RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           16 MARCH 2004                  
	DOCKET NUMBER:   AR2003090637

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that a Report of Investigation (ROI) 02-CID538-31514-7- -, be removed from any existing personnel record being maintained by Department of the Army in a system of records.  

2.  The applicant states that the CID (Criminal Investigation Division) report was unjust and unfair because of the improper (illegal) acquisition of protected information in violation of the Privacy Act by the CID investigator; the improper release of protected personal information by civilian personnel to the CID investigator; and because of the reporting of an alleged criminal offense to the CID as reprisal for his [the applicant] whistleblowing activities. 

3.  The applicant provides supplemental statements to the effect that specific prohibited personnel actions were taken against him in retaliation for his whistleblowing activities.  He lists those personnel actions.  He charges that certain personnel took actions against him that were unjust.  He states that the ROI upon which certain actions were taken was assumed to be credible only because it was received from a law enforcement agency; that the information in the ROI was not substantiated, denying him the right to due process; and that his transfer [from Korea] was directed, in part, because of his whistleblowing activities to the 18th MEDCOM (Medical Command) Inspector General's office, and was also based, in part, because of his whistleblowing activities to the AMCOM (Aviation and Missile Command) Inspector General.  The applicant makes allegations against his former supervisor in Korea, a Mr. Br, and against those who were his bosses subsequent to his reassignment from Korea.

4.  He states that as a direct result of the unwarranted and false accusations made against him because of a CID investigation, his rights under the Privacy Act were violated because the CID investigator willfully and purposely failed to provide a written request for information as required by the law, and Civilian Personnel Advisory Center (CPAC) persons failed to protect personal information in their custody as required by law.    

5.  The applicant provides information contained in 52 tabs (A through ZZ).  He provides a listing (Document Chronology) of those tabs with a brief synopsis of each.  That listing is extracted from his case file, and included herein as an integral part of this case.  The names indicated on that chronology, to include the applicant's have been blackened out.  Three of the tabs do not contain the documents listed (E, IG Complaint, H, Inspector General complaint to AMCOM, and Q, Formal Suspension of Access to Classified …).     

CONSIDERATION OF EVIDENCE: 

1.  The applicant is a Department of the Army civilian, a logistics management specialist, who in September 2000 was assigned to a two-year tour with the Combat Equipment Battalion, North East Asia (CEB-NEA), at Camp Carroll in Korea, an element of the Army Aviation and Missile Command whose headquartered at Redstone Arsenal, Alabama.  His wife, a Korean national, accompanied him.  

2.  On 26 September 2000 the applicant signed Part I of a statement of understanding regarding conditions and eligibility requirements for accepting living quarters allowance (LQA).  That statement was required to be executed prior to negotiating a lease for permanent quarters.  That statement included the remark, "I understand that LQA payments are exclusively for the payment of rent documented in an officially approved lease and are not to be used to pay, directly or indirectly, for any other expense, …"  Part II of that statement, required to be completed at the time a foreign allowances application, grant, and report and supporting documents were submitted to the CPAC, included the statement, "I certify that the landlord named in the lease is not a relative, friend, or prior acquaintance of my spouse or mine," and, "I certify that neither my spouse nor I have any ownership, leasehold or key money interest in the premises described in the lease."   The applicant, by his initials at the end of those statements, and by his signature on both Part I and Part II of the statement of understanding acknowledged and certified that all the information that he provided and submitted was complete, true, and correct to the best of his knowledge and belief.

3.  He entered into a 24-month lease agreement, beginning on 30 September 2000, with a Korean national, Mrs. LYH, his mother-in-law, agreeing to an advance payment of $29,280.00, the rental charge for 24 months.  The landlord provided a receipt for that amount on 28 September 2000, her name and a signature on that receipt.  An integral part of that receipt is a certification signed by the applicant on 21 October 2000 that he personally transferred the rent money to the landlord on 28 September 2000.  A 2 October 2000 memorandum indicates that an official of the housing division [in Korea] inspected the applicant's off-post quarters and they were approved.

4.  Enclosed with the applicant's request is a copy of a 16 October 2000 personal check in the amount of $60,500.00 for a mortgage payment endorsed by the applicant to a Korean national, his brother-in-law.   

