MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002081356

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry		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: That his name be removed from the subject block of Criminal Investigation (Division) Command (CID) Report of Investigation (ROI) and that he not be "titled."

APPLICANT STATES: In effect, that despite the decision of his chain of command to take no action based on this CID report, the report itself continues to unfairly impact both his military career and his civilian job opportunities. He states that this case arose by a statement made by a biased party, that the complainant had ulterior motives when he reported that the applicant had received unauthorized jump pay, and that these motives were based on a previous incident. He contends that he was involved in a CID operation that resulted in a soldier's conviction for attempted murder, this soldier was a friend of the complainant and he is confident that the complainant singled him out because of his involvement with this case.

The applicant goes on to state that many soldiers within the unit received unauthorized jump pay; however, he was the only one who was investigated for this offense. He claims that his chain of command's decision not to take any action reflects their desire that he not be treated differently from other soldiers in his unit in the exact same situation. He contends that because of the recurring threats that he has received stemming from his involvement in the CID operation, he is unable to safely serve at a military installation. The only position in which he can protect himself and his family is that of a recruiter stationed away from an installation. He states that he does not qualify to serve as a recruiter because his name is listed in the subject block of this CID report. He states that if he cannot serve as a recruiter, he has no choice but to separate from the service.

The applicant further contends that it appears as though his commitment to help the Army by assisting CID with an investigation may ultimately destroy any chance he has of a normal life. He states that if it weren't for his involvement, he would not receive daily threats and repeated acts of violence. However, he believes that he did the right thing by helping to apprehend a criminal and protect two lives.

In support of his application, he submits an undated letter of explanation; the first four pages of the CID ROI; and two letters, dated 15 August 2002 and
11 September 2002, from the U.S. Army CID.

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

The applicant enlisted in the Regular Army on 23 May 1995 and trained as an infantryman.

At the time the applicant submitted his application to the Army Board for Correction of Military Records, he was serving on active duty in pay grade E-6.

On 15 December 1999, the CID was notified by a CID source that the applicant had committed jump pay fraud.

On 2 December 2000, the applicant was listed in a CID ROI as a subject and charged with failure to obey an order or regulation, fraud and larceny of government funds; the fraud charge was listed as unfounded.

The investigation established probable cause to believe that the applicant committed the offense of Larceny of Government funds, when he received $900 in unauthorized jump pay, knowing he had not completed the required jumps. The applicant also committed the offense of Failure to Obey an Order or Regulation, as he was the unit Training Non-Commissioned Officer and failed to follow a regulation pertaining to submitting pertinent documents to terminate his jump pay.

The investigation further established the applicant did not commit the offense of Fraud as initially reported as he did not make any claims to the U.S. Government in order to continue to receive his jump pay.

The CID Agent's Investigation Report (AIR), dated 26 January 2000, states that the matter pertaining to a possible threat against the applicant was investigated which met with negative results.

The CID AIR, dated 26 January 2000, states that the information pertaining to other soldiers who committed jump pay fraud would be investigated under a separate action.

The CID ROI, dated 2 February 2000, indicates the investigation was terminated when the applicant's unit commander revealed that no action would be taken against the applicant for the listed offenses.

The applicant submitted an appeal to the CID, Army Crime Record Center, requesting that his name be removed from the title block of the CID ROI. On
11 September 2002, the applicant's request was denied.

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

Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling, simply state, is if there is reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof (mere scintilla of evidence), far below the burdens of proof normally borne by the Government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of the evidence), and in searches (probable cause).

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. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity.

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 evidence of record does not support the applicant's contention that he was the only one who was investigated for jump pay fraud. The CID AIR, dated
26 January 2000, states that the information pertaining to other soldiers who committed jump pay fraud would be investigated under a separate action.

2. The Board considered the applicant's contention that he received daily threats and repeated acts of violence stemming from his involvement in a CID operation. However, the CID AIR, dated 26 January 2000, states that the matter pertaining to a possible threat against the applicant was investigated which met with negative results.

3. Although the applicant has asserted that his case arose by a statement made by a biased party, the issue before the Board is whether or not he was properly titled in a CID investigation. Based on the evidence submitted by the applicant and the evidence of record, the Board finds that the applicant 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 CID ROI.

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 may have committed a criminal offense. As such, it is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action.

5. 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.

6. 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

FNE____ HOF_____ MJT_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081356
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	126.0400
2.
3.
4.
5.
6.