IN THE CASE OF: 

		BOARD DATE:	    25 March 2014

		DOCKET NUMBER:  AR20130013342 


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 that the Board overturn the denial decision by the U.S. Army Criminal Investigation Command (CID) to correct information in the CID files.  He also requests a personal hearing.

2.  In effect, he requests reconsideration of his earlier request for modification of CID Report of Investigation (ROI) 04-CID025-XXXXX-5CI, dated 23 February 2005.  His military criminal history as contained in the CID and the U.S. Army Crime Records Center (CRC) reflects a conviction for felony assault consummated by a battery.  The record should reflect three non-felony convictions for assault consummated by a battery.  He is appealing the 20 July 2010 CID decision to deny his request.

3.  The applicant states:

	a.  In September 2009, he received a letter from Lancaster County, Nebraska, stating he had a felony on his record as a result of a court-martial he received in February 2005.  He had been convicted by a general court-martial in 2005, but he did not receive a punitive discharge at that court-martial.  On 30 June 2010, he submitted a request to the CRC to modify the database to reflect that he was convicted for "three assaults consummated by a battery" and not "aggravated assault."  On 20 July 2010, CID denied his request.  The response stated he had 60 days to appeal the decision to the CRC Director.  On 7 September 2010, through his former active duty counsel who was then and continues to be an Army Reserve Trial Defense Service Counsel, he made that appeal.  He never received a response to that letter.  He waited a little over a year and then made an online application to the Army Board for Correction of Military Records (ABCMR) for a records review.  In August 2012, the ABCMR denied his application.

	b.  It was obvious the persons reviewing his application did not understand what he was appealing.  However, the ABCMR told him that he and his counsel could appeal the decision within a year.  His attorney, Major R____ R____, mailed his appeal on 8 March 2013.  A month later, the ABCMR returned that appeal stating he needed to do this online appeal.  He is now requesting a personal hearing so he can address any questions the Board may have.

		(1)  First, he is not appealing the 2005 court-martial.  He is appealing the 20 July 2010 CID decision.  Not only is he still within the 1-year appellate time that the 14 August 2012 decision gave him last year, he is still within the original 3-year limitation period that began on 20 July 2010.

		(2)  Second, it is a manifest injustice for a former Soldier to have a conviction for a crime for which he was not convicted on his record.  He was not convicted of aggravated assault under Article 128 of the Uniform Code of Military Justice (UCMJ).  He is now attaching a "corrected copy" of the Result of Trial from his original court-martial.  The elements that would have justified a conviction for aggravated assault were "excepted" from the relevant specification.  Nevertheless, CID is still considering the offense an aggravated assault.  It is not.  Again, he was not convicted of aggravated assault as the CID records reflect.

		(3)  Third, the original ABCMR analysis seemed to confuse "titling" with a record that shows a conviction.  He was titled for aggravated assault.  He is not appealing the titling.  The record he is appealing is a record of showing convictions, not titling.  The original ABCMR board did not understand that distinction.  He does not know what else he can do to convince the Board that this record is wrong and harming his life.  It is wrong for the Army to show records that it publishes to other agencies in its records; specifically, a conviction that he did not receive.  He hopes the Board will reconsider his situation and correct this mistake.

4.  The applicant provides:

* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 23 February 2005 (previously submitted)
* Department of the Army Report of Result of Trial, dated 23 February 2005 (previously submitted)
* letter from Lancaster County Sheriff's Office, Lincoln, NE, dated 15 September 2009 (previously submitted)
* letter from Director, CRC, dated 20 July 2010 (previously submitted)
* memorandum from 22nd Legal Services Organization (Trial Defense Service), Grand Prairie, TX, dated 7 September 2010 (previously submitted)
* ABCMR Docket Number AR20110023518, dated 14 August 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 ABCMR in Docket Number AR20110023518, dated 14 August 2012.

2.  The applicant does not meet the two-tiered standard for reconsideration in that, although his request is submitted within 1 year after the Board's original decision, the applicant failed to provide any new substantial evidence.  His request is now being reconsidered by the Board because:

* he claims the Board, in its original Record of Proceedings, confused his specific issue with that of titling
* he now requests a personal hearing

3.  The applicant enlisted in the Regular Army on 21 August 1998 and he held military occupational specialty 19K (Armor Crewman).  He served through two reenlistments in a variety of assignments.

4.  He was assigned to Company A, 2nd Battalion, 34th Armor Regiment, 1st Infantry Division, Fort Riley, KS.  While there, he was involved in multiple incidents of assault and/or disorderly conduct, documented on DA Forms 3975 (Military Police (MP) Report (MPR)) and/or civilian law enforcement forms/affidavits.

	a.  A DA Form 3975, dated 4 April 2004, for disorderly conduct shows he was arrested by the Riley County Police, processed, and released to the MP's.

	b.  A DA Form 3975, dated 31 August 2004, for aggravated battery shows he was arrested by the Geary County Deputy Sheriff, processed, and released to the MP's.

	c.  A Municipal Court Complaint, dated on or about 6 November 2004, was filed against the applicant for throwing Ms. J____ D____ down to the ground in a rude and angry manner during a domestic dispute without her consent (domestic battery) and acting in a disorderly manner by using offensive, obscene, or abusive language (against a police officer) which tends to arouse resentment and anger in others (disorderly conduct).

	d.  A DA Form 3975, dated 6 November 2004, for domestic battery and disorderly conduct shows he was arrested by the Junction City Police, processed, and released to the MP's.