5.  The applicant provides a 4 December 2000 affidavit commenting on what he characterized as his wife's psychotic episodes, and his attempts to obtain treatment for her, indicating that she had sustained prior injuries as a result of a beating inflicted upon her by members of a Korean police department.  He indicated that his wife had the first of two psychotic episodes on 23 October 2000, and the second on 29 November 2000, stating that she was picked up by Korean police for taking the car of Korean citizens without their knowledge.  He stated that his wife had been beaten several times by the Korean police.  He expressed dissatisfaction with the medical treatment and the handling of his complaint of police brutality by Army military police personnel. 

6.  In a 10 June 2001 letter to the Commander of the 18th Medical Command Inspector General, he requested a response to his December 2000 complaint concerning possible medical malpractice, the fitness of Army medical facilities to conduct patient care, racial discrimination, and ignorance of the Americans with Disabilities Act.

7.  In a 1 November 2001 letter to the Commander of the CEB-NEA, he thanked that officer for her help in handling the latest civil incident involving his wife, and requested assistance in placing them closer to their original home, indicating that he hoped that it would be Rock Island.  He commented on the two previous incidents in which his wife was involved, stated that he expected that his wife would be summoned by the Korean National Police to answer for the latest incident, and decried the medical treatment that his wife had received.   

8.  DD Forms 1614 (Request/Authorization for DOD Civilian Permanent Duty or Temporary Change of Station (TCS) Travel) show that the applicant was released from his assignment in Korea and ordered to report to his new duty station with the Army Aviation and Missile Command Security Assistance Management Directorate (SAMD), Business Management Division, at Redstone Arsenal, Alabama on 28 January 2002.

9.  In a 10 May 2002 memorandum, a travel and allowance assistant of the     20th Support Group, Taegu [in Korea] notified the DFAS (Defense Finance and Accounting Service) at Charleston that because of a PCS (permanent change of station) move, a reconciliation of foreign allowance was made for the applicant's lease for the period 30 September 2000 through 29 September 2002, and that the applicant had an indebtedness of $9,907.07.  She indicated that the applicant received that amount from his landlord and would apply it to his indebtedness.  

10.  In a 13 May 2002 letter to the DFAS at Cleveland, the applicant acknowledged his indebtedness for an unliquidated LQA, as a result of reconciliation upon termination of his overseas lease effective on 26 January 2002, and indicated that he remitted payment in full, in the amount of $9,907.07.  He stated that the personal check that he enclosed should complete and terminate any further collection proceedings against him.  A copy of a check in that amount is enclosed with his application.

11.  A 19 August 2002 CID ROI indicates that on 29 January 2002 an investigation conducted by a unit of the 76th CID Detachment at Camp Carroll, established that there was probable cause to believe that the applicant committed the offenses of fraud and larceny of government funds.  The investigation revealed that the applicant submitted a lease to his servicing CPAC for the purpose of obtaining Living Quarters Allowance (LQA) funds to pay for a two year leased apartment while living in Korea.  He received $29,280.00 which he paid to his landlord who was also his mother-in-law, a fact which he knowingly failed to disclose to CPAC, knowing that it would have affected the issuance of the LQA funds.  He later departed Korea prior to the completion of his lease and without clearing his lease through his servicing CPAC or housing office.  He received a full refund of the LQA government funds prior to departing Korea, which he failed to return to the government and subsequently stole.    

•	The exhibits to the ROI included the agent's investigative report (AIR), detailing the receipt of the initial complaint.  The complaint appeared to have been initiated by the applicant's supervisor in Korea on 29 January 2002, who reported that the applicant might have departed Korea without clearing housing.  The report indicated that the applicant departed without clearing the CPAC.  It revealed that an official of the CPAC stated that the applicant did not clear his LQA, and that he should have received $9,907.00 from his landlord, which was required to be returned to the government.  Exhibits included documents showing coordination with the CPAC and Camp Carroll Housing Office, and the receipt of the applicant's housing packet, permanent change of station (PCS) orders, and LQA packet.  

