The Effect of the Priracy Act on Correction of Xilitarj- Records

• Author: Captain James E. Russell
• Pages: 02

The opnnmd and e~n~lumnbpresented in this mi& are thaw of the author and

do not neceaaarily repreem the v i e ~ b

of The Judge Advocate Generab School or an, other gorernmenlsl qenc)*. JAGC USAR Atlome) adiisar. Office of the Staff Judge Advocate, Headquarters, .An Farce Accounting and Finance Center, Denver. Colorado Former Proiecuting Attorney of Washington County, Yisaoun. B S , 1961. Southwest lisrouri State College. M A , 1972, Lincoln Cnirernity J D , 1812, Law School of the Unirer3ify af Missouri at Columba Xlember of rhr Bar of Mwsoun

I. IKTRODUCTION

Considering rhe present m e and degree of computerization of the Army's recorda, it necessarily follow that correction of errors in records can be a serious problem. Often an individual finds himself in a position of detriment due to an erroneous entry in one or more of the multitudinous records mamtained by the Army. There IS, of coume, inherent authority vested in the commander. the records custodian, and a number of boards and activities to correct military records. Usually an individual may secure correction of his records through simple administrative procedures ivhich are often set out by regulation.' When the individual seeks correction of a record. and the official having authority to correct agrees. no problem arises If the official does not agree to the correction, the individual must pursue specific correction remedies provided by law

Traditionally, the individual ,Tho was unable to secure administrative correction of his records by the Army had to resort to Congress for relief. These private bills became burdensome to Congress and often resulted in delay and inequity in reault Therefore, in the legislatire Reorganization Act of 1946,2 Congress established the legislative foundation for the Army Board for Correction of Military Records (BBCIIIR)

xSee Joint Traiel Reei for the Emformed Services amendix J lC290 1 .?.or

niar ,977,

" Lepslatlve Rearganlzat>on Act of 1946, 6 207, LOU 9 C $ 1662 (1970)

The Arm\ Basrd for Covrecnon of Millfar) Records [hereinafter referred 10 as ABCXRI and comparable boardc of other serrirei *ere deaqned to relieve Can-gress of the burden of e~rreelmg errors and mjusuce~ ~n military records Ogden \ Zuikerr. 296 F 2d 312. 314 (D C Clr 1961) The .?.BC\LR 15 established m the Office of the Seerefar) ai :he Amy who ~ppointsthe members and their chnr-man The ABCMR must consist of not leis than three members, rho muit be el\lllani, and three members ionifltufe B quorum Arm? Reg Ua 36-165. Boards. Comrnlssmns, and Commltee~--Arm) Basrd for Correction af M111car.j Reeorde, para 3a, 3b (18 Map 1877) [hereinafter cited a% IR 11-1851 The

Even with the remedy provided by Congress in the ABCMR, the individual faced a seriou~ problem in determining whether there aas a record pertaining to him and whether such record contained an error or perpetrated an injustice. It is reasonable to assume that many individuals did not discover an error until an adverse determination mas made and the individual notified thereof.enabled the indindual to obtain copies of hir records unless such rec-ords were exempt from release under that Am5 While FOIA partially removed an obstacle ta the dizcovery af certain records by the Individual, it offered no device foor correction. The individual who had discovered an error through FOIA request was bound to seek correction b>- traditional means.

The Privacy Act of 19'i46 effected a major overhaul of the entire federal government record keeping sgatem. The Act was designed to promate governmental respect for the privacy of the citizen by requiring departments and agencies to observe certain restrictions on the collection, management, use and disclosure of personal information.? The Act attempts to mike a balance between the right of the mdiwdual to personal privacy and the need of the government for information to perform its funetiona.8 The Act requires that rec-ords kept for the purpose of making determinations pertaining to an individual be maintained with such accuracy, completeness, and attention to relevance and timeliness, as ta ensure fairness to the individual in such determination8.g

The enactment of the Freedom of Infomatian Act (FOIA)

the existence of er&'or injustice Id , para 4. Horeier: fh; ABCIR wll den; an application without hearing rf there IS not ruffieient relevant eridence to dem-on~trstethe existence of B orobable material error or iniustiee Id . n~is.

