IN THE CASE OF:	  

		BOARD DATE:  27 March 2014

		DOCKET NUMBER:  AR20130013599 


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 the removal of a DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) and Criminal Investigation Division (CID) Report from the records of the National Crime Information Center (NCIC).

2.  The applicant states that the DA Form 4833 and CID Report incorrectly reflects the offenses of adultery and false swearing and indicates that he received an oral reprimand.  He goes on to state that the allegations were later found to be untrue and he did not receive an oral reprimand.  However, every time an investigation is conducted that information surfaces.  Accordingly, he desires it to be removed from his records. 

3.  The applicant provides copies a copy of the flagging action being removed and a letter from the U.S. Army Crime Records Center denying his request to remove the information from files of the CID Command.

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 29 July 1986 for a period of 4 years.  He completed his training and remained on active duty through a series of continuous reenlistments. 

3.  The applicant was married and serving in the pay grade of E-6 and was attending a course at Fort Lee, Virginia when he was involved in an incident with a female in his hotel room on 30 November 1990.  On 6 December 1990 he was titled by CID officials for the offenses of false swearing and adultery.

4.  On 18 March 1991, the applicant’s commander submitted a DA Form 4833 indicating that the applicant was orally reprimanded by the commander, 262nd Quartermaster Battalion, Fort Lee, Virginia 23801. 

5.  He was promoted to the pay grade of E-7 on 1 September 1994 and on 
4 June 1995, he was honorably discharged to accept a commission in the Army. 

6.  On 5 June 1995, he was commissioned as an air defense second lieutenant with a concurrent call to active duty.  He served until he was retired by reason of length of service in the rank of major on 30 June 2007.  He had served 21 years, 3 months and 12 days of active service.

7.  On 1 July 2013, the U.S. Army Crime Records Center denied his request to correct the CID Report pertaining to the investigation conducted in 1990 and advised him that he could apply to this Board.

8.  Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID 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 innocence.  The criterion for titling is a determination that credible information exists that a person:

	a.  may have committed a criminal offense or

	b.  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.

9.  The DODI 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with his application or the evidence of record why the criminal record in question should not remain a matter of record.

2.  It appears that based on the information provided by the applicant and reflected in his official record, the applicant was properly titled for the offenses listed on the DA Form 4833.  Fort Lee authorities received credible information that the incident occurred and the applicant was involved.

3.  It also appears that he was properly titled at the time and there appears to be no case for mistaken identity in his case; therefore, there is no basis to remove the DA Form 4833 from the records of the NCIC. 

4.  While the applicant may have learned from his past mistakes, that in itself does not serve as a basis to move or remove properly filed documents from his official record.

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)                                         AR20130013599





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ABCMR Record of Proceedings (cont)                                         AR20130013599



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