•	Other documents included the LQA packet containing a receipt for payment of advance rent, indicating that the applicant paid to [NAME REDACTED] $29,280.00 for a 24 month lease, an AIR detailing the interview of the applicant's brother-in-law, who related he gave the applicant approximately $19,231.00 because the applicant was his brother-in-law and because he took care of his sister.  That person stated that he did not know that he had to refund the remaining balance when the lease was terminated, but stated that the money given to the applicant could be considered as a refund for the remaining balance. That AIR also indicated that the apartment, which the applicant had leased, was registered to the applicant's mother-in-law.  

•	Included also were the receipt of the ownership documents for the apartment indicating a change of ownership on 23 September 2000, and an AIR of the interview of the applicant's former supervisor who stated that the applicant was aware that he had to return the remaining balance of the rent to CPAC.
•	Included is a copy of correspondence dated in mid February in which the applicant stated that he did leave Korea without reconciling his housing allowance with CPAC because of exigent circumstances and other personal reasons which prevented him from doing so.  He stated that he understood that he had a balance due on his housing allowance in the neighborhood of $9,500 to $9,800, which he would remit once they told him how much he owed.  On 11 April 2002 he e-mailed the CPOC in Korea in this regard, stating that he would remit the required amount.  

•	A 15 February 2002 statement by [NAME REDACTED], apparently the applicant's brother-in-law, indicating that his mother bought the apartment for the applicant and that the applicant paid his mother $60,000.00, because it was actually the applicant's apartment.  He stated that when the applicant had to leave Korea, the apartment was [to be] sold, so the applicant's mother-in-law gave the applicant 30,000,000 Won (approximately $23,000), and that she would pay the applicant the rest of the money as soon as the apartment sold.  He also stated that he did not execute any receipt and lease agreement between the applicant and his mother.  The CID agent, in a comment to this AIR, stated that the applicant's wife made the receipt and lease agreement by herself.

•	An AIR detailing the interview of [NAME REDACTED], apparently the applicant's mother-in-law, who stated that she received $60,000.00 from the applicant and returned approximately $23,077.00 to him before he departed Korea, and that she intended to send him the remainder of the money after the apartment was sold.  That AIR indicated that she did not enter into any receipt and lease agreement with the applicant.

•	Also, an AIR conducted by an agent at Redstone Arsenal, detailing an interview with the applicant, who denied that he intended to defraud the government.  That report indicated that the Assistant United States Attorney (AUSA), Northern District of Alabama, and the Trial Counsel, Office of the Staff Judge Advocate (OSJA), Redstone Arsenal, Alabama Legal Center, opined that there was insufficient evidence to prosecute the applicant.  Also included was an AIR detailing the coordination made with the AUSA, and an AIR detailing the coordination made with the Deputy Director, Security Assistance Management Directorate, AMCOM, the OSJA, Redstone Arsenal, and the OSJA, Camp Henry, Korea.    

•	The report showed that on 3 April 2002 the applicant made a sworn statement, to the effect that he arrived in Korea on 27 September 2000.  His brother-in-law helped him get an apartment.  He obtained the approval of housing, and gave his brother-in-law and sister-in-law the paperwork from housing, who stated they would go to Seoul and have the owner of the apartment sign the appropriate paperwork.  He stated that he did not know who the owner was.  He stated that when he received the money (approximately $28,000) he gave it to his brother-in-law for the owner.  He said that he was thinking about buying the apartment with the intention of staying in Korea; however, circumstances required him to leave.  Prior to his leaving Korea, his brother-in-law gave him a certain amount of money for the apartment, but he was not sure of the amount.  He has not since sold the apartment.
 
•	He continued by stating that he did not know who authorized the signature of Mrs. L on the receipt for payment of advance debt, but that he gave it to his brother-in-law and sister-in-law to take back to Seoul with them in order for the owner to sign it. He stated that he had not received any further payments from Mr. K or Mrs. L (brother-in-law and mother-in-law) for the sale of his apartment in Korea.  He stated that at first he did not know his mother-in-law was the owner of the apartment, but only found out later.  In response to the question why he did not use part of the money he received from his brother-in-law to pay back the government, he stated that he left Korea in such a hurry, he had no time.  He stated that he was unaware that he was supposed to notify the housing office if the owner of the apartment was a relative.

