IN THE CASE OF:	  

		BOARD DATE:  8 October 2013

		DOCKET NUMBER:  AR20130000560 


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 reconsideration of his previous request that the titling action be expunged from the files of the:

* U.S. Army Criminal Investigation Command (USACIDC), also known as CID
* Federal Bureau of Investigation (FBI) Identification Division

2.  The applicant states he is providing a new argument that was not previously considered.

3.  The applicant provides 196 pages of various forms/documents, dated between 4 May 2004 and 11 October 2012.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110000301, on 22 December 2011.

2.  As a new argument, the applicant states:

	a.  He is not making any excuses for his actions, he just wants the Board to have a clear understanding of his state of mind and rationale at the time that led 

him to where he is today.  His actions were in fact erroneous, ignorant, irresponsible, and negligent, but not criminally intentional.  He had no malicious intent to deceive, lie, or intentionally misrepresent himself in any way and he had no benefit to gain by receiving unauthorized flight pay, wearing unauthorized awards/badges, and submitting an incorrect military biography.

	b.  His Article 15 action led to multiple compounding negative results and consequences.  He has suffered a painful, emotional, life crisis for the past several years as a result.  His entire military career went downhill and he has paid a heavy price for his actions by putting his family through an emotional roller coaster.  He lost 16 and 1/2 years of military service by not being able to continue to serve as a result of the Article 15.  Nonetheless, he has striven to keep on being a better Christian, hopes his record is expunged, and hopes to return to the service as a U.S. Army Reserve (USAR) officer and continue to serve his country.

	c.  He recently got married and in lieu of receiving gifts and monetary donations for their wedding, he and his spouse chose to have all donations donated to the Wounded Warriors Project.  He is a good-hearted person, good former officer, and has the potential to be an outstanding officer if he is provided opportunities for increased responsibility.

3.  Having had prior Reserve service, the applicant was appointed as a second lieutenant in the USAR on 9 June 2004.  He was promoted to the rank/grade of first lieutenant (1LT)/O-2 on 8 June 2006.

4.  On 26 October 2009, court-martial charges were preferred against him for one specification each of:

* wrongfully stealing flight pay, the military property of the United States
* wrongfully and dishonorably, with intent to deceive, submitting a military biography that he knew to be false
* wrongfully and without authority wear unauthorized medals on his uniform

5.  On 17 November 2009, an investigating officer (IO) was appointed under the provisions of Article 32(b), Uniform Code of Military Justice (UCMJ), to investigate him for suspected:

* larceny and wrongful appropriation by receiving flight pay he was not authorized
* conduct unbecoming an officer by submitting a military biography he knew to be false
* unauthorized wearing of awards/badges on his military uniform
6.  On 10 February 2010, an Article 32 hearing was held to determine if the applicant should be referred to a general court-martial.  On 6 April 2010, he entered into a pretrial agreement wherein he agreed to plead guilty at an Article 15 proceeding to submitting a military biography he knew to be false and wearing unauthorized awards/badges on his military uniform.  Court-martial charges were subsequently dismissed with the stipulation that his guilty plea would be accepted at an Article 15 hearing.

7.  On 15 April 2010, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for:

* wrongfully and dishonorably, with intent to deceive, submitting a military biography which he knew to be false
* wrongfully and without authority wearing unauthorized awards/badges on his military uniform

8.  The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 15 April 2010, shows the punishment imposed was a written reprimand and the imposing commander directed the DA Form 2627 be filed in the performance section of his Army Military Human Resource Record (AMHRR); formerly known as the Official Military Personnel File (OMPF).

9.  On 15 April 2010, he appealed the Article 15 punishment and, on 12 May 2010, his appeal was denied.  The DA Form 2627 was subsequently filed in the performance section of his AMHRR.

10.  On 22 May 2010, the applicant submitted a request to the U.S. Army Crime Records Center (CRC) requesting the removal of the titling action from the U.S. Army and FBI records because the charges against him were dismissed and he was not convicted of any charges and they were resolved by other than court-martial.

11.  On 28 July 2010, the Director, CRC, informed the applicant that his request to expunge information from the files of the CID and data in the files of the FBI Identification Division had been carefully reviewed, considered, and partially denied.  The partial removal consisted of removing personally identifiable information of law enforcement personnel and other third parties from the documents in question.  

12.  On 6 July 2012, he was honorably discharged from the USAR in the rank of 1LT.  On 9 January 2013, he enlisted in the Texas Army National Guard in the rank/grade of sergeant (SGT)/E-5.


13.  Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense) serves as the authority and criteria for U.S. Army CID titling decisions.  It states, in pertinent part, that titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes.  Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation In other words, if there is a reason to investigate, the subject of the investigation should be titled.

14.  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.

15.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The naming convention AMHRR replaces OMPF.  Folders and documents previously authorized for filing in any part of the OMPF will remain in the AMHRR.  The AMHRR is the historical and authoritative source for authentication of veteran or Service-related benefits, entitlements, and services.  Table B-1 states Article 15, UCMJ, is filed in either the performance or the restricted section of the AMHRR as directed by the imposing commander on the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the titling action in his Army and FBI record should be expunged because, although his actions were irresponsible and negligent, he did not act with criminal intent or the intent to deceive, lie, or misrepresent himself and he has suffered enough for his actions, are not sufficiently compelling or mitigating to warrant the relief requested.

2.  By law and regulation, 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. The applicant has failed to provide evidence satisfying this standard for removal.

3.  The evidence of record confirms the applicant was investigated for committing serious offenses in his capacity as a Soldier and he became the subject of an Article 32 hearing.  This resulted in him accepting NJP under the provisions of Article 15, UCMJ.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110000301, dated 22 December 2011.



      _______ _  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)                                         AR20130000560



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ABCMR Record of Proceedings (cont)                                         AR20130000560



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