MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           28 February 2002 
	DOCKET NUMBER:   AR2001059253

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’ Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 her name be removed from the title block of Criminal Investigation Division (CID) Report of Investigation (ROI) #0084-98-CID967-86791-5D7A3.

APPLICANT STATES:  In effect, that she spanked her son in order to discipline him.  When the matter came to the attention of military law enforcement authorities, it developed into a personal issue between the applicant and the CID. The CID titled her for the offense of assault upon a child against all reason and out of spite for her.  She adds that her commander did not elect to prefer court-martial charges against her.  She wants her name removed from the title block of the CIDROI because she did not commit the offense and because of the effect titling will have upon her military career.

In support of her request, she submits:  copies of two self-authored statements to the Board; a copy of a statement that she wrote to the Federal Bureau of Investigation and the CID; a copy of a 3 April 2001 letter that she received from a clinical social worker in New York; a copy of a newspaper article, source and date unknown; a copy of a domestic incident report from New York State, dated 15 January 2001; a copy of a sworn statement, dated 24 April 1998, that she provided to the CID for inclusion in the subject CIDROI; a copy of a Court Order of Protection (Criminal Form 1), dated 15 January 2001; a copy of her DD Form 214, Certificate of Release or Discharge From Active Duty; and a total of 
17 photographs that show vandalism of rooms in a home.

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

She initially enlisted in the Regular Army (RA) on 28 December 1990 and served 1 year, 1 month, and 21 days until honorably discharged on 18 February 1992.  In July 1993, she joined the US Army Reserve.  On 18 April 1994, she reenlisted in the RA and served continuously until honorably discharged on 24 August 1999 under the provisions of paragraph 5-8, Army Regulation (AR) 635-200, by reason of parenthood.  On 26 June 2000, she once again reenlisted in the RA for a period of 3 years, but only served 10 months and 20 days before being separated on 15 May 2001 by reason of parenthood.

During her second period of RA service (940418-990824), the applicant was titled in the subject CIDROI for assault upon a child under the age of 16 (her 
5-year old son).  According to the CIDROI, on 23 April 1998, the applicant's son urinated on the floor of the Mannheim (Germany) Child Development Center.  The applicant was informed of this and, that same evening, disciplined her son by whipping him on his buttocks with a leather belt.  On 24 April 1998 at the Child Development Center, employees noticed bruises on the boy's arms and contacted the Military Police.

On 24 April 1998, the Provost Marshal's Office notified the CID of a possible assault upon a child.  The CID conducted an investigation and interviewed the applicant, her son, a live-in nanny, Child Development Center staff, and a medical doctor.  It was determined that there was probable cause to believe the applicant had struck her son with a leather belt causing bruises to his back, arms, legs and buttocks.

As a part of the investigation, a background check was coordinated on 21 May 1998 with the Central Registry for Child/Spouse Abuse, Fort Sam Houston, Texas.  The check revealed a family history of abuse.  In January 1992 at Wiesbaden, Germany, the applicant's (then) husband was cited for child abuse.  The applicant's husband was also the stepfather of the applicant's daughter, the victim.  In September 1994 in Frankfurt, Germany, there was a mutual spouse abuse investigation and the family was transferred to Heidelberg, Germany.  There is no further evidence available concerning this incident.  In February 1995, while in Heidelberg, the applicant's (then) husband was cited for child sexual abuse of his stepdaughter.  In January 1997, while assigned to Mannheim, the applicant was cited for child neglect, with her son as the victim.

The subject CIDROI was referred to the applicant's chain of command on/about 4 June 1998.  On 10 July 1998, the applicant received a letter of reprimand from her battalion commander as punishment for assaulting her son.

Army Regulation 195-2 states that requests to amend CIDROI will be granted only if the requester submits new, relevant, and material facts that would warrant such a revision.  When the requested amendment is to delete a person from the title block of an ROI, the request will be granted only if it "can be conclusively established that the wrong person's name has been entered as a result of mistaken identity."  In previous cases, the Board has directed removal only when necessary to correct an error or injustice.  To prove an error, the applicant must show that there was no information, considering its source, nature, and the totality of the circumstances that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.  To remove an injustice, the applicant must demonstrate that the titling decision, which has later been determined to be unfounded, has created harm.  When the applicant has established that she has been harmed, the Board first looks at whether it can rectify the injustice by correcting the records related to the outcome of the titling, instead of reversing the titling decision.

In connection with his application the Army Board for Correction of Military Records obtained copies of CIDROI # 0160-97-CID967-53848-5C2B and 
#0084-98-CID967-86971-5D7A3.  On 22 January 2002, copies of the CIDROI's were referred to the applicant for comment.  On 14 February 2002, the documents were returned undeliverable.

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 decision to list a person's name in the title block of a CIDROI is purely an investigative determination based upon the existence of credible information that the individual so listed may have committed a criminal offense.  Taking into consideration the applicant's family history of abuse, and given the facts developed in the CID investigation and reported in the subject ROI, the Board believes the titling decision was proper.

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

___RVO_  __CLA___  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059253	
SUFFIX		
RECON		
DATE BOARDED	20020228	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990824	
DISCHARGE AUTHORITY		
DISCHARGE REASON	A30.10	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.