MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:            5 January 2000                  
DOCKET NUMBER:   AR1999025122

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Mr. John D. Miller		Member	
	Mr. James M. Alward		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: Reconsideration of her application to correct her records by removing all references to pre-service civil conviction waiver.

APPLICANT STATES:  In effect, that she was never charged with a crime, did not go to trial, nor was she convicted or placed on probation in any manner.  She avers that she should not have had to complete a waiver as no charges were pressed and no court action occurred.  She further contends that the actions of this Board have created a “vile, vindictive, derisive, salacious, unfair, mean-spirited, intentional and libelous circumstance that requires an immediate and total correction.”  She states that this Board is making uninformed legal interpretations that have turned a simple situation into a libelous one.  She requests not only the removal of the information but an official apology for causing her embarrassment.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 6 May 1998  (COPY ATTACHED).

The applicant submits a letter from the Utah Third District Juvenile Court that states that no charges were filed, there were no trials, convictions, or sentences before a judge thus no probation or counseling could be ordered by the court, this constitutes new evidence that requires Board review.

The applicant’s record shows that the applicant was arrested for shoplifting in 13 April 1987 and 30 October 1989.  The disposition of the first case indicates an assessment was made and the case was not sent to trial.  The second incident included a notation of initial counseling service on 1 December 1989 with no action after counseling.

The ROTC Professor of Military Science submitted a request for waiver of civilian convictions in concert with the applicant’s application for admission to the ROTC program.  This waiver was granted and subsequently filed in the restricted portion of her Official Military Personnel File (OMPF).

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.  The Board’s prior decision was correct based upon the evidence submitted by the applicant at that time.  The applicant had been arrested twice for shoplifting as a juvenile and there is an indication of counseling in the records.

2.  Although neither charge was referred to trial there is no explanation of the circumstances of the arrests or why the charges were not referred to trial.  The records do show that the applicant had some type of counseling in concert with her second arrest. This notation of counseling is most likely is why the ROTC Professor of Military Science felt it necessary to submit the request for waiver.  

3.  The law requires disclosure of any and all arrests and their disposition by all personnel seeking to enlist or be commissioned in the military service.  The applicant has submitted no evidence that she is not guilty of the charges of shoplifting or that she was arrested in error.  The evidence only indicates that the authorities chose not to send the cases to trial.  Regardless of the outcome of the charges, the fact that she was arrested required disclosure at the time she applied for military service.

4.  While the use of the term “civil conviction” on the waiver was not technically accurate, explanation of the offenses that led to the waiver was necessary.  The arrests occurred; therefore, total purging of her records of all indications of the arrests is not warranted.  The fact that disposition was handled under a state juvenile offense diversion program is irrelevant.

5.  Notwithstanding the fact that the civil conviction waiver, as written, is incorrect, the Board is of the opinion that the removal of the waiver would do the applicant more harm than good in the long run.  The applicant will have to report the arrests for each security clearance application and renewal.  Without a waiver of record, she will have to go through the process of explaining and possibly documenting the situation each time.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

___ejo___  __jdm___  __jma___  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025122	
SUFFIX		
RECON	 	
DATE BOARDED	20000105 	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.