IN THE CASE OF:	  

		BOARD DATE:	    22 January 2013

		DOCKET NUMBER:  AR20120019169 


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 the charge of rape from the titling block of a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation (ROI) XXXX-XX-CIDXXX-146604.

2.  He states he was never charged with rape and the documents provided to the Staff Judge Advocate (SJA) stated there was insufficient evidence to charge him with rape.  He explains that the female in question gave him her telephone number 4 days prior to the incident at the Post Exchange.  He adds they called each other in the days between then and the incident.  He states she invited him over her house to watch television.  He maintains when he got to her home, she asked him to replace a light bulb and she went into a room and changed clothes. 
Upon her return, she sat on the couch and started rubbing and kissing him and one thing led to another.  He states at no time did she say stop or did he hold her down or force himself on her.  He concludes by stating he never went over to her house to buy a television.

3.  He provides a letter from CID, dated 21 September 2012.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 November 1993 and he is currently serving in the rank/grade of sergeant first class/E-7 through a series of reenlistments.

2.  A redacted "Final" copy of the CID ROI, dated 12 May 2003, shows an investigation was initiated in Germany when the alleged victim notified the German Police that she was raped by the applicant at her off-post residence.  The investigation did not develop sufficient evidence to prove or disprove the allegations that the applicant raped the alleged victim.  She reported that the applicant went to her residence to look at a television set she had for sale, then he held her down and raped her.  Subsequent interviews did not identify any witnesses to the incident.

3.  On an unknown date, the applicant requested amendment of the CID ROI.

4.  On 15 June 2012, the Chief, Investigative Operation Division, conducted a review of the ROI pertaining to the applicant to determine if the credible information standard was correctly applied.  He said the investigation clearly articulated credible information existed when the applicant was indexed as a subject at the beginning of the investigation.  Probable cause exists to believe the applicant committed the offense of rape and thus should remain titled.

	a.  He said the SJA was briefed on the investigation on 5 November 2002 and was of the opinion that there was insufficient evidence to prosecute the applicant for the offense of rape.  The SJA also said the applicant was being "chaptered out" of the military and he could stop the procedures; however, he did not see the need for that based on his opinion.

	b.  The Chief, Investigative Operations Division, stated that the credible information standard was correctly applied when the applicant was indexed.  Based on the investigation, there was probable cause to believe he committed the offense of rape.  A review of the applicant's amendment request failed to disclose any substantive new information warranting amendment to the probable cause determination reflected in the summary of the ROI regarding the listed founded offenses.

5.  On 21 June 2012, the Quality Control Polygraph Division provided a memorandum to the Director, U.S. Army Crime Records Center, USACIDC, recommending that the applicant be retained in the ROI for the listed offense.  The representative stated credible information did exist at the time of the initial ROI to warrant his titling as a subject in the investigation.  There was no error in mistaken identity or error in application of the credible information standard at the time of the initial ROI to support an amendment to that portion of the report.

6.  The Quality Control Polygraph Division representative further stated the U.S. Army Criminal Investigation Laboratory report identified trace evidence identifying fabric transfer from the applicant's clothing to the alleged victim's clothing and bedding.  The investigation also identified a handwritten phone number for the alleged victim on a notebook belonging to the applicant.  A review of the applicant's amendment request failed to disclose any substantive new information warranting amendment to the probable cause determination reflected in the summary of the ROI regarding the listed founded offenses.  Further, he stated the investigative summary should be changed to reflect this as a founded investigation as opposed to how it is currently written (insufficient evidence).

7.  A memorandum from the Director, Crime Records Center, USACIDC, dated 18 July 2012, subject:  Request for Amendment of Record – (Applicant), stated that after carefully considering the request and the evidence available, action officers agree correction should be made to the applicant's ROI.  Preparation of a supplemental ROI was directed to update the narrative portion of the report to reflect a founded case.

8.  In an Agent's Investigation Report, dated 19 July 2012, the agent said he received a request from the Crime Records Center, USACIDC, to reopen the investigation and generate a Final Supplemental Report changing the summary of the report to reflect the finding of this investigation as founded.  The request was made pursuant a legal sufficiency review by CID higher headquarters which determined the summary of the Final ROI was inconsistent with the investigative findings.  Along with the request were four memoranda pertaining to the reviews conducted by CID Headquarters which included a legal review and opinion stating probable cause existed to believe the applicant committed the offense of rape.

9.  On 21 September 2012, the applicant's request to correct the CID ROI was denied by USACIDC.

10.  A review of the applicant's Army Military Human Resource Record (AMHRR) shows he accepted nonjudicial punishment on 9 November 2009 for two offenses of wrongfully engaging in illegal association with female Soldiers in training.  His AMHRR also shows he received a general officer memorandum of reprimand on 15 October 2012 for exchanging unprofessional e-mail with a junior Soldier, allowing her to address him without regard to his rank or position, and responding in an overly-familiar tone.

11.  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 USACIDC ROI's.  It states that requests to amend USACIDC ROI's will be considered only under the provisions of this regulation.

	b.  Paragraph 4-4b states requests for amendment of USACIDC 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 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 USACIDC 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, USACIDC.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.

12.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states 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 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.  The criteria for titling determination are that credible information exists that a person:

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

	c.  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."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the charge of rape from the title block of the subject USACIDC ROI.  He argues that he was never charged with rape and the SJA found there was insufficient evidence to charge him with rape.

2.  The DODI concerning CID titling is clear in that once a person has been indexed, the name shall not be removed except in the case of mistaken identity or a determination that credible information did not exist that the subject committed a crime at the time the titling decision was made.

3.  Titling is an administrative action based on credible evidence showing that a subject may have committed a criminal offense.  Once titled, the person remains titled even if it is later determined that the person did not commit the offense under investigation.  However, based upon reopening of the applicant's case, it was determined that the final ROI was inconsistent with the investigative findings and there was probable cause to believe he committed the offense of rape.  Therefore, preparation of a supplemental ROI was directed to update the narrative portion of the ROI to reflect a founded case.

4.  Based on the evidence of record, it appears the applicant was and is properly titled.  The records properly reflect the offenses for which he was investigated.  There appears to be no case of mistaken identity in his case.  Therefore, there is no basis to grant his requested relief.

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)                                         AR20120019169



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ABCMR Record of Proceedings (cont)                                         AR20120019169



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