RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-02084

						COUNSEL: 

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His record with the National Crime Information Center (NCIC) be corrected by the Air Force Office of Special Investigation (AFOSI) to reflect:

1.  “Not Guilty” for False Official Statement charge.
2.  “No criminal action taken” for the positive drug test charge.

APPLICANT CONTENDS THAT:

Upon re-trial in 2009, he was acquitted of the False Official Statement charge.

The positive urinalysis was handled administratively via Letter of Reprimand.

The OSI did not update the NCIC database to reflect these dispositions.

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

STATEMENT OF FACTS:

On 1 Jul 96, the applicant initially entered the Regular Air Force.

On 18 Feb 07, the applicant met a General Court Martial, was found guilty of violating Article 107 of the Uniform Code of Military Justice (UCMJ), and sentenced to dismissal, confinement for 14 days, and a reprimand.

On 10 Feb 09, the Air Force Court of Criminal Appeals set aside the findings of guilt and the sentence, and ordered a rehearing.

On 7 Oct 09, the applicant, upon rehearing, was found not guilty of violating Article 107 of the UCMJ, and all rights, privileges, and property of which the applicant was deprived were ordered restored.

On 3 Jul 15, according to documentation provided by the applicant, the applicant tested positive for drug use during a urinalysis.

On 24 Mar 16, according to documentation provided by the applicant, the applicant received a Letter of Reprimand (LOR) for, on 3 Jul 15, taking prescription medication that was not prescribed to him.  The LOR was ordered placed in an Unfavorable Information File and the applicant’s Officer Selection Record.

On 30 Oct 16, the applicant was furnished an Honorable discharge and credited with 20 years, 4 months, and 0 days active service.

On 31 Oct 16, the applicant was placed on the Temporary Disability Retired List, with a compensable disability rating of 70 percent.

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 disapproved the applicant’s request to expunge his NCIC criminal history record.

After reviewing the AFOSI case file and applicable policy guidance, it was determined the AFOSI acted correctly in initiating the applicant’s criminal record per Department of Defense Instruction (DoDI) 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements.

A query of the Defense Central Index of Investigations (DCII) found the applicant’s investigation was correctly indexed.  There was credible information the applicant was involved in a criminal offense that required indexing per DoDI 5505.7, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense.  Titling or indexing in DCII does not mean a person is guilty or innocent of charges, but that they were investigated for a particular reason.

The criminal history record established for False Official Statement was updated to “Not Guilty” due to the conviction being overturned.  The charge was entered correctly in accordance with DoDI 5505.11.

Upon completion of the review, it was determined the applicant’s NCIC criminal history record was valid.  Accordingly, his AFOSI criminal history record within NCIC will remain.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 Mar 17 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  The applicant’s NCIC record has been documented in accordance with established guidance.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2016-02084 in Executive Session on 8 Aug 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02084 was considered:

	Exhibit A.  DD Form 149, dated 18 May 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, HQ AFOSI/XI, dated 8 Sep 16.
	Exhibit D.  Letter, AFBCMR, dated 20 Mar 17, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-02084, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.