IN THE CASE OF:	  

		BOARD DATE:	    20 December 2012

		DOCKET NUMBER:  AR20120018733 


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 counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the U.S. Army Criminal Investigation Command (USACIDC) (also referred to as the CID) Report of Investigation (ROI) for rape be expunged from the applicant's records.  In effect, he requests the applicant's record be corrected by removing his name from the titling block of the CID report and that this information be relayed to the National Criminal Information Center (NCIC) so his name can be removed from the NCIC record, which titles him for rape of a child and related crimes.

2.  Counsel states the applicant was titled for rape of a child and related crimes.  The accusations were disproved beyond a reasonable doubt by the evidence in the CID file and, therefore, are not supported by probable cause.  Also the titling decision was made improperly by deferring to the opinion of a state social worker, who substantiated the case against the applicant to punish him for exercising his right to silence.  Counsel made further statements in a memorandum wherein he stated:

	a.  He petitioned CID with this same request on 7 May 2011 and 4 July 2011; however, on 27 June 2012, the request was denied.

	b.  The allegations against the applicant were retracted by the accuser a few months after she made them.

	c.  Case summary:

		(1)  Miss AC is the applicant's stepdaughter.  Ms. AS is a social worker with the Alaska Office of Children's Services (OCS).  On 2 October 2009, Miss AC gave a recorded interview to Ms. AS, wherein she made allegations that the applicant "had repeated anal and vaginal intercourse with her (Miss. AC), leading to "infections front and back" which she said were treated in El Paso; that he had repeated oral sex with her; that he took pictures of her while she was naked and taped to a wall; and that he took other child-pornographic pictures of her with a camera that he kept in a "secret drawer."  No such pictures or secret drawers were ever found, even after a thorough examination of the applicant's personal electronics.

		(2)  On the same date, Miss AC underwent a Sexual Assault Nurse Examiner (SANE) exam.  Her hymen was intact and her anus was likewise normal.  CID obtained her medical records which showed no vaginal or anal infections.

		(3)  On 16 November 2009, Ms. AS, the social worker, sent an email to the applicant's company commander, stating she would be "substantiating" the case against…[the applicant]…because he did not meet and talk with her and take a "sex offender assessment."  However, the applicant refrained from meeting and talking with the social worker and taking the sex offender assessment based on counsel's advice.  Counsel advises Soldiers facing serious allegations not to make statements to anyone.  

		(4)  On approximately 29 November 2009, Miss AC recanted her allegations.  Her mother reported this recantation to CID, who informed Ms. AS.  On 5 January 2010, Ms. AS said the OCS "probably would not" re-interview Miss AC, as Ms. AS believed a re-interview might pressure Miss AC into recanting.

		(5)  On 22 January 2010, the applicant requested relief under Article 138 of the Uniform Code of Military Justice (UCMJ) (Complaint of Wrong) from his company commander, because the CID was refusing to re-interview Miss AC, and the no-contact orders in force were causing the applicant great hardship.  In a memorandum denying relief, the applicant's company commander wrote "In 
conversations with…[Ms. AS, OCS]…she reported that due to limited contact with you and/or your attorney, her office concluded their findings substantiating the accuser’s claim naming you the "perpetrator of sexual abuse."  
		(6)  On 3 February 2010, Miss AC gave another recorded interview to Ms. AS, recanting everything.  During this interview Ms. AS made repeated efforts to get Miss AC to go back to her original story.  At the end of the interview, Ms. AS told Miss AC that she would go on believing the original allegations "no matter what"; however, Miss AC stood firm by her recantation.

3.  Counsel provides:

* two memoranda for titling appeal, dated 25 and 28 September 2012 
* Sworn Affidavit, dated 28 September 2012
* Female Child/Adolescent Acute Sexual Abuse Examination, dated 
2 October 2009
* Case Summary, Alaska Cares, dated 2 October 2009
* Email, dated 16 November 2009
* CID Form 94 (Agent's Investigation Report), five pages, dated 
20 October 2009, 19 November 2009, 29 December 2009, and 
25 January 2010
* two memoranda, dated 22 January 2010
* Letter, Armed Forces Center for Child Protection, dated 9 November 2010
* Memorandum, Legal Opinion, dated 7 February 2011
* Letter from CID, U.S. Army Crime Records Center, dated 
27 June 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 January 1999 and has served through a series of reenlistments or extensions.  He currently holds military occupational specialty 93Y (Unit Supply Specialist) and is serving in the rank/grade of staff sergeant/E-6.

2.  Counsel provided a Female Child/Adolescent Acute Sexual Abuse Examination, dated 2 October 2009, wherein it shows Miss AC was examined by a registered nurse.  This form further shows:

	a.  Miss AC disclosed that her stepfather engaged her in kissing, inappropriate touching, oral, vaginal and anal sex, that he showed her pictures of naked children and adults performing various sexual acts on his computer, and that he taped her naked to a wall and took pictures.

	b.  The anal-genital examination findings showed a normal exam or normal variant, meaning that sexual abuse could neither be confirmed nor negated.  

