IN THE CASE OF: BOARD DATE: 6 January 2009 DOCKET NUMBER: AR20080015217 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant's request, argument, and supporting documents are provided by counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's record be corrected by removing his name from the titling block of the U.S. Army Criminal Investigation Command (USACIDC, also referred to simply as CID) report on or about 13 January 2006, and that this information be relayed to the National Criminal Information Center (NCIC) so his name can be removed from the NCIC record, which titles him for conspiracy. This request is based on information subsequently revealed, the lack of evidence ultimately disclosed, and the disproportionate impact this titling decision has had on the applicant. 2. Counsel states that on or about 13 January 2006, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) based on allegations of conspiracy to commit larceny of military property in Baghdad, Iraq, between on or about 12 March 2006 and on or about 1 August 2004, with captain (CPT) M.E.G., master sergeant (MSG) J.M.B., staff sergeant (SSG) A.L.S., and sergeant first class (SFC) G.R.W. The Article 15 was offered to the applicant after an extensive investigation by CID. The individuals who were directly involved in the alleged misconduct were CPT G, MSG B, SSG S, and SFC W. The CID investigation identified CPT G as the most principal actor. Counsel adds that he has personal knowledge of the level of culpability of each individual owing to his assignment as the Deputy Staff Judge Advocate (SJA) for the U.S. Army Special Forces Command (Airborne) (USSFC)(A) at the time these events came to light. 3. Counsel states that CPT G was later court-martialed at Fort Campbell, Kentucky, for his involvement in the incident, but received no punishment. MSG B was acquitted and the charges against SSG S and SFC W were dismissed altogether. The applicant did not handle the operational (OP) fund that was the subject of the alleged larceny. He did manage an operational fund for special operations, but that fund was not the subject of the alleged larceny. Nonetheless, he was titled because he was aware of the alleged misconduct of the others and failed to report the misconduct. 4. Counsel states that shortly after he accepted the Article 15, the applicant was honorably discharged and subsequently enrolled at a university, attained a bachelor degree in criminal justice, and is pursuing gainful employment as a law enforcement officer. However, he is unable to acquire such employment due to the aforementioned titling decision. The applicant only accepted punishment under the Article 15 to expedite his discharge. Had he been aware that all the primary actors would have faced no punishment, he would have declined the nonjudicial punishment. 5. Counsel states that there are new, relevant, and material facts which warrant the revision of the report and should be diligently considered. Four other alleged co-conspirators were brought into question based on the same allegations of misconduct. It is critical to consider that each of the four accused were entirely unpunished. Specifically, the cases against SSG S and SFC W were dismissed while MSG B was acquitted. CPT G, the only culprit to take direct action during the alleged conspiracy, received no punishment. It is reasonably inequitable for the applicant, who had no involvement with the conspiracy, to have been the only one to have received punishment. 6. Counsel states that the applicant accepted punishment merely because he was preparing to exit the military. His voluntary acceptance, which was suspended, was colored by the nature of the situation. At the time he was advised of his right to consult with counsel and demand trial by court-martial, he was preparing to be discharged from the Army. Were he to demand trial, he would have been forced to remain in the Army for a period undesirably longer than otherwise in order to have his case heard. He was advised of his rights but not the relevant consequences of accepting such punishment, particularly those affecting his finding gainful employment upon return to civilian life. Were he to demand trial, the charges would have been dismissed or he would have been acquitted, given his lack of involvement with the conspiracy and innocence of the alleged misconduct. In any event, his punishment would have been far less than the other four. 7. Counsel concludes that the applicant served his country with diligence and received numerous honors and awards including the Bronze Star Medal. Since his discharge, he has acquired a college degree and desires to continue serving his country using his vast military experience and education; but, he is unable to do so because of the titling. 8. Counsel provides the following additional documentary evidence in support of the applicant’s request: a. Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, General Court-Martial Order Number 1, dated 14 November 2006, pertaining to SSG S. b. Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, General Court-Martial Order Number 2, dated 13 December 2006, pertaining to CPT G. c. DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 13 June 2006. d. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 11 September 2007. 9. On 10 November 2008, Counsel submitted a letter, dated 13 June 2008, from the USACIDC, Fort Belvoir, Virginia. CONSIDERATION OF EVIDENCE: 1. The applicant’s records show he enlisted in the North Carolina Army National Guard (NCARNG) on 18 July 1997. He subsequently entered active duty for training (ADT) on 28 October 1997, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 91B (Medical Specialist). He was honorably released from ADT to the control of his ARNG unit on 31 March 1998. 2. On 20 July 2000, the applicant was honorably discharged from the NCARNG and enlisted in the Regular Army for a period of 3 years. He successfully completed Special Forces (SF) training, was awarded MOS 18F (SF Weapons Sergeant), and was promoted to sergeant (SGT) on 7 March 2003. He subsequently executed a series of extensions and/or reenlistments in the Regular Army including a 3 year reenlistment on 6 August 2003 and was promoted to SSG on 1 July 2004. 