MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 October 1998
	DOCKET NUMBER:    AC98-07731

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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:  Through a copy of a memorandum from a sergeant first class in his unit, that his DA Form 2-1, Personnel Qualifications Record, Item 27, “Remarks”, have the entry “Arrested by civil auth Nassau NY, confined by civil auth Nassau NY, charged with firearm possession, and causing injury to another party with dangerous weapon”, deleted.

APPLICANT STATES:  Through a copy of a memorandum from a sergeant first class in his unit, that the applicant was the subject of a misunderstanding following a domestic incident.  No permanent entry was authorized in his military records until the civil authorities finalized their review of the incident.  However, through an administrative oversight a permanent entry was made and is now adversely affecting the applicant's chance at promotion.

In support of his application he submits a letter from the Legal Aid Society of Nassau County, New York, which states that the applicant’s charge was “reduced to a noncriminal offense and the case has been sealed . . .”

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

He enlisted in the USAR on 16 May 1976, was awarded the military occupational specialty of wheel vehicle mechanic, and was promoted to pay grade E-6.

On 17 July 1985 he entered on active duty in the Active Guard and Reserve (AGR) program and has remained in that status, being promoted to pay grade 
E-7 on 1 September 1994.

Army Regulation 640-2-1, Table 3-1, item 27, Remarks, states that if a soldier is confined by civil authorities, an entry will be made showing the date and place of arrest, the nature and date of the offense for which arrested, and the sentence adjudged.

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

1.  The entry of the applicant being arrested and confined was and is appropriate.

2.  However, the disposition of the case needs to be added to his DA Form 2-1.  Since that is administrative, it need not be ordered by the Board.  The custodian of the applicant’s records should be careful to make the proper entry in this regard.  There is no evidence that the applicant was not found not guilty of the reduced, noncriminal charge.  Absent that evidence, the records custodian may only enter a disposition of “Charge reduced to a noncriminal offense, disposition unknown.”

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

EMW  RWG   JNS  DENY APPLICATION

                                              for  Edmund P. Mercanti
Loren G. Harrell
Director