MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 December 2001
	DOCKET NUMBER:   AR2001059183

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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:  In effect, that his Federal Bureau of Investigation (FBI) records be cleared of any derogatory information regarding his being titled in connection with the wrongful possession of marijuana while he was in the Army.

APPLICANT STATES:  In effect, that while he was in the Army he was escorted to the Criminal Investigation Division (CID) to be questioned in regards to the presence of marijuana in his room.  He goes on to state that his roommate was using the marijuana and that after a urinalysis was conducted, he was sent back to his company after the test proved negative.  However, his roommate was put in the stockade, court-martialed and stripped of all rank and pay.  He further states that it was not until he attempted to become a foster parent and role model for abused children, that he was told by the State of Florida that he had an arrest record.  He continues by stating that nothing was ever done to him and he never had his day in court, therefore, he should not have such information on his record.

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

He enlisted on 22 May 1990 for a period of 2 years and 24 weeks, training as a unit level communications maintainer and participation in the Army College Fund. He completed his training and was transferred to Fort Carson, Colorado, on 7 December 1990.  He was advanced to the pay grade of E-3 on 1 March 1991.

On 7 November 1991, the applicant’s commander initiated a recommendation for a local bar to reenlistment to be imposed against the applicant.  He cited as the basis for his recommendation that the applicant had nonjudicial punishment (NJP) imposed against him on two occasions for disobeying a lawful order and for being absent without authority.  He also indicated that the applicant had failed to respond to numerous counseling sessions regarding his lack of motivation, failure of the physical fitness test, failure to go to his place of duty, disobeying orders, disrespect, and failure to repair.  The applicant elected not to submit a statement in his own behalf and the bar was approved on 14 January 1992.

On 10 February 1992, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, paragraph 16-5, based on his perception that he could not overcome the bar to reenlistment.  His request was approved and he was honorably released from active duty on 10 March 1992.  He had served 1 year, 9 months and 19 days of total active service.

In the processing of this case, a staff member of the Board contacted officials at the FBI to determine what, if any, information was listed on his file.  Officials contacted at the time indicated that the applicant was titled by the CID in conjunction with an investigation on the wrongful possession of a controlled substance (marijuana).  There is no disposition of the charge reported by the Army Crime Records Center in Baltimore, Maryland.

Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID titling decisions.  It states, in pertinent part, that titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes.  Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers.  Titling or indexing alone does not denote any degree of innocence.  The criteria for titling are a determination credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made the object of a criminal investigation.  In other words, if there is a reason to investigate, the subject of the investigation should be titled.  

The DODI also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation.  By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions.  Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity.

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.  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.

2.  The applicant’s contention that he was unjustly titled by the CID without ever having been proved guilty, is without merit.  Individuals who are the subject of an investigation are titled without regard to innocence or guilt.  All of the individuals involved in the alleged incident were titled yet not all were deemed to have committed an offense.

3.  Although the applicant has asserted his innocence throughout the entire process, the issue before the Board is not one of guilt or innocence, but whether or not he was properly titled in a CID investigation.  Based on the evidence submitted by the applicant, the Board finds that he was properly titled, that there is no case of mistaken identity, and that there is no basis to remove his name from the title block of the investigation.  

4.  In regards to the applicant’s innocence, there is insufficient information in the evidence made available to the Board to ascertain with any degree of certainty if the CID erred in its assessment of the applicant’s involvement and the Board will not attempt to second-guess investigators on the scene.  Inasmuch as the Army has a need to maintain such records and since it is clear that the applicant was the subject of an investigation, the Board finds no error or injustice in titling the applicant as a subject of an investigation. 

5.  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

__inw___  ___jam __  ___tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2001059183	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  328	134.0000/rem cid title from fbi rec	
2.		
3.		
4.		
5.		
6.