IN THE CASE OF:	  

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130017919 


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's request, statement, and supporting documents are provided by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's record be corrected as follows:

* expunge the U.S. Army Criminal Investigation Command (USACIDC), Report of Investigation (ROI) in its entirety or alternatively amend it to state the following charges were unfounded or lacking probable cause:

* Article 107, False Official Statement
* Article 121, Larceny

* expunge the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action (CRDA)), dated 20 October 2010, or amend it to reflect that no evidence supporting the charges was found and that no adverse action was taken
* cancel his Defense Finance and Accounting Service (DFAS) debt

2.  Counsel states the origin of the applicant's problems is the ROI that reached a dubious finding, based on highly suspect investigatory work, that probable cause existed that he committed certain crimes in connection with the enrollment of his children at a Department of Defense (DOD) school in April 2007.  Though the applicant was never arrested, charged, prosecuted, or otherwise disciplined in connection with those matters, the finding of probable cause - which was made by an unnamed investigator without even a cursory analysis of the evidence supporting the elements of the claimed offenses, and without affording the applicant any hearing or opportunity to address and rebut the allegation - was somehow sufficient for DFAS to charge the applicant with a debt of over $44,000.00, which now stands at over $56,000.00.

3.  The ROI and resulting debt have negatively impacted the applicant by damaging his credit record and preventing him from qualifying for a loan to purchase a house, halted his promotion in the Naval Reserve and will undoubtedly impact his security clearance upon renewal.  The evidence identified and relied upon in the ROI is woefully insufficient to sustain the charges, USACIDC lacked authority to take adverse administrative action against the applicant, the administrative action may be time-barred, and the imposition of the debt by DFAS without a hearing violates the applicant's constitutional due process rights.

4.  Counsel provides a list of supporting documents which is attached to this record of proceedings.  Included in these documents are the USACIDC ROI with attachments, CRDA, DFAS out of service debt documents, and service records.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his request and at the time the applicant was a member of the Naval Reserve and a Navy civilian employee.  It is noted that the applicant's previous request to the USACIDC for operational review of certain events arising in connection with the ROI, namely, the presentation of the ROI by the USACIDC, Florida Fraud Resident Agency (FFRA) to DFAS, which thereupon initiated collection action against the applicant is still pending with the USACIDC.  As such, this Board will not consider that portion of the applicant's request and it will not be further addressed in this record of proceedings.  
3.  All evidence considered in this case was submitted by the applicant's counsel unless otherwise noted.

4.  A memorandum issued by the San Juan Military Entrance Processing Station (MEPS), Fort Buchanan, Puerto Rico, dated 25 July 2005, SUBJECT:  Confirmation of Signing-in for Duty, shows the duration of the applicant's assignment in Puerto Rico was from 25 July 2005 through 25 July 2008.  He was accompanied on this tour by his spouse and three dependent children.

5.  On 12 March 2007, he requested an extension of his tour until August 2008 in order to care for his father.  His chain of command endorsed his request for extension.

6.  On 26 April 2007, the Head, Human Resources Community, denied his request for a 13-month extension.

7.  On 30 April 2007, the applicant completed a Supplemental DOD Education Activity (DODEA) Form 600 (Domestic Dependent Elementary and Secondary Schools (DDESS )), Puerto Rico District, for the school year 2007-2008.  He certified that he was on active duty and his current orders would expire in July 2008.

8.  This form contains the statement "If my orders change/terminate before the start of SY (school year) 2007-2008, I will notify the registrar immediately.  Although required, the applicant's signature is not entered after this statement. 

9.  On 29 November 2007, the applicant's spouse was apprehended at the Fort Buchanan Post Exchange for shoplifting and subsequently prohibited from entering the installation and at that time she stated that she needed access to the installation because her three children attended school on the installation and her husband was living and assigned to Texas.  A special agent (SA) from the Puerto Rico Branch CID office reported this incident to the FFRA, USACIDC for further investigation.

10.  Between January 2008 and 30 July 2008, the FFRA conducted interviews and collected evidence in regard to the investigation.  The following information was reported:

	a.  On 24 January 2008, the agent obtained a copy of the applicant's permanent change of station (PCS) orders, dated 23 May 2007, from the first sergeant (1SG) of the MEPS.  These orders show that the applicant had a reporting date to the Naval Air Station (NAS), Kingsville, TX on 22 June 2007, with a four-day TDY enroute.  Additionally, these orders authorized him shipment of household goods and to be accompanied by dependents.  The 1SG further stated that the applicant arrived in Puerto Rico in August 2005 and he was aware that his assignment to the MEPS was a 24-month tour and that he would PCS no later than August 2007.  The applicant requested an extension in April 2007 which was immediately denied.

	b.  On 25 January 2008, the Registrar, DDESS, Puerto Rico District, Fort Buchanan, PR was interviewed and "presented the scenario involving the applicant."  Based on the scenario the Registrar informed the agent that the children could not attend the DOD school on Fort Buchanan since the sponsor was no longer assigned or stationed in Puerto Rico.  The only exceptions were if the sponsor was on temporary duty, assigned to a combat zone or area where dependents could not accompany the sponsor, or a short tour.  In addition, the children could finish the school year, if the school year was in progress (September through May).  She provided the agent with a copy of the DODEA Form 600 executed by the applicant on 30 April 2007, reflecting that his current orders would expire in July 2008.
	
