ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20160018437 APPLICANT REQUESTS: in effect, * amend his criminal records to remove that he was titled for Article 81 – Conspiracy * amend his criminal records to show that he was only titled for Article 78 – Accessory after the fact * amend his criminal records to remove both entries of his titling * personnel appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DA form 2627 (Records of Proceeding Under Article 15, Uniformed Code of Military Justice (UCMJ)) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in effect, he was not aware that the military UCMJ would be recorded on civilian records. He learned of this when he enlisted in the Regular Army. During his court martial his battalion commander found him guilty of accessory after the fact; however, he was titled with conspiracy. Pursuant to Army Regulation 190-45 (Law Enforcement Reporting), paragraph 3-6b (Procedures Amendment of Records) he is requesting that his criminal records be amended to remove the titling of conspiracy and replaced with the titling of accessory after the fact or remove both. 3. The applicant provides: a. Self-authored statement, stating while he was deployed to Iraq he was accused of helping a Soldier after the Soldier stole a SINGAR radio. He was initially charged with UCMJ Article 78-Accessory after the fact and Article 81-Conspiracy. After the presentation of the evidence he received non-judicial punishment for Article 78. Although he was not found guilty of Article 81 his military and civilian criminal records shows conspiracy against the U.S. government. Consequently, when he applies for employment, loans, or volunteer work he is listed as a former threat against the U.S. In accordance with (IAW) AR 190-45, paragraph 3-6a, the amendment to his records is appropriate because the current records is inaccurate, irrelevant, untimely, or incomplete because he was initially investigated for Articles 78 and 81, he was only found guilty of Article 78. Also there is credible evidence that substantiates that the criminal offense was not committed or did not occur as reported as his commander would only impose punishment if he was convinced beyond a reasonable doubt that he committed the offense(s). b. DA Form 2627, dated 30 October 2009, shows on 30 October 2009, he accepted non-judicial punishment for one specification of theft of a SINGAR radio by conspiring with SGT X__ to cover up the theft and not reporting such theft (Article 78) and one specification of conspiring with SGT X__ to commit an offense of larceny of a SINGAR Radio by not reporting the larceny (Article 81). His punishment included reduction in rank to private first class (PFC)/E-3 suspended for 60 days and written reprimand which he did not appeal. c. Criminal Investigation Division (CID) investigation report – that states he conspired with SGT X__, SFC X__, SGT X__ to cover up the theft when they agreed when questions they would provide the story that he and SGT X__ fond the radio in a box behind the platoon tactical operations center (TOC). When he was interviewed he admitted that he conspired with SFT X__ and SGT X__ to cover up the theft. 4. A review of the applicant’s service record shows: a. He enlisted in the Army Nation Guard (ARNG) of the United States on 2 August 2006. b. His DD Form 214 (Certificate of Release or Discharge) shows he was ordered to active duty for training on 26 June 2007. He was released from active duty on 15 November 2007 with an honorable characterization of service under provision of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 4 (Separation for Expiration of Service Obligation). It also shows he completed 4 months and 20 days of active service. c. His DD Form 214 shows he was ordered to active duty on 19 November 2008 in support of Operation Iraqi Freedom. d. DA Form 2627 dated 30 October 2009, shows that on 30 October 2009, he accepted non-judicial punishment for one specification of theft of a SINGAR radio by conspiring with SGT X__ to cover up the theft and not reporting such theft (Article 78) and one specification of conspiring with SGT X__ to commit an offense of larceny of a SINGAR Radio by not reporting the larceny (Article 81). His punishment included reduction in rank to private first class (PFC)/E-3 suspended for 60 days (until 24 December 2009) and written reprimand which he did not appeal. e. U.S. Army Human Resources Command (HRC) Order Number A-11-930900, dated 19 November 2000, he was ordered to active duty for UCMJ processing on 24 December 2009. f. He was released from active duty on 6 January 2010 with an honorable characterization of service under provision of AR 635-200, chapter 4. His DD Form 214 shows that he completed 1 year, 2 months and 1 day of active service. g. National Guard Bureau (NGB) Form 22, shows he was separated from the ARNG on 1 August 2012 and assigned to the United States Army Reserve (USAR) Control Group (Reinforcement) under provision of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-38n (Expiration of active service commitment in the Selected Reserve). h. U.S. Army HRC Order Number D-01-301191, dated 22 January 2013, he was discharged from the USAR on 15 January 2013 with an honorable characterization of service under provision of AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). i. He enlisted in the Regular Army (RA) on 16 January 2013. j. He deployed to Afghanistan on or about 25 April 2013. k. DA Form 2627, he accepted non-judicial punishment on 11 August 2015 for one specification of disrespect to a noncommissioned officer and one specification of failure to obey a lawful order from a noncommissioned officer. His punishment included reduction to the rank of specialist (SPC) / E-4. l. He was discharged from active duty on 17 December 2015 with an honorable characterization of service under provision of AR 635-200, paragraph 16-7 (reduction in force). His DD Form 214 shows he completed 2 years, 11 months and 2 days of service. 5. By law 32 CFR § 635.16, paragraph implements Department of Defense Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, which prescribes procedures for Army Law Enforcement to report offender criminal history data, by submitting Federal Bureau of Investigation (FBI) Form FD 249 (Suspect Fingerprint Card) to United States Army Crime Reports Center (USACRC). USACRC forwards this data to the Criminal Justice Information Services (CJIS) division of the FBI for inclusion in the Next Generation Identification Database. This paragraph does not eliminate other requirements to provide criminal history data, including those concerning the Defense Incident-Based Reporting System (DIBRS). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found the relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded there was enough evidence present to list the applicant as a suspect of an investigation and that it did not involve a mistake of identity. The Board wish to inform the applicant that being listed as a suspect reflects no degree of guilt. Therefore, the Board found insufficient evidence of an error or injustice which would warrant making a correction to the record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 32, CFR § 635.16 (Fingerprint Card and Final Disposition Report Submission Requirements), paragraph implements Department of Defense Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, which prescribes procedures for Army Law Enforcement to report offender criminal history data, by submitting Federal Bureau of Investigation (FBI) Form FD 249 (Suspect Fingerprint Card) to United States Army Crime Reports Center (USACRC). USACRC forwards this data to the Criminal Justice Information Services (CJIS) division of the FBI for inclusion in the Next Generation Identification Database. This paragraph does not eliminate other requirements to provide criminal history data, including those concerning the Defense Incident-Based Reporting System (DIBRS). 3. Department of Defense Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), established policy, assigns responsibilities, and prescribes procedures for defense criminal investigative organizations (DCIOs) and other DoD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services (CJIS) Division of the Federal Bureau of Investigation (FBI) for inclusion in the National Crime Information Center (NCIC) criminal history database. a. DoD policy that the DCIOs and other DoD law enforcement organizations submit to the Criminal Justice Information Services (CJIS) Division of the FBI based on a probable cause standard determined in conjunction with the servicing Staff Judge Advocate (SJA) or other legal advisor, offender criminal history data for all. b. Members of the Military Services investigated for offenses listed in Enclosure 2 of this instruction by DCIOs or other DoD law enforcement organizations. * Article 78 - Accessory after the fact (for crimes listed in this enclosure) * Article 80 - Attempts (for crimes listed in this enclosure) * Article 81 - Conspiracy (for crimes listed in this enclosure) * Article 82 - Solicitation * Article 85 - Desertion * Article 90 - Striking or assaulting a superior commissioned officer * Article 91 - Striking or assaulting a warrant, noncommissioned, or petty officer * Article 94 - Mutiny and sedition * Article 95 - Resistance, flight, breach of arrest, and escape * Article 97 - Unlawful detention * Article 106 - Spies * Article 106a - Espionage * Article 107 - False official statements * Article 108 - Military property of the United States, i.e., sale, loss, damage, destruction, or wrongful disposition * Article 109 - Property other than military property of the United States, i.e., waste, spoilage, or destruction * Article 111 - Drunken or reckless operation of vehicle, aircraft, or vessel * Article 112a - Wrongful use, possession, etc., of controlled substances * Article 116 - Riot or breach of peace * Article 118 - Murder * Article 119 - Manslaughter * Article 119a - Death or injury of an unborn child * Article 120 - Rape and sexual assault for offenses committed on or after June 28, 2012 * Article 120 - Rape, sexual assault, and other sexual misconduct for offenses committed on or between October 1, 2007, and June 27, 2012 * Article 120 - Rape and carnal knowledge for offenses committed before October 1, 2007 * Article 120a - Stalking * Article 120b - Rape and sexual assault of a child for offenses committed on or after June 28, 2012 * Article 120c - Other sexual misconduct for offenses committed on or after June 28, 2012 * Article 121 - Larceny and wrongful appropriation * Article 122 - Robbery * Article 123 - Forgery * Article 123a - Making, drawing, or uttering check, draft, or order without sufficient funds * Article 124 - Maiming * Article 125 - Forcible sodomy; bestiality, in accordance with section 1707 of Public Law 113-66 (Reference (h)), which repealed the offense of consensual sodomy under the UCMJ * Article 126 - Arson * Article 127 - Extortion * Article 128 - Assault * Article 129 - Burglary * Article 130 – Housebreaking * Article 131 - Perjury * Article 132 - Frauds against the United States c. Ensure that commanders and directors of DoD organizations establish and follow procedures to promptly notify the appropriate DCIO or other DoD law enforcement organization: (1) When a military judicial proceeding is initiated or command action is taken in military non-judicial proceedings pursuant to the UCMJ against a military subject for one or more offenses listed in Enclosure 2 of this instruction, or an other than honorable discharge is based on an investigation conducted by a DCIO or other DoD law enforcement organization of one or more offenses listed in Enclosure 2 of this instruction. (a) Offender criminal history data is not reported in accordance with this instruction unless the subject is investigated by a DCIO or other DoD law enforcement organization for an offense listed in Enclosure 2 of this instruction. (b) If a military unit investigates an alleged offense noted in Enclosure 2 of this instruction and initiates a judicial or non-judicial proceeding without a DCIO or another DoD law enforcement organization having investigated the subject, then the reporting requirements of this instruction do not apply. 4. Army Regulation (AR) 190-45 (Law Enforcement Reporting), in effect at the time, prescribes policies, procedures, and responsibilities on the preparation, reporting, use, retention, and disposition of Department of the Army (DA) forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. Paragraph 3-6 (Amendment of records), amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely or incomplete. Amendment procedure are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. Requests to delete a person’s name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160018437 6 1