3.  Counsel provided a case summary issued by Alaska CARES on 2 October 2009.  This summary shows the applicant's biological daughters were examined due to his stepdaughter's allegations of sexual abuse.  This case summary includes a statement from the applicant's wife, Mrs. ID and she stated her daughter, Miss AC, had been seeing a counselor due to issues with lying, and that her daughter had not disclosed occurrences of sexual abuse to the counselor.

4.  Counsel provided an email from Ms. AS, dated 16 November 2009, wherein Ms. AS stated:

* she would be substantiating the case against the applicant for sexually abusing his stepdaughter
* she had made several attempts to contact the applicant's attorney to set up a meeting to talk with the applicant, but no meeting had occurred
* OCS was requesting the applicant complete a sex offender assessment before he be permitted to have any unsupervised contact with his children
* the applicant could not be in his home at that time because OCS had not been able to determine if the children would be safe in his care

5.  Counsel provided a five-page CID Form 94 ranging in date from 20 October 2009 to 25 January 2010.  This form shows:

	a.  Investigators interviewed Mrs. ID, (Miss AC's mother) who related that Miss AC complained to her that her "Middles" (the word she uses for vagina) 
were hurting.  Upon looking her mother did not notice anything abnormal.  Miss AC also told her mother that a nurse at Alaska CARES told her her "middles" were too big and she needed to perform some sort of swabbing because she may have a baby.  Her mother contacted the Nurse at Alaska CARES the following day and told her what her daughter had said.  The nurse states she never said anything like that, in fact, she had informed her daughter that everything looked normal.  Mrs. ID asked her daughter not to discuss the event at school or with her friends; however, Miss AC went to school and spoke about it openly to her friends and classmates.  This led to an Alaska social worker, Ms. AS, visiting the school to discuss the issue with Miss AC.  

	b.  Buccal swabs were collected from the applicant to retrieve DNA [deoxyribonucleic acid] samples and all the applicant's computer equipment and electronic media devices were collected for forensic evaluation, a preliminary check of thumb drives and memory cards did not reveal anything suspicious.  In addition, CID agents collected a shirt bearing "Sea You Later" and a pair or purple panties belonging to Miss AC.  Investigators also collected Miss AC's medical records and conducted a thorough review.  One record revealed she had been seen for a sore on her buttocks which appeared to be a large pimple.

	c.  Investigators interviewed Miss AC's counselor, who stated she had regular sessions with Miss AC prior to the incident and had been continuing to see her on a weekly basis since the incident.  The counselor stated Miss AC remained very consistent in her descriptions of sexual abuse by the applicant and had not recanted her claims in any way, though she had been given the opportunity to do so in counseling.  

	d.  Investigators re-interviewed Mrs. ID, who related that on 24 December 2009, Miss AC revealed to her she had made up the allegations about the applicant.  According to Mrs. ID, Miss AC told her, "You know mom, it's time to tell the truth…about things going on and things on the computer…I know you guys…(…[her mother and the applicant]…) will never be apart and I know whatever I say or do will not make you go back to my Dad…the things I said were because of things I found on the computer."

	e.  Investigators spoke to Ms. AS who essentially stated she and Miss AC's counselor were in agreement that Miss AC most likely recanted her statement about the sexual abuse because of family pressure.

6.  Counsel provided a letter, dated 22 January 2010, which shows the applicant sent a memorandum to his company commander requesting relief under Article 
138 of the UCMJ.  His request, in effect, discussed his frustration with the long process and he asked that his company commander revoke the no-contact order permitting him to return home because his stepdaughter had recanted her accusations.  His company commander denied his request that same day and stated he could not revoke the order until he acquired written proof from CID, OCS, or another official stating the charges had been officially dropped.

7.  Counsel provided a letter from the Armed Forces Center for Child Protection, dated 9 November 2010, wherein Major SM, a child abuse pediatrician, stated a review of Miss AC's sexual abuse examination photos revealed her hymen was intact and her anal examination was normal.  The pediatrician summarized her findings by stating:

In summary…[Miss AC]…disclosed sexual abuse by her stepfather…[the applicant]…then recanted.  Though…[the pediatrician had]…no way of knowing which story is true, there are concerns that she felt pressure to recant given the repercussions felt by her family and her guilt for causing problems.  Her initial disclosure contained detail of sexual knowledge that should be beyond her age and developmental level.
8.  Counsel provided a memorandum for record, prepared by the Office of the Staff Judge Advocate, Fort Richardson, AK, on 7 February 2011, wherein the Chief of Military Justice states:

	a.  She had been briefed by the senior agent assigned to the applicant's case concerning all the allegations of sexual assault against his stepdaughter.  In consideration of all the evidence gathered and assessed there was sufficient probable cause to believe the rape and sodomy of a child under the age of 12 occurred.  However, there was insufficient evidence of the production of child pornography.  

