IN THE CASE OF:	  

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080017549 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her record be corrected by removing her name from the titling block of a U. S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI).

2.  The applicant states, in effect, that an ROI indicates she was charged with perjury.  She also indicates that she was young and ignorant at the time of her wrongdoing.  She further states that she has been informed she cannot rejoin the military unless this ROI is expunged and that she has lost several jobs because of the report.  

3.  The applicant provides a USACIDC Letter, dated 15 August 2008, and the CID ROI in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows she enlisted in the Regular Army (RA) and entered active duty on 3 November 1995.  She was trained in, awarded, and served in military occupational specialty 92G (Food Service Operations Specialist).

2.  An Agent’s Investigation Report (AIR) includes statements that indicate the applicant filed a charge stating that she had been the victim of a rape, on 
3 May 2002, and named another Soldier as the perpetrator of this crime.

3.  On 6 May 2002, the applicant completed a Sworn Statement, in which she indicated she had consensual sex with the alleged perpetrator and only reported that she was raped after getting into a fight with him after she found out he was still married.  She also confirmed she had not been raped.

4.  On 15 July 2002, a CID ROI determined the applicant was not raped on 3 May 2002, as she originally reported, which was confirmed in her sworn statement of 6 May 2002, in which she admitted to having consensual sexual intercourse with the other named Solder and that she falsely reported she had been raped to the Killeen Police Department.  It was further determined that in accordance with the investigative guidelines for sexual misconduct outlined in Department of Defense Instruction (DODI) 5505.8, Army Regulation 600-20, and 
CID Regulation 195-1, the applicant’s private consensual sexual misconduct was not within the purview of the CID and it was referred to the appropriate commanders for disposition.

5.  On 22 October 2002, a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was completed by the applicant's unit commander.  This report indicated the applicant had committed the offense of “false swearing.”  It also showed she was punished by a written reprimand on 19 June 2002.

6.  The applicant continuously served in the Army until she was honorably released from active duty by reason of completion of required service on 19 June 2006.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows she completed 10 years, 7 months, and 17 days of active federal service.

7.  On 15 August 2008, the Director, Crime Records Center, USACIDC, notified the applicant that only partial relief could be granted on her request for release of information from their files because certain records are exempt from the mandatory disclosure provisions of the Freedom of Information Act (FOIA) given that its release could violate the personal privacy of other individuals mentioned in the report.

8.  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 AND CONCLUSIONS:

1.  The applicant’s contention that her USACIDC record which shows she committed the charge of “false swearing” should be expunged to allow her to reenlist in the Army has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination.  The applicant has failed to provide evidence satisfying this standard for removal.  

3.  The evidence of record confirms that the results of a CID investigation provided a sufficient legal basis for the applicant to be titled for “false swearing,” as confirmed by her Sworn Statement in which she recanted her original report that she was raped by another Soldier, but instead had consensual sex with him on 3 May 2002.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process.  

4.  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 and has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   x_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080017549



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ABCMR Record of Proceedings (cont)                                         AR20080017549



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