IN THE CASE OF:	  

		BOARD DATE:	    11 December 2012

		DOCKET NUMBER:  AR20120016652 


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 his name be expunged from the titling block of a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI). 

2.  The applicant states:

	a.  He was titled by the CID in 2006 and he needs the titling action expunged.  As a result of this meritless titling, he was indexed in the National Crime Information Center database as the subject of an investigation.

	b.  He has exhausted all other means to have this injustice corrected.

	c.  His 2012 promotion to major has been placed before a promotion review board and his professional career is in serious jeopardy.  He is currently flagged, meaning he cannot permanently change stations, nor can he continue his pursuit of a master's degree.  

	d.  At the time of the incident, he had spent nearly 2 years as an infantry platoon leader at the 187th Infantry Regiment, resulting in top-tier ranked Officer Evaluation Reports.  His company commander at the time ranked him as the best lieutenant in the company and the battalion commander ranked him as number 
4 of 29 lieutenants with full awareness of the investigation.  He was selected to become the Brigade Headquarters Company Executive Officer, promoted to captain, and received the Bronze Star Medal.      

	e.  In early spring of 2006, he was involved in an improvised explosive device (IED) attack in Iraq where they detained individuals and one detainee had a bloody nose.  The CID later identified a detainee's injury as detainee abuse.  He made several sworn statements.  His actions resulted in a locally-filed general letter of admonition for being derelict in the performance of his duties, not investigating the incident, and making a false official statement.

	f.  The titling action was found to be without merit by numerous individuals in his chain of command at the time in question, his current chain of command, and other legal bodies.  It is a tremendous injustice that this titling action has already caused him to stop forward career progression and will likely cause him to be separated from the Army due to an error made by an overzealous CID agent and the current climate. 

3.  The applicant provides: 

* CID denial letter
* Promotion Review Board packet
* Letters of support
* Legal memorandum, dated 19 March 2012
* Redacted CID report
* Memorandum, dated 28 November 2012
* Letter, dated 30 November 2012, from a Member of Congress
* Letter, dated 3 December 2012, from his Member of Congress

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a U.S. Army Reserve second lieutenant on      17 May 2003 and he entered active duty that date.  He was promoted to captain on 1 July 2006.  
`
2.  A USACIDC ROI, dated 25 July 2006, established probable cause to believe the applicant committed the offenses of dereliction of duty and making a false official statement when he learned of another Soldier's action (assault consummated by battery, cruelty, and maltreatment of a detainee in Iraq).  The applicant failed to report this information to the unit chain of command and he provided a false sworn statement when questioned by CID. 

3.  On 18 August 2006, he received a letter of admonition for his actions between 16 February and 29 June 2006 while serving in Iraq.  The letter states:

	a.  On or about 16 February 2006, he was present while his platoon detained three suspected IED triggermen who were members of the Iraqi Security Forces.
	b.  At the initial point of capture, he noticed that one of the detainees had a fresh bloody nose.  He failed to investigate or report the incident.

	c.  In late May 2006, his platoon sergeant informed him that one of his Soldiers hit the detainee, causing the bloody nose.  Again, he failed to report the incident to his chain of command or initiate an inquiry.

	d.  At the initial point of capture and at the time he learned one of his Soldiers may have struck the detainee he had a duty as a leader to both investigate and report the incident.

	e.  He was knowingly derelict in his duties both times.

	f.  Finally, on 29 June 2006 he rendered a sworn statement to CID knowingly concealing relevant information pertaining to their investigation.  
	
