IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100022381


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 the following US Army Criminal Investigation Division Command (USACIDC) Reports of Investigation (ROI) be deleted from all systems of records:

* CID ROI-CORRECTED FINAL (C)/SSI-0___-2___-CID108-7____-6__/9__(hereafter CID ROI #1)
* CID ROI-FIRST FINAL SUPPLEMENTAL (C)/SSI-0___-2___-CID108-7____-6__/5___/9__ (hereafter CID ROI #2)

In the alternative, the applicant requests his name be removed from the titling block of the above two CID ROI.

2.  The applicant states:

   a.  The above CID ROIs contain legal error in that they substantiate a finding he committed assault consummated by a battery.  For that reason, both reports should be deleted from all records systems or his name redacted from them.
   
   b.  The allegations against him were fully adjudicated by his Division Commander who determined the charges detailed in the CID ROIs were without merit.  The Division Commander dismissed all charges with the understanding they would not become a part of his permanent record and there would be no adverse effect on his career.
   
   c.  The CID ROIs remain in criminal records systems and are still being factored when the Army makes career progression and promotion decisions related to him.  This is grossly unfair because the CID ROIs misrepresent the circumstances of the incident in question, resulting in an erroneous perception of his character and his otherwise spotless military career.
   
   d.  He has served our nation honorably and well for 28 years, beginning at the US Military Academy at West Point, through distinguished tours of duty with Special Mission Units, battalion and brigade command, and senior staff assignments.

3.  The applicant provides:

* a 6-page memorandum, dated 28 September 2010
* a "Privacy Act Request to Change Record," dated 23 April 2010
* a 2-page memorandum for Director, US Army Crime Records Center, dated 23 April 2010
* a 4-page memorandum from Commander, US Army, Pacific (USARPAC), dated 20 April 2010, for Director, US Army Crime Records Center
* a 2-page memorandum from Commander, US Army, Pacific (USARPAC), dated 27 September 2010, for Army Board for Correction of Military Records
* two letters from Director, US Army Crime Records Center to the applicant, dated 4 August 2010 and 20 August 2010
* two CID ROIs

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army (RA) Colonel, Aviation.  During the period 2 June 2005 through 18 December 2007, he served as Commander, Combat Aviation Brigade, 25th Infantry Division, Schofield Barracks, HI.

2.  At 1630 hours, 2 March 2006, an allegation of indecent assault was reported to the USACIDC, Hawaii.  It was alleged that the applicant, between the hours of 0300-0400, 15 February 2006, committed an indecent assault against a female Captain (CPT), a member of his command, by inserting his hand inside of her pants while she sat beside him in a minivan.  It was further alleged that a second indecent assault occurred between the hours of 0200-0300, 17 February 2006, when he touched the CPT's leg.  Both assaults were alleged to have occurred in Leavenworth County, KS during a period of temporary duty (TDY).



3.  The applicant states the following in his 28 September 2010 memorandum:

	a.  While TDY from Schofield Barracks to Fort Leavenworth on 15 February 2006, he was returning to post in a minivan after an evening of dinner and drinks with members of his staff.  He was seated in the rear of the minivan on a bench seat.  A female CPT was seated to his left in the center of the bench seat.  The CPT was intoxicated and on prescription medications.  He was tired and had fallen asleep.

	b.  At some point en route from Kansas City to Fort Leavenworth, he was awakened by the CPT grabbing his side and tickling him.  He believed her actions were taken to awaken him so that he might continue to participate in her animated conversation with the other passengers.  He did not believe her touching was in any way sexual or offensive in nature.

	c.  He awoke with a start and "instinctively responded . . . by reaching across to tickle her in return."  In so doing, he inadvertently touched her bare skin on her side and immediately withdrew his hand.  It never crossed his mind that anything criminal or even offensive occurred and neither did any of the three other field grade passengers in the minivan.

	d.  The driver stopped at a convenience store for soft drinks and coffee and a rest stop.  The CPT did not indicate to anyone she had been assaulted and, when all were back inside the minivan, she did not change her seat, but continued to sit next to the applicant.

	e.  He does not know what motivated the CPT to allege being indecently assaulted, but surmises it may have been an attempt to avoid the unit deployment to Southwest Asia, or to make her boyfriend jealous, or perhaps it was simply the consumption of alcohol in combination with prescription anti-depressants she was taking for psychiatric problems.

