MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	

	BOARD DATE:          22 October 1998   
	DOCKET NUMBER:   AC95-10103

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:


Ms.
June Hajjar

Chairperson

Mr.
Fred K. McCoy

Member

Ms.
Shirley L. Powell

Member

	Also present, without vote, were:


Mr.
Loren G. Harrell

Director

Ms.
Gale Thomas

Analyst


	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	             if any)

APPLICANT REQUESTS:  That his name be removed from the title (subject) block of Criminal Investigation Division (CID), Report of Investigation (ROI) 0468-993-CID029-5M4B, and the Defense Clearance and Investigations Index (DCII).

APPLICANT STATES:  That he did not commit the offenses of false claim and fraud as reported; that there is no reason to keep his name on these records since he was found completely innocent; that every time a routine security check is made on him he’ll be labeled a criminal; and that whenever he applies for a Federal government job this issue will be raised again.

EVIDENCE OF RECORD:

The applicant is a Federal government civilian employee (Engineer, GS-12), with over 25 years of government service.

On 27 October 1993, an investigation was initiated on the applicant, for fraud, and for making and presenting false claims against the U.S. Government.  

On three separate occasions (4 May, 1 September, and 2 September1993), the applicant submitted TDY vouchers to the Finance and Accounting Office for mission related trips to Belize, wherein it is alleged that he claimed expenses for scuba trips which were unrelated to the mission.

The applicant stated that he disclosed all of his expenses, official and personal, for the benefit of the Finance and Accounting Office so that they could determine what if any funds were payable to him.

On 10 January 1994, as result of the investigation, the applicant was given a one day suspension for failure to follow instructions, for submitting inappropriate claims on his travel vouchers, and for failing to request authorization for leave taken in conjunction with his Temporary Duty (TDY) assignments.

On 24 February 1995, an agreement was made between the applicant and his Agency, to cancel his one day suspension.  The applicant agreed to waive compensation of back pay for the canceled suspension.

On 13 April 1995, based on further review of the final Report of Investigation, it was determined that the applicant did not commit the offense of false claim and fraud as alleged.




On 13 April 1995, the applicant was notified by the U.S. Army Criminal Investigation Command (USACIDC), that his request for an amendment of the investigative findings had been approved.  The agency’s field office in Panama had been instructed to prepare a Supplemental Report amending the Report of Investigation (ROI) to show that the investigation had failed to prove that the applicant had committed the offenses of False Claim and Fraud.  USACICD further advised the applicant that his name would remain in the subject block of the ROI and the Defense Clearance and Investigations Index (DCII), in accordance with Army Regulation 195-2 (Criminal Investigation Activities).

The Defense Department established a uniform standard for titling and indexing of criminal investigations by issuing Department of Defense Instruction 5505.7.  Under this policy, the primary purpose for titling and indexing an individual as the subject of a criminal investigation is to ensure that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes.  

Once an investigation has started the identity of the subject is required to be reported to DCII for indexing.  This reporting must be made at the start of an investigation, consequently, once the subject of an investigation is indexed, regardless of the final determination, the name may not be removed except in the case of mistaken identity.     

A Staff Advisory Opinion (COPY ATTACHED), recommended that the applicant’s request be denied, it stated that the applicant has not been labeled a criminal as he alleges; that the CID filed a supplemental report stating that the investigation failed to prove he had committed the offenses of false claim and fraud; and that there was sufficient evidence to support the original titling decision.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant has failed to show that the original titling decision was in error.  There was sufficient information to cause a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.  Titling or indexing alone does not denote any degree of guilt or innocence. 

2.  A supplement report amending the original ROI was filed stating that the investigation failed to prove that the applicant committed the offenses of false claim and fraud.  Therefore, there is no reason to assume that the CID titling will cause future problems for the applicant.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

__JH___  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  __FKM__  ___SLP__  DENY APPLICATION




						Loren G. Harrell
						Director