•	On 20 July 2002 the CID Special Agent at the Camp Carroll Branch Office in Korea, coordinated with the Assistant United States Attorney, Northern District of Alabama, Huntsville Branch Office, who stated that she would not provide an opinion concerning whether there was probable cause to believe the applicant committed fraud and larceny without a complete case report to review.  The Special Agent in Charge (SAC) indicated that the original opinion was insufficient evidence to prosecute.  NAME REDACTED declined to prosecute and did not provide an opinion as to whether there was probable cause to believe the applicant committed fraud and larceny.  The SAC believed there was sufficient evidence to prosecute, and indicated that the action would be closed as founded and forwarded to the U.S. Attorney's office in Huntsville, and to the applicant's gaining commander for review.

•	In a 15 August 2002 AIR, the special agent provided information concerning the financial breakdown amounts pertaining to the investigation – 

o	amount the applicant was authorized and received for LQA - $29,280.00
o	amount the applicant paid for the apartment - $60,000.00
o	amount he received from his mother-in-law for the apartment - $23,077.00
o	amount received from his brother-in-law for the apartment - $19, 231.00
o	amount owed the government due to early lease termination - $9,907.07
o	amount the applicant stole from the government - $29,280.00

•	The agent stated that the stolen amount was based on the applicant having received a full refund of funds regarding his apartment, which was obtained using LQA funds. 

12.  The investigation was terminated in accordance with the governing CID regulation.  The special agent in charge determined that furtherance of the investigation would be of little or no value, that the commander's report of disciplinary action taken was pending, and that action would be coordinated with the Security Assistance Management Directorate (SAMD), Redstone Arsenal.  

13.  On 26 September 2002 the applicant was detailed to the Business Management Office of the Security Assistance Management Directorate (SAMD), by the Director, SAMD (Mr. Pa).  That official indicated that certain privileges were suspended as a direct result of the CID report of investigation that titled the applicant with fraud/theft while serving in Korea, and that the action was a requirement of the directorate pending further adjudication of the CID investigation. 

14.  On 7 October 2002 the applicant provided an affidavit in reply to the decision by the Director, Intelligence and Security Directorate, to formally suspend his access to classified information and networked automated data processing systems on 13 September 2002.  In this affidavit, he responded to the charges of fraud and theft brought against him, and provided an account of an "interrogation" on 26 September 2002.  He commented on matters concerning his purchase of his apartment in Korea, stating that shortly after his arrival in Korea, it became apparent to him that his wife's family was actually attempting to purchase the apartment, and after visiting the apartment, he explained to his wife that they had to come up with approximately $64,000.00 to pay for the apartment or risk the appearance of impropriety; in October 2000, he wrote a check to his brother-in-law for the purchase price of the apartment.  The money included funds of $29,280.00 that he received for the two-year lease agreement.  He talked about his processing at the CPAC [in Korea] and his subsequent talks with officials in the housing office, stating that he informed those officials that he was planning to purchase the apartment, and was informed by them to prepare a standard lease agreement until the sale became final.  He commented on the lease and the lease forms, and provided a detailed account of the statement of understanding regarding conditions and eligibility for accepting LQA.  

•	He provided an account of his second visit with a Redstone CID official and commented on the reconciled LQA, indicating that he owed an additional $4,038.33 to the government, which he would pay.  He talked about his relationship with Mr. Br, the Civilian Executive Assistant, CEB-NEA, his former supervisor in Korea, and the wrongdoings of that person. He indicated that Mr. Br was the person who called the CID, and that     Mr. Br knew that the matter was not a criminal matter.  The applicant provided information concerning his wife's difficulties while in Korea, his complaint to the Inspector General, and information concerning his PCS orders and reassignment, to include temporary quarters and subsistence expenses.  He concluded by describing the practices and workings of the SAMD, indicating misconduct on the part of individuals.

15.  In November and December 2002 he submitted formal grievances to the AMCOM, under the provisions of negotiated grievance procedures as outlined in the union agreement between the AMCOM and the American Federation of Government Employees (AFGE).  Documents reflect the nature of his grievances and the responses thereto.

16.  On 2 December 2002 he initiated a complaint (Whistleblower) to the U.S. Office of Special Counsel, indicating a violation of the Privacy Act and an abuse of authority, on or about November 2001, by his former supervisor in Korea, Mr. Br.  Also, on 2 December 2002 he filed a complaint against his current agency, the SAMD at the Aviation and Missile Command at Redstone Arsenal.