	c.  The applicant was contacted by the San Antonio Fraud Resident Agency, San Antonio, TX on 21 February 2008.  After being read his rights, he provided his fingerprints and photograph.

	d.  On 2 July 2008, the reporting agent contacted the Assistant General Counsel, DODEA, Atlanta, GA office and discussed the enrollment of the applicant's children in the Fort Buchanan DOD school.  This official stated that the applicant was not eligible to enroll his three children at the Fort Buchanan, PR school.

	e.  The applicant's former commander was contacted between 29-30 July 2009.  She affirmed that she personally told the applicant within no more than a few days after the date on the letter that his extension had been denied.  Further, he was issued transfer orders which he presumably executed, which would indicate that he knew he was no longer eligible to use the school.

11.  On 30 July 2009, an updated USACIDC ROI was generated to change the offenses from U.S. Code to Uniform Code of Military Justice (UCMJ) offenses and listed the offenses as "founded."  It was previously reported that after interviewing personnel from his unit that the applicant's dependents remained in Puerto Rico even though they were authorized to travel with him to his new duty station in Texas.

12.  On 30 September 2010, DFAS notified the applicant of a debt owed to the Department of Defense due to larceny reported by a USACIDC ROI.  He protested the validity of the debt; however, on 20 April 2012 DFAS informed him that his out of service debt remained valid and that he should contact the USACIDC office that completed the investigation in order to have the determination overturned.

13.  On 20 October 2010, the Agent in Charge, FFRA, completed a CRDA.  This form reported the disposition of the applicant's charges of larceny and false official statement as "action taken" and "accepted" in item 3 (Referral Information.  The administrative action taken was restitution (to U.S. Government) in the amount of $44,200.

14.  On 12 January 2011, FFRA USACIDC, issued the final ROI.  This report stated that the investigation established probable cause to believe that the applicant committed the offenses of False Official Statement and Larceny when he falsified documentation by registering his three children in the DDESS for a year while he was not assigned to the geographic area.  The applicant knowingly falsified these DDESS documents four days after his PCS extension request was denied, transferring him from Puerto Rico to Kingsville, TX.  The loss to the U.S. Government was $44,200.00.  The U.S. Attorney's Office, San Juan, PR, declined prosecution of this case and referred any action to the DOD and the applicant's chain of command.  The FFRA presented documentation and a structured time line of events to the DFAS.  Upon review of this information DFAS accepted financial responsibility for the $44,200.00 loss, and collection of the debt from the applicant as he was still a Navy Reservist and Naval civilian employee.

15.  On 9 April 2013, the USACIDC denied his request to correct the CID ROI.
.
16.  The applicant contends in his declaration that he reported to the San Juan PR MEPS in July 2005.  His orders expired in July 2008.  During his assignment his dependent children attended the DDESS School at Fort Buchanan (2005-2006, 2006-2007).  In March 2007, he was notified that his orders would expire earlier than 2008; therefore, he requested an extension through August 2008.  On 20 April 2007, he submitted paperwork, based on the school's submission timeline, to enroll his children in school for the 2007-2008 school year.  All information provided to the school was correct and accurate as he was unaware that his request for an extension had been denied.  His wife informed the Registrar that there was a chance that his assignment could change prior to July 2008 and she was informed that the children's eligibility to attend the Fort Buchanan School for the 2007-2008 term was tied to his current orders, which at that point still had him assigned to Puerto Rico.  On 23 May 2007, he received his new PCS orders to report to Naval Air Station (NAS) Kingsville, TX not later than 
30 June 2007.  He immediately called the Registrar and informed her of this fact.  At no time was he ever instructed to remove his children, or otherwise advised that his children were no longer eligible to attend the Fort Buchanan School.  He was unaware that there was a problem until February 2008 when he was questioned by an investigator at NAS Kingsville.

17.  His counsel argues there was insufficient evidence to sustain a charge of false official statement.

	a.  The information recorded on the Supplemental DODEA Form 600 on 
30 April 2007 was 100 percent true and accurate because the applicant's current orders did not expire until July 2008 and his new orders were not issued until 
23 May 2007.  He notes that the agent only presented the "applicant's scenario" and did not ask specifically if the Registrar had personal knowledge of the applicant or the circumstances surrounding his enrollment of his children.  The omission of the details of the interview with the Registrar effectively denies the applicant his due process.

	b.  There is no evidence he had actual knowledge that his request for extension had been denied at the time he completed the enrollment form.  He references a fax header which shows the denial of his extension was forwarded by fax on 8 May 2007, more than a week after the enrollment application.  The counsel contends that the [1SG's] statement that erroneously claimed the applicant's assignment was only 24 months in duration and expired in 2007 is hearsay and clearly disputed by his orders and other documents.

