MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2001
         DOCKET NUMBER: AR2001054223

         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.

Mr. Carl W. S. Chun		Director
Ms. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		Member

         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)

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APPLICANT REQUESTS: In effect, that his name be removed from the subject block of a Criminal Investigation Division (CID) Report of Investigation (ROI), dated 18 August 2000, and that any information pertaining to the ROI be removed from military databases.

APPLICANT STATES: In effect, that he initiated an investigation under Article 139, Uniform Code of Military Justice after an unknown individual, whom he believed to be his ex-wife (an Army officer), forged a credit card convenience check against his account and deposited it in an account they used to share with USAA Federal Savings Bank. He states that his ex-wife’s unit wouldn't investigate the matter so he went to the CID office at Fort Hood, Texas and filed a complaint. He further states that his ex-wife’s unit believed her to be innocent and that, in retaliation against him for bringing the complaint, the CID office in Hawaii, after investigating the allegations, titled him with false swearing and making a false official statement. He believes that this retaliatory action will hurt his career.

EVIDENCE OF RECORD: The applicant's military records show:

He is currently serving on active duty in the rank of Captain/0-3 and is assigned to Fort Hood, Texas.

On 11 July 2000, the applicant reported to the CID office at Fort Hood that a credit card convenience check issued from his account with MBNA America Bank had been cashed in the amount of $1000.00. He further reported that the check had been deposited into an account held by his ex-wife. In his sworn statement, he stated he believed his wife was behind the forgery and larceny because she had previously electronically transferred the remaining balance out of an old account they had together with USAA Federal Savings Bank and she tried to withdraw all of the money from an old joint mutual fund account which was to be signed over to him after the divorce. He added that when he contacted his bank about the check, the fraud investigator for MBNA America Bank told him that the account to which the check was deposited belonged to his ex-wife. The case was coordinated with the Special Agent-in-Charge, Hawaii Field Office (CID), Schofield Barracks, Hawaii who agreed to accept the case.

On 12 July 2000, the Fort Hood CID contacted a USAA Federal Savings Bank customer service representative regarding the bank account numbers on the back of the forged MBNA America Bank convenience check and inquired if the account number was consistent with USAA’s account numbering sequence. The customer service representative stated the number provided was not consistent with any account numbers utilized by USAA. It was determined that the account number belonged to a City Bank checking account.

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On 31 July 2000, the Hawaii CID office initiated an investigation of the forgery and larceny allegations against the applicant’s ex-wife. On 2 August 2000, the applicant’s ex-wife denied in a sworn statement that she forged the applicant’s name on the back of a credit card convenience check. She also denied any knowledge of the account’s existence and further denied having an account with City Bank.

On 2 August 2000, the investigation revealed that the credit card convenience check was deposited into the account of a civilian female who resides in the vicinity of the former residence the applicant and his ex-wife had shared as husband and wife. A City Bank customer service representative noted that the civilian female made regular deposits of large sums of money. She also stated that the civilian female was also known for depositing second party checks on a regular basis.

On 7 August 2000, the CID coordinated with the MBNA America Bank fraud investigator handling this matter. The fraud investigator stated that it was the applicant who had emphatically stated that he recognized the last three digits of the account as a former joint checking account that he shared with his ex-wife. Therefore, MBNA America Bank did not conduct any further inquiry into the identity of the account holder.

On 8 August 2000, CID Hawaii coordinated with a member of the Criminal Law Division, Staff Judge Advocate Office, Schofield Barracks, Hawaii, who opined that the applicant committed the offenses of False Swearing and making a False Official Statement when he rendered a sworn statement and affidavit in which he reported MBNA America Bank representatives had told him the account belonged to his ex-wife.

On 18 August 2000, CID Hawaii concluded that the applicant’s ex-wife did not forge his signature on a credit card convenience check, nor did she deposit the check to her account or otherwise receive the $1000.00.

Army Regulation 195-2 states that requests to amend CID ROI will be granted only if the requester submits new, relevant, and material facts that 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.

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

1. 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 this requirement.

2. The Board found no evidence of retaliation by CID Hawaii or the applicant’s ex-wife’s chain of command. The investigative facts developed during the course of the investigation failed to develop any evidence to substantiate the offenses of forgery and larceny by the applicant’s ex-wife, as the applicant reported.

3. The evidence of record disclosed that the applicant rendered a sworn statement and an affidavit, both of which he knew to be false, indicating that a fraud investigator from MBNA America Bank told him that the account into which the funds from his credit card convenience check were deposited belonged to his ex-wife when, in fact, it was the applicant who reported this information to the MBNA America Bank fraud investigator.

4. The decision to list a person's name in the title block of a CID ROI is purely an investigative determination based upon the existence of credible information that the individual so listed may have committed a criminal offense. In this case, given the applicant's sworn statement and affidavit and the conflicting information provided by the MBNA America Bank fraud investigator, the CID had sufficient reason to title the applicant.

5. 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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JEV___ __BJE__ ___WDB_ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054223
SUFFIX
RECON
DATE BOARDED	20010821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	134.0000
2.
3.
4.
5.
6.