IN THE CASE OF:	  

		BOARD DATE:  11 March 2014

		DOCKET NUMBER:  AR20130012255 


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 his name from the title block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation 
(ROI) 00XX-12-CIDXXX-87XXX, dated 23 April 2012.

2.  The applicant states:

* he made a grave error that was the only mistake in his 3 years, 9 months, and 15 days of service
* as a result of this error, he received a General Officer Memorandum of Reprimand (GOMOR) and attendance to the Army Substance Abuse Program with frequent urinalysis testing
* his deployment was also cancelled and he lost all his military benefits, especially the health benefits
* since being discharged for unacceptable conduct, he has not been able to get a State nursing license or a job
* the mistake has cost him undue hardship that also affected his family and caused financial difficulties
* he has no excuse for his behavior; he had two legitimate prescriptions from his military doctor but one had expired
* when he found out the fact between the two medications, he panicked and he was not honest about the situation
* he is not disputing the facts; he is disputing the overall perception, his character and his reputation
* he has lived a good life and he has been a good citizen who tries to do the right thing; he just wants to move on with his life
3.  The applicant provides:

* Letter of denial from the CID
* Final CID ROI
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 67-9 (Officer Evaluation Report)
* Character reference letters

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 17 February 2008.  He entered active duty on 5 March 2009.  He was promoted to captain on 1 August 2011.  

2.  He was assigned as a Clinical Staff Nurse to B Company, Dwight Eisenhower Army Medical Center, Fort Gordon, GA.  

3.  On 7 July 2011, he participated in a unit urinalysis and his urine sample tested positive for D-Amphetamine.  

4.  A CID investigation was initiated upon notification by the applicant's commander that he (the applicant) tested positive for D-Amphetamine during a Command Directed Unit Urinalysis Inspection.  

5.  As a result of the investigation, the applicant was ultimately titled.  The ROI, dated 23 April 2012, shows the investigation established probable cause existed to believe the applicant committed the offense of wrongfully using a controlled substance.  He also committed the offense of false statement when he provided a false written statement to CID.  As a result of that investigation, the applicant was titled in CID ROI 00XX-12-CIDXXX-87XXX.

6.  On 4 May 2012, the applicant was reprimanded by the Commanding General (CG), U.S. Army Signal Center of Excellence for misconduct and actions by his wrongful use of D-Amphetamine and making a false official statement. 

7.  Also on 4 May 2012, the CG ordered the applicant to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b for misconduct, moral and professional dereliction (testing positive during the urinalysis, providing a false official statement, and conduct unbecoming an officer).  He recommended an under honorable conditions discharge.  The chain of command recommended his separation. 
8.  On 20 November 2012, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) approved the recommendation of the Department of the Army Ad Hoc Review Board that reviewed the applicant's elimination from the service packet.  The DASA (RB) ordered the applicant eliminated from the service by reason of misconduct and moral professional dereliction with a general characterization of service.  

9.  The applicant was discharged from the Army on 19 December 2012.  His DD Form 214 shows he was discharged under the provisions of paragraph 4-2b of Army Regulation 600-8-24 for unacceptable conduct with an under honorable conditions (general) characterization of service.  He completed 3 years, 9 months and 15 days of creditable active service.  

10.  It appears the applicant petitioned the Director, U.S. Army Crime Records Center (CRC), on 4 April 2013, to remove his name from the title block of the subject CID ROI.  

11.  On 17 April 2013, the Director, CRC, informed the applicant that his request was denied.  He was advised he could appeal this decision within 60 days.  However, there is no evidence he did so.  Essentially, the Director, CRC notified him of the requirements for titling, namely, "credible information, which is:  information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true.  (DODI 5505.7, paragraph E1.1.1)."  

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

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

13.  DODI 5505.7 contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed.  It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the DDCII 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 or not 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.  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."  The criteria for titling are a determination that credible information exists that a person:

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

14.  DODI 5505.7 contains further legal guidance.

	a.  Section 6.1.  Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports.  All names of individual subjects of criminal investigations by DOD organizations shall be listed in DCII.  (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.)  Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense.

	b.  Section 6.3.  The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense.

	c.  Section 6.6.  Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions:

		(1) Section 6.6.1.  Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII.

		(2)  Section 6.6.2.  Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist.

	d.  Section 6.9.  When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3.

15.  DODI 5505.7 also provides the following definitions:

	a.  E1.1.1 – Credible Information:  Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true.

	b.  E1.1.2 – Criminal Investigation:  Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution.

	c.  E1.1.3 – DCII:  A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DOD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files.  The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies.

	d.  E1.1.4 – Incidental:  Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes.

	e.  E1.1.5 – Indexing:  Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII.

	f.  E1.1.6 – Subject:  A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense.

	g.  E1.1.7 – Title Block:  Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses.

	h.  E1.1.8 – Titling:  Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, an Army Nurse, tested positive for the wrongful use of D-Amphetamine.  A subsequent investigation was initiated upon notification by the applicant's commander that he tested positive for D-Amphetamine during a unit urinalysis.  The investigation established probable cause existed to believe the applicant committed the offense of wrongfully using a controlled substance.  He also committed the offense of false statement when he provided a false written statement to CID.  As a result of that investigation, the applicant was titled in CID ROI 00XX-12-CIDXXX-87XXX.

2.  Titling or indexing does not denote any degree of guilt or innocence.  If there is a reason to investigate, the subject of the investigation should be titled.  This is a very low standard of proof, requiring only the merest 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 evidence), and in searches (probable cause).

3.  In order to support removal of his name from or to change any portion of the title block of the subject CID ROI, the applicant must show the original titling decision was in error.  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, nonjudicial, or administrative action taken against the individual or the results of such action.

4.  The ROI shows that credible information regarding the applicant's involvement in the alleged offenses.  As a result, he was properly titled.  Based on the CID investigation, it is clear that there was ample credible information obtained by investigators that – considering the source and the nature of the information and the totality of the circumstances – was sufficiently believable to lead a trained investigator to presume the fact or facts in question were true at the time the titling and indexing decision was rendered.  

5.  In order to gain the requested relief, the applicant must show there was no information – considering its source, nature, and the totality of the circumstances – that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred.  He has provided insufficient evidence to show the titling decision was in error.

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)                                         AR20130012255





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ABCMR Record of Proceedings (cont)                                         AR20130012255



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