IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100017409 


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:

The applicant's request, argument, and supporting documents are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the U.S. Army Criminal Investigation Command (USACIDC, also referred to simply as CID) Report of Investigation (ROI) for rape be expunged from the applicant's records.  In effect, he requests the applicant's record be corrected by removing his name from the titling block of the CID report and that this information be relayed to the National Criminal Information Center (NCIC) so his name can be removed from the NCIC record, which titles him for rape.

2.  Counsel states the applicant was appointed as a Unit Prevention Leader in May 2009.  However, his commander was notified of the CID report and rescinded his appointment.  He was, in effect, denied this military advancement based on this military criminal record.  Counsel also states that as a practicing attorney for the State of Oregon for the past 21 years he has served as both a prosecuting and defense attorney.  He agrees with the Staff Judge Advocate of the U.S. Army Military Crime Record Center documents concerning the allegations of rape on 14 January 2001 that there is insufficient admissible evidence to prove or disprove the rape allegations.  Of particular importance:
   
a.  The female private who made the allegations to the CID investigators stated she disclosed the events of 14 January 2001 to 2 other individuals.

   b.  The entire military record does not contain any other statements by 2 privates that the female private disclosed the alleged rape events to them on
14 January 2001.  Since these 2 individuals were named, they should have been interviewed and their statements considered in a charging decision.

   c.  The military record contains interviews with other military personnel who were at the hotel room on 14 January 2001.  Their statements suggest that, at best, there was an assumption that the applicant and the female private were having sex which the applicant continues to deny.

   d.  Since the allegations are now over 9 years old, the likelihood that criminal prosecution would be filed against the applicant is small.  Thus, there is an injustice in allowing his CID record to thwart his advancement with the Army.

3.  Counsel provides the following documents in behalf of the applicant:

* Special Power of Attorney
* Military Identification Card
* State Driver License
* Redacted CID ROI and allied documents
* Self-authored statement
* Enlisted Record Brief
* NCO (Noncommissioned Officer) Evaluation Reports
* Service School Academic Evaluation Reports and diplomas
* Civilian college transcripts
* All awards and decorations
* Certificates of training, achievement, or appreciation
* Three character reference letters

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) staff sergeant (SSG)/E-6 who initially enlisted in the RA on 1 August 2000 and who has served through multiple extensions or reenlistments.  He holds military occupational specialty (MOS) 68S (Preventive Medicine Specialist).

2.  The applicant’s records show he served in Bosnia from March 2002 to May 2002.  He also served in Iraq from February 2003 to May 2003, August 2003 to 

May 2004, December 2004 to December 2005, and May 2008 to April 2009.  His awards and decorations consist of the Army Commendation Medal (5th Award), Army Achievement Medal (3rd Award), Meritorious Unit Commendation, Army Good Conduct Medal (3rd Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Iraq Campaign Medal with 3 bronze service stars, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, NCO Professional Development Ribbon with Numeral 3, Army Service Ribbon, Overseas Service Ribbon (5th Award), and the NATO Medal.

3.  His records show he has completed the Preventive Medicine Specialist Course, Warrior Leader Course, and Basic and Advanced Army Medical Department NCO Courses.  He also completed several semester credit hours with Jefferson Community College, NY.

4.  On 8 July 2009, a criminal history background check was done through the Crime Records Center (CRC), Fort Belvoir, VA.  His name is listed as a subject in ROI xxx0-x1-CIDxx4-xxxx6-xE.  The ROI shows the following:

	a.  On 24 January 2001, a private notified the Fort Sam Houston Resident Agency, USACIDC, Fort Sam Houston, TX, that she was raped by the applicant.  Preliminary investigation established probable cause to believe the applicant committed the offense of rape.  A subsequent investigation did not establish sufficient evidence to prove or disprove the private's allegations that the applicant raped her.  The private reported that after consuming a large amount of alcohol and passing out, she woke to the applicant having non-consensual sex with her.  The applicant denied he raped her and stated he did not engage in intercourse with her.  A subsequent investigation did not identify any witnesses to the incident and the private's delay in reporting the incident negated the potential value of any physical evidence.  Further investigation did not diminish the integrity or credibility of her allegations.

	b.  On 20 March 2001, the CID special agent briefed a trial counsel at the Office of the Staff Judge Advocate, Fort Sam Houston on all aspects of the investigation.  The trial counsel stated insufficient evidence existed to prove or disprove the offense of rape.

