IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20090001066 


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 correction of his United States (U.S.) Army records by removing [expunging] documents concerning his titling action and criminal activity.   

2.  The applicant states that the narrative in Military Police Report (MPR) 
00-MPC937-*****-***B is illegal, unethical, and tainted by criminal acts committed by United States Army personnel.  He contends his blood alcohol level was illegally altered from 0.03 percent to 0.7 percent; and that the titling action was illegal, unethical, and unjust.   He further contends that he discovered the titling action in response to receiving a letter from a government agency in May 2007.  In this letter, the Federal agency informed the applicant that it was considering denying his application for a secret security clearance because of "criminal conduct" based on the Army's titling action in January 2000.  

3.  The applicant provides, in support of his application, 12 pages of narrative with the following enclosures:

	a.  a 4-page Appendix titled "the Illegal, Incomplete and Knowingly and Criminally Fabricated 'Narrative' of MPR 00-MPC937-*****-***B";

	b.  DA Form 2823 (Sworn Statement) by investigator, dated 19 January 2000;

	c.  DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 9 February 2000; and DA Form 3975 (MPR) with Control Number 00-MPC937-*****-***B, dated 24 January 2000; 
	d.  a letter from the Director of Emergency U.S. Army Installation Management Command, Europe Region, dated 27 July 2007;

	e.  a letter from the Director, Crime Records Center, U.S. Army Criminal Investigation Command (USACIDC, also known as CID), Fort Belvoir, Virginia, dated 20 February 2008;

	f.  32 CFR (Code of Federal Regulations) 505.6 (Amendment of Records);

	g.  a letter from the Chairman, Department of the Army Privacy Review Board (DA PRB), dated 13 August 2008;

	h.  a 9-page rebuttal to the Department of the Army Privacy Review Board Decision, dated 14 November 2008;

	i.  an article titled "The CID Titling Process - Founded or Unfounded?"; published in DA Pam 27-50-309 (The Army Lawyer), in August 1998;

	j.  DA Form 2823, Sworn Statement of witness, dated 19 January 2000;

	k.  Army Regulation 190-45 (Law Enforcement Reporting) cover page only followed by a portion of Army Regulation 190-30 (Military Police Investigations);

	l.  two letters written in German, dated 22 August 2007 and 16 June 2008 [no translations provided];

	m.  Army Regulation 190-30, paragraphs 4-8 through 4-18;

	n.  Army Regulation 27-9 (Misconduct by Civilians), pages 1 and 5;

	o.  Department of Defense Instruction (DODI) Number 5505.7, Titling and Indexing of Criminal Investigations in the Department of Defense; and

	p.  Army Regulation 195-2 (Criminal Investigation Activities) page 1.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  DA Form 3975, dated 24 January 2000, as provided by the applicant, shows the following:  

	a.  it consists of 10 pages with redacted personal information pertaining to other individuals;

	b.  it reports the applicant, then a nonappropriated fund employee while  working for the U.S. Army in the Federal Republic of Germany committed the criminal offense of bodily injury under German law, between 0016 and 0026 hours (military time), on 19 January 2000.

	c.  Section III, Item 16b, indicates the applicant was administered a blood/alcohol test that resulted in a 0.03 percent reading. 

   d.  Section VII (Narrative), partly redacted, indicates that at 0030 hours, 
19 January 2000, the military police station was telephonically notified of an assault.  The investigation revealed the applicant confronted two or more individuals who had thrown snowballs at him.  The applicant then pushed and struck one of those individuals, breaking that person's front tooth.  Two other individuals struck the applicant in the lip and left side of the head.  The applicant and the two other individuals were detained and transported to the military police station and advised of their rights, which were waived.  The applicant rendered a written statement denying that he threw any snowballs or punches.  The other two individuals admitted to throwing snowballs and to striking the applicant twice.  The German police were notified of the incident but declined to investigate.  The applicant was administered a blood alcohol test which resulted in a 0.7 percent reading [NOTE:  This appears to be in error.]  The other two individuals (names redacted) had a 0.7 percent result.]  Subjects number two and three were also administered blood alcohol tests resulting in a 0.7 and 0.03 percentage, respectively.  The case was coordinated with the Staff Judge Advocate who opined that there was sufficient evidence to title the applicant and the other individuals with the offense. 

