IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20100028657 


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 the applicant be removed as the subject in the following DA Forms 3975 (Military Police Report (MPR)):

* MPR Number 00098-XXXX-MPC XXX, date unknown [MPR not available]
* MPR Number 00428-XXXX-MPC XXX, dated 7 May 2007
* MPR Number 02163-XXXX-MPC XXX, dated 17 November 2007
* MPR Number 00509-XXXX-MPC XXX, dated 26 March 2008

2.  Counsel states there are three errors associated with inserting the applicant's name in the title block of a criminal investigative report:

	a.  the Criminal Investigation Command (CID) had no probable cause in its determination that the applicant should be titled as a subject,

	b.  the CID titled the applicant where the provost marshal had closed his case, and

	c.  there was a lack of credible information in the MP investigations.

3.  Counsel states the applicant enlisted in the Army on 10 April 2003 when he was 25 years old.  He served in Iraq/Kuwait from 30 October 2003 to 8 March 2004 and was deployed to Iraq again from 5 October 2005 to 28 September 2006.  Counsel describes the applicant's offenses.

	a.  On 29 January 2007, the applicant was charged with a 5Q5A traffic accident, failure to judge proper clearance, a civil offense.

	b.  In March 2007, the applicant was accused of wrongful damage of private property under Article 109, Uniform Code of Military Justice (UCMJ).  The applicant's ex-girlfriend accused him of pouring sugar in her gas tank.  The applicant only became a suspect when his ex-girlfriend reported the offense to German authorities.  The exact date of the offense is unknown because the applicant's DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) states the allegation occurred between 16 and 18 March [2007].  The report of investigation showed a lack of probable cause because the provost marshal who charged the applicant is unknown and it's unknown whether there was a potential witness because the names were removed from the applicant's DA Form 4833 for MPR Number 00098-XXXX-MPC XXX and the DA Form 3975 for this action.

	c.  On 27 November 2007, the applicant was accused of self-injury without intent to avoid service under Article 134, UCMJ.  He waived his legal rights and made a sworn statement admitting to the offense.  The commander didn't take any action.

	d.  On 20 March 2008, the applicant was accused in the housebreaking of an office facility under Article 130, UCMJ, and of larceny of government property (files, a ruler, and a calendar), property less than $100.00, under Article 121, UCMJ.  The applicant was never informed that he was the subject of an investigation and he was never interrogated about the alleged incident.

4.  Counsel states the applicant explained that he has experienced headaches and suffered from depression since returning from Iraq in 2003.  The applicant was discharged from the U.S. Army on 10 April 2008 with an honorable characterization of service.  He was awarded the Meritorious Unit Commendation, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, and Driver and Mechanic Badge.  Counsel continues by stating the applicant has worked as a defense contractor, has had no difficulties with management, has not been written up for any misconduct or violations of company policy, and is a hard-worker who goes beyond what is required.

5.  Counsel cites Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense), paragraphs 6.2, 6.3, 6.6.2, E1.1.1, and E1.1.2.

6.  Counsel provides the applicant's:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four DA Forms 4833 (Commander's Report of Disciplinary Administrative Action)
* three DA Forms 3975
* DA Form 2807-1 (Report of Medical History)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 13 July 1978.  He enlisted in the Regular Army on 10 April 2003 at 24 years of age.  His DD Form 214 shows he served in Kuwait/Iraq from 30 October 2003 to 8 March 2004 and in Iraq from 5 October 2005 to 28 September 2006.

2.  A review of the applicant's service record did not reveal a copy of MPR Number 00098-XXXX-MPC XXX.  The DA Form 4833, dated 21 March 2007, indicates Specialist (SPC) [Applicant] committed the civil offense of 5Q5A traffic accident, failure to judge proper clearance, on 29 January 2007.  The report revealed the applicant was given an oral reprimand and four points were assessed to his driver's license.

3.  A DA Form 3975 00428-XXXX-MPC XXX, dated 7 May 2007, consists of five pages with redacted information pertaining to other individuals and shows the following:

	a.  SPC [Applicant] committed the criminal offense of wrongfully damaging private property (Article 109, UCMJ) off post between 0001 hours on 16 April 2007 and 2030 hours on 18 April 2007;

	b.  Section III (Subject), item 15c (Apprehension Date), indicates SPC [Applicant] was apprehended on 5 May 2007; and

	c.  Section VII (Narrative) states the investigation identified vehicle #1 as a red Hyundai (unknown year) owned by B____ [the victim].  The vehicle had sugar poured into the gas tank and sustained an unknown amount of damage.  The investigation revealed that German police notified the station that SPC [Applicant] was a possible subject to damage to vehicle #1.  At 0930 hours, 7 May 2007, SPC [Applicant] reported to the station where he was advised of his legal rights which he waived and rendered a written sworn statement denying the offense.  During the statement, SPC [Applicant] stopped the interview and asked for a lawyer.  SPC [Applicant] was further processed and released to his unit on a DD Form 2708 (Receipt for Inmate or Detained Person).  The investigation revealed that vehicle #1 was legally parked and unattended.

4.  A DA Form 3975 02163-XXXX-MPC XXX, dated 17 November 2007, consists of 16 pages with redacted information pertaining to other individuals and shows the following:

	a.  the applicant committed the military offense of self-injury without intent to avoid service (Article 134, UCMJ) on post between 1625 and 1700 hours on 17 November 2007;

	b.  section III, item 15c, indicates the applicant was apprehended on 19 November 2007.  Item 16a (Involvement) indicates the incident involved the use of alcohol; and

	c.  section VII shows the investigation revealed that between 1625 and 1700 hours on 17 November 2007, the applicant was found in his vehicle unresponsive.  The applicant's vehicle was running and he had a plastic hose going from the exhaust pipe into the trunk of his vehicle.  The MP arrived and broke out the rear passenger side window to gain access to the vehicle.  The applicant was transported to the Mannheim Klinikum where he was admitted to the intensive care unit and treated for carbon monoxide poisoning.  He was in stable condition, alert, and complained of chest pains.  Further investigation revealed the applicant was advised of his legal rights which he waived, rendering a sworn written statement admitting to the listed offense.  The applicant was further processed and released to his unit on a DD Form 2708.  The staff judge advocate was briefed on all aspects of the investigation and opined there was sufficient evidence to title the applicant with the listed offense.

