IN THE CASE OF:	 

		BOARD DATE:	  13 November 2012 

		DOCKET NUMBER:  AR20120012028 


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 removal of his name from the title block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) 0XXX-2XXX-CID-9XX-1XXX5-8EX, dated 17 September 2010, and removal of the associated officer evaluation report (OER) for the period ending 7 July 2010 from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.

2.  The applicant states the titling decision was based on an investigation that was procedurally flawed, insufficiently developed, and lacked sufficient credible evidence.  He claims the associated OER was the direct outcome of two flawed investigations and both the biased influence and recommendations of his rater who was implicated in the inquiry.  He states the OER does not render a fair assessment of his potential based on his duty performance during the prescribed period and was improperly delayed while his fellow battalion commanders received OER's.

3.  The applicant provides a self-authored letter and the 15 enclosures identified therein in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army colonel, Aviation Branch.  During the period 30 January 2008 through 7 July 2010, he was a lieutenant colonel serving as an aviation battalion commander in the 1st Cavalry Division.  He was deployed with his unit to Camp Taji, Iraq, in support of Operation Iraqi Freedom 09-10 from April 2009 to April 2010.

2.  During Operation Iraqi Freedom 09-10, a criminal investigation was initiated on 24 February 2010 following allegations of impropriety in the use of Field Ordering Officer funds.  As a result of that investigation, the applicant was titled in CID ROI 0XXX-2XXX-CID-9XX-1XXX5-8EX for the following offenses under the Uniform Code of Military Justice (UCMJ):

* Article 107, UCMJ	False Official Statement
* Article 134, UCMJ	General Article – soliciting another to commit an offense
* Article 81, UCMJ	Conspiracy
* Article 92, UCMJ	Failure to Obey Order or Regulation
* Article 93, UCMJ	Cruelty and Maltreatment
* Article 108, UCMJ	Destruction of Government Property

3.  The applicant and his unit redeployed from Iraq to Fort Hood, TX, in April 2010.  He was selected for promotion by the Fiscal Year 2010 Colonel, Maneuver, Fires, and Effects Promotion Board that recessed on 25 June 2010.  On 7 July 2010, he completed his command tour and he relinquished command of his battalion.  He was then transferred to Fort Knox, KY, for an assignment with the U.S. Army Human Resources Command.

4.  During his command tenure, the applicant received three OER's.  The first two command OER's were rendered by the brigade commander (rater), Colonel D____ M. G____, and by the division commander (senior rater (SR)), Major General D____ P. B____.  The third and final command OER was rendered by the same rater, but by a new division commander, Major General D____ B. A____.

	a.  The OER for the period 30 January 2008 through 29 January 2009 shows in:

		(1)  Part V (PERFORMANCE AND POTENTIAL EVALUATION (RATER)):

		(a)  a (EVALUATE THE RATED OFFICER'S PERFORMANCE DURING THE RATING PERIOD AND HIS/HER POTENTIAL FOR PROMOTION), the rater placed an "X" in the "Outstanding Performance, Must Promote" block.

		(b)  c (COMMENT ON POTENTIAL FOR PROMOTION), the rater wrote, "[Applicant] possesses vast and unlimited potential.  Promote below the zone to Colonel and select for SSC [senior service college] at the earliest oppurtunity [sic].  A true superstar and future brigade commander."

		(2)  Part VII (SENIOR RATER):

		(a)  a (EVALUATE THE RATED OFFICER'S PROMOTION POTENTIAL TO THE NEXT HIGHER GRADE), the SR placed an "X" in the "Best Qualified" block.

		(b)  b (POTENTIAL COMPARED WITH OFFICERS SENIOR RATED IN THE SAME GRADE), the SR rated the applicant as "Above Center of Mass."

		(c)  c (COMMENT ON PERFORMANCE/POTENTIAL), the SR wrote, "[Applicant] is an exceptionally outstanding commander.  He ranks first among our Aviation battalion commanders and in the top five of the thirty in the Division…He's terrific.  Promote [Applicant] below the zone to Colonel.  Select for the War College immediately, and then select for command of a Combat Aviation Brigade headed to war.  He must be a BG [brigadier general] and beyond."

	b.  The OER for the period 30 January 2009 through 13 January 2010 shows in:

		(1)  Part V (PERFORMANCE AND POTENTIAL EVALUATION (RATER)):

		(a)  a, the rater placed an "X" in the "Outstanding Performance, Must Promote" block.

		(b)  c, the rater wrote, "Promote below the zone to Colonel and select immediately for SSC.  [Applicant] has demonstrated impeccable and unparalleled potential during combat operations.  Future Brigade Commander and General Officer."

		(2)  in Part VII (SENIOR RATER):

		(a)  a, the SR placed an "X" in the "Best Qualified" block.

		(b)  b, the SR rated the applicant as "Above Center of Mass."