4.  On 10 September 2012, the CID denied his request to correct the ROI.

5.  He provided a memorandum, dated 28 March 2012, from the general officer who administered the letter of admonition in 2006.  He attests:

	a.  He strongly recommends immediate lifting of the promotion ban on the applicant because he is fully qualified, deserves to serve as a major, and the information leading to his administrative flagging is without merit.

	b.  He personally signed and administered the letter of admonition on 
18 August 2006 and was thoroughly knowledgeable of the circumstances surrounding his titling by an agent of the CID.  The titling of the applicant was not supported by the chain of command and was without merit.

	c.  The applicant was admonished for minor misconduct.  As the leader he should have conducted a more thorough investigation given the circumstantial evidence that one of his Soldiers may have done very minor harm to an enemy combatant in U.S. Forces custody.  This oversight warranted an admonishment because of the extreme political sensitivity to a charge of detainee abuse after the combatant was turned over to a confinement facility.  The applicant was not charged with any offense and the admonition was locally filed.  This was the lease injurious form of punishment available and was administered to ensure the officer was aware of his responsibilities to thoroughly investigate an allegation of detainee abuse, regardless of the minor nature.


	d.  The applicant is an outstanding officer and has served with distinction.  He has the potential to serve many more years in positions of great trust and responsibility.  The titling of the applicant was not warranted and he strongly urges the Board not to compound the error of the CID agent by denying the applicant's promotion.  

6.  He provided a legal memorandum, dated 19 March 2012.  In summary it states:

	a.  The applicant alleges the CID actions that make up the ROI are not thorough, they are incompetent, and do not properly address the state of the law.  The existence of the ROI clearly punishes him personally and professionally for an incident that was not criminal in nature.

	b.  The applicant was not derelict in the performance of his duties and he did not make a false official statement.

	c.  Under the Uniform Code of Military Justice (UCMJ), he should not have been titled with either the dereliction of duty or the false official statement.  

7.  He provided a memorandum, dated 28 November 2012, to provide additional support to the above-mentioned legal memorandum.  In summary, he states based on a review of the CID investigation by a former Trial Defense Service and civilian attorney, he does not and did not meet the threshold or elements as defined for either dereliction of duty or making a false official statement.

8.  On 3 December 2012, he provided several documents through his Member of Congress.

9.  Among the documents that he provided are numerous character reference letters and letters of support from his chain of command.  He provided OERs for the periods 22 June 2006 through 25 March 2007, 20 May 2009 through 19 May 2010, and 20 May 2010 through 19 May 2011, which show his performance and potential for promotion were assessed as "Outstanding Performance, Must Promote" and "Best Qualified." 

10.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes Department of the Army policy on criminal investigation activities and constitutes the basic authority for the conduct of investigations and the collection, retention and dissemination of criminal information.  In pertinent part, it states that requests to amend CID reports of investigation will be granted only if the requestor submits new, relevant, and material facts which would warrant such a revision.  The burden of proof to substantiate the request is upon the individual.  Requests to delete a person’s name from the title block will be granted only if it is determined that probable cause did not exist to believe that the person so titled committed the offense.  The regulation further states that the decision to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual or the results of such action.  

11.  Army Regulation 195-2, paragraph 4-3d(1) states the disclosure of criminal information originated or maintained by CID may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  

12.  Department of Defense Instruction (DODI) 5505.7, 7 January 2003, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simply stated, are if there is reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof (mere 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 the evidence), and in searches (probable cause).

13.  The DODI also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation.  By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions.  Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends under the UCMJ he should not have been titled with either the dereliction of duty or false official statement.  



2.  In accordance with pertinent regulations, the decision by the CID to title a person for an offense is an investigative determination independent of any judicial, nonjudicial or administrative action taken against the individual, or the results of such action.  If at the time of the investigation of an alleged offense reason existed to believe that a particular person committed the alleged offense, the CID is justified in titling that individual.  The applicant has provided no evidence to show that the CID’s decision to conduct the report of investigation and title him was in error.

3.  Disclosure of criminal information originated or maintained by the CID may be made to any Federal law enforcement agency that has an investigative or law enforcement interest in the matter disclosed.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.  The applicant has provided no evidence to show that the disclosure was in contravention of any law, regulation, or directive, as applied to law enforcement activities.

4.  Since there appears to be no case for mistaken identify in his case, there is no basis to remove him from the titling block of the CID report.

5.  The applicant's contentions and the documentation he provided was carefully considered; however, the government has an interest in maintaining such records and the applicant has not shown through the evidence submitted with his application or the evidence of record why the CID ROI in question should not remain a matter of record. 

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)                                         AR20120016652



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ABCMR Record of Proceedings (cont)                                         AR20120016652



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