IN THE CASE OF:	  

		BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130010852 


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, in effect, amendment of U.S. Army Criminal Investigation Command (USACIDC) (also known as CID) Report of Investigation (ROI) Number 2011-CID122-xxxxx-xE by removing his name from the titling block. 

2.  The applicant states he had a criminal record but a Judge and the Court of Maryland dismissed the charges against him and ordered that the records be expunged.  The charges continue to show up in his Army Criminal Records background check.  The ROI should not be in his records and it is stopping him from obtaining:

* a dental or medical job
* his U.S. Citizenship
* an appointment as a Medical Service Corps officer

3.  His records should show no discrepancies.  He served his country as much as he could before physical injuries took place.  He wishes to reenter the Army with a clean record.  He would be thankful if the ROI is deleted from his records.

4.  The applicant provides a letter from the CID, dated 8 April 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New Jersey Army National Guard (NJARNG) on 4 February 2010, for a 3-year term of service.  He was discharged from the NJARNG on 4 August 2010, for failure to attend initial active duty for training (Phase I or Phase II) within 24 months.  He completed 6 months and 1 day of total service for pay.

2.  On 18 November 2011, the applicant, apparently a government contractor at the time, was arrested by the Maryland Comptroller's Office for possession and transportation of untaxed cigarettes.  On 28 November 2011, the CID was notified of the charges against the applicant. 

3.  CID titled the applicant in ROI Number 2011-CID122-xxxxx-xE.  The CID investigation shows the applicant was arrested in Maryland by the Maryland Comptroller's Office with 100 cartons of cigarettes.  The Maryland Comptroller's Office determined the applicant committed the offenses of possession and transportation of untaxed cigarettes that he purchased at Joint Base Myer-Henderson Hall, Arlington, VA.

4.  A DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 28 December 2011, shows no disciplinary or administrative actions were taken by military authorities.  Item 10 (Commander's Remarks) shows that on 14 February 2013 the applicant requested correction of his CID records per the Circuit Court of Maryland for Anne Arundel County, State of Maryland Order dated 11 June 2012, granting immediate expungement of his records pertaining to this offense.  The court ordered expungement of State records; i.e., court and police records pertaining to this action.

5.  The applicant provided a memorandum from the CID dated 8 April 2013 that shows the CID partially granted the applicant's request for amendment of CID ROI Number 2011-CID122-xxxxx-xE.  Administrative corrections had been made to the DA Form 4833.  Portions of the DA Form 4833 had been withheld under the Freedom of Information Act as release would violate the personal privacy of other individuals mentioned in his case.  The removal of the information constituted a partial denial.  

6.  His request to remove his name from the ROI was denied.  The memorandum noted that the record was an investigative document compiled and maintained for law enforcement purposes.  The determination to list an individual as a subject was based on investigative findings irrespective of whether judicial, non-judicial or administrative action was taken.

7.  Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense) contains the authority and criteria for CID titling decisions.  It provides that once a subject of an investigation has been indexed (when the titling decision has been entered into the criminal records system), the name shall not be removed from the title block unless mistaken identity can be shown, that is, when the wrong person's name was entered into the records system.  That a person was subsequently found not to have committed the offense under investigation and/or that the offense did not occur are not sufficient bases for removal.

8.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program.  Paragraph 1-6a states criminal incidents in the Army will be reported to the installation law enforcement activity.  These criminal
incidents include those affecting or involving persons subject to the Uniform Code of Military Justice, civilian employees, and contractors of the DOD in connection with their assigned duties, and Government property under Army
jurisdiction.  Criminal incidents occurring at an installation or activity without an assigned law enforcement activity will be reported to the appropriate supporting installation law enforcement activity.

9.  Army Regulation 195-2, paragraph 4-4, states CID ROI's are exempt from the amendment provisions of the Privacy Act and Army Regulation 340-21 (The Army Privacy Program).  Requests to amend or unfound offenses in CID 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.

DISCUSSION AND CONCLUSIONS:

1.  According to DODI 5505.7, 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 or not to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers.

2.  DODI 5505.7 also provides that titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling is a determination whether 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.

3.  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 or it was later determined a mistake was made at the time of titling in that credible information indicating that the subject committed a crime that did not exist.  

4.  There appears to be no case of mistaken identity in his case and no mistake was made at the time of titling.  The Circuit Court of Maryland for Anne Arundel County, State of Maryland Order granted immediate expungement of his records pertaining to this offense from State records.  CID records are not State records;; they are Federal records.

5.  Therefore, no basis exists for removing his name from the title block of the CID report and no basis for granting the applicant's request.

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)                                         AR20130010852



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ABCMR Record of Proceedings (cont)                                         AR20130010852



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