17.  On 12 December 2002 the Office of Special Counsel informed the applicant that it had made a preliminary determination to close the investigation into his complaint of 2 December 2002 – in effect, that the applicant had no case, and that there was no basis for further inquiry into his allegation [abuse of authority].  That agency stated that a charge of fraud and theft was not a personnel action, for the purpose of the statute, and there was no basis for further inquiry into these matters.  In a 16 December 2002 response, the applicant informed the special counsel, a Ms. Tho, that she was all wrong, that the whistleblowing took place in November 2001, and that the retaliation for whistleblowing took place in February 2002.      
         
18.  On 13 December 2002 the applicant submitted a complaint (Whistleblower) against officials of the SAMD, stating that they attempted to defraud foreign military sales customers of potentially tens of millions of dollars.

19.  In response to his request, the Criminal Investigation Command on               3 January 2003 provided the applicant a copy of the redacted 19 August 2002 CID report of investigation.

20.  On 15 January 2003 the applicant was again detailed to the Business Management Office of the SAMD effective 25 January 2003.  The Director, SAMD, indicated that the detail was required in order to fulfill the obligations set forth by the Intelligence and Security Directorate, AMCOM, and that the action was a requirement pending further adjudication by the Army Central Personnel Security Clearance Facility.  The detail was for 120 days.

21.  On 29 January 2003 the Office of Special Counsel notified the applicant that it was unable to alter their determination not to further investigate his allegation, and consequently the case was closed.

22.  On 3 February 2003 he requested to the Army Crime Records Center [of the Criminal Investigation Command] that the CID report of investigation be amended or that his name be removed from the title block of the report.  On      18 April 2003 the Army Crime Records Center informed the applicant that his request was denied.  He was informed that he could request that this Board review his case.

23.  Army Regulation 340-21 (The Army Privacy Program) sets forth policies and procedures that govern personal information kept by the Department of the Army in systems of records, and states in pertinent part, that the Army's responsibilities for compliance with operational requirements established by the Privacy Act include protecting the privacy of individuals from unwarranted invasion; collecting only the personal information about an individual that is legally authorized and necessary – disclosing the information only as authorized by the Privacy Act and this regulation; and safeguarding personal information to prevent unauthorized use, access, disclosure, alteration, or destruction.  

•	Paragraph 3-1 of that regulation states, in pertinent part, "The Army is prohibited from disclosing a record from a system of records without obtaining the prior written consent of the data subject, except when the disclosure is ….  Made to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if – (1) the activity is authorized by law (2) the head of the agency or instrumentality has made a written request to the Army element that maintains the record." 

•	Paragraph 3-2 states that in addition to routine use in each system notice, certain blanket routine uses apply to all records from systems of records maintained by the Army.  That paragraph states that relevant records maintained to carry out Army functions may be referred to federal, state, local, or foreign law enforcement agencies. 

•	Chapter 5 of that regulation states that the Secretary of the Army may exempt Army systems of records from certain requirements of the Privacy Act.  The two kinds of exemptions are general and specific.  The general exemption relieves systems of records from most requirements of the Act; the specific exemptions from only a few.  Only Army activities actually engaged in the enforcement of criminal laws as their primary function may claim the general exemption.  To qualify for this exemption, a system must consist of "… information compiled for the purpose of a criminal investigation, including efforts to prevent, reduce, or control crime, and reports of informants and investigators associated with an identifiable individual." 

24.  Army Regulation 195-2 states that requests to amend CID ROI will be granted only if the requester submits new, relevant, and material facts which would warrant such a revision.  When the requested amendment is to delete a person from the title block of an ROI, the request will be granted only if it "… can be conclusively established that the wrong person's name has been entered as a result of mistaken identity."  In previous cases, the Board has directed removal only when necessary to correct an error or injustice.  To prove an error, the applicant must show that there was no information, considering its source, nature, and the totality of the circumstances that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.  To remove an injustice, the applicant must demonstrate that the titling decision, which has later been determined to be unfounded, has created harm.  When the applicant has established that he has been harmed, the Board first looks at whether it can rectify the injustice by correcting the records related to the outcome of the titling, instead of reversing the titling decision.  

