MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 March 2000                   
	DOCKET NUMBER:   AR1999028766

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James E. Anderholm		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:  That the entry of wrongful use of cocaine be stricken from her records at the U. S. Army Criminal Investigation Command (CID).

APPLICANT STATES:  That the CID report should not remain in her records for a lifetime.  She received an honorable discharge.  Now her records show she was arrested or convicted of wrongful use of cocaine.  She was never arrested and all she received was an Article 15.  However, the DeKalb County School System terminated her because they say she falsified her application by stating she was never arrested or convicted of a felony.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

She enlisted in the Regular Army on 15 April 1987.  

On 31 October 1989, the applicant provided a urine specimen (it is not known if this was a random urinalysis test or some other type of test) that tested positive for cocaine.  On 14 November 1989, her unit sent her to the CID office to be fully identified, interviewed and processed.  She invoked her rights and the interview was terminated.  Based upon the positive results of the urinalysis testing, CID found there was sufficient evidence to believe she committed the offense of wrongful use of cocaine.

On 16 November 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of cocaine.  The Article 15 is not available; it may have been directed for local filing only.          (DA Form 4833, Commander’s Report of Disciplinary or Administrative Action shows she was reduced one grade, to E-3, with 14 days extra duty and restriction but the reduction may have been suspended since her DD Form 214 shows her original Specialist, E-4 date of rank.)  On 14 April 1990, she was discharged with an honorable characterization of service in pay grade E-4.

Army Regulation 195-2 prescribes Department of the Army policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention and dissemination of criminal information.  In pertinent part, it states that requests to amend CID Reports of Investigation will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  The burden of proof to substantiate the request is upon the individual.  Requests to delete a person’s name from the title block will be granted only if it is determined that probable cause did not exist to believe that the person so titled committed the offense.  The regulation further states that the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual or the results of such action.
In the processing of this case, an advisory opinion was obtained from the CID.  The CID opined that as the applicant provided no evidence to challenge the probable cause finding she was properly titled in the Report of Investigation for the offense of wrongful use of cocaine.  The titling lasts for 40 years.  However, the DeKalb County School System apparently has a misconception of what this “titling” means.  The administering of an Article 15 does not carry with it an arrest, as that term is utilized in civilian life, and an Article 15 is not a federal conviction.

A copy of the advisory opinion was provided to the applicant.  She did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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.  In accordance with pertinent regulations, the decision by the CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual, or the results of such action.  If at the time of the investigation of an alleged offense probable cause existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  The applicant has provided no evidence to show that the CID’s initial decision to title her was in error.

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

__slp___  ___ra___  __jea___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028766	
SUFFIX		
RECON		
DATE BOARDED	20000323	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.