5.  The DA Form 4833, dated 27 February 2008 (for DA Form 3975 02163-XXXX-MPC XXX, dated 7 May 2007) indicates the commander did not take any action.

6.  His MPR Number 00509-XXXX-MPC XXX, dated 26 March 2008, consists of 12 pages with redacted information pertaining to other individuals and shows the following:

	a.  the applicant committed the criminal offense of housebreaking of an office facility (Article 130, UCMJ) on post between 1620 and 0715 hours on 20 March 2008.  Additionally, he committed the offense of larceny of government property (not funds or weapons), property disposal/less than $100.00 (Article 121, UCMJ) on post during the same time frame;

	b.  section III, item 15c, doesn't indicate the apprehension date; and

	c.  section VII states the investigation revealed that between 1620 and 0715 hours on 20 March 2008, the applicant forced open a window and gained access to the office of [censored].  While in the office, the applicant took several Soldiers' medical and dental records containing DD Forms 214 and other personal information to include his own documents.  The applicant also took a calendar and a ruler from [censored]'s desk.  Several of the missing documents were located in the dumpster adjacent to the cove on Sullivan Barracks.  The applicant's advisement of his legal rights was delayed until he was released from Landstuhl psychiatric facilities.

7.  The applicant was honorably discharged on 10 April 2008 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, by reason of personality disorder.

8.  DODI 5505.7, dated 7 January 2003, provides that titling of an individual or entity is an operational rather than a legal decision.

	a.  Paragraph 6.2 states the purpose of listing an individual or entity as the subject of a criminal investigation in the Defense Central Investigations Index (DCII) is to ensure that information in a report of investigation may be retrieved at some future time for law enforcement or security purposes.  The purpose of titling the report of a criminal investigation is to identify the subject for the accuracy and efficiency of the investigative effort.

	b.  Paragraph 6.3 states the DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating that the subject committed a criminal offense.

	c.  Paragraph 6.6.2. states that identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist.

	d.  Definitions:

		(1)  Credible Information.  Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true.

		(2)  Criminal Investigation.  Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution.

9.  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.

10.  Army Regulation 190-45 (Law Enforcement Reporting), chapter 4, establishes policy for reporting founded criminal offenses by Army installation and major Army command provost marshal offices.  It states the DA Form 3975, among other uses, is used to record all information or complaints received or observed by military police, to serve as a record of all military police and military police investigator activity, and to report information developed by commanders investigating incidents for conducting inspections that result in the disclosure of evidence that a criminal offense has been committed.  An incident will not be reported as a founded offense unless adequately substantiated by a police investigation.  A person will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  A known subject will be reported to the U.S. Army Criminal Records Center when the offense is punishable by 6 months or more of confinement.  When a person is entered in the subject block of the DA Form 3975, his or her identity is recorded in Department of the Army automated systems and the DCII.  Once entered into the DCII, the record can only be removed in cases of mistaken identity.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's contentions that law enforcement personnel had no probable cause in determining the applicant should be titled as a subject in the MPR's.

2.  The governing regulation states a person will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  

3.  The evidence of record shows a complaint was filed against the applicant on an unknown date for committing the offense of 5Q5A traffic accident, failure to judge proper clearance, on 29 January 2007.  Although the DA Form 3975 is not available, he provides no evidence to show that credible information did not exist showing that he applicant may have committed the offense and was therefore properly made the subject of a criminal investigation.  

4.  The evidence of record shows a second complaint was filed against the applicant on 7 May 2007 for the offense of wrongful damage of private property based upon communications from the German police.  A boyfriend is a reasonable (i.e., credible) person to investigate when mischief is done to his girlfriend.

5.  The evidence of record shows a third complaint was filed against the applicant on 27 November 2007 for the offense of self-injury without intent to avoid service.  This offense listed in Army Regulation 190-145, and the applicant admitted this offense.

6.  The evidence of record shows a fourth complaint was filed against the applicant on 26 March 2008 for the offense of housebreaking of an office facility, larceny of government property (not funds or weapons), property disposal/less than $100.00.  That property included documents pertaining to him, making him a reasonable (i.e., credible) person to investigate.

7.  Counsel contends that CID titled the applicant where the provost marshal had closed his case.  However, the applicant's service record is void of evidence to support this claim.

8.  Additionally, the evidence of record does not indicate there was a lack of credible information in the MP investigations at the time the titling decision was made.

9.  The purpose of titling the report of a criminal investigation is to identify the subject for the accuracy and efficiency of the investigative effort.

10.  The DODI concerning CID titling is clear in that once a person has been indexed, the name shall not be removed except in the case of mistaken identity or a determination that credible information did not exist that the subject committed a crime at the time the titling decision was made.

11.  Titling is an administrative action based on credible evidence showing that a subject may have 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.

12.  Since there appears to be no case for mistaken identify, there is no basis to remove the applicant from the title block of the MPR's in question.

13.  The applicant's post-service work experience is acknowledged.  However, this issue is not sufficiently mitigating to warrant the requested relief in this case.

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 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)                                         AR20100028657



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ABCMR Record of Proceedings (cont)                                         AR20100028657



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