5.  On 6 November 2004, a Junction City Police Officer was dispatched in reference to a disturbance in front of a local business.  The applicant had been observed making threats to a female and he was later observed picking her up off the ground and physically throwing her back onto the street in an angry manner.  He was arrested and taken to the Geary County Detention Center where he was booked.  A law enforcement affidavit states probable cause exited to believe the applicant committed the offenses of domestic battery and disorderly conduct.  The applicant was released to MP officials for processing.  Accordingly, an MPR was initiated to provide the chain of command a description of the events that occurred.  This form shows the applicant's offense as domestic battery and disorderly conduct.

6.  As a result of the investigation that revealed the applicant was arrested by a Junction City Police Officer for domestic battery and disorderly conduct, 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 aggravated assault (code 5C1K).  As a result of that investigation, the applicant was titled in CID ROI 04-CID025-XXXXX-5CI.

7.  On 23 February 2005, the applicant was convicted by a general court-martial as described below.  He pled guilty and was found guilty of the charge and specifications 1, 2, and 3 under Article 128.  He also pled not guilty and was found not guilty of specifications 4 and 5.

Specification 1:  On or about 6 November 2004, assault J____ L. D____ by unlawfully picking her up and throwing her onto the street.  Plea:  Guilty except the words "unlawfully pick up and throw J____ L. D____ onto the street," substituting therefore the words, "unlawfully push J____ L. D____."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "unlawfully pick up and throw J____ L. D____ onto the street," substituting therefore the words, "unlawfully push J____ L. D____."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 2:  On or about 17 July 2004, assault Private First Class (PFC) S____ R____ by unlawfully striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit, a fractured vertebra.  Plea:  Guilty except the words "commit an assault upon PFC S____ R____ by striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit:  a fractured vertebra," substituting therefor the words, "unlawfully strike PFC S____ R____ on the head with his fist."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "commit an assault upon PFC S____ R____ by striking him on the head and back with his hands and feet and thereby intentionally inflict grievous bodily harm upon him, to wit:  a fractured vertebra," substituting therefor the words, "unlawfully strike PFC S____ R____ on the head with his fist."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 3:  On or about 13 June 2004, assault B____ G____ by grabbing him by the arm and throwing him to the ground.  Plea:  Guilty except the words "by the arm," substituting therefor the words, "by the shirt."  To the excepted words, not guilty; to the substituted words, guilty.  Finding:  Guilty except the words "by the arm," substituting therefor the words, "by the shirt."  To the excepted words, not guilty; to the substituted words, guilty.

Specification 4:  On or about 28 January 2004, assault W____ A. R____ by unlawfully striking him in the chest with an open hand and in the face with a closed fist.  Plea:  Not Guilty.  Finding:  Not Guilty.

Specification 5:  On or about 28 January 2004, assault L____ C____ by unlawfully striking him in the chest with an open hand.  Plea:  Not Guilty.  Finding:  Not Guilty.

8.  The court sentenced the applicant to reduction to the lowest enlisted grade, forfeiture of $822.00 pay per month for 5 months, and confinement for 5 months.

9.  On 23 February 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for:

* twice failing to go at the time prescribed to his appointed place of duty
* disobeying a lawful order from a commissioned officer
* fleeing apprehension by a police officer
* wrongfully impersonating a noncommissioned officer rank

10.  On 23 February 2006, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14.  The specific reasons are cited as:

* driving while intoxicated
* disobeying a commissioned officer
* multiple instances of disorderly conduct
* assault of several individuals
* failing to show proof of liability insurance
* conviction for sexual battery

11.  On 9 March 2006, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct for commission of a serious offense with a general discharge.  On 5 April 2006, the applicant was accordingly discharged.

12.  It also appears that he appealed to the CRC on 30 June 2010 to correct his criminal history record in such a way that he would be able to own and possess firearms.

13.  On 20 July 2010, the CRC Director responded to the applicant's request and stated:

	a.  His request to modify the ROI is denied and he could appeal the denial to the Secretary of the Army within 60 days of the date of this letter.  The Department of Defense (DOD) has procedures in place for reporting criminal history data to the Federal Bureau of Investigation National (FBI) Criminal Information Center (NCIC) for all military members investigated by DOD investigative agencies or organizations for commission of certain offenses and who are subjects of resultant judicial or nonjudicial military proceedings.

	b.  Reporting information to the NCIC depends on the offense committed and punishment received.  A check of the NCIC records reflected the applicant was listed as the subject for aggravated assault in the contested ROI.  He received a punishment of reduction to the lowest enlisted grade, forfeiture of pay, and confinement for 5 months.  Given these facts, retention of his criminal history data in the NCIC conforms to DOD policy and his name would remain the NCIC.

	c.  Furthermore, Title 10, U.S. Code (USC), sections 801-946, do not characterize offenses as felonies or misdemeanors.  Instead, the Manual for Courts-Martial identifies the maximum punishments which may be imposed for each punitive article of the UCMJ.

