MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 April 2003
         DOCKET NUMBER: AR2002079154

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor Jr.		Chairperson
Ms. Terry L. Placek		Member
Mr. Robert Duecaster		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: The removal of his name from the title block of a United States Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI).

APPLICANT STATES: In effect, that he was unjustly titled in a USACIDC Report of Investigation for dereliction of duty during his first year in the Military Police (MP) Investigation Program. He further states that he was an E-4 who had been in the service for 4 years and at the time, being a new MP investigator, he followed his leadership as directed. However, he received a letter of reprimand from the brigade commander for the incident and was titled for dereliction of duty. He goes on to state that in the first supplemental to the ROI dated 26 September 1979, the USACIDC Staff Judge Advocate (SJA) determined that the facts and circumstances presented in the report did not substantiate titling him for misprision of a felony or dereliction of duty and deleted him from the ROI. However, in the second supplemental dated 19 October 1979, the SJA determined that he should not be titled for misprision of a felony, but maintained him on the title block for dereliction of duty. The third supplemental dated in February 1992 continued to maintain him in the title block for dereliction of duty. He continues by stating that a review of the ROI will show to any reasonable and prudent person that he took all reasonable and necessary steps in making proper notification in the drug transaction and safeguarding the evidence, without jeopardizing an ongoing case.

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

He enlisted on 29 November 1972, for a period of 3 years, training as an MP and assignment to Fort Bragg, North Carolina. He successfully completed his training and was transferred to Fort Bragg. He was advanced to the pay grade of E-4 on 4 April 1974.

He was transferred to Germany on 1 April 1976 and completed a 5-week MP Investigator course in March 1977.

On 6 July 1977, the applicant was titled in a USACIDC ROI for misprison of a felony and dereliction of duty. Two other MPs were also titled in that report as well. The ROI indicates that the applicant failed to report a drug transfer incident, made no official or written report of two incidents and that the applicant told his commander (a captain) to destroy a Vesparax tablet by flushing it down a toilet, an action that was in violation of Army Regulations 190-22 and 195-5.

On 26 September 1979, a first supplemental to the ROI was prepared which indicates that the USACIDC SJA determined that the applicant should be deleted from the report because the facts and circumstances did not substantiate titling the applicant.

On 19 October 1979, a second supplemental of the ROI was prepared which indicates that the USACIDC SJA determined that the facts and circumstances presented in the ROI did not substantiate titling the applicant for misprison of a felony. He remained titled for dereliction of duty.

On 10 February 1982, a third supplemental of the ROI was prepared which titled the applicant and his supervisor for dereliction of duty.

The applicant remained on active duty through a series of continuous reenlistments, was promoted to the pay grade of E-6 on 9 November 1980 and was honorably released from active duty on 30 November 1992. He was placed on the Retired List in the pay grade of E-6 on 1 December 1992. He had served 20 years and 2 days of total active service.

The applicant submitted a request to the USACIDC on 17 September 1997, requesting that his name be removed from the title block of the ROI for dereliction of duty based on the first supplemental of the ROI which deleted him from the ROI.

On 2 August 2002, the USACIDC informed the applicant that after carefully considering his request and the evidence available, it was concluded that the investigation established probable cause to believe that he had committed the offense of dereliction of duty when he failed to report or make a written record of a drug offense. His request to be removed from the title block of the ROI was denied.

Department of Defense Instruction (DODI) 5505.7 serves as the authority and criteria for CID titling decisions. It states, in pertinent part, that titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers. Titling or indexing alone does not denote any degree of innocence. The criteria for titling are a determination credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made the object of a criminal investigation. In other words, if there is a 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.

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 applicant’s contention that he was unjustly titled by the CID appears to be without merit. Individuals who are the subject of an investigation are titled without regard to innocence or guilt. In this case, all of the individuals involved in the alleged incident were titled and were deemed to have committed an offense.

3. Although the applicant asserts his innocence, the issue before the Board is not one of guilt or innocence, but whether or not he was properly titled in a CID investigation. Based on the evidence submitted by the applicant as well as the evidence of record, the Board finds that he was properly titled, that there is no case of mistaken identity, and that there is no basis to remove his name from the title block of the investigation.

4. In regards to the applicant’s innocence, there is insufficient information in the evidence made available to the Board to ascertain with any degree of certainty if the CID erred in its assessment of the applicant’s involvement and the Board will not attempt to second-guess investigators on the scene. Inasmuch as the Army has a need to maintain such records and since it is clear that the applicant was the subject of an investigation, the Board finds no error or injustice in titling the applicant as a subject of an investigation.

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

__tlp ____ __rld____ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079154
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/04/24
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 328	134.000/REM CID TITLE
2.
3.
4.
5.
6.