IN THE CASE OF:	

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090008540 


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 that the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI) Number
0057-04-CID149-xxxxx-xF be removed from his records.  In addition, he further requests award of the Combat Action Badge and the Joint Service Achievement Medal.

2.  The applicant states, "The CID agent who submitted this report was a U.S. Army Reservist.  His full time occupation was a DCIS [Defense Criminal Investigative Service] agent.  He submitted this bogus report by copying an email message sent to him by a crooked agent who was profiling and railroading me because of my race.  This email message sent by the DCIS agent was full of falsehoods and misinformation."

3.  The applicant states he was never charged with anything; therefore, he was never tried or convicted of anything.  His supervisors in Iraq investigated the allegations against him and found the allegations were bogus.  No Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was conducted and there was no reason for an official investigation.

4.  The applicant states the investigative reports were filed after he left Iraq without his knowledge or the knowledge of his superiors in Iraq.  A DCIS agent initiated the investigation.  Since he had no evidence to back up his false allegations he enlisted the help of a fellow DCIS agent who was serving in Iraq 

as a U.S. Army Reserve (USAR) CID agent on active duty.  The CID agent filed his report by copying the same report filed by the DCIS agent.  The CID ROI alleged the applicant committed larceny, made a false official statement, and was derelict in performance of his duties.

5.  The applicant states the DCIS agent who investigated him in Iraq was later demoted for incompetence and received an official letter of reprimand for improper disclosure of an undercover operation and failure to follow supervisory instructions.  Just recently, DCIS Internal Affairs investigated the agent for consuming alcohol while carrying his weapon, which is a direct violation of DCIS regulations, and for losing his belt badge.  This is not a track record of a good federal law enforcement officer.

6.  The applicant provides:

* attachments shown in Tabs 1 through 5 
o Defense Legal Services Agency (DLSA) Case Number 06-XXXXX, dated 13 February 2007
o memorandum from the Office of the Deputy Chief of Staff, G-2, dated 20 March 2007,
o DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 9 June 2007
o two DA Forms 638 (Recommendation for Award)
*   DCIS ROI, dated 12 October 2004
*   Officer Evaluation Report (OER), for the period ending 4 October 2004
*   Bronze Star Medal Certificate, dated 6 June 2004
*   three-page undated article from the Joint Forces Quarterly Magazine,
  entitled "The Commander's Emergency Response Program"
*   three letters of support from former fellow Soldiers
*   a DD Form 214 (Certificate of Release or Discharge from Active Duty) for   the period ending 16 November 2004
*   two Computerized Polygraph Examinations, dated 5 June 2006 and
  21 September 2006
*   three-page undated redacted record of testimony
*   one-page redacted Department of Defense Inspector General (DODIG)
  memorandum, dated 31 December 2007
*   one-page redacted email reference a DCIS agent, dated 4 March 2008
*   two memoranda from the CID, dated 22 January 2007 and 24 January
  2007




CONSIDERATION OF EVIDENCE:

1.  The applicant requested correction of his records to show award of the Joint Service Achievement Medal and the Combat Action Badge.  There are no orders or other evidence authorizing award of these decorations to the applicant.  In the absence of a proper award authority for these decorations, the applicant may request award of the Joint Service Achievement Medal under the provisions of Department of Defense (DOD) 1348.33-M (Manual of Military Decorations and Awards) and the Combat Action Badge under the provisions of Army Regulation 600-8-22 (Military Awards).  He has been notified by separate correspondence of the procedures for applying for the awards and, as a result, they will not be discussed further in these Proceedings.

2.  The applicant was an Armor officer assigned to the Multinational Security Transition Command-Iraq, Phoenix Base, International Zone, Baghdad as the Payroll Master for Iraq.  As the paymaster, he oversaw several contractors, hand carried the cash payroll to all regional offices of the Iraqi Military, and other additional duties.

3.  On or about 28 September 2004, a joint investigation was initiated by DCIS and CID agents.  The Federal Bureau of Investigation (FBI) contacted the DCIS during a routine review of emails from two American contractors who were kidnapped and murdered that indicated the applicant had purchased two MP-5 machine-guns from the two victims and he requested two more.  The applicant was interviewed by DCIS agents reference the above allegation and it was determined that he had taken 14 cases of ammunition from supply and sold it to a civilian firm without permission and that he used the monies he made from the sale of the ammunition to purchase four MP-5 machine-guns and making a false statement.

