IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20080017713


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 his name be removed from the subject line of U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI) Number 00**-20**-CID146-590**.

2.  The applicant states there was no credible information sufficient to initiate an investigation of his actions; he was never charged or punished as a result of the investigation; the titling action has prevented him from serving on active duty for more than 5 years; and three credible witnesses have now come forward and provided sworn affidavits refuting every allegation made against him in the CID ROI.

3.  The applicant provides attachments shown in Tabs A through L in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no further request or statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was a Military Intelligence (MI) officer serving as an Individual Mobilization Augmentee (IMA) in the U.S. Army Reserve (USAR) with intermittent 2-week IMA assignments in a variety of intelligence officer positions with Headquarters (HQ), Special Operations Command South (SOCSOUTH), Quarry Heights (later Corozal East), Panama.  Many USAR Soldiers who periodically staffed HQ, SOCSOUTH were members of the 697th IMA Detachment (Det), Burbank, CA.

2.  The 697th IMA Det was a USAR unit activated in October 1992 by Permanent Orders 93-1, HQ, SOCSOUTH for the purpose of providing a pool of trained Reservists to HQ, SOCSOUTH who could be called upon to fill staff positions on an individual basis.  Also in accordance with the 697th IMA Det’s activation, the orders specified:

	a.  unit members were to administratively train as Army Reservists 1 weekend per month to fulfill requirements to support SOCSOUTH with administrative support personnel;

	b.  unit members would train for retirement points, not military pay;

	c.  the unit would not be authorized a property book or permitted to acquire property;

	d.  the unit would not be authorized weapons; and

	e.  the unit would not be authorized to issue badges or identification cards.

3.  HQ, SOCSOUTH required the 697th IMA Det to provide annual training plans for approval.  No training plan was submitted until 1999 when the detachment commander submitted an ambitious plan heavy on adventure-type training in Soldiering skills, but lacking training in staff administrative procedures.  The plan was not approved and SOCSOUTH, for a variety of reasons, decided in February 2000 to inactivate the unit.  The unit was officially inactivated on 3 May 2000.

4.  On or about 18 January 2000, a joint investigation was initiated by CID, the Federal Bureau of Investigation (FBI), and the California Department of Justice concerning allegations that the detachment commander and various members of the 697th IMA Det were involved in numerous illegal activities centering around the creation of fraudulent documents to facilitate the illegal procurement of concealed weapons permits, automatic weapons, and military equipment.  The CID had discovered documents which indicated that the detachment commander and others had forged or used forged military letterhead documents to acquire military property; had created, used, or carried fraudulent military identification cards; had forged or used forged military letterhead documents to obtain civilian law enforcement permits to carry concealed weapons; and had forged or used forged military letterhead documents to obtain assault rifles and machine guns for unauthorized training and for personal use in connection with a movie prop supply company owned by the detachment commander and others.
5.  As a result of the joint CID/FBI investigation, the detachment commander was indicted by the 2002 Grand Jury in the United States District Court for the Central District of California on 16 counts, including:  theft of government property, impersonation, conspiracy, false official statements, and unauthorized possession of machine guns.  Following his arrest, he pled guilty to 4 counts of the original indictment:  unlawful possession of a machine gun, unlawful production of identification documents, impersonating a federal officer, and false official statements.  The maximum penalty for the above was 33 years in prison and a $1 million fine.  In May 2005, the court sentenced him to 3 years’ probation based upon his imminent death from liver cancer.  He died on 27 February 2007.

6.  During the early stages of the criminal investigation, the applicant was suspected of having facilitated and supported the detachment commander’s various criminal endeavors, including:  conspiracy to impersonate a federal officer, making false official statements, and obstruction of justice.  Investigation revealed that, between March 1998 and March 1999, the applicant created and signed memoranda on Department of Defense letterhead which assisted the detachment commander by facilitating his ability to obtain concealed weapons permits to which he was not entitled by asserting that he [the detachment commander] performed secret courier missions involving highly classified defense information.  Additionally, the applicant signed "Courier Orders" with no order number which identified the detachment commander as performing courier duty for an indefinite period of time.  The CID researched the assignment history of the detachment commander and determined he was never authorized to be a courier or was assigned as a courier, nor was he ever authorized to carry any type of weapon in the course of his military duties with the 697th IMA Det.  As a result of the CID’s investigation, the applicant’s security clearance was suspended.

7.  The CID titled the applicant in (ROI) Number 00**-20**-CID146-590**, along with the detachment commander and others.  The CID investigation established probable cause to believe the applicant committed the offenses of conspiracy, making false official writings, and wrongful use of government seals.  The final CID ROI is dated 1 November 2004.  This ROI, on pages 18-19 states:

On 9 Sep 04, coordination was effected with Assistant U.S. Attorney [redacted] who stated the facts evidence a degree of criminal misconduct on the part of [applicant]; however, this case does not meet the U.S. attorney’s standards required for federal prosecution.  Mr. [redacted] emphasized this should not be construed by this command in such a way as to preclude consideration of other available criminal, civil, contractual, or administrative remedies, and that it may be appropriate for the command to consider initiating other available remedies after discussing with military attorneys.

8.  The applicant, on 11 January 2005, received orders transferring him from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired Reserve) effective 13 May 2005.  On 21 January 2005, the applicant received a memorandum of reprimand from the Commander, U.S. Army Human Resources Command, St. Louis, MO.  The reprimand read in part:

[Y]ou executed documents and correspondence for the purpose of misleading state and local law enforcement….You were derelict in your duties when you issued courier orders, authorized military concealed carry of weapons, falsely stated the mission of the 697th, and assisted in the renewal of a civilian concealed carry weapons permit….[Y]our dereliction of duties shows an affirmative lack of character….Your conduct was inexcusable and raises questions about your ability and fitness to serve as an Army officer.