3.  A DA Form 2823, dated 19 January 2000, written by a witness to the incident stated that he saw people throwing snowballs randomly at people who were leaving a party.  The applicant was one of the persons leaving the party.  After the applicant was hit by two snowballs, he asked them why they were throwing the snowballs.  The individuals walked up to the applicant and during the argument, two individuals were sarcastically mocking the applicant by saying, "we're just having fun, we don't want to fight you."  One of the three approached the applicant saying, "shut up bitch, let's see what you got."  After this, he punched the applicant, who in turn responded with a punch of his own.  A couple of minutes later, while security was arriving, another individual kept instigating the fight with insults and by throwing snowballs.  The investigator administering the oath to the witness referred to Article 136 (b)(4) of the Uniform Code of Military Justice (UCMJ).  

4.  DA Form 4833, dated 9 February 2000, indicates the applicant's supervisor informed the Commander, Garmisch Military Police Station, that the applicant had been counseled and warned about his behavior and that he had been given a 3-day suspension from 2 through 4 February 2000. 

5.  On 27 July 2007, the Director of Emergency Services, U.S. Army Installation Management Command, Europe Region, wrote a letter to the applicant in response to his inquiry.  The letter, in part, informed the applicant that at the time of the subject incident, he was employed as an Armed Forces Recreation Center civilian.  As such he was considered a member of the civilian component of the U.S.  According the North Atlantic Treaty Organization (NATO) agreement regarding the Status of their Forces (NATO SOFA), the applicant was expected to comply with the laws of the Federal Republic of Germany which retained exclusive jurisdiction over members of the civilian component with respect to any offenses committed within its territory and punishable by its laws.  The letter also informed the applicant that if he thought the MPR was inaccurate, irrelevant, untimely or incomplete he could request amendment of that record in accordance with paragraph 3-6, Army Regulation 190-45, Law Enforcement Reporting.   

6.  On 22 August 2007, the applicant was informed by German authorities that they did not have any information concerning the subject incident [letter written in German without an English translation].

7.  On 20 February 2008, the Director, Crime Records Center, informed the applicant that his request for amendment of the MPR had been carefully reviewed, considered and denied.  The applicant was further informed that he could appeal the denial to the DA PRB within 30 days of the date of this letter.

8.  On 16 June 2008, the applicant was informed by German authorities in Munchen that there was insufficient evidence upon which to base any charges [letter written in German without an English translation].


9.  On 13 August 2008, the Chairman, DA PRB, responded to the applicant's 
13 March 2008 denial appeal to amend the MPR.  After an extensive review of the documents supporting his appeal, and careful consideration and deliberation, the DA PRB denied the appeal.  The DA PRB found that the evidence did not support a finding that the MPR was inaccurate as a matter of fact.  The applicant was further informed that he may seek judicial review of the Army's refusal to amend his record.  He was also informed that a Statement of Disagreement must be received by the CID within 120 days and would be made an integral part of the record.  Anyone who may have access to, use of, or need to disclose information from the record would be made aware that the record had been disputed.  

10.  On 14 November 2008, the applicant wrote a 9-page Statement of Disagreement, wherein he stated: in part:

	a.  that he was not then in the military and had never been in the military.  He was the victim in the snowball incident and he was attacked by five drunken employees from Chiemsee who attacked him at least six different times; 

   b.  that the U.S. Army military police, under the direction of a lazy and unethical Staff Judge Advocate, decided to secretly title him with assault.  The 
titling action was inaccurate, unethical, unlawful, and unconstitutional;
   
   c.  that the Federal Republic of Germany had jurisdiction over the incident and that German authorities had no record of the snowball incident or of any call from the U.S. authorities;
   
   d.  that the entry in the MPR indicating that he had been suspended for 
3 days is a lie and that there is no suspension recorded in his pay records;

	e.  that he discovered the titling action 7 and a half years after the fact;

	f.  that he has not been provided a copy of the provost marshal's denial letter and believes that this seemingly unethical and illegal activity is an attempt to cover up something;

	g.  that the investigator's own sworn statement shows he was the victim of the snowball incident;

	h.  that CFR 32, section 505.6 outlines the general amendment procedures for all Army records.  Unlike Army Regulation 190-45, paragraph 3-6 of the CFR specifically pertains to the amendment of an MPR;

   i.  that no regulation exists that would permit the Army to secretly title a U.S. civilian with a crime.  Titling of a U.S. citizen/civilian with a crime is unconstitutional based on Supreme Court cases;

	j.  that titling is unconstitutional because it essentially allows the Army to charge a U.S. civilian with a crime without any evidence; and

	k.  that the Army intentionally treats titling as criminal charges/convictions;

11.  U.S. Army Europe Regulation 27-9, (Misconduct by Civilians), dated 
27 October 2003, provides, in pertinent part, that in peacetime, host-nation authorities have exclusive criminal jurisdiction over civilians in the host country.  The CMAA (acronym unknown, possibly courts-martial appeal authority) may request local host-nation authorities to waive criminal jurisdiction over individuals when suitable corrective administrative action is available.

