MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                                      
	DOCKET NUMBER:   AR1998012508

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Karen J. Newsome 		Chairperson	
	Mr. Fred N. Eichorn 		Member	
	Mr. John P. Infante 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his name be expunged from the title block of Criminal Investigation (Division) Command (CID) Report of Investigation (ROI) 88-CID015-22250-8D1.

APPLICANT STATES:  In effect, that he did not commit fraud as a recruiter by fraudulently enlisting a prospective soldier.  He states that the enlistee was never discharged, therefore the enlistment could not have been fraudulent.

EVIDENCE OF RECORD:  The applicant's military records show:

He was an Active Guard Reserve (AGR) noncommissioned officer (NCO) serving on recruiting duty as a staff sergeant.  The US Army Recruiting Command (USAREC) conducted an investigation that indicated the applicant had failed to report an enlistee’s criminal record in order to enlist him.  USAREC turned the investigation over to the US Army Criminal Investigation (Division) Command (CID).  The CID opened the subject investigation and titled the applicant for attempted fraud and making and presenting false official documents.  No action was taken against the applicant and he was separated upon the completion of his 3-year AGR tour of duty.

The applicant was honorably discharged on 20 September 1987.  Prior to his discharge, he was diagnosed on 17 November 1986 with Chronic Obstructive Pulmonary Disease (COPD) and on 9 December 1986 with adjustment disorder with anxious mood.  He was scheduled to appear before a Military Occupational Specialty Medical Retention Board (MMRB), but achieved his separation date before that could be accomplished.  Upon his release from active duty, the Department of Veterans Affairs (DVA) evaluated the applicant and awarded him a 30 percent disability for COPD and a 10 percent disability for anxiety disorder.

The applicant came to this Board seeking to have the reason for his separation changed from “Release from Active Duty” to “Physical Disability Retirement.”  The Board concurred on 18 December 1991 and changed his 20 September 1987 separation to that of permanent physical disability retirement with a disability rating of 30 percent.

The Army Review Boards Agency legal advisor has opined in similar cases that the Army Board for Correction of Military Records may remove an applicant’s name from the title block of a CID ROI when necessary “. . . to correct an error or remove an injustice.”  To prove an error, the applicant must show that “. . . there was no information, considering its source, nature, and the totality of the circumstances that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.”  To remove an injustice, the applicant must demonstrate that the titling decision, which has later been determined to be unfounded, has created harm.  When it has been established that the applicant has been harmed, the Board “. . . should first look at whether it can rectify the injustice by correcting records related to the outcome of the [titling], instead of reversing the titling decision.”

Army Regulation 195-2 states, in pertinent part, that requests to amend CID ROI would be granted only if the requester submitted new, relevant, and material facts which would warrant such a revision.  When the requested amendment was to delete a person's name from the title block of an ROI, the request would be granted only if it “. . . can be conclusively established that the wrong person's name has been entered as a result of mistaken identity."

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The CID had reason to investigate alleged fraudulent activity based upon the preliminary inquiry conducted by the USAREC.  Based upon CID standards, the titling of the applicant was justified.  The applicant has not shown that the titling was in error or that he has suffered an injustice as a result of that titling.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___KJN _  __FNE __  __JPI ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012508	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990121	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.