MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 July 2002
	DOCKET NUMBER:  AR2001064932

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Thomas B. Redfern		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:  Through counsel, deletion of any and all records located in the Army Central Registry (ACR) concerning an alleged assault committed against his wife on or about 15 January 1996.

APPLICANT STATES:  Applicant states that the alleged assault did not occur and defers to counsel.  In support of his application, he submits several documents supporting his case.

COUNSEL CONTENDS:  Attorney, as counsel for the applicant, states that he is now assisting the applicant with his follow-up request for a correction of an entry of substantiated spouse abuse by the Fort Huachuca, Arizona, Family Advocacy Program (FAP) in 1996.  The initial request for this correction was made in 2000 and the applicant was advised by letter on 15 March 2001, that he had failed to exhaust all administrative remedies.  The letter suggested that the applicant contact several agencies.  After contacting these agencies, he was either told that the record could not be deleted or he received no response.

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

He enlisted on 8 January 1991.  He continues to serve and is presently assigned as an Air Traffic Controller Systems and Equipment Repairer Instructor at Fort Gordon, Georgia.  

On 15 January 1996, the applicant was apprehended on post by Military Police for assault on his spouse while assigned to Fort Huachuca.  On 2 February 1996, an automated DA Form 3975 (Military Police Report) was prepared on the applicant.  The report stated that the applicant and his wife were engaged in a verbal altercation when the applicant swung his closed fist at his wife, stopping inches from her face.  He was charged with the offense of assault on his spouse. A legal review by the Fort Huachuca Office of the Staff Judge Advocate opined that there was probable cause to substantiate the offense.

On 23 May 1996, the applicant’s commander prepared a memorandum for the Commander, US Army Information Systems Command, Fort Huachuca, subject: Report of Credible Derogatory Information.  The memorandum stated that the company received a Military Police Blotter Report on the applicant on 16 January 1996, charging him with assaulting his spouse and that this was his first offense.  The memorandum also stated that the applicant had completed a communications therapy group, had attended counseling regularly with his 

spouse since the incident, and had made progress.  The commander further stated that the applicant would be reassigned and would continue his counseling through the Fort Huachuca FAP.  The commander stated that the applicant’s case should be closed favorably and did not recommend suspension of his access.

On 3 June 1996, a DA Form 5248 (Report of Unfavorable Information for Security Determination) was completed on the applicant.  This form stated that the applicant had successfully completed the couples therapy group and that the commander would take no further action.  It also recommended retention of clearance/access.

On 7 October 1996, the applicant’s security clearance was reaffirmed by the US
Army Central Personnel Security Clearance Facility.

In 1999, the applicant was denied drill sergeant duty.  On 21 October 1999, the US Total Army Personnel Command (PERSCOM) responded to an inquiry from the applicant and provided him the reasons for his being denied drill sergeant duty.  He was advised that his non-selection was based on unfavorable information listed in the Defense Clearance and Investigations Index (DCII) and in the ACR.

The applicant sought deletion of his record in the ACR.  On 23 May 2001, the Data Quality Branch, Patient Administration Systems and Biostatistics Activity (PASBA), Fort Sam Houston, Texas, prepared a memorandum to the applicant.  It stated that the agency was forwarding the applicant’s memorandum to the US Army Medical Command (MEDCOM), Medical Behavioral Health Division, Fort Sam Houston, Texas, for action.  The memorandum also stated that the ACR did not have the authority to make corrections to case records or perform case reviews as requested by the applicant.  The ACR receives abuse report forms from worldwide activities, extracts data, and enters the information into its database.

On 24 May 2001, the Chief, Freedom of Information/Privacy Office, Fort Meade, Maryland prepared a memorandum.  The memorandum was in response to the applicant’s Privacy Act request of 30 April 2001, for records concerning the applicant.  The chief stated that to determine the existence of Army intelligence investigative records responsive to his request, a check was made of the DDCII.  The index reflects the holdings of all investigated elements with the Department of Defense (DOD).  The DCII check disclosed an Army intelligence investigative dossier pertaining to the applicant.  Records were reviewed, determined to be 

releasable, and were enclosed.  The DCII check disclosed that the applicant was adjudicated on 19 July 1996, by the US Army Central Personnel Security Clearance Facility, for a SECRET security clearance, based on an Entrance National Agency Check.

On 31 May 2001, the Director, Crime Records Center, US Army Criminal Investigation Command (USACIDC), Fort Belvoir, Virginia, prepared a memorandum.  The memorandum was in response to the Freedom of Information Act (FOIA) and Privacy Act request for release of information from the USACIDC to the applicant.  Based on the information provided by the applicant, a search of the Army criminal file indexes revealed no USACIDC files.  After contacting the Drill Sergeant Branch, PERSCOM, it was determined that the information that disqualified the applicant did not originate from USACIDC.

On 20 July 2001, the applicant’s attorney prepared a memorandum on behalf of the applicant to the Freedom of Information/Privacy Act Officer, US Army Community and Family Support Center (CFSC), Alexandria, VA.  The attorney stated that a request to the Commander for a Privacy Act request on behalf of the applicant has been misdirected.  He requested that the CFSC respond in writing to the applicant concerning the relief that he requested to prove that the applicant had exhausted all other channels before applying to this Board.

On 7 August 2001, the Deputy Branch Chief, Data Management Branch, PASBA, prepared a memorandum for the applicant.  This memorandum stated that they were releasing ACR information once again pertaining to the applicant.  The ACR had previously received and responded to the applicant’s first request on 30 April 2001, and forwarded his request to the US Army Medical Command (MEDCOM) with enclosures on 29 May 2001, for action by the MEDCOM Case Review Committee.

On 15 August 2001, the Freedom of Information/Privacy Act Officer, US Army CFSC, prepared a memorandum to the attorney’s request, dated 20 July 2001, to correct the applicant’s request pertaining to an assault charge.  The letter stated that the command did not maintain records relating to assault/or criminal charges.  Therefore, they did not have any records of this nature to correct.  

Army Regulation 608-18 (The Family Advocacy Program) establishes Army policy on the prevention, identification, reporting, investigation, and treatment of spouse and child abuse.  It charges the PASBA with maintaining an Army-wide, centralized data bank containing a confidential index of reported spouse and child abuse cases. This is referred to as the ACR and is used to assist in the early identification, verification, and retrieval of reported cases of spouse and 

child abuse.  Reports of abuse recorded in the ACR remain until 5 years after treatment is completed and the case is closed.  A report filed in the ACR and listing the service member as a spouse or child abuser will serve to disqualify that individual from duty as a drill instructor or recruiter.

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.  The applicant was cited by Military Police for the offense of assault on his spouse.  This was referred to the Fort Huachuca FAP where it was evaluated and substantiated.  A report was made to the ACR and the applicant and his spouse successfully underwent treatment for conflict resolution and anger management.  This Board does not support the applicant's contention that the incident did not occur.

2.  The applicant, with the assistance of counsel, contacted several other agencies regarding his request to have his records deleted which were related to the 1996 spouse abuse incident.  No such records could be found outside the ACR.

3.  The Army has an interest in maintaining the accuracy of spouse and child abuse records in order to protect family members from recurrences and to ensure that abusers receive treatment.

4.  In order to justify correction of a military record, the applicant must show to 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.  

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

__jl____  ___ra____  ___tr_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064932	
SUFFIX		
RECON		
DATE BOARDED	20020709	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .—ACTIVE DUTY	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  267		
2.		
3.		
4.		
5.		
6.