	b.  The legal office, along with CID investigators and the case workers, surmised the victim's recantation may have occurred for personal reasons and not because she actually fabricated the allegations.  Therefore, the investigation remained open for an appreciable time to be thoroughly reviewed by other agencies.  The seriousness of the original allegations necessitated such due diligence.  However, there has been no voluntary attempt by the victim to offer any new evidence.  For this reason, one last attempt was made to contact the victim and inquire as to whether she would like to further develop her story or withdraw and rectify her recantation.  The attempt was unsuccessful.  

	c.  The legal office could not proceed with prosecution in this case as it stood, even with the founded offenses.  Even with probable cause, prosecution would be virtually impossible without a participating victim and an obstructive recantation.  The legal office strongly recommended that the CID keep the case file and findings for as long as possible in the event that other accusations arise, either by the current victim or another.

9.  Counsel provided a letter from CID, dated 27 June 2012, which stated:

	a.  CID had carefully considered counsel's request to correct information from CID on behalf of the applicant.  However, in accordance with Army Regulation 195-2 (Criminal Investigation Activities), his request on the applicant's behalf to correct the ROI was denied.  Further, this denial constituted the final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2.

	b.  Department of Defense (DOD) Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) establishes policies and procedures for reporting criminal history data to the Federal Bureau of Investigation (FBI) NCIC for all military service members and civilians investigated by DOD criminal investigative organizations for the commission of certain offenses.  Those subjects who have resultant judicial, non-judicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject has committed the offense in which they were titled, will remain in NCIC.  Reporting information to the NCIC depends on the offense committed and the final result of the report.  A check of the NCIC reflects that the applicant was listed as the subject in the aforementioned ROI for forced sodomy and rape of a child.

	c.  USACIDC has sent correspondence to the FBI to update the NCIC entry pertaining to the applicant to reflect a disposition of "Insufficient evidence to proceed with UCMJ action.  Prosecution Declined."  Retention of this criminal history data in the NCIC does conform to DOD policy.  The applicant's name will remain in the NCIC.  The applicant has exhausted his administrative remedies to correct the information contained in his CID record.  

10.  Counsel provided an affidavit, dated 28 September 2012, wherein he stated his full legal name and the fact that he is the editor of the Military Law Review at the Judge Advocate General's School in Charlottesville, VA.  He indicated he had represented the applicant from 2009 to 2011 and is currently representing the applicant in a legal assistance capacity.  He further stated:

	a.  "In November 2009, …[counsel]…met with…[Ms. AS] to talk about…[the applicant's]…case.  In person, as in her email, she was most insistent that he take a "sex offender assessment."  Later, …[counsel]…talked to two civilian care providers (…[Ms. MF]…a licensed clinical social worker in Fairbanks, and…[Dr. BS]…a psychologist in Anchorage) about these "assessments."  From them…[counsel]…learned that these tests are not screenings to differentiate innocent men from sex offenders.  The tests…are designed to determine how likely a guilty man is to reoffend.  They do not produce meaningful results for innocent men."

	b.  Counsel "walked away from this meeting convinced of…[Ms. AS's]…dedication to the presumption of guilt in child sex cases.  During the meeting…[Ms. AS]…said she thought the accusations were true because…[Miss AC]…"has had plenty of time to recant, but hasn't recanted."  (This was after the medical evidence had disproven the accusations, but…[counsel]…did not learn of this until much later.)  Less than two months later…[Miss AC]…did recant,   but …[Ms. AS]…remained firm in her conviction that…[the applicant]…must be guilty…and indeed tried hard to talk…[Miss AC]…into "un-recanting."

11.  Counsel provided two disks of recorded evidence which are attached to this record of proceedings.  They contain interviews which contain sensitive information and have been attached as evidence to this case.

12.  DOD Instruction 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, 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 support the initial titling determination.

13.  Army Regulation 195-2 establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID.  Paragraph 4-4(b) provides for amendment of CID investigative command reports.  It states CID ROIs are exempt from the amendment provisions of the Privacy Act and Army Regulation 340–21 (The Army Privacy Program).  Requests for amendment will be considered only under the provisions of this regulation.  Requests to amend unfound offenses in USACIDC ROIs 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 that 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, non-judicial, 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.  

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the applicant's name should be removed from the title block of a CID ROI and from NCIC records.

2.  The available evidence shows the applicant was suspected of committing a serious offense in his capacity as a Soldier and he became the subject of a CID investigation.  DODI policy specifies that titling only requires credible information that an offense may have been committed.  

3.  Removal of the titling action in the applicant’s case is not supported by the evidence.  The titling determination in this case was based on the standard outlined in DODI, which states 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 support the initial titling determination.  Neither of these situations applies in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The ABCMR record of proceedings and allied documents pertaining to this case should be returned to the ABCMR for filing rather than filing them in his AMHRR.



      _______ _   _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)                                         AR20120018733



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ABCMR Record of Proceedings (cont)                                         AR20120018733



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