IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20130007755 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's name from the Defense Central Investigations Index (DCII) and titling and all records related to the report of investigation (ROI).

2.  Counsel states:

	a.  In 2009, the applicant was falsely and maliciously accused of rape of a child, indecent liberties with a child under the age of 16, and indecent acts upon a child.  He was never charged with any crime and all flags on his record were removed upon a determination from a physician that the child in question had not been raped.  Nevertheless, the applicant remained titled, his name was placed on an index and titling with the Department of Defense (DOD), and the accusations are obtainable by any law enforcement agency or for any security background investigation.

	b.  The titling was done in error and should now be removed in the interest of justice.  The applicant has exhausted his administrative remedies by appealing to the Director, Crime Records Center, U.S. Army Criminal Investigation Command (USACIDC, also known as CID), who granted partial relief in this matter.

	c.  The applicant has been serving in the military since 2000.  He has never been the subject of any nonjudicial punishment or other disciplinary matter in all of his years of service.  He is presently serving in a combat training company as an instructor/writer at Fort Leonard Wood, Missouri.  He is presently married to his second wife.

	d.  In 2003, the applicant married his first wife.  She had a daughter from a previous relationship who was approximately 8 years old at the time in question.  The applicant and his wife were both serving on active duty during their marriage.  In February 2004, his wife gave birth to a son; however, it was later determined that the applicant was not the father of the boy.  His wife's infidelity put great stress on their marriage and after living together for a few years they started discussing a possible divorce.  By September 2007, the couple had stopped living together.

	e.  In late September 2007, the applicant deployed to Iraq.  While there he initiated divorce proceedings.  Their divorce was final in May 2008.  Later in 2008, he met another woman whom he eventually married.

	f.  The rape allegation was allegedly first made by the young girl, the older daughter of his first wife, to her elementary school resource officer.  The girl allegedly gave the resource officer a note indicating she had been touched inappropriately by an unknown person.  This note was apparently provided to the counselor on 1 October 2008.  At some point later, the allegation was made that the applicant had removed her clothing and sexually molested her.  The incidents of such behavior were alleged to have occurred over a multi-year period from June 2004 to 1 October 2008.

	g.  On 8 October 2008, the girl underwent a medical examination for the alleged rape.  This examination indicated that no rape of the child had taken place.  No action was then taken against the applicant and his flag was removed from his records so he could continue his permanent change of station move to Germany.

	h.  The allegations made against the applicant are a stain on his honor and all records reflecting his supposed involvement in this matter should be amended to remove his name so that he is not in any way associated with these obviously false and treacherous accusations.  From the time the accusation was made there was never any credible information.  Considering the totality of the circumstances, that would indicate the applicant never committed the crime for which he was accused.

	i.  Pursuant to DOD Instruction (DODI) 5505.07 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), paragraph 4b(2), his name should be stricken from the record.  Paragraph 4b(2) states once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if the subject is found innocent of the offense under investigation, except if it is later determined that a mistake was made at the time of titling and indexing and no credible information indicating the subject committed a crime existed.

	j.  No seriously credible information ever existed that the applicant actually committed a crime or even that a crime was committed at all.  What is obvious is that as he was about to get remarried, his ex-wife, who according to the divorce decree had lost all support from him for the child she conceived out of wedlock with some other individual, decided to get revenge and concocted a story to destroy him.  The original report came from a young girl and involved a note which does not even identify the applicant as the culprit.  It was only later determined that it was the applicant, although exactly how this came about is unclear.  The allegations were made on 1 October 2008 and a week later a determination was made that the child was not telling the truth and no rape had taken place.

	k.  The information is not credible in that it included dates during which the applicant was deployed and dates the couple were not living together.  Thus, when taken in its totality, the incongruence between the alleged dates and his deployment dates, the fact that the applicant had just divorced his first wife and she was not receiving benefits as a result of her own infidelity, and most obviously, the medical report indicating that no crime had taken place, all indicate that there was never credible evidence that the applicant committed a crime or even that any crime had occurred whatsoever.

	l.  The applicant also argues that the command violated its own instructions in the conduct of this investigation in that he was never informed of his rights and consequences of titling as required under Army Regulation 195-2 (Criminal Investigation Activities), paragraph 1-4e(2).  This regulation requires that all individuals be advised as to what titling is and that such titling may have an impact upon their military careers and that it can be used in reference to their security clearances.  The applicant avers he never received such information.

	m.  The applicant appealed the decision to have him placed as a subject on the DCII and titling and the ROI into this matter.  The CID Director chose to amend the index and ROI to indicate there was "insufficient evidence" to indicate that a crime had been committed.  As such, the official ROI was amended so that the words "insufficient evidence" were added after each allegation.

	n.  The CID Director's decision did not indicate the reasoning used in the determination to keep the applicant's name in the title.  According to the Chief, Crime Records Division, CID, there was insufficient evidence to prove or disprove the offenses occurred and thus the applicant's report should remain titled although all of the charges now indicate next to them the words "insufficient evidence."

	o.  He argues that the CID Crime Records Division Chief's conclusions are incorrect.  The overwhelming evidence disproves the charges completely and the only logical conclusion is that a crime did not occur.

3.  Counsel provides 10 enclosures outlined in page 7 of his statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 February 2000 and trained as a military policeman.  He has remained on active duty through continuous reenlistments.  He was promoted to staff sergeant on 1 September 2007.

2.  A CID ROI, dated 10 March 2009, determined the applicant committed the offenses of rape of a child, indecent acts upon a child, and indecent liberties with a child.

3.  On 4 March 2013 per the applicant's request to correct the ROI, CID amended the ROI by adding "Upon further review by the United States Army Criminal Investigation Command (USACIDC), subsequent to an amendment request submitted by [Applicant], it was determined the listed offenses should have been identified to reflect 'Insufficient Evidence,' in that the investigation failed to prove or disprove the listed offenses."  The words "Insufficient Evidence" were added to the offenses in the ROI.

4.  Army Regulation 195-2 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.  The regulation states that requests to amend CID ROI's 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.

5.  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-DOD law enforcement element is a routine use under the Privacy Act.

6.  DODI 5505.7 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 that 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).

7.  DODI 5505.7 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.  In accordance with pertinent regulations, the decision by 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, CID is justified in titling that individual.  Counsel has provided no evidence to show that CID's decision to conduct the investigation and title him was in error.

2.  Disclosure of criminal information originated or maintained by 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-DOD law enforcement element is a routine use under the Privacy Act.  Counsel has provided no evidence to show that disclosure is or was in contravention of any law, regulation, or directive, as applied to law enforcement activities.

3.  Since there appears to be no case for mistaken identify, there is no basis to remove him from the titling block of the CID ROI.

4.  Counsel's contentions and the documentation he provided were carefully considered; however, the Government has an interest in maintaining such records and he has not shown through the evidence submitted with this application or the evidence of record why the CID ROI in question should not remain a matter of record.

5.  In view of the foregoing, there is no basis for granting counsel'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 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)                                         AR20130007755



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ABCMR Record of Proceedings (cont)                                         AR20130007755



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