3. The applicant’s records show he served in Iraq from 12 February 2003 to 1 August 2003 and 12 February 2004 to 27 July 2004. 4. The applicant’s records show he was awarded the Bronze Star Medal with “V” Device, the Army Commendation Medal, the Army Achievement Medal, the Good Conduct Medal (2nd Award), the National Defense Service Medal, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, the Noncommissioned Officer Professional Development Ribbon with numeral 2, the Army Service Ribbon, the Combat Infantryman Badge, the Special Forces Tab, the Parachute Rigger Badge, the Parachutist Badge, and the Air Assault Badge. 5. On an unknown date, the applicant and four other Soldiers were made subjects of an investigation conducted by CID in Baghdad, Iraq. The offenses for which the applicant was investigated were larceny of military property, between on or about 12 March 2004 and 1 August 2004 and wrongfully transporting in foreign and interstate commerce, money that had been stolen, converted, or taken by fraud, and conspiring with others to pack and hide this money, between on or about 12 March 2004 and on or about 1 August 2004. 6. On 8 February 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for one specification of conspiring with four other Soldiers between on or about 12 March 2004 and on or about 1 August 2004, in Baghdad, Iraq, to commit larceny of military property, of a value of about $10,000.00, the property of the United States. His punishment consisted of reduction to SGT (suspended until 8 August 2006), forfeiture of $1,148.25 pay for one month (suspended until 8 August 2006), 45 days of restriction (suspended until 8 August 2006), and 45 days of extra duty. 7. The applicant was honorably discharged on 5 August 2006 for completion of required active service. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed a total of 6 years, 5 months, and 16 days of creditable active military service. 8. On 18 September 2006, the applicant enlisted in the Tennessee Army National Guard (TNARNG) for a period of one year. He was honorably discharged on 11 September 2007 for completion of required service. 9. On 13 June 2008, by letter, the USACIDC notified the applicant's counsel that the applicant's name is listed as a subject in a Report of Investigation (ROI) 0447-____-CID___-_____-7F and provided Counsel with a copy of the DA Form 4833. The USACIDC also informed counsel that no action would be taken to amend the applicant's records and that if new and relevant information was available, the request to amend the ROI could be resubmitted. The USACIDC further provided Counsel with documentation pertaining to requests for amendment of USACIDC records. 10. There is no indication in the applicant's records that after having requested and obtained a redacted copy of the ROI, he made a written request to the Director, Army Crime Records Center, USACIDC, to have all titling determinations against him removed. 11. Department of Defense Instructions (DODI) 5505.7 contains the authority and criteria for titling decisions. It states, in pertinent part, that titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. DISCUSSION AND CONCLUSIONS: 1. Counsel contends that the applicant's name should be removed from the title block of a CID ROI and from NCIC records. 2. DOD policy specifies that titling only requires credible information that an offense may have been committed. It further indicates that the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 3. The evidence of record shows that the applicant was suspected of committing serious offenses in his capacity as a Noncommissioned Officer (NCO) in a combat environment and became the subject of a CID investigation. The evidence of record further confirms that the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an open Article 15 hearing after considering all the evidence submitted by him. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses. The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for the Article 15. 4. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. Furthermore, the applicant’s case has already been adjudicated through the Army’s legal system and the applicant was provided with a defense attorney, the right to trial by court-martial, and afforded the opportunity to appeal his punishment through the proper channels. Here, the evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander. 5. The fact that the applicant accepted the Article 15 because he was close to his discharge date is not sufficiently mitigating in this case. The applicant was presented with his legal options. He elected the Article 15. Furthermore, each case is decided on its own merits. There was credible evidence to believe that the applicant may have committed the offenses for which he was titled. The disposition of the other Soldiers' actions involved in the same investigation is not relevant to the Proceedings of this Board. 6. The removal of the titling action in the applicant’s case is not appropriate. The titling determination in this case was based on the standard outlined in DOD instructions, which state that names of individuals shall only be removed from the title block of an ROI in cases of mistaken identity, or when, based on all available information, there was no evidence to believe that a criminal offense occurred at the time of the initial titling determination. Neither of these situations applies in this case, and at the time the applicant was titled there was indeed credible evidence to believe that he had committed the criminal offenses for which he was titled. 7. The applicant's post-service academic accomplishments and his endeavor to work with law enforcement are noted. However, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ 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. _______ _ _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080015217 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080015217 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1