the allegations of "wrongful possession of dangerous drugs" and "wrongful use of dangerous drugs" were determined to be "unfounded."  

   a.  In 2005, she obtained statements from her former supervisor and commander and submitted a request to the U.S. Army Criminal Investigation Command (USACIDC) requesting removal of the information from the USACIDC database.  She did not receive a response and assumed that her request was granted, but it wasn't.

   b.  She states the presence of the "titled" entry in the USACIDC database has prevented her from obtaining a security clearance and also adversely affected her ability to obtain employment in at least ten instances.

   c.  In 2012, with help from the Legal Assistance Office at Fort Gordon, GA, she submitted another request to the USACIDC for deletion of the records; however, the request was denied.

   d.  She requests the board grant her request as a matter of equity and justice.

3.  The applicant provides copies of the following documents:

* her Curriculum Vitae
* USACIDC Report of Investigation, dated 18 October 1999
* six letters relating to her request for removal of records from the USACIDC database (in 2005 and 2012)

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 was appointed as a Reserve commissioned officer, in the rank of second lieutenant, in the Army Nurse Corps, in the Army National Guard of the United States (ARNGUS) and South Carolina ARNG on 9 July 1981.

3.  The applicant entered active duty on 7 April 1985, continued to serve on active duty, and was promoted to major/pay grade O-4 in the Regular Army on 
1 July 1993.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant honorably retired from active duty on 28 February 2005 based on sufficient service for retirement.  She completed 20 years and 12 days of total active service.

5.  A review of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), failed to reveal copies of the records/documents that the applicant submits with her application.  As such, there will be no elaboration on the contents of the records/documents.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) serves as the authority for filing documents in the AMHRR.  Only those documents listed in Table B-1 (Authorized Documents) are to be filed in the AMHRR.

7.  Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense (DOD)) 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 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the FBI, by 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 her 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.  Based on the information provided by the applicant, it appears she was properly titled at the time she was cited for the offenses in question and that the investigation revealed that she did not commit the offenses.  Thus, there appears to be no case of mistaken identity in this 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.

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

5.  Dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal, etc.) are also filed.  Thus, the applicant may contact appropriate law enforcement agencies to ensure any available official records of exculpatory information are also filed in the NCIS database.

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)                                         AR20130007178



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ABCMR Record of Proceedings (cont)                                         AR20130007178



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