4.  The applicant did not address the second incident stating that CID ROI #1 substantiated only the 15 February incident.

5.  The Commander, USARPAC, then the Division Commander, 25th Infantry Division, Schofield Barracks and the applicant's senior rater states the following in his 20 April 2010 memorandum:

	a.  The USACIDC forwarded CID ROI #1 to him for information and action.  He initiated nonjudicial punishment (NJP) proceedings against the applicant under Article 15 of the Uniform Code of Military Justice.  During the NJP proceedings, he reviewed the USACIDC investigation, heard 6 hours of witness testimony, and reviewed additional evidence presented.  After considering all evidence, he was convinced the applicant did not commit an indecent assault as alleged by the female CPT.

	b.  During the early morning hours of 15 February 2006, the applicant and four other officers were present in the minivan.   The CPT was seated on a bench seat in the back of the minivan between a Major (MAJ) H, who was seated on her left, and the applicant, who was seated on her right.  The remaining personnel were the driver, a Lieutenant Colonel (LTC), and a MAJ A, who was seated in the front passenger seat.

	c.  The applicant testified at the NJP proceeding and admitted touching the CPT on her right side/hip and inadvertently touched her bare skin.  He did this after the CPT awakened him by grabbing him on his side and tickling him.  He stated this act startled him and he responded "instinctively" by tickling her in return.  He added he stopped as soon as he touched "exposed skin."

	d.  The LTC and MAJ A testified they neither saw nor heard anything out of the ordinary.  The third officer present in the minivan, MAJ H, initially refused to testify until he was given a grant of immunity.  Upon returning to TDY quarters at Fort Leavenworth on 15 February 2006, he had initially told MAJ A he saw the applicant put his hand inside the CPT's pants.  MAJ A testified to this during the USACIDC investigation.  After being granted immunity from prosecution, MAJ H stated he was too drunk to recall making the statement reported by MAJ A or to remember what he saw.

	e.  The CPT's recollection of events was impaired by alcohol and prescription drugs and she could not remember most of the events that occurred prior to riding in the vehicle back to Fort Leavenworth.  Furthermore, the CPT was unable to accurately describe the seating of passengers in the minivan; she believed MAJ A was seated on her left and MAJ H was seated in the front passenger seat.  She stated when the applicant placed his hand down the front of her pants, she leaned forward and looked at MAJ H who looked back at her.

6.  Concerning the alleged incident of 17 February 2006, the USARPAC Commander stated in his 20 April 2010 memorandum the allegation was not supported by the facts.

   a.  In this incident, he determined the five officers were again in a minivan.  A MAJ and the LTC were seated as driver and front passenger; a MAJ was seated behind the driver and the applicant was seated behind the LTC; the CPT was seated alone on the third seat located behind the MAJ and the applicant.
   
   b.  The CPT stated the MAJ and the applicant were seated in second row "captain's chairs" when the applicant reached back with his left hand and ran his hand up her leg under her trousers until he touched her skin.  She stated she said "NO" and pushed his hand away, but he laughed at her and tried to do it again.
   
   c.  Car rental agency documents showed there were no "captain's chairs" in the second row of the minivan; the second row seat was a bench seat.  Given a bench seat, it would have been impossible for the applicant to use his left hand in the manner described by the CPT.

7.  The USARPAC Commander decided:

   a.  As to the alleged incident of 15 February 2006, there was no indecent assault, concluding it would have been "very, very difficult for [applicant] to push his hands down into the [CPT's] pants" as alleged because all individuals were wearing seatbelts and the CPT was wearing "low rise jeans."  He also found discrepancies between the CPT's videotaped USACIDC interview and her original account.  In her videotaped statement, she said the applicant touched her side, not that he put his hand down her pants.  The USARPAC Commander did not take any action against the applicant.

	b.  As to the alleged incident of 17 February 2006, it did not happen.

