IN THE CASE OF:	  

		BOARD DATE:	    31 May 2011

		DOCKET NUMBER:  AR20110000064 


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 correction of her military records by removing the titling for making a false official statement and assault consummated by battery from the Defense Clearance and Investigations Index (DCII).

2.  The applicant makes no statement.

3.  The applicant provides no additional documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records by removing her personal information from the titling block of the investigation and from the DCII.

2.  Counsel states the applicant was questioned in reference to a complaint of wrongful sexual contact in late May 2010.  The investigation resulted in her being titled.  Ultimately, the chain of command dropped all adverse action, to include a locally-filed letter of admonishment.

	a.  On 31 August 2010, via her defense attorney, the applicant requested that the U.S. Army Criminal Investigation Command's (USACIDC) Crime Records Center (CRC) remove her name from the titling block and from the DCII.

	b.  On 7 December 2010, USACIDC amended the subject record to show that the wrongful sexual contact was unfounded; however, her request to remove her name was denied.

3.  Counsel argues that at the time of the titling, there was no credible information showing that the applicant had committed a crime of making a false official statement or assault consummated by battery.

	a.  Department of Defense Instruction (DODI) 5505.7, paragraph 6.6.2 states: "Identifying information about the subject of a criminal investigation shall be removed from the titling block of a report of investigation (ROI) and the DCII if it is later determined a mistake was made at the time of the titling and/or indexing in that credible information indicating that the subject committed a crime did not exist."

	b.  The Military Judges Benchbook (MJBB), section 3-31-1d states: "'Intent to deceive' means to purposely mislead, to cheat, to trick another, or to cause another to believe as true that which is false."

	c.  No intent to deceive would have been available at the time and none has been proven or suspected since the time of titling.

	d.  The crime of assault consummated by battery is not completed by casual contact; it requires an intention to touch or culpable negligence.

	e.  The MJBB, section 3-54-2d states: "A 'battery' is an unlawful and intentional, or culpably negligent application of, force or violence to another."

	f.  Society has not criminalized casual or accidental contact.

	g.  Simple negligence is the absence of due care.

	h.  Culpable negligence is a degree of carelessness greater than simple negligence.  It is a negligent act, or failure to act, that is accompanied by a gross, reckless, wanton, or deliberate disregard for the foreseeable results to others.

4.  Counsel provides a Memorandum for Record from the Commander, 1136th Transportation Company, dated 12 November 2010; and a Memorandum for the applicant's defense counsel from the Deputy Director, CRC, dated 7 December 2010, with a copy of the corrected ROI.



CONSIDERATION OF EVIDENCE:

1.  At the time of her application, the applicant was a first lieutenant, Transportation Corps, U.S. Army National Guard, stationed in Afghanistan.

2.  On 12 June 2009, the applicant was commissioned as a second lieutenant, U.S. Army Reserve, and as an Army National Guard (ARNG) member with the 1136th Transportation Company located in Bangor, Maine.

3.  On 11 March 2010, the applicant was ordered to active duty in support of Operation Enduring Freedom.  She subsequently went with her ARNG unit to Afghanistan, where she served from on or about 15 May 2010 to 1 March 2011.

4.  The memorandum provided by counsel, from the applicant's commander and dated 12 November 2010, stated, in essence:

	a.  that the commander had been working with the applicant in trying to clear her name of all charges;

	b.  that the commander had concerns about the validity and vagueness of the statements made during the investigation;

	c.  that the commander thought the investigator's belief that there might be some truth in the applicant's statement and that none of this was for sexual gratification was contradictory to his findings;

	d.  that the commander did not believe the agents had remained objective in their investigation;

	e.  that the applicant's military and civilian job (police officer) was at stake, and

	f.  that this case should be reviewed again with due diligence.

5.  In a memorandum, dated 7 December 2010, the Deputy Director, CRC, stated, in essence:

	a.  that the applicant's request to remove her name from the titling block and DCII was denied;

	b.  that corrections had been made, but were not specified;

	c.  that a copy of the corrected ROI was attached;
	d.  that portions of the ROI pertaining to information about third parties were withheld;

	e.  that the determination to list an individual as a subject is based on investigative findings irrespective of whether judicial, non-judicial or administrative action is taken; and 

	f.  that the applicant could appeal the denial to remove her name to this Board.

6.  The ROI, as attached to the above memorandum, states, in essence:

	a.  Dates and places of occurrences:

* 10 April 2010 - Fort Hood, Texas
* 20 May 2010 - Camp Eggers, Afghanistan
* 6 June 2010 - Camp Phoenix, Afghanistan

	b.  Subject was identified as a female, second lieutenant, white, wrongful sexual contact (unfounded), assault consummated with a battery, false official statement.

	c.  Victim was identified as male, staff sergeant, white, wrongful sexual contact (unfounded), assault consummated with a battery.

	d.  Investigative summary stated:

* Report generated to list offense as assault consummated with a battery
* This is an Operation Enduring Freedom investigation
* Victim reported he was sexually assaulted by the applicant twice at Fort Hood, Texas, and once at Camp Eggers, Afghanistan
* Investigation determined offense of wrongful sexual contact did not occur as initially alleged
* Investigation determined that applicant committed the offense of assault consummated with a battery when she slapped the victim on the buttocks three times against his will
* Investigation determined the applicant committed the offense of making a false official statement when she denied slapping the victim on the buttocks

	e.  Agent's Investigative Report (AIR), dated 11 November 2010, as attached, indicates that the agent's office was directed to prepare a supplemental ROI changing the offenses of wrongful sexual contact, for which the applicant had been titled, to reflect unfounded and to add the offense of assault consummated by a battery.

7.  On 12 December 2010, the applicant was promoted to first lieutenant, pay grade O-2.

8.  On 15 April 2011, the applicant was released from active duty due to completion of required active service.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates she returned to her ARNG unit in Bangor, Maine.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through her counsel, contends that her military records should be corrected by removing the titling for making a false official statement and assault consummated by battery from the Defense Clearance and Investigations Index.

2.  The available evidence indicates that the applicant slapped the victim identified in the ROI and subsequently denied doing so.  There is no available evidence that conclusively shows the applicant did not do the stated offenses.

3.  The applicant's appeal to the CRC was considered and resulted in a partial correction of the ROI.  However, the CRC did not find any error with the recording of the applicant's name as the subject, or with the two remaining offenses.

4.  Identifying information about the subject of a criminal investigation will be removed from the titling block of a report of investigation when it is later determined that credible information indicating the subject committed a crime did not exist.  

5.  There is no evidence of error or injustice and the applicant has not provided sufficient evidence or argument warranting relief as a matter of equity.  Therefore, the applicant's request should be denied.








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.




      _______ _   _______   ___
               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)                                         AR20110000064





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ABCMR Record of Proceedings (cont)                                         AR20110000064



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