		(c)  c, the SR wrote, "[Applicant] is an exceptional combat commander and Aviator, standing first among his five strong peers in the Air Cavalry Brigade and ranking as one of the top five of all 31 battalion commanders MND [Multinational Division]-Baghdad.  He is the best Aviation battalion commander in Iraq….
[Applicant] must be selected immediately for SSC and promoted BZ [below the zone] to Colonel.  Select him to command a Combat Aviation Brigade going back into the war.  [Applicant] is a future general officer with real multi-star potential."

	c.  Upon departing Fort Hood, the applicant received the contested OER for the period 14 January 2010 through 7 July 2010, the third and final OER he received as a battalion commander.  This report had the same rater, but a new senior rater and shows in:

		(1)  Part V (PERFORMANCE AND POTENTIAL EVALUATION (RATER)):

		(a)  a, the rater placed an "X" in the "Outstanding Performance, Must Promote" block.

		(b)  c, the rater wrote, "Promote immediately to Colonel and select for SSC.  [Applicant] has once again displayed exceptional potential during the toughest of conditions, both in combat and garrison operations."

		(2)  Part VII (SENIOR RATER):

		(a)  a, the SR placed an "X" in the "Best Qualified" block.

		(b)  b, the SR rated the applicant as "Center of Mass."

		(c)  c, the SR wrote, "[Applicant] is an exceptionally talented Commander and among the top third of all Battalion Commanders I have senior rated in the past two years….Promote to Colonel now and select for SSC.  Ready now to provide sustained contributions to our Army at Colonel level."

5.  Following his arrival at Fort Knox, the U.S. Army Human Resources Command received CID ROI 0XXX-2XXX-CID-9XX-1XXX5-8EX and the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action).  On 21 June 2011, the commanding general completed the DA Form 4833 with the following remarks:

With respect to Block 3, Offenses 1-4 and Offense 6, I have carefully considered the CID report with all exhibits, and have concluded that insufficient credible evidence exists to take any administrative, judicial, or nonjudicial adverse action against [Applicant].  The facts necessary to substantiate the allegations are not sufficiently developed in the investigation, and the exhibits provided are sometimes contradictory and ultimately inconclusive.  The investigation does not contain any statements from [Applicant's] Brigade Commander or others in the Brigade leadership, although some exhibits indicate that the Brigade leadership may have had full knowledge of [Applicant's] actions.…
Because the evidence does not sufficiently support the allegations, I have determined that the investigation does not support adverse action.

With respect to Block 3, Offense 5 [Cruelty to Subordinates], the Commander, 1st Cavalry Division, directed a collateral investigation under the provisions of Army Regulation 15-6, Procedures for Investigating Officers and Boards of Officers.  The Commander, 1st Cavalry Division, issued a Memorandum of Admonition to [Applicant] for this offense, a copy of which is contained at Exhibit 47 of the CID report.  Because this offense was appropriately disposed of by [Applicant's] previous command, I have deemed the matter closed and have taken no action as a consequence.

With respect to all alleged offenses, I have mentored [Applicant] to be more sensitive to perceptions, particularly as they relate to his subordinates.  Although [Applicant's] actions were always in support of the mission, I encouraged him that he should always step back and contemplate his actions to ensure that they do not give the appearance of being inappropriate.  Appearances can be just as damaging as the real thing….

6.  On or about June 2011, the U.S. Army Central Personnel Security Clearance Facility initiated action to revoke the applicant's security clearance citing the CID ROI as justification.  The applicant appealed on 21 June 2011 and he was granted a Secret clearance on or about August 2011.  He has appealed to regain his Top Secret-Sensitive Compartmented Information clearance; however, the result is not available.

7.  The applicant had previously been informed that he was flagged and his pending promotion to colonel would be referred to a Department of the Army Promotion Review Board (PRB).  He appealed the referral and his appeal was denied on 22 September 2011.  He was informed the PRB would review his promotion selection.

8.  On 11 September 2011, the applicant requested that the Director, U.S. Army Crime Records Center, remove his name from the title block of the subject CID ROI.  He also requested removal of the general officer memorandum of admonition as an enclosure to the final CID ROI.  In a response, dated 14 December 2011, the Deputy Director, U.S. Army Crime Records Center, informed the applicant that his request was denied and the denial constituted the final action on behalf of the Secretary of the Army with respect to Army Regulation 195-3 (Criminal Investigation Activities).  The applicant was advised that he could apply to this Board.

9.  The PRB review was completed and the applicant was promoted to colonel on 1 November 2011.

10.  On 1 March 2012, the applicant requested that the Commanding General, CID, reconsider his request to be removed from the title block of the CID ROI.  In a 28 March 2012 memorandum, the Commanding General, CID, reiterated the requirements for titling, namely, "credible information, which is:  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.  (DODI [Department of Defense Instruction] 5505.7, paragraph E1.1.1)"  He then stated:

I have completed an exhaustive review of the file and have determined there is no basis to change the findings documented in the investigation.  The evidence supports each of the findings and documents serious misconduct on your part.  This case has been through numerous independent reviews within CID and the unanimous consensus remains that you were properly titled….I have determined that the investigation will not be amended.  Your request remains denied.

