MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 April 2003
         DOCKET NUMBER: AR2002080140

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Ms. Marla J. Troup		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, deletion of all references to him in records held by the Criminal Investigation Division (CID) and other agencies relating to a 1980 titling action based on an allegation of rape, to include any entries in criminal justice databases and reports of investigation (ROI).

APPLICANT STATES: In effect, that the charge of rape was affirmatively disproved in an Article 32 investigation held at Fort Campbell, Kentucky, in early 1981. He claims that the charges were dismissed, and no further action followed. He further indicates that despite this exoneration, the titling action has remained on the record and appears in any criminal background check done on him. He states that since retiring in 1999, he has lost four jobs as a direct result of this record, either due to child care regulations or the inability to obtain a security clearance. In support of his application, he provides a letter of support from his former commanding officer.

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

He was one of two subjects investigated by the CID for an incident that was reported on 17 October 1980. The CID ROI synopsis indicates that the investigation disclosed that the applicant had held a victim while the second subject engaged in forcible sexual intercourse with the victim against her will.

On 2 January 1981, the Fort Campbell, Kentucky, Trial Counsel of the Staff Judge Advocate (SJA) office, informed the CID investigator that the convening authority had decided to take no action against the applicant based on the results of an Article 32 investigation. However, this SJA official did conclude that the applicant should be listed in the title block of the CID report for rape.

On 31 August 2000, the applicant’s former battalion commander submitted a statement in his behalf. It indicated that in October 1980, the wife of one of the unit’s soldiers came to his office and alleged that the unit’s first sergeant and the applicant had sexually molested her at a unit outing. The former battalion commander states that he consulted with the Division legal office and requested an Article 32 investigation. He states that the investigation findings indicated that there was no substance to the allegations and that soldier and his wife had concocted the allegations to get back at the first sergeant and the applicant for some perceived mistreatment.

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On 20 March 2001, in a response to the applicant’s request for an amendment to the CID ROI made through his attorney, the Director of the Crime Records Center, Criminal Investigation Command (CIC), Fort Belvoir, Virginia, notified the applicant’s attorney that after carefully considering the request to amend the CID ROI, it was denied. The applicant’s attorney was further advised that the record in question is a an investigative document compiled and maintained for law enforcement purposes, and the determination to list an individual as a subject is based on the investigative findings irrespective of whether judicial, nonjudicial, or administrative action is taken. Finally, the applicant’s attorney was notified that this denial constituted final action on behalf of the Secretary of the Army with respect to the governing regulation.

On 2 May 2001, the applicant’s attorney was again informed by the Acting Director of the Crime Records Center, CIC, that final action had been taken on the applicant’s request to amend the ROI in question, and it was denied. The applicant’s attorney was also informed that any future amendment consideration should be addressed to this Board.

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: 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. The Board notes the applicant’s contention that his name should be removed from the DCII because it has resulted in his unjustly being denied civilian employment, and it carefully considered the statement of his former battalion commander. However, it finds neither of these factors is sufficiently mitigating to warrant the requested relief.

2. Although the applicant’s former battalion commander elected not to take action based on the findings and conclusions of the Article 32 investigation he had initiated, this factor alone does not provide a sufficient evidentiary basis to support removing the applicant’s name from the title block of the CID ROI.

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3. The evidence of record confirms that the CID agents responsible for the investigation had an adequate basis for their titling decision in that the complaining witness alleged that the applicant had held her down while another noncommissioned officer had sexually assaulted her. Unless an investigator is confronted with clear evidence that a complaint is utterly false, he/she is obligated to investigate the complaint. Although the subsequent Article 32 investigation concluded that the evidence did not support the complaint, the CID did have a reasonable basis to believe that a crime had likely been committed, a far lower standard than the probable cause necessary to proceed with charges against the applicant. The later decision not to pursue charges, or even a later acquittal of the charges had the case proceeded to trial, would not in itself give reason to remove the applicant from the title block.

4. In addition, a representative of the command SJA determined there was sufficient probable cause to list the applicant in the title block of the CID ROI for rape. At the time he made this determination, he was aware that the battalion commander had elected not to take action against the applicant based on the results of the Article 32 investigation.

5. DOD guidance specifies that to administratively remove a subject’s name from the DCII, mistaken identity or a complete lack of credible evidence to dispute the initial titling determination must be shown. In view of the facts of this case, the Board finds the applicant has provided insufficient evidence to satisfy the burden of proof required to satisfy this burden of proof and it concludes there is no basis for removing or amending any titling action and/or to grant the requested relief.

6. The narrative portion of the CID ROI reflects the fact that an Article 32 pretrial investigation was conducted and that the charges were dismissed as a result of that investigation. When an Article 32 investigation, similar to a civilian grand jury investigation, results in a dismissal of all charges, the Army does not retain a permanent record of that investigation. Because of this fact, the applicant is likely to be unsuccessful in his attempts to locate a copy of that Article 32 investigation. Further, a Federal Bureau of Investigation (FBI) records check does not show that the applicant was suspected or accused of the offenses listed in the CID ROI.

7. 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.

8. 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

__fe ____ ___mt___ ___le ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080140
SUFFIX
RECON
DATE BOARDED	2003/04/10
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 281	126.0400
2.
3.
4.
5.
6.