IN THE CASE OF:	  

		BOARD DATE:	  27 June 2011

		DOCKET NUMBER:  AR20100024309 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests amendment of U.S. Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI) 0008-05-CID427-1XXXX-6XX/
5YXX/9XX to remove the applicant's name from the titling block and removal of a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) from the ROI.

2.  Counsel states, in effect, the allegations leading to the investigation were unsubstantiated and asks the Board to consider the validity of the titling action.  He also states the DA Form 4833 included in the ROI is inaccurate.

3.  Counsel provides a brief in support of the application and 10 documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a staff sergeant (SSG)/E-6 who has been serving in the Regular Army since 2 November 1994.

2.  On 26 January 2005, a female private first class (PFC)/E-3 gave a statement to a special agent from the USACIDC Netherlands Branch Office.  In her statement she alleged that in June 2004 the applicant, who was her acting platoon sergeant at the time, asked her to come to his room to pick up a pass, which she did.  She stated he then tried to kiss her, partially disrobed her, and tried to suck on her left breast.  She stated she told him they shouldn't be doing that and she eventually left.  She stated he later apologized to her for the incident.

3.  On 27 January 2005, the applicant waived his rights and made a statement to a USACIDC special agent confirming the incident took place.  He stated he told the female PFC, "I'm not forcing" and "I don't want to get in trouble," to which she responded, "You are not forcing me."

4.  Also on 27 January 2005, a Soldier who described the PFC as her best friend made a statement indicating the PFC had told her the applicant was trying to get the PFC to sleep with him.

5.  An ROI, dated 14 March 2005, shows an investigation established probable cause to believe the applicant committed the offenses of indecent assault and maltreatment of a subordinate when he admitted he kissed the PFC and fondled/kissed her breast in a sexual manner.  The ROI shows the governing statute for indecent assault as Article 134, Uniform Code of Military Justice (UCMJ), and the governing statute for cruelty and maltreatment as Article 93, UCMJ.

6.  Counsel provides a memorandum from the Commander, 80th Area Support Group, dated 15 April 2005, to the Commander, 21st Theater Support Command.  The memorandum shows the Commander, 80th Area Support Group, recommended initiation of a general officer memorandum of reprimand (GOMOR) against the applicant concerning the allegations of indecent assault and fraternization made by the PFC.  He stated he had initiated proceedings under Article 15 of the UCMJ on 16 March 2005, but after reviewing the evidence and weighing the credibility of the principals, determined the applicant was not guilty and terminated the proceedings.  Specifically, he determined the activity between the applicant and the PFC was not an indecent assault, but did determine the applicant had committed fraternization.

7.  On 2 May 2005, the Commander, 21st Theater Support Command, issued a GOMOR to the applicant for fraternizing with a Soldier under his supervision while he was acting as her platoon sergeant.

8.  On 11 May 2005, the applicant rebutted the GOMOR stating, in effect, he took issue with the processing of the allegations against him and that a single incident did not meet the standard for fraternization published in Army Regulation 600-20 (Army Command Policy).

9.  His company and battalion commanders recommended filing the GOMOR in the performance portion of his official military personnel file (OMPF).  The Commander, 80th Area Support Group, recommended filing the GOMOR in his local unit file for a period of 3 years or until reassignment to another general court-martial jurisdiction.

10.  On 22 July 2005, the Commander, 21st Theater Support Command, directed permanent filing of the GOMOR in his OMPF.

11.  USACIDC provided a DA Form 4833 completed during the processing of the allegations against the applicant.

	a.  Item 3 (Referral Information) shows the applicant was investigated for the offenses of indecent assault on the basis of Article 120, UCMJ, and cruelty of subordinates on the basis of Article 93, UCMJ.  For both offenses, the box for "No" is checked under the "Sexual Harassment" column, the box for "Yes" is checked under the "Action Taken" column, and "Accepted" is entered in the "Reason" column.

	b.  Item 4 (Action Taken) shows the box for "Administrative" is checked.

	c.  Item 6 (Administrative Actions) shows a written reprimand was filed locally.

	d.  Item 10 (Commander's Remarks) shows the form was updated by a USACIDC special agent on 11 January 2009 and shows the applicant received an administrative reprimand for fraternization on 2 May 2005.

