MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  25 January 2001
	DOCKET NUMBER:  AR2000044485

	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. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Lester Echols		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 a Report of Investigation (ROI) number [    ] be expunged from his military records.

APPLICANT STATES:  That his former wife did not tell the truth and had a child that was not his.  In an attached statement he recounts that his wife was unfaithful and he was under a lot of anguish and turmoil.  He had never had a record prior to this.  He is not able to find work in his field of expertise (policeman).

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

At the time of his arrest by the military police on 7 February 1994, he was on active duty in the pay grade of E-6.  He had served as a military policeman for over 18 years and was on transition leave pending early retirement on 28 February 1994.

On 7 February 1994 the applicant was apprehended by the military police at Fort Dix, New Jersey.  He was charged with aggravated assault, assault, communicating a threat, and resisting apprehension.  The 4 March 1994 ROI states that he struck his 17-year-old son on the back while attempting to strike his 1-month-old son whom the 17-year-old was holding.  He also threatened to kill the infant and pressed his foot on the infant’s chest and throat.  While being apprehended he became verbally combative and physically resisted apprehension.

The records also show that the courts in the State of New Jersey had issued a temporary restraining order to the applicant on 5 January 1994.  He had been ordered to stay away from his wife because of prior complaints of harassment.

A 7 April 1994 record of disciplinary action shows that the applicant’s command decided to take no action and had allowed him to retire effective 28 February 1994.

In the processing of this case an advisory opinion was obtained from the Criminal Investigation Command.  The opinion notes that the ROI contains credible evidence that the applicant was properly charged with resisting apprehension, communicating a threat, assault, and assault on a child under the age of 16.  Titling is based on credible evidence to believe the subject of the ROI committed the offenses.  The CID recommends denial of the applicant’s request.  The applicant was provided the opportunity to provide a rebuttal to this advisory opinion but failed to do so by the suspense date.

Army Regulation 195-2 provides the policy on Army criminal investigation activities.  It states, in pertinent part, that requests to amend a CID ROI will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  When the requested amendment is to delete a person's name from the title block of an ROI, the request will be granted only if it is determined that it can be conclusively established that the wrong person's name has been entered as a result of mistaken identity."  The regulation further states that the decision to title a person for an offense is an investigative determination that is independent of any judicial, nonjudicial, or administrative action taken against the individual, or the results of such action.

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.  The applicant is properly titled by an ROI created on 4 March 1994 based on the preponderance of evidence that he committed the offenses for which he was titled.  The fact that his command did not take any disciplinary action on the charges does not prove that they were false.

2.  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 this requirement.

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

__jh___  ___kh___  ___le___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000044485	
SUFFIX		
RECON		
DATE BOARDED	20010125	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.02	
2.		
3.		
4.		
5.		
6.