IN THE CASE OF:	   

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140020042 


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 any reference to morphine use associated with his fingerprint records from the files of the U.S. Army Criminal Investigation Command (commonly known as CID).

2.  The applicant states:

	a.  He requests that "wrongful use of morphine" be removed from records associated with his fingerprints and any other negative verbiage related to this incident that appears when his fingerprints are processed.

	b.  He believes this information attached to his fingerprints is unjust because he did nothing wrong and he was never convicted or received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

	c.  He did not request trial by court-martial because there was no UCMJ punishment and he was only separated 6 months earlier than his expiration term of service.

3.  The applicant provides:

* self-authored letter to Mr. M____, presumably at the New Jersey Department of Banking and Insurance, dated 21 October 2012
* Department of Veterans Affairs Proof of Service Letter, dated 26 June 2014
* 
letter of recommendation, dated 11 August 2014
* correspondence with a Member of Congress, dated 25 September 2014

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the Regular Army (RA), the applicant again enlisted in the RA on 30 July 2007 and trained as a cannon crewmember.  He served in Afghanistan from 2 January 2010 to 1 January 2011.  He was promoted to the rank of sergeant effective 1 January 2011.

2.  Records show he tested positive for morphine via urinalysis on 15 April 2011.

3.  On 29 November 2011, discharge proceedings were initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  His unit commander cited his positive urinalysis for morphine.  He consulted with counsel.

4.  A memorandum from the Staff Judge Advocate, Headquarters, 82d Airborne Division (Rear) (Provisional), dated 28 December 2011, states:

* the applicant failed to pass a urinalysis test administered by his unit by testing positive for morphine between on or about 1 April and 30 April 2011
* he failed to provide documentation that the failure was due to medical prescriptions
* he received a counseling statement for this offense

5.  In December 2011, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

6.  On 9 February 2012, he was discharged accordingly.

7.  He provided a self-authored letter to Mr. M____, presumably at the New Jersey Department of Banking and Insurance, dated 21 October 2012, which states:

	a.  He did not take any drugs other than medications given to him through military doctors or medics.

	b.  He was never convicted of anything, he was simply discharged from the Army under honorable conditions as stated on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  His DD Form 214 states the reason as serious misconduct, but he was never charged with the use of morphine.  He was merely accused of it.  Every other noncommissioned officer who had something like this come up or a citation for driving under the influence or for fighting would have been stripped of his or her stripes and demoted under Article 15.  That did not happen to him and he feels it is because they did not want him to take this to a court-martial hearing.  He was lied to and told this would not appear like this, but he has to live with it.  He has been punished once for something he did not do and he would be out of the Army already even if this never happened.  He would not do a thing differently.  He is proud of his accomplishments.  Being accused of something he did not do was not the way he wanted to leave the Army, but he can sleep at night knowing he did nothing wrong.

	c.  He has included all the documentation he gave to the battalion commander.  Two sworn statements from former unit prevention leaders (Army substance abuse) stating they witnessed issues with the urinalysis examination process.  Also a sworn statement from a former instructor he worked with.

   d.  This situation didn't surface until 6 months after the urinalysis.  He did not request a court-martial hearing due to the fact that he could not physically do his job anymore due to multiple knee operations and the need for back surgery from combat-related injuries.  He was originally told the DD Form 214 would not reflect this, but then he was already in a different unit when this came up and both the commander and first sergeant of the unit that performed the urinalysis are no longer with that unit.

	e.  He did not get treatment for the use of morphine because he did not have a problem with it.

8.  He also provided a letter of recommendation from a platoon sergeant, dated 11 August 2014, which states:

	a.  He strongly recommends the applicant for reconsideration of the characterization of his Army service to honorable.  He served with the applicant for 2 years and he remains one of the most dedicated, dependable, and talented noncommissioned officers he ever had the privilege to serve with.

	b.  The applicant distinguished himself amongst his peer group as a cannon crewmember, not only by serving with distinction and discipline through numerous field training exercises, but also in Afghanistan.

	c.  His ability to integrate and deconflict assignments, tasks, and missions demonstrates the maturity, wisdom, and leadership of a leader many years his senior in both age and rank.
9.  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 reports of investigation 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.

10.  Army Regulation 195-2, paragraph 4-3d(1), further states 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.

11.  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 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, the evidence shows he tested positive for morphine via urinalysis on 15 April 2011 and he was discharged for misconduct (commission of a serious offense) in February 2012.

2.  In accordance with pertinent regulations, the decision by 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 reason existed at the time of the investigation of an alleged offense to believe that a particular person committed the alleged offense, CID is justified in titling that individual.  The applicant provided no evidence to show his titling was in error.

3.  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 provided no evidence to show the disclosure was in contravention of any law, regulation, or directive, as applied to law enforcement activities.

4.  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 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)                                         AR20140020042



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020042



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1