12.  Counsel provides a memorandum from USACIDC that shows the applicant's request for amendment of the ROI was denied on 15 January 2010.

13.  In his brief, counsel summarizes the events surrounding the investigation.  He states the PFC was under investigation for adultery and her version of events was questionable.  Unfortunately, the applicant was titled based on her statement and the titling action will follow him for the rest of his life whenever a background check is performed.

14.  Counsel notes errors in the DA Form 4833 filed with the ROI that are prejudicial to the applicant and asks that the document be removed.

	a.  On page 1, "Referral Information" incorrectly lists Article 120, UCMJ, as the reference for a charge of indecent assault, when it should list Article 134.  The "Action Taken" box is checked "Yes," and the reason is listed as "Accepted."  There was no action taken with respect to the alleged indecent assault and the applicant did not accept any action with respect to this allegation.  The same is true of the charge of cruelty of subordinates.  No action was taken and nothing was accepted.

	b.  On page 2, the box for "Field Grade" nonjudicial punishment is checked listing the same offenses as page 1 with no mention of the applicant's plea of not guilty and finding of not guilty.  This makes it appear he received Article 15 punishment when he did not.

	c.  On page 3, section 6 shows he received an "Admonition" which was written and filed locally.  He did not receive an admonition.  He received a reprimand and it was not filed locally.

	d.  The form has a signature date of 2 May 2005, but bears no signature and does not show the name of the commanding officer who completed the report.

15.  Counsel states the applicant has been an excellent Soldier and noncommissioned officer (NCO) during his career.  He provides a letter of support from a command sergeant major commending his performance and NCO Evaluation Reports showing he was rated "among the best" for the rating periods 1 November 2008 to 18 May 2009 and 16 May 2009 to 15 May 2010.

16.  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.

17.  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 ROI's 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 ROI's 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.

18.  Army Regulation 190-45 (Law Enforcement Reporting) states the DA Form 4833 is used to record actions taken against identified offenders.  The installation provost marshal initiates this document and is responsible for its distribution.  The unit commander will complete the form within 45 days of receipt and check what action has been taken to include the sentence, punishment, or administrative action imposed.  If the commander cannot complete the form within 45 days, a written memorandum will explain the circumstances.  The original of the DA Form 4833 is sent to the Director, U.S. Army Crime Records Center for filing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for amendment of USACIDC ROI 0008-05-CID427-1XXXX-6XX/5YXX/9XX to remove his name from the titling block.

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 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 he committed the offenses of indecent assault and maltreatment of a subordinate for which he was titled as a subject at the time the investigation was initiated.

4.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criterion for titling is 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.

5.  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.

6.  It appears counsel has a version of the DA Form 4833 that predates the final version filed with the ROI.  The document of record does not show the applicant received field-grade nonjudicial punishment under Article 15, UCMJ, nor does it show he received an admonition.

7  The record shows errors on the DA Form 4833 filed with USACIDC ROI 
0008-05-CID427-1XXXX-6XX/5YXX/9XX.

	a.  The applicant was not investigated for an offense under Article 120, UCMJ.  He is entitled to correction of item 3 to show he was investigated for indecent assault under Article 134, UCMJ.

	b.  Item 3 shows action taken against the applicant for the offenses of indecent assault and cruelty of subordinates was "accepted."  Counsel correctly notes this information is inaccurate and unfairly prejudicial.  Considering the applicant received a GOMOR for fraternization, an offense that falls well below the offenses of indecent assault and cruelty of subordinates, it is unfairly prejudicial for the record to show he accepted action taken against him based on the more serious offenses.

	c.  Because his actual punishment is shown in item 10, it would be appropriate to redact the prejudicial information in the "Action Taken" and "Reason" blocks of item 3 for the offenses of indecent assault and cruelty of subordinates.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting item 3 of the DA Form 4833 filed with USACIDC ROI 
0008-05-CID427-1XXX-6XX/5YXX/9XX to show he was investigated for indecent assault under Article 134, UCMJ, and redacting the information in the "Action Taken" and "Reason" blocks of item 3 for the offenses of indecent assault and cruelty of subordinates.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to remove his name from the titling block of USACIDC ROI 0008-05-CID427-1XXXX-6XX/5YXX/9XX.



      _____________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)                                         AR20100024309



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ABCMR Record of Proceedings (cont)                                         AR20100024309



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