14.  Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures and responsibilities for preparation, reporting, use, retention, and disposition of the DA Form 3975 and documents related to law enforcement activities.  

	a.  An incident will be reported as a founded offense when adequately substantiated by a police investigation.  A person or entity will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person or entity committed a criminal offense.  The decision to title a person is an operational rather than a legal determination.  The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence but, rather, ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes.

	b.  Offenses are codes on the DA Form 3975 with the offense code describing, as nearly as possible, the complaint or offense by using an alphanumeric code as provided in table 4-1.  This offense code list will be amended from time to time based on new reporting requirements mandated by legislation or administrative procedures.  Offense code 5C1K (aggravated assault with a boxer's fist – Article 128, UCMJ) is an authorized code.  MPR's are forwarded to the CRC for processing and permanent filing.

15.  NCIC is a computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons).  It is available to Federal, State, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year.

16.  The UCMJ does not classify offenses as petty offenses, misdemeanors, or felonies.  Whether an offense is considered within any of these classifications is a matter of other federal or state law definitions.

17.  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 CID Commanding General.  The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation.

	c.  Chapter 5 provides that the CRC will receive and maintain the permanent files of CID.  The CRC Director will ensure the retention and proper use of these records and furnish data and copies of files, documents, or information there from to persons or agencies authorized to receive such information.  The Director will refer requests to agencies controlling release of the requested information.  For crime records purposes, the CID Director will maintain liaison for the CID Commanding General, Defense Security Services, Intelligence and Security Command, Defense Central Index of Investigations (DCII), DOD National Agency Check Center, and other Federal agencies (including the FBI or NCIC), as appropriate.

18.  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 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 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 and/or is otherwise made the object of a criminal investigation.

19.  DODI 5505.7 contains further legal guidance as follows.

	a.  Section 6.1 states 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 states 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 states that 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 states 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 states 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 states that 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.

	e.  Section E1.1.1 defines credible information as 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.

	f.  Section E1.1.2 defines criminal investigation as an investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution.

	g.  Section E1.1.3 defines DCII as a centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in 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.

	h.  Section E1.1.4 defines incidental as any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes.

	i.  Section E1.1.5 defines indexing as 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.

	j.  Section E1.1.6 defines subject as 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.

	k.  Section E1.1.7 defines title block as the portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses.

	l.  Section E1.1.8 defines titling as 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.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for correction of a military record. 
The ABCMR considers individual applications that are properly brought before it.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  The ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant/counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant contends that he is not appealing the 2005 court-martial.  He is appealing the 20 July 2010 CID decision.  The Board is aware that he was not appealing his court-martial.  This is so because court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  

3.  The investigation involving the applicant centered on his aggravated assault and disorderly conduct.  He was arrested by law enforcement officials for domestic battery and disorderly conduct and he was ultimately titled.  The ROI, dated 23 February 2005, shows the investigation established probable cause existed to believe the applicant committed the offense of aggravated assault (code 5C1K).  As a result of that investigation, he was titled in CID ROI 04-CID025-XXXXX-5CI.  After the investigation concluded, the applicant was convicted by a general court-martial.  He pled guilty and was found guilty of the charge and three out of five specifications.

4.  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).

5.  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.  In other words, the fact that he pled guilty to the "excepted" wording in one or more specifications had no bearing on the fact that he was the subject of an investigation.

6.  His contention that he was found guilty of certain charges vice others has no bearing on and is not germane to the issue of titling or modification of the titling actions.  To gain the requested relief, he 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 (in this case, aggravated assault) may have occurred.  He has provided insufficient evidence to show the titling decision was in error or that it should be changed.

7.  The ROI shows that credible information regarding the applicant's involvement in the alleged offenses came from multiple witnesses and/or sources.  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.  The investigation followed a logical course and both the initial titling decision and subsequent reviews of that decision by CID have fully complied with applicable law and regulation.

8.  The applicant's arguments are unconvincing.  His criminal history record maintained by the CRC and reported through the DCII to the FBI NCIC does not state this is a felony.  The military does not classify offenses as petty offenses, misdemeanors, or felonies.  The applicant is confusing the crime reporting and titling process used by Army law enforcement with the charges brought against him in his general court-martial.  Law enforcement titles and indexes offenses so the information can be retrieved at some future time for law enforcement and security purposes.  The act of titling and indexing does not connote any degree of guilt or innocence, nor does it necessarily have a direct correlation to the charges brought at trial.

9.  After a comprehensive review of this case, the applicant is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20110023518, dated 14 August 2012.




      _______ _ 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)                                         AR20130013342



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ABCMR Record of Proceedings (cont)                                    AR20130013342



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