4.  CID titled the applicant in ROI Number 0057-04-CID149-xxxxx-xF.  The CID investigation established probable cause to believe the applicant committed the offense of larceny when he obtained an undetermined amount of government ammunition and then sold it to a private company, keeping the cash for profit.  The applicant committed the offenses of dereliction of duty and false official statement when he used his official capacity to improperly obtain and sign request forms used to issue access badges to controlled and restricted areas for U.S. contractors and local Iraqi Nationals.  As a result of CID’s investigation, the applicant’s security clearance was suspended and he was considered for involuntary separation.


5.  On 30 September 2004, the facts of the case were presented to the U.S. Army, Staff Judge Advocate, Chief of Military Justice, Office of Special Judge Advocate, Multinational Command - Iraq, with a recommendation that charges be preferred against the applicant for larceny, making a false official statement, and for dereliction of duty.  There is no evidence in the applicant's records that indicates charges were preferred against him for these allegations.

6.  By memorandum, dated 24 January 2007, the CID denied the applicant's request for amendment of CID ROI Number 0057-04-CID149-xxxxx-xF.  The denial constituted final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2 (Criminal Investigation Activities).  The letter noted that the record was an investigative document compiled and maintained for law enforcement purposes.  The determination to list an individual as a subject was based on investigative findings irrespective of whether judicial, non-judicial, or administrative action was taken.

7.  By memorandum, dated 20 March 2007, the Office of the Deputy Chief of Staff, G-2 reinstated the applicant's security clearance.

8.  A DA Form 1574, dated 9 June 2007, show a board was held to determine involuntary separation of the applicant.  The board determined there was insufficient evidence to show the applicant committed the offenses he was accused of and recommended he be retained in the USAR.  By memorandum, dated 1 August 2007, the Commander, U.S. Army Human Resources Command, St. Louis, MO approved the board's recommendation to retain the applicant in the USAR.

9.  The applicant provided a redacted email, dated 4 March 2008 he obtained from the DOD via the Freedom of Information Act that shows the employment history, performance rating history, awards history, and past disciplinary actions for the DCIS agent who investigated the applicant while in Iraq.  The applicant highlighted the document by indicating the DCIS agent was demoted for misconduct.  The applicant also provided a one-page redacted DODIG memorandum, dated 31 December 2007, that shows the DCIS agent lost his belt badge while off-duty.

10.  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.

11.  DODI 5505.7 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, DODI 5505.7 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 or it was later determined a mistake was made at the time of titling in that credible information indicating that the subject committed a crime that did not exist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his name be removed from the subject line of CID ROI Number 0057-04-CID149-xxxxx-xF.  He contends DCIS and CID agents were crooked agents profiling and railroading him because of his race.  The contentions of the applicant have been noted; however, there is no evidence in the applicant's available records and the applicant has not provided evidence that shows the DCIS or CID agents were biased towards him during the investigative process.  The evidence shows the investigation was initiated due to findings of the FBI and referral of these findings to the DCIS.  There is no evidence that he reported or made any complaint of bias to the DODIG with respect to him being profiled and railroaded because of his race.

2.  The applicant was not charged with any of the allegations for which he is titled.  His security clearance was restored and he was boarded and retained in the USAR.  However, at the time he was investigated the DCIS and the CID had credible information that he committed the offenses for which he was investigated.  According to DODI 5505.7, titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes.  Whether or not to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers.

3.  DODI 5505.7 also provides that titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling is a determination whether credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  In other words, if there is a reason to investigate, the subject of the investigation should be titled.

4.  As previously stated, 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 or it was later determined a mistake was made at the time of titling in that credible information indicating that the subject committed a crime that did not exist.  Based on the information provided by the applicant, the Involuntary Separation Board determined that no action would be taken against him for the offenses due to insufficient evidence.  There is no evidence to show the Involuntary Separation Board made any reference to whether or not there was credible evidence that would have warranted he be investigated for the offenses.

5.  There appears to be no case of mistaken identity in his case and no mistake made at the time of titling and, therefore, no basis to remove him from the title block of the CID report.

6.  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)                                         AR20090008540



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ABCMR Record of Proceedings (cont)                                         AR20090008540



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