PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           13 March 2001                  
	DOCKET NUMBER:   AR2000042469

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the Army Crime Records Center be requested to remove the record of his nonjudicial punishment under Article 15, UCMJ, from the National Crime Information Center (NCIC) data base. 

3.  The applicant states that he received nonjudicial punishment in 1992 after testing positive in an urinalysis test.  He was reduced to pay grade E-2, forfeited $400.00 and received 45 days of extra duty and restriction.  He completed his enlistment, returned to college, married, and began a civilian career.  He works for a gaming company that provides computer services to the gaming industry, and potentially will have a number of background checks performed by several different states, which will disclose a record indicating that he may have been arrested by some unstated law enforcement agency for wrongful possession and use of marijuana.  His attorney has been informed by the Army Crime Records Center that Department of Defense regulations no longer require that an offense like his be reported to the FBI.  

4.  The applicant states that he served on active duty for three years and was released with an honorable character of service.  At the conclusion of his Reserve time, he was discharged with an Honorable Discharge Certificate.     

5.  He states that his attorney filed a request to remove or amend his arrest record with the Army Crime Records Center, and that agency responded by amending the record to reflect the nonjudicial nature of the disposition of his offense.  His attorney was advised that a company grade Article 15 such as his would no longer be reported to the NCIC; however, that policy was not “grandfathered.”  

6.  He was a good soldier, proud of his unit, but immature, and he made a mistake.  He states that his record should be changed, not because it is incorrect, and not because what he did was not wrong, but because of the inordinately harsh impact on his civilian career.  He currently works in Nevada where no gaming card is required; however, he has been under consideration for a temporary assignment where a card is required.  He has already lost out on one temporary assignment.  This could occur again, and he might even lose his job.  He believes that nonjudicial punishment was not intended to have permanent or long lasting effect on young soldiers.  The potential consequences of the Article 15 are far greater than the punishment his commander thought appropriate.  The Department of Defense now believes that a soldier should not suffer the potential consequences of a permanent criminal record for a violation such as his.    

7.  The applicant’s military records show that he entered on active duty on           9 May 1989, completed training as an infantryman, and was assigned to an infantry battalion in Hawaii.  He completed his term of service and was released from active duty on 8 May 1992 in pay grade E-2.  He had three years of service. He was assigned to the Army Reserve Control Group at St. Louis, completed his service obligation and was honorably discharged on 13 May 1997.

8.  An FBI report shows that the applicant was “arrested or received 1992/02/13” for the charge of wrongful possession and use of marijuana.

9.  In conversation with officials at the Army Crime Records Center, the applicant’s attorney stated that those officials stated that the DOD policy in effect in 1992 had required that the applicant’s offense be entered into the NCIC data base.  That policy had changed.  Company grade Article 15 punishments were no longer reported to the NCIC; however, there were no instructions concerning individuals whose violation had already been reported to the NCIC.  The attorney stated that he contacted officials at St. Louis regarding the applicant’s Article 15 and was informed that there were no records of the Article 15.    

10.  On 10 January 2000 the applicant’s attorney requested that the Army Crime Records Center remove or amend his criminal record.  The attorney stated that the applicant was never arrested, but tested positive for marijuana.  However, an employer would likely believe that the applicant was arrested.  On 17 April 2000 the Army Crimes Record Center informed the applicant’s attorney that they had advised the FBI to change the disposition [of the applicant’s case] to read:  Administered Non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), restricted for 45 days and extra duty for 45 days. 

11.  On 8 February 2001 the Chief of the Freedom of Information Act and Privacy Act Division of the Army Crime Records Center informed an analyst of this agency that he remembered the applicant’s case well, and while it was true that the rules had changed in that the record of a company grade Article 15 was no longer reported to the NCIC, there was no “grandfathering” of the rule change; and consequently, they had no authority to direct that the record be expunged from the NCIC data base.  He did state that unlike military personnel, a record of civilian personnel who were merely arrested for commission of a crime were reported to the NCIC, regardless whether or not there was a conviction for a crime.   

CONCLUSIONS:

1.  The Board notes that nonjudicial punishment under Article 15, UCMJ, is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The applicant’s transgression in 1992 should not burden him throughout his life, preventing him from gaining employment or retaining his current job.  The Board notes that had he received an urinalysis test in a civilian environment, and tested positive for marijuana, the results of that test would not have been reported to the NCIC. 

2.  Furthermore, under current standards the applicant’s record of nonjudicial punishment would not be forwarded to the NCIC, as confirmed by an official of the Army Crime Records Center.  Consequently, It appears that the intent of the revised policy, still in effect, is to forward to the NCIC only those records of punishment that need to be made known.  As such, the regulatory change may represent an enhancement of the applicant’s rights and should be applied to his situation, and therefore, relief is warranted as an exception to policy. 

3.  Therefore, the Army Crime Records Center should request that the Federal Bureau of Investigation expunge the applicant’s record of possession and use of marijuana and the resulting nonjudicial punishment under Article 15, UCMJ, from their NCIC data base.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by removing the applicant’s record of nonjudicial punishment under Article 15, UCMJ, from the NCIC data base.  The Army Crime Records Center take action to do so.

BOARD VOTE:  

___jtm___  ___jh___  ___dph__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042469	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010313	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  281	126.04	
2.		
3.		
4.		
5.		
6.