IN THE CASE OF:  

		BOARD DATE:  13 January 2020

		DOCKET NUMBER:  AR20180003603


APPLICANT REQUESTS:  removal of his name in the title block of U.S. Army Criminal Investigation Command (USACIDC or CID) and U.S. Army Crime Records Center (USACRC) files.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* Letter, Applicant, dated 18 February 2018
* Memorandum, 5th Battalion, 20th Infantry Regiment, Joint Base Lewis-McChord, WA, dated 24 January 2012, subject:  (Applicant)
* Letter, Ball and Gillespie Polygraph, Edmonds, WA, dated 11 May 2012, Reference:  Polygraph Examination of (Applicant)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter, USACIDC, Quantico, VA, dated 1 March 2016, with enclosures –

* Memorandum, USACIDC, Fort Lewis CID Office, Joint Base Lewis-McChord, WA, dated 17 May 2012, subject:  CID Report of Investigation (ROI) – Initial Final – 0398-2012.ClD016-XXXXX – 5XXXX, with attachments
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 15 January 2014

* Letter, Headquarters, U.S. Army Medical Command, Freedom of Information Privacy Act Office, Fort Sam Houston, TX, dated 8 March 2016
* Letter, Applicant, dated 19 April 2016
* Letter, USACIDC, dated 13 May 2016
* Letter, USACIDC, dated 9 June 2016

REFERENCES:

1.  Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to USACID elements.  Paragraph 4-4b (Amendment of CID Reports) provides that:

	a.  Requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.

	b.  The burden of proof to substantiate the request rest with the individual.

	c.  Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity.

	d.  The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action.

	e.  The decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 4 (Separation for Expiration of Service Obligation) stated Soldiers will be separated upon expiration of enlistment or fulfillment of service obligation.

	b.  Paragraph 14-12 (Conditions that Subject Soldiers to Discharge) stated Soldiers are subject to action per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offence under the Manual for Courts-Martial.  Abuse of illegal drugs is serious misconduct.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under commission of a serious offense, as appropriate.

4.  Department of Defense (DOD) Instruction 5505.7, subject:  Titling and Indexing of Subjects of Criminal Investigations in the DOD, dated 7 January 2003, states 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.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling simply states, if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

5.  DOD Instruction 5505.11, subject:  Fingerprint Card and Final Disposition Report Submission Requirements, dated 21 July 2014, established policy, assign responsibilities, and prescribed procedures for defense criminal investigative organizations and other DOD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI) for inclusion in the National Crime Information Center (NCIC) criminal history database.  Based on a probable cause standard determined in conjunction with the servicing Staff Judge Advocate or other legal advisor, for members of the Military Service investigated to include wrongful use of a controlled substance.

FACTS:

1.  The applicant did not file within the 3 year time frame provided in Title 10, United States Code; section 1552(b); however, the 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:

* he accidentally took his roommate's prescription painkillers in 2012 instead of his own
* they were in a plastic bag and he mistook them for his own painkillers, as he often took painkillers with him in plastic bags while in the field
* he took painkillers for a knee injury he sustained on a deployment to Afghanistan
* he tested positive for oxymorphone (an opiate analgesic) in a company-wide drug test after taking his roommate's painkillers
* after testing positive, he explained to his chain of command what happened and that there was no intentional drug use
* he took polygraph test for additional support
* there was no action taken against him
* he was never arrested or even charged with a crime or a violation of the Uniform Code of Military Justice (UCMJ)

3.  He enlisted in the Regular Army on 30 August 2010 for a period of 3 years and 16 weeks.

4.  He was serving in the rank/grade of private first class/E-3 at the time he tested positive for oxymorphone on 16 March 2012.

5.  The USACIDC memorandum, dated 17 May 2012, subject:  CID ROI – Initial Final –, shows the applicant was the subject of investigation for wrongful use of oxymorphone.  The investigation established probable cause existed to believe the applicant committed the offense of wrongful use of a controlled substance when he consumed oxymorphone and subsequently tested positive in a unit urinalysis inspection on 16 March 2012.

6.  The applicant was released from active duty on 26 December 2013 under the provisions of Army Regulation 635-200, chapter 4 (Separation for Expiration of Service Obligation), by reason of completion of required active service.  He completed 3 years, 3 months, and 27 days of active service during this period.  His service was characterized as honorable.

7.  The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 15 January 2014, shows administrative action was imposed against the applicant for wrongful use of oxymorphone in the form of administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Misconduct), with characterization of his service as general under honorable conditions effective 26 December 2013.

8.  On 13 May 2016, the USACIDC and USACRC responded to the applicant's request to correct information from the files of the USACIDC and supplemented their response of 2 May 2016 from his initial request received on 22 April 2016 and stated:

	a.  The information the applicant provided does not constitute new or relevant information needed to amend the report; therefore, his amendment request is denied.

	b.  Those subjects who have resultant judicial, nonjudicial military proceedings, or where a serving Staff Judge Advocate or legal advisor found probable cause existed to believe the subject committed the offense in which they were titled, will remain in the FBI NCIC.

	c.  A check of the NCIC reflects the applicant is listed as the subject in the ROI for wrongful use of oxymorphone.

	d.  The USACIDC sent correspondence to the FBI to update the NCIC entry pertaining to the applicant to reflect a disposition of "Received a Chapter 14-12 [should read Paragraph 14-12] Discharge for Serious Misconduct (AR [Army Regulation] 
635-200), 26 December 2013; Discharged from Service General Under Honorable Conditions."  Consistent with DOD Instruction 5505.11, retention of this criminal history data in the NCIC does conform to DOD policy.

9.  On 9 June 2016, the USACIDC and USACRC responded to the applicant's request to correct information from the files of the USACIDC they received on 1 June 2016 and stated:

	a.  The applicant's amendment was partially granted.  The Commander's Report of Disciplinary or Administrative Action has been updated to reflect the correct disposition and added to his file.

	b.  A check of NCIC reflected the applicant is listed as the subject of the ROI for wrongful use of oxymorphone.  The USACIDC sent correspondence to the FBI to update the NCIC entry pertaining to reflect a disposition of "No Action Taken."

BOARD DISCUSSION:

The Board reviewed the application, the applicant's statement, the supporting documents he provided, and the service record.  The Board noted that requests to delete a person's name from the title block of a CID investigation will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity.  By a preponderance of the evidence, the Board determined the criteria for removal of the applicant's name have not been met, and there is insufficient evidence to support a recommendation for relief in this case.  


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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20180003603



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS



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