11.  The applicant advances the assertion that he was due an OER upon redeployment, that other battalion commanders received such OER's, and that his OER was improperly delayed.  A review of the records shows three other battalion commanders received SR option OER's triggered by permanent change of station (PCS) moves.  The applicant was not slated to PCS as soon after redeployment as his fellow battalion commanders and remained under the same rater and on station at Fort Hood long enough for the new division commander to qualify as his SR and render a report covering the period 14 January 2010 through 7 July 2010.  This allowed the applicant's entire time in command to be rated.  Had his fellow battalion commanders not been given SR option OER's in April 2010, they would have lost 3 months of rated time under a general officer SR while serving as commanders.

12.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program.  Chapter 4 contains guidance for investigative records, files, and reports.

	a.  Paragraph 4-4 contains guidance for individual requests for access to or amendment of CID reports of investigations.  It states that requests to amend CID ROI's will be considered only under the provisions of this regulation.

	b.  Paragraph 4-4b states that requests for amendment of 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 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.  The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action.  Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.

13.  DODI 5505.7 contains the authority and criteria for titling decisions and 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.

	a.  Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys.

	b.  Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence.  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 has 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."  The criteria for titling are a determination credible information exists that a person:

* may have committed a criminal offense
* is otherwise made the object of a criminal investigation

14.  Army Regulation 623-3 (Evaluation Reporting System), dated 10 August 2007, governed OER's at the time the contested report was rendered.

	a.  Paragraph 3-23e states, "Reports will not be delayed to await the outcome of a trial or investigation.  Reports will be done when due and contain what information is verified at the time of preparation."

	b.  Paragraphs 3-39 and 6-7 provide that an OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Any appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	c.  Paragraphs 3-43 through 3-59 describe the various types of mandatory reports and triggering events related thereto.

	d.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

	e.  Paragraph 6-11 states the burden of proof in an appeal of an OER rests with the appellant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the appellant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of his name from the title block of the subject CID ROI.  His basic argument is that he is innocent.  He adds the investigation was procedurally flawed and insufficient and it failed to develop sufficient credible evidence to support the charges.  He also points out no judicial or nonjudicial action was taken against him and cites an Army Lawyer article which mentions two previous Board decisions in which applicants were untitled.

2.  Titling or indexing does not denote any degree of guilt or innocence.  Simply stated, if there is a reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of evidence), and in searches (probable cause).

3.  In order to support removal of his name from the title block of the subject CID ROI, the applicant must show the original titling decision was in error.  The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action.  The applicant's protestation of innocence and his point that he was not punished is not germane to the issue of titling.  To gain the requested relief, he must show there was no information, considering its source, nature, and the totality of the circumstances, that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.  He has provided insufficient evidence to show the titling decision was in error.

4.  With respect to the two previous decisions to untitle applicants cited in the Army Lawyer article on which applicant relies, both are factually distinguishable from his case in terms of the underlying offenses investigated and the credibility of the witnesses relied upon.  Significantly, both cases turned on the statements of but one witness.  In the applicant's case, the ROI shows that credible information regarding applicant's involvement in the alleged offenses came from multiple witnesses.  As a result, he was properly titled.

5.  The applicant also requests removal of an associated OER for the period ending 7 July 2010 from his AMHRR.  He states the OER was improperly delayed and is a "clear aberration" in an otherwise outstanding career and taints his ability to compete for future nominative, command, and special interest opportunities.

6.  With respect to the allegation that his OER was improperly delayed to await completion of the investigation, there is no evidence that applicant was due a mandatory report upon his redeployment.  There is also no evidence that applicant was treated differently than his fellow battalion commanders.  There is no evidence that his fellow battalion commanders received reports upon redeployment for any reason other than that they were pending PCSs and, unlike the applicant who remained on station until July 2010, would have lost rated months in command due to lack of SR qualifications had they not received OER's upon redeployment.  Further, applicant's OER does not reference the investigation or the underlying conduct in any manner.

7.  By regulation, in order to support a successful appeal of an OER, the applicant must provide clear and compelling evidence to overcome the regulatory presumption that an OER accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

8.  The subject OER is not adverse and contains all laudatory comments.  He did not appeal it under the provisions of Army Regulation 623-3.  Absent any evidence to the contrary, it is presumed the OER properly reflects the rater's and SR's assessment of the applicant's performance.  Absent clear and compelling evidence of error or injustice, there is an insufficient evidentiary basis to overcome the regulatory presumption attached to OER's accepted by HQDA and included in the record.

9.  In view of the foregoing, there is an insufficient evidentiary basis to support granting any of the relief requested by the applicant.

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)                                         AR20120012028



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ABCMR Record of Proceedings (cont)                                         AR20120012028



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