25.  Department of Defense Instruction (DODI) 5505.7, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI 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 is if there is reason to investigate, the subject of the investigation should be titled. The DODI also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation.  By implication, the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions.  Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity, or if it was later determined that a mistake was made at the time the titling and/or indexing occurred in that credible information indicated that the subject committed a crime did not exist. 

DISCUSSION AND CONCLUSIONS:

1.  Much of the relevant evidence in this case is contained in the CID report of investigation showing that on 29 January 2002, the applicant's former supervisor in Korea reported that the applicant might have departed Korea without clearing housing, a probable infraction of the rules governing clearance of an installation, station, or activity; however, certainly not an indication of intentional misconduct or of a criminal act.  

2.  Nonetheless, the longer that the CID delved into the matter, the more information they obtained, indicating in fact, that the applicant was involved in some wrongdoings.  Their investigation revealed that there was probable cause to believe the applicant committed fraud and larceny.  The applicant's assertion that the investigation was malicious, an abuse of discretion, or otherwise flawed has no basis in fact.  

3.  The evidence, all of which is provided by the applicant, shows that on           28 September 2000, he entered into a lease agreement with his landlord, his mother-in-law, having completed a statement of understanding two days prior to the agreement certifying that the landlord was not his relative or a relative of his spouse.  He provided the LQA funds to his landlord, certifying on 21 October 2000 that he personally transferred the rent money to the landlord on    28 September 2000.  

4.  However, in a 3 April 2002 statement, the applicant said that he gave the $29,280 to his brother-in-law for the owner, and that he did not know who authorized the signature on the receipt for payment of the advance debt.  He also stated that at first he did not know that his mother-in-law was the owner of the apartment.  It would appear, however, that at least by 21 October 2000, the applicant knew the owner of the apartment, either his mother-in-law, or himself, especially in view of the fact that he endorsed a check in the amount of $60,500.00 to his brother-in-law on 16 October 2000 for a mortgage payment.

5.  Both his brother-in-law and his mother-in-law, under questioning by a CID agent, stated that they did not enter into a "receipt and lease agreement" with the applicant.  His mother-in-law stated that she received $60,000.00 from the applicant, returning approximately $23,000.00 to him before he left Korea.  His brother-in-law stated that his mother bought the apartment for the applicant and that the applicant gave his [the applicant] mother-in-law $60,000,00.  His brother in-law also stated that he gave the applicant approximately $19,000.00 because he took care of his sister.  The Army gave the applicant $29,280.00, of which he returned $9,907.07.    

6.  The applicant himself stated that shortly after his arrival in Korea he was aware that his wife's family was attempting to purchase the apartment, and that they (the applicant and his wife) had to come up with approximately $64,000.00 to pay for the apartment.  He stated that he wrote a check to his brother-in-law for the purchase price, and that the money included the $29,280.00 provided by the Army for the two-year lease.

7.  The evidence suggests that the applicant intended to purchase an apartment upon his arrival in Korea, and that a member, or members of his family purchased the apartment for him.  It was in effect, his apartment.  He used LQA funds to pay for that apartment.  The applicant's argument that he did not know who the owner of the apartment was when he completed the statement of understanding on 26 September 2000 and when he executed the lease agreement two days later conflicts with his other statements.  His statement that he completed on 21 October 2000 is not credible.

8.  The conclusion reached by the Office of Special Counsel on the applicant's Whistleblower complaint, that there was no basis for further inquiry into his allegation because the charge was not a personnel action, is valid.  It is clear from the evidence provided by the applicant himself that the action he characterizes as "retribution" is in fact a law enforcement investigation, not a personnel action; and that the suspension of his security clearance was a consequence of his criminal activity.

9.  The CID Report of Investigation (ROI) 02-CID538-31514-7- - is neither unjust nor unfair.  The evidence presented supports the conclusion of the Senior Agent in Charge (SAC) that there was probable cause to believe that the listed offenses were committed, and that the applicant committed those offenses, and although the SAC is encouraged to seek the advice of the servicing legal office regarding closing an investigation, the decision to title a subject for an offense rests in his hands.  The applicant has not provided sufficient evidence to support his request, nor has he demonstrated retaliation under the Whistleblower Protection Act.  
               
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __HOF__  __RTD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		____Mark D. Manning______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090637	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040316	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.