RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-05388

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Two criminal charges be removed from his National Crime Information Center (NCIC) criminal history record.  

APPLICANT CONTENDS THAT:

The Air Force Office of Special Investigations (OSI) unjustly recorded two charges in his NCIC criminal history record.  He was never charged or convicted of: 1) Larceny from the U.S. Mail, and 2) Obtaining Services Under False Pretenses.  He was never charged or convicted of any crime.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 18 May 87.

On 20 Dec 92, the applicant was furnished an honorable discharge, and was credited with five years, seven months, and twelve days of active service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

HQ AFOSI/XI recommends denial indicating there is no evidence of an error or an injustice.  After reviewing the responsive AFOSI case file and applicable policy guidance, it was determined that AFOSI acted correctly in initiating the applicant’s criminal history record per DoD Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements.  They conducted a query of the Defense Central Index of Investigations (DCII), and found his investigation was correctly indexed into DCII; however, due to the retention period of his investigation, his file has been removed from DCII.  Their review disclosed there was credible information of his involvement in a criminal offense that required indexing per DoD Instruction 5505.7, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense. They noted that titling or indexing in the DCII does not mean he was guilty or innocent of any charges, it means he was investigated for a particular' reason, e.g. background checks for an application for employment, clearances, as well as criminal investigations of which he was the subject, etc.

A National Crime Information Center (NCIC) query was conducted and revealed that in Mar 88, a criminal history record was established for the applicant in NCIC regarding the violations of “Larceny from the US Mail and Obtaining Services under False Pretenses.”  In accordance with (IAW) DoD Instruction 5505.11, this charge was entered correctly.  However, his NCIC record will be updated with a disposition of “No criminal action taken only administrative action.”

A complete copy of the HQ AFOSI/XI evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant acknowledged receiving the HQ AFOSI/XI memorandum responding to his request for expungement of two alleged charges in his NCIC criminal history record.  He contends he was made aware of this subject matter just recently (27 years after the fact) during an interview with U.S. Customs and Border Protection.  He further contends these unfounded charges are causing him extreme hardship in his daily life with numerous applications being denied, and he respectfully requests these charges be expunged from his record.  In support of his response, he provides copies of his FBI Criminal History, U.S. Customs and Border Protection denial letter, Florida application response letter, VA Disability letter, and his DD Form 214.  

A complete copy of the applicant’s rebuttal is at Exhibit E.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-05388 in Executive Session on 20 Oct 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05388 was considered:

	Exhibit A.  DD Form 149, dated 20 Dec 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, HQ AFOSI/XI, dated 28 Jun 16.
	Exhibit D.  Letter, SAF/MRBR, dated 6 Sep 16.
	Exhibit E.  Applicant’s Rebuttal, dated 13 Sep 16, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.