12.  Department of Defense Instruction (DODI) Number 5505.7, dated 7 January 2003, provides that the titling of an individual or entity is an operational rather than a legal decision.  The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence.  The listing of a subject's name and other identifying information in the Defense Clearance and Investigations Index (DCII) only indicates that a report of investigation concerning that person or entity was created.  Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation.  Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if a later finding is made that shows the subject did not commit the offense under investigation.  Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and the DCII when the wrong person's name was placed in the report of investigation or into the DCII; or when a mistake was made in the credible information at the time of the titling and/or indexing indicating that the subject committed a crime.  If a determination is made that a subject's identifying information requires removal or correction, investigating organizations shall remove such information as soon as possible, and shall make appropriate corrections to all reports of investigation and the DCII.

13.  Army Regulation 195-2 (Criminal Investigation Activities), effective 
30 October 1985, provides that individuals listed in the title block of reports of investigation who have no action taken against them will be notified that their name will remain in the title block of the report and that the report will be indexed.  This regulation also requires that such individuals be informed of the purposes for which the reports are used and the fact that such use may have an impact upon their military or civilian careers.  Individuals will be informed that they may submit a request for amendment of the report in accordance with paragraph 4-4 of this regulation.

14.  Article 136, UCMJ authorizes members of the Armed Forces to administer oaths.  Paragraph (b)(4) of this article authorizes members of the Armed Forces conducting investigations to administer oaths to any suspect or witness. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative on the subject DA Form 3975 is illegal, unethical, and tainted by criminal acts committed by U.S. Army personnel.  He also contends that his blood alcohol level was illegally altered from 0.03 percent to 0.7 percent; and that the titling action was illegal, unethical, and unjust.     

2.  The applicant's contention that his blood alcohol level was illegally altered from 0.03 to 0.7 appears to be nothing more than a transcription error within the MPR.  As such, it has no impact on the overall content of the MPR.  All reported parties to the incident had consumed alcohol.  Further, alcohol consumption had no bearing on the listed offense (assault); the applicant was not titled for drunk or disorderly conduct.

3.  The applicant has not provided sufficient documentary evidence or convincing argument to show the narrative on the subject MPR is illegal, unethical, and/or tainted due to criminal acts committed by U.S. Army personnel.

4.  There is no evidence showing the applicant was ever charged, tried or convicted of any crime by either Federal Republic of Germany authorities or by the U.S. Army.  However, it is not necessary that the person titled face prosecution.  Titling is an administrative action based on credible evidence showing that a subject committed a criminal offense.  Once titled, the person remains titled even if it is later determined the person did not commit the offense under investigation.

5.  The applicant's contention that he was not given a 3-day suspension based on there being no record of such in his pay record is not sufficient to remove his titling action.  The MPR only states that his supervisor informed the commander that he was warned about his behavior and he had been given a 3-day suspension.  There is no mention of a loss of pay. 


6.  The available evidence is insufficient to determine when or if the applicant was properly informed of the titling action.  In any case, a failure to notify the applicant of the titling action does not affect the status of the action.

7.  As a nonappropriated fund employee in Europe, the applicant was subject to the provisions of the NATO SOFA.  Therefore, the military police had the right and obligation to investigate the incident.  Whether German authorities invoked their right to take jurisdiction is of no consequence.  Further, the applicant's claim that the Army titled him with an offense under the UCMJ is inaccurate.  

8.  The reference to Article 136 (b)(4) in the police report refers to witness statements, it does not indicate the applicant was charged under the UCMJ with any offense.  Rather, it simply indicates the authority cited by the investigator administered an oath to the witness and suspects when conducting his investigation.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001066



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ABCMR Record of Proceedings (cont)                                         AR20090001066



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