5.  The applicant submitted the following documents:

   a.  A self-authored statement wherein he states he rented a hotel room with his buddies on 13 January 2001.  After a night out dancing and drinking, he took a cab to the hotel and went to sleep.  There was a female on the bed.  He 

attempted to wear a condom and she aided him but he was not sufficiently erect. He then told her he was too exhausted and they both went to sleep.  She asked him not to discuss it with anyone.  She then walked to the store with another female and he joined them for breakfast.  Several days later, he was questioned by the CID agent about allegations of rape and he answered to the best of his knowledge.  He now admits that his choice was poor at the time because he caused the female Soldier so much distress.  He apologizes to everyone involved for his behavior.  Nevertheless, he intends to continue his career and the CID report prevents him from progressing in his chosen field.  He wants this report expunged.

   b.  A statement of support, dated 9 April 2010, from his company commander who states the applicant has applied for warrant officer school but he was not selected.  The CID report may have had some bearing on the non-selection decision.  He is applying again and he, the company commander, supports him.  The applicant also desires to be a recruiter, but the ROI affects his opportunities. The company commander describes the applicant as an outstanding and responsible NCO with great potential.

   c.  A character reference letter, dated 12 April 2010, from the chief of environmental health at Madigan Army Medical Center, Fort Lewis, WA.  The chief describes the applicant as a dedicated, knowledgeable, experienced, and committed NCO who ensures the mission is always accomplished.  His career is hampered by the 2001 allegations.  The chief supports his request to have the ROI expunged.

   d.  A character reference letter, dated 4 May 2010, from his battalion commander who describes the applicant as dedicated, trustworthy, responsible, loyal, and superior NCO who exhibited commendable leadership qualities.  His display of exemplary behavior, efficiency, and fidelity to the Army has earned him accolades.  His moral character is suitable for higher responsibility.  The battalion commander supports his request to have the ROI expunged.

6.  There is no indication in the applicant's records that after having requested and obtained a redacted copy of the ROI, he made a written request to the Director, Army Crime Records Center, USACIDC, to have all titling determinations against him removed.

7.  Department of Defense Instruction (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 support the initial titling determination.

8.  Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to USACIDC.  Paragraph 4-4(b) provides for amendment of USACIDC investigative command reports.  It states, in pertinent part, that USACIDC ROIs are exempt from the amendment provisions of the Privacy Act and Army Regulation 340–21 (The Army Privacy Program).  Requests for amendment will be considered only under the provisions of this regulation.  Requests to amend unfound offenses in USACIDC ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report.  The burden of proof to substantiate the request rests with the individual.  Requests to delete a person’s name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person’s name has been entered as a result of mistaken identity.  The decision to list a person’s name in the title block of a USACIDC ROI is an investigative determination that is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action.  Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.  Requests for access to, or amendment of, USACIDC investigative reports will be forwarded to the Director, U.S. Army CRC at Fort Belvoir.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant's name should be removed from the title block of a CID ROI and from NCIC records.

2.  The evidence of record shows the applicant was suspected of committing a serious offense in his capacity as a Soldier and he became the subject of a CID investigation.  DOD policy specifies that titling only requires credible information that an offense may have been committed.  It further indicates 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.
3.  The removal of the titling action in the applicant’s case is not appropriate.  The titling determination in this case was based on the standard outlined in DOD instructions, which state that names of individuals shall only be removed from the title block of an ROI in cases of mistaken identity, or when based on all available information, there was no evidence to believe that a criminal offense occurred at the time of the initial titling determination.  Neither of these situations applies in this case, and at the time the applicant was titled there was indeed credible evidence to believe he may have committed the criminal offense for which he was titled.

4.  The applicant's subsequent successful service in the form of multiple reenlistments, deployments, awards, and evaluation reports is noted; however, the Army Board for Correction of Military Records does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Additionally, successful service alone subsequent to a titling decision is not sufficient to remove a Soldier's name that is properly included/titled in a CID report. 

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)                                         AR20100017409



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ABCMR Record of Proceedings (cont)                                         AR20100017409



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