8.  The USACIDC investigation resulted in the creation of CID ROI #1 which determined the applicant committed the offense of indecent assault "when he put his hand down [the female Captain's] pants" while the two were performing temporary duty (TDY) at Fort Leavenworth, KS.  The investigation was concluded on 2 May 2006 and CID ROI #1 was prepared and indexed.  The applicant was listed in the title block.

9.  On 23 April 2010, the applicant petitioned the Commander, USACIDC, through the Director, US Army Crime Records Center, requesting he be removed from the title block of CID ROI #1.  He essentially provided the information developed during the NJP proceeding and outlined in the memorandum from the USARPAC Commander.

10.  On 4 August 2010, the Director, US Army Crime Records Center informed the applicant the offense of indecent assault would be changed from a determination of "founded" to one of "insufficient evidence."  The offense of "Assault Consummated by Battery" would be added as a new charge.

11.  The applicant argues the brief contact he had with the female CPT "…does not constitute the criminal offense of Assault Consummated by a Battery."  He states under Article 128, Uniform Code of Military Justice, the elements of this offense include doing bodily harm with force or violence.  He adds:

	a.  He did not accuse the CPT of assault and battery when she tickled him because it is not a criminal offense to touch someone to gain their attention.  Since the USACIDC has concluded his tickling of the CPT was not sexual in nature, the only explanation is that it was to gain her attention.  This is not assault.

	b.  There was no "unlawful force or violence" involved in his tickling of the CPT.  When she tickled him, she signaled her consent to be tickled.  This consent negates any finding that the touching constituted a criminal assault and battery.

12.  Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense) contains the authority and criteria for USACIDC titling decisions.  It provides that once a subject of an investigation has been indexed (when the titling decision has been entered into the criminal records system), the name shall not be removed from the title block unless mistaken identity can be shown, that is, when the wrong person's name was entered into the records system.  That a person is subsequently found not to have committed the offense under investigation and/or that the offense did not occur are not sufficient bases for removal.

13.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program.  Paragraph 4-4 provides that CID ROIs are exempt from the amendment provisions of the Privacy Act and Army Regulation 340–21 (The Army Privacy Program).  Requests to amend or unfound offenses in CID 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 [emphasis added], or the wrong person’s name has been entered as a result of mistaken identity.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests CID ROI #1 and CID ROI #2 be removed from all criminal record systems, or that his name be removed from both reports.

2.  DODI 5505.7 and Army Regulation 195-2 are clear on the issue of deleting criminal records or untitling a subject once named in an investigation.  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 [emphasis added], or the wrong person’s name has been entered as a result of mistaken identity.

3.  Clearly, in the applicant's case, there was credible information to believe that he committed the offense of indecent assault for which he was titled as a subject at the time the investigation was initiated.  There was a criminal complaint and there was a statement by MAJ A to the effect MAJ H stated he saw the indecent assault.  It does not matter that MAJ H, under a grant of immunity, recanted or refused to confirm that he made such a statement.  Furthermore, there is no issue that the applicant is the wrong person named in the CID ROI or that his name has been entered as a result of mistaken identity.

4.  There is no legal error in CID ROI #2 when substituting the offense of assault consummated by battery for indecent assault.  Assault and battery is an inappropriate, unwanted touching and a lesser offense to indecent assault.  Clearly, what was described in the USACIDC investigation constituted sufficient evidence to believe the applicant may have committed this offense.  Therefore, he was appropriately titled for this allegation.

5.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling are a determination that credible evidence exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  Information is deemed credible if considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity had occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred.  Simply stated, if there is reason to investigate, the subject of the investigation should be titled.  It does not matter that the 25th Infantry Division Commander, now the USARPAC Commander, found the evidence did not support the charges during an NJP proceeding.



6.  Titling ensures investigators can retrieve information in an investigation of suspected criminal activity at some future time for law enforcement and security purposes.  Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by attorneys.

7.  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 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)                                         AR20100022381





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ABCMR Record of Proceedings (cont)                                         AR20100022381



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