BOARD DATE:  24 February 2020

	DOCKET NUMBER:  AR20190000314


APPLICANT REQUESTS:  in effect, to have his name removed from the U.S. Army 
Criminal Investigation Command (CID) database.

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).

REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice.  This provision of law also allows the Army Board for Correction of Military 
Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute 
of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  The Manual for Courts-Martial governs the procedures and punishments in all 
courts-martial and, whenever expressly provided, preliminary, supplementary, and 
appellate procedures and activities.  Article 15 of the Uniform Code of Military Justice 
authorizes any commanding officer to impose nonjudicial punishment without the 
intervention of a court-martial upon enlisted members assigned to the unit of which he is 
in charge.  However, nonjudicial punishment may not be imposed upon any member of 
the Armed Forces under this article if the member has, before the imposition of such 
punishment, demanded trial by court-martial in lieu of such punishment.

3.  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 the CID elements.  Paragraph 4-4b 
(Amendment of CID Reports) provides that:

	a.  Requests to amend or unfound offenses in CID Reports of Investigation (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, CID.  The decision will constitute final action on behalf of the 
Secretary of the Army with respect to requests for amendment under this regulation.

4.  DoDI 5505.07 (Titling and Indexin Subjects of Creiminal Investigations in the 
Department of Defense) dated 27 January 2012, defines "titling" as the term used to 
describe the process that occurs when the name and identifying information of a person 
is placed in the title of block of an investigative report (or in this case a CID ROI). 
"Titling" occurs when an "investigation determines that credible information exits that the 
subject committed a criminal offense." "Credible information" is defined as "[i]nformation 
disclosed or obtained by a criminal investigator that, considering the source and nature 
of the information and the totality of the circumstances, is sufficiently believable to lead 
a trained criminal investigator to presume that the fact or facts in question are true."

   a.	DoDI 5505.07 expressly states that "titling" is an administrative procedure and 
the fact that an individual is titled does not "connote any degree of guilt or innocence." 
Moreover, " ... adverse administrative actions shall not be taken against individuals or 
entities based solely on the fact that they have been titled ... due to a criminal 
investigation." The fact that an individual may later be found to be innocent of the 
offense(s) under investigation does not, with two exceptions, allow the individual to seek 
the removal of their name from the title block.
   
   b.  Paragraph 4b describes the two exceptions which would allow an individual to 
later have their name removed from the title block of a CID ROI: (1) mistaken identity; 
and (2) when "[i]t is later determined that a mistake was made at the time of titling and 
indexing, and no credible information indicating that the subject committed a crime 
existed." 
   
   c.  In considering the above, Paragraph 6c states that "[w]hen reviewing the 
appropriateness of a titling ... decision, the reviewing official shall consider the 
investigative information available at the time the initial titling ... decision was made .... "


5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 
effective 19 January 2004 and in effect at the time, set policies, standards, and 
procedures to ensure the readiness and competency of the force while providing for the 
orderly administrative separation of Soldiers for a variety of reasons.  Paragraph 14-12c 
(Commission of a Serious Offense) stated Soldiers are subject to discharge 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 offense 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.

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. 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 his name should be removed from a Federal Bureau of 
Investigation profile that is unjustified and should have never been placed on his record.

	a.  The ABCMR upgraded his discharge to honorable because he submitted medical 
evidence that he was suffering from post-traumatic stress disorder (PTSD) at the time of 
his discharge, which was the reason he used marijuana.

	b.  At the time he had no clue his chain of command also had CID enter an arrest 
record against his name, even though he was never arrested.

	c.  He received field-grade nonjudicial punishment under Article 15 of the Uniform 
Code of Military Justice.  His first sergeant told everyone who was about to be punished 
at that time that they would face court-martial charges and be sent to Fort Leavenworth 
if they fought the nonjudicial punishment.

	d.  He applied to CID to have this injustice removed only to be met with 
disappointment.  He recently relocated and misplaced his response from CID.