The commander stated her intent to file the reprimand in the performance portion of the applicant’s OMPF.

9.  The applicant rebutted the memorandum of reprimand and, on 1 March 2005, the commander stated that she would not file the reprimand in the applicant’s OMPF.

10.  On 24 March 2005, the applicant received orders discharging him from the USAR Control Group (Reinforcement) effective 13 May 2005.

11.  The applicant, on 14 November 2007, applied to the Army Board for Correction of Military Records (ABCMR) to remove his name from the title block of the CID ROI.  He was directed to make his request to the Director, U.S. Army Crime Records Center, Fort Belvoir, VA, in order to properly exhaust his administrative remedies prior to petitioning the ABCMR.  On 10 March 2008 and 28 September 2008, the Army Crime Records Center denied his request.

12.  In his current application, the applicant provides three statements from former colleagues.

	a.  A retired colonel who served in the Office of Reserve Affairs, SOCSOUTH stated the 697th IMA Detachment was a legitimate Army unit which provided trained linguists, intelligence analysts, and interrogators.  When the original commander of the unit stepped down, he functioned as the senior advisor to the detachment "using the title ‘Director, Special Operations Command and Control Element, Army Element’…provid[ing] senior oversight for the Detachment."  The applicant later assumed this role in 1995 or 1996.  As Director, SOCCE, he was "fully authorized to produce memoranda and other military documents deemed necessary."

	b.  A former Director of Intelligence (J2), SOCSOUTH stated the allegations against the applicant are untrue.  The 697th IMA Detachment did exist.  The applicant did not have a motive or incentive to commit illegal activities.

	c.  The former Special Security Officer (SSO) of SOCSOUTH stated the applicant served as an IMA to SOCSOUTH in several positions within the J2.  He opined the CID misinterpreted the applicant’s actions as illegal when, in fact, everything he did was with the concurrence of his superiors.  In 1995, the applicant, then a Major, was supporting Joint Special Operations Task Force (JSOTF) Fuertes Defensas 95.  As SSO during that period, the former colleague asked the applicant to serve as his deputy.  The applicant’s Officer Evaluation Report (OER) for that period clearly states that he performed the duties of SSO for the JSOTF, "…ensuring compliance with all security regulations and requirements pertaining to the establishment and operation of a Tactical Sensitive Compartment Intelligence Facility."  Therefore, the courier orders and certifications he signed were completely legitimate.

13.  Department of Defense Instruction 5505.7, as implemented by Army Regulation 195-2 (Criminal Investigation Activities), contains the CID authority and criteria for titling decisions.  It states that titling alone does not indicate any degree of guilt or innocence.  The criteria for titling are a determination that credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made an object of a criminal investigation.  Simply stated, if there is reason to investigate, the subject of the investigation is titled.  The instruction states, generally, that once a person has been indexed the name shall not be removed, except in the case of mistaken identity or a determination that credible information did not exist at the time of the titling decision that the individual committed the offense for which he/she was titled.  That a person is subsequently found not to have committed the offense or that the offense did not occur are not sufficient basis for removal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his name be removed from the subject line of CID ROI Number 00**-20**-CID146-590**.



2.  It is unclear whether the applicant was ever a member of the 697th IMA Det which was located in Burbank, CA.  However, as an IMA with HQ, SOCSOUTH, he came into contact with the commander of the 697th IMA Det and other members of the unit on a routine basis during his periodic IMA tours in Panama.

3.  The 697th IMA Det drew the attention of the CID and the FBI for the illegal acquisition of military property, including prohibited firearms.  As the investigation widened, it was discovered the detachment commander of the 697th IMA Det had illegally acquired concealed weapons permits from civilian law enforcement agencies based, in part, on documents signed by the applicant that attested to his need for such permits as a result of his courier duties.  The CID and the FBI determined the detachment commander was not entitled to concealed weapons permits and suspected the applicant of having fraudulently conspired with the detachment commander to obtain them.  The CID therefore correctly titled the applicant on suspicion of conspiracy, fraud, and false writings.

4.  The CID’s titling of the applicant is further validated by two points in addition to the basic investigative findings:

	a.  First, an Assistant United States Attorney opined that the facts produced by the investigation pointed to a "…degree of criminal misconduct…" on the applicant’s part.  The Assistant United States Attorney further opined the applicant’s misconduct did not rise to the standards required for federal prosecution, but the military justice system may consider prosecution.

	b.  Second, the applicant was sanctioned by the Commander, U.S. Army Human Resources Command, St. Louis, MO, by an administrative memorandum of reprimand and, although the applicant rebutted the reprimand, the commander did not rescind it; she merely chose not to file it in his OMPF.

5.  The Department of Defense instructions concerning CID titling are clear in that once a person has been indexed, the name shall not be removed except in the case of mistaken identity.  That a person is subsequently found not to have committed the offense or even that the offense did not occur are not sufficient bases for removal or a determination that credible information did not exist at the time of the titling decision that the individual committed the offense for which he/she was titled.  However, mistaken identity is not the sole reason for removing a person's name from a CID titling action.  Under ABCMR authority it can also be removed where the titling action could cause a manifest injustice.  This is not such a case, as there is evidence that the applicant did engage in inappropriate behavior.

6.  In order to expunge the applicant's criminal record entry, he must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that he was the victim of mistaken identity, or that the titling action has resulted in a manifest injustice.  The applicant 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)                                         AR20080017713



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ABCMR Record of Proceedings (cont)                                         AR20080017713



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