IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120005179 


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 his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the correction of all law enforcement records in the Defense Incident-Based Reporting System, U.S. Army Crime Records Center (USACRC), National Crime Information Center (NCIC), Criminal Justice Information Services (CJIS), and any other Department of Defense criminal offense reporting system. 

2.  Counsel states it appears the Army reported a CID titling decision for an allegation of rape and forcible sodomy despite a lack of probable cause.

3.  Counsel provides:

* U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (redacted), dated 3 December 2005
* CID memorandum, dated 3 June 2010
* Witness Statement 
* Voicemail transcript
* DD Form 214 (Certificate of Release or Discharge from Active Duty)



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 17 November 2004.  He was honorably discharged on 2 February 2006 by reason of a disability that existed prior to service.

3.  The complete facts and circumstances of the alleged offense(s) against the applicant are not available.  Counsel provides a redacted copy of the CID Report of Investigation which shows:

   a.  on or about 8 May 2005, the applicant was accused of rape and forced sodomy under Articles 120 and 125 of the Uniform Code of Military Justice (UCMJ); and
   
   b.  the Staff Jude Advocate or prosecutor was of the opinion that sufficient admissible evidence was available to prosecute the subject for the offenses, that additional investigation would produce only cumulative and unneeded evidence, and that the identification of additional subjects or offenses was unlikely.

4.  Counsel further submits:

   a.  The CID's partial denial of the applicant's request for correction of his record which informed the applicant that correspondence was sent to the Federal Bureau of Investigation to update the NCIC entry pertaining to him to reflect a disposition of "received non-judicial punishment under Field Grade 
Article 15 UCMJ, dated 29 Sep 06 for Forced Sodomy [initially shown as Rape and Forced Sodomy].  Reduced from E3 to E2; forfeiture of $692.00 pay."

   b.  A witness statement given under oath in which Mr. LCW contends he was present at the time and the applicant did not rape the accuser, but they did engage in consensual sexual activity.  Mr. LCW further stated that he, Mr. Sxxx, and the applicant attended a party at an off post hotel where they met two females who joined them in their hotel room.  He had consensual sex with one female and the applicant had consensual sex with the other female.  At the end of the sexual activity the accuser remained in the room.  Later her boyfriend knocked on the door.  The boyfriend began a loud, verbal altercation which resulted in the local police responding.  After the police spoke with the boyfriend, the three of them were arrested.  Shortly after the incident occurred, he spoke with the CID and was reassigned to Korea.  His chain of command took no action and all charges were dropped against him. 

	c.  A transcript of a voicemail [source unknown] received by Mr. Sxxx, in which a third party states that she was informed by another female that the accuser told them that, in effect, she was not raped, but she did not want to go back to rehabilitation.  The third party also indicated that she tried to call the detective but got no answer and the female who spoke with the accuser was willing to write a statement.  No statements were provided by the applicant or counsel.

5.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states 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 dispute the initial titling determination.  
DODI 5505.7, dated 7 January 2003, provides that titling of an individual or entity is an operational rather than a legal decision.

6.  Credible Information is defined as 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's counsel contends the Army reported a CID titling decision for an allegation of rape and forcible sodomy which lacked probable cause.

2.  The available evidence shows the applicant requested the CID correct his record.  On 3 June 2010, he was granted partial relief and his NCIC entry was amended from "rape and forced sodomy" to "forced sodomy."  However, his name remains in the NCIC database.

3.  By law and regulation, titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, 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.  The applicant has failed to provide evidence satisfying this standard for removal.

4.  The evidence of record confirms the results of a CID investigation provided a sufficient legal basis for the applicant to be titled for forced sodomy.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process.  In view of the foregoing, his 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.



      _______ _   __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)                                         AR20120005179



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ABCMR Record of Proceedings (cont)                                         AR20120005179



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