	e.  He feels this record is unjust because he was led down the road to believe if he 
accepted the nonjudicial punishment, it would only make him feel the embarrassment of 
being discharged because he was mentally unstable.  They took advantage of his 
situation.  His chain of command neglected to make sure he was given proper medical 
care for his PTSD.
3.  His DD Form 1966 (Record of Military Processing – Armed Forces of the 
United States), dated 18 May 2001, shows in:

*	item 24b (Have you ever been rejected for enlistment, reenlistment, or induction 
by any branch of the Armed Forces of the United States?  (If yes, explain in 
Remarks)) – he marked "Yes"
*	item 26 (Drug Use and Abuse (If yes, explain in Remarks)) – he marked "Yes"
*	Section VI (Remarks) – he entered "Tested positive for marijuana"

4.  His Standard Form 86 (Security Clearance Application), dated 18 May 2001, shows 
in item 27 (Your Use of Illegal Drugs and Drug Activity – Illegal Use of Drugs), he 
entered "YES" and indicated he used marijuana four times from 4 August 2000 to 
5 December 2000.

5.  He enlisted in the Regular Army on 31 January 2002 at age 29.

6.  On 6 September 2002, he tested positive for tetrahydrocannabinol (THC).

7.  The CID ROI, dated 18 September 2002, shows the applicant as the subject of the 
investigation for wrongful possession of marijuana and wrongful use of marijuana.

8.  On 2 October 2002, he received nonjudicial punishment for wrongfully using 
marijuana between on or about 29 August 2002 and 29 September 2002.  His 
punishment included reduction to rank/grade of private/E-1, forfeiture of $556.00 pay 
per month for 2 months, and extra duty and restriction for 45 days.  He elected not to 
appeal.

9.  His records show he served in Kuwait/Iraq from 28 February 2003 to 15 January 
2004.  

10.  On 29 March 2004, he again tested positive for THC.

11.  The CID ROI, dated 28 April 2004, shows the applicant as the subject of the 
investigation for wrongful use of marijuana.

12.  On 5 May 2004, he received nonjudicial punishment for wrongfully using THC on or 
about 18 March 2004.  His punishment included reduction to rank/grade of 
private two/E-2, forfeiture of $669.00 pay per month for 2 months, and extra duty and 
restriction for 45 days.  He elected not to appeal.

13.  On 21 May 2004, he completed a mental status evaluation.  He was found to have 
the mental capacity to understand and participate in proceedings and to be mentally 
responsible.  He was psychiatrically cleared for any action deemed appropriate by his 
command.

14.  On 1 June 2004, his company commander initiated separation action against him 
under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of 
a serious offense, testing positive on two separate occasions for the use of illegal drugs.

15.  On 14 July 2004, he was discharged under honorable conditions (general).  He 
completed 2 years, 5 months, and 14 days of net active service.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows the narrative reason for 
separation as "MISCONDUCT."

16.  On 21 June 2006, the Army Discharge Review Board determined the applicant's 
discharge was inequitable based on the overall length and quality of his service, to 
include his combat service and his post-service diagnosis of PTSD.  The board voted to 
grant relief in the form of an upgrade of the characterization of service to fully honorable 
and a change to the narrative reason for separation to Secretarial Authority.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, and regulatory requirements.  The Board noted the facts 
presented above.  The Board noted that the entry of the applicant’s name in the CID 
ROI, dated 28 April 2004, shows the applicant as the subject of the investigation for 
wrongful use of marijuana.  This is supported by the facts that the applicant tested 
positive for marihuana.   Based on a preponderance of evidence, the Board determined 
that there was no error or injustice in the applicant’s name being in the CID ROI, dated 
28 April 2004, shows the applicant as the subject of the investigation for wrongful use of 
marijuana.

2.  After reviewing the application and all supporting documents, the Board found that 
relief is not warranted.




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)	 AR20190000314


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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