10b If

may be assumed that a mnmafeiial error -111 not be corrected. Although 10 U S.C S I652(aI used the teim"error.' the courts hare aeeepfed the limitarm to "probable material error'' 81 stated in AR 16-18; Keaman 3,. United Stares, 186 Cf. CI. 269. 2i6 (19681, Siehola v United Sraree. 1% Cr. CI 412 (19621'Act of September 6. 1966, Pub L 'la. 89-554. 80 Star 383. a8 a,rrnded, codified ab 5 U S.C. S 552 (19761

Army Reg So 340.l7, Offire hlanagemeni-Release of Information and Records born Army Files, para 2-12 (CI, 24 Jan 19751

Act of December 81. 1974, Pub L KO 93-579. $ 3 , 86 Stat 1897 as amended.

codified 8s 6 U S C b 65% (19761

Pnrac) Act of 1971, S Rep KO 93-1163, 93d Cang , 2d Seis ~ rcpiiiited in

I19741 U S Code Cone. &Ad K e w 6916

I1 AMENDMEKT OF RECORDS USDER THE PRIVACY ACTIn the area of correction of military records. the Priracy Act of fers a mi%,separate and distinct remedy for the mdnidual. Under the Act, the individual has the nght to determine if a record pertinent to him exists,'o to request access to his to request an accounting of disclosures of records pertaining to hirn.lz to re-quest amendment of his records, and to file a statement of disagreement If the department refuses to amend his recorda Each of the foaregoing 1s an indispensable part of the record amending process offered by the Prixaey .Act

1. PROCEDCRES

   The Act offers a broad means whereb? an individual ma? learn of the existence of a iecord pertaining to him within a system of rec-ord~.'~

   If the individual determines that a recoirl pertaining to him

   exists within a system of records, he may request access to such records Is If the individual obtains awe88 to records within a sys-

   indiriduai I d , para 2-5d(lj

   The Arm) has taken the position that B ~ J Q

   1111 he denred onl) d the mformaoan 18 exempt bath under the Privacy Act and the FOlA and there exms a rlgnlti-cant and leglthate purpaae rerred bg nandiaeiosure Id , para 2-6b The mdi.Idual must be adrined of hi8 right to appasi to the Secretary of the Army. Id para 2-5el2). The Offlie af General Counrel. on behalf of the Secretary of th; Armg, decides the appeal Id , para 2-68, It x i algniflcanl that the implementing

   regulation allo~scommander? and cuatadmns t o grant acesas to recorda, hoverer Onis the ~ppro~riafe

   AARA OF the Secretary of the Army. acting fhravgh fhd General Caumel. may den) aeeeri Id , para 2-68,

   rem of records and discovers that such records are inaccurate. ir-relevant, incomplete, or untimely. he may request amendment of such records.I6

   The request must also state the reams Uhy amendment is requested and he accompanied b? appropriate documentary evidence AR 340-21 para. 2-Oall).

   In the admmistratiw p ~ m d u r e s under the Aer, the burden IS on the Indiiidua:

   10 ihou the propriety of the desired amendment Id O>IB Cir I-l@@.

   40 Fed

   Rer 28,OS When the indiriduai requedtd amendment of hw records. the C Y S ~ O - di& reeonme the requeat muat acknowledge receipt ai the mqueat within cen working AR 340-21, para 2-Oalll lithe custodian determrrei the request 18 pmper because the record IP lnaeeuraie, Irreieiant. untimely or meompiere. he mu81 make the correction and so aafif) che individual within thirty working days after receipt oi the request Id . pars 2-9a(31

   The custodian may amend. but only the Access and Amendment Refusal Avrhor

   11) or the Prlvae! Revlea Board ma? refuse la amend If the evbfadian belthe iequeif is not proper because the recorda are exempt or otherwise, he rrihin five workmg days after receipt oi the request. ioruard the request. e record, and his recommendations t o the appropriate AARA He notifies the Individual of hi8 aetiun ~n the acknowledgment of reeeipr. Id . para 2-0d41 The AARA ma? request further informatior and may amend the record even If 1: 18 exempt from the Privacy Act Id para 2-9c If the AARA determines that amendment 18 not proper. he musf explain to the mdliidual. I" untmg, his rea-mnr for not amending the recard He musf adiise the mdindual of his right 10 appeal to the Department af the Arm) Pnvac) Revleu Board and ivrniih eopies ai the request and denial Io the Privacy Rerrew Board. Id , para 2-9ell1, (9). and

   (31 The Army Privacy Reiiew Board acts OP nehsif of rhs Secretary of the .Army 111...