	c.  There was no evidence showing intent to deceive.  The USACIDC investigator never bothered to interview the applicant; therefore, it appears the evidence of his intent to deceive was purely inferential, and a fait accompli once the USACIDC investigator concluded the applicant had falsified the enrollment form.  If the applicant had been interviewed, the investigator would have learned that the applicant notified the school when he received his orders in May.  He never attempted to conceal that his children were attending school in Puerto Rico, and listed on the berthing request (attached) to his commanding officer in Kingsville that his family, including his dependent children, were remaining in Puerto Rico.

	d.  The applicant did nothing wrong or improper.  It is clear why the Assistant U.S. Attorney declined to prosecute, why no charges were brought against the applicant, why disciplinary or adverse action was not taken by his chain-of command, and why no civil action for damages was ever instituted:  The evidence of any wrongdoing is utterly lacking.  Counsel asserts that because the applicant failed to sign the line acknowledging that he must report changes to his orders to the registrar immediately that he was arguably unaware of that requirement.  Further, the Registrar expressly told the applicant that the change in his status did not change his children's eligibility to attend the school.

18.  Counsel argues the charge of larceny is legally incompatible with any of the evidence.

	a.  The larceny charge appears to be a logical extension of the false official statement charge:  the ends to which the false official statement was the means.  The applicant in this case obtained and received service when his children attended a DODEA school without charge, to which a charge of larceny expressly does not apply.

19.  Counsel argues there is no authority supporting the DFAS debt without the ROI.  The only other record relevant to the ROI is the CRDA, dated 20 October 2010, signed by the "Agent in Charge" of FFRA.  There is no authority for the FFRA agent to execute the CRDA or otherwise to order disciplinary action to the applicant. 

20.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states that:

	a.   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.  

	b.  Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation.

	c.  Titling of an individual or entity is an operational rather than a legal decision.

21.  Credible Information is defined 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 in question are true.

22.  DODI 1342.21 (Eligibility Requirements for Minor Dependents to Attend DDESS) states that a tuition-free education will be provided at an installation served by a DDESS Arrangement for the dependent children of the military members on active duty, stationed or home ported in a territory, possession or commonwealth of the United States and not residing in permanent quarters on a military installation, when there is space available, as determined by the Secretary of Defense.

23.  DODEA Regulation 1342.13 (Eligibility Requirements for Education of Elementary and Secondary School-age Dependents in Overseas Areas) authorizes the enrollment of minor dependents in DOD dependents schools conditioned upon available space and payment of tuition.  This DODEA policy states that:

	a.   If DOD dependent students are authorized to accompany their DOD sponsor to the country of the sponsor's assignment, such dependent students ordinarily will not be entitled to space-required, tuition-free education in a DOD dependents school in a different overseas country or to education in a non-DOD school at U.S. Government expense in that different country.  Any exceptions to this policy must be approved by the Director, DODEA or designee. 

	b.  Non-command-sponsored DOD dependents who are enrolled in a DOD dependents school may remain in a DOD dependents school if their sponsor is declared missing in action or otherwise unlawfully detained for as long as the detention or mission status exists, subject to the approval of the Director, DODEA or designee.

24.  Army Regulation 190-45 (Military Police-Law Enforcement Reporting) states in paragraph 4-8 that the DA Form 4833 is used with the DA Form 3975 (Military Police Report) to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies.  The battalion commander or the first lieutenant colonel in the chain of command is responsible and accountable for completing the DA Form 4833 with support documentation for all USACIDC investigations within 45 days of receipt.

25.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the applicant's record be corrected as follows:

* expunge the USACIDC, ROI in its entirety or alternatively amend it to state the following charges were unfounded or lacking probable cause:

* Article 107, False Official Statement
* Article 121, Larceny

* expunge the CRDA, dated 20 October 2010, or amend it to reflect that no evidence supporting the charges was found and that no adverse action was taken
* cancel his DFAS debt

2.  The record shows that a USACIDC ROI, dated 12 January 2011, concluded that the applicant committed the offenses of larceny and making a false official statement when he enrolled his dependent children in a DDESS school at Fort Buchanan, PR, on 30 April 2007, having knowledge that his assignment in Puerto Rico was scheduled to end prior to the start of the 2007-2008 school year.

3.  The applicant's counsel argues that at the time the applicant completed the DDESS enrollment form on 30 April 2007 his assignment in Puerto Rico was scheduled to terminate on 25 July 2008 and the applicant had not been informed that his request for extension had been denied; therefore, the applicant did not make a false official statement.  Further, the applicant's PCS orders were not published until 23 May 2007.  Based on these facts, counsel states there is no evidence that the enrollment form was false or that the applicant had actual knowledge of any falsity.  Without evidence of a false statement larceny cannot be established.  Additionally, the applicant and his spouse verbally notified the school Registrar of a possible change in his assignment on at least two separate occasions and they were told that his children would still be eligible to attend school.

4.  On 12 March 2007, the applicant requested his assignment be extended through 30 August 2008 in order to assist with a family crisis.  This request was done approximately 45 days prior to him completing the enrollment form on 
30 April 2007.  Further, counsel contends that the applicant and his spouse informed the Registrar of a possible reassignment and immediately upon receipt of his orders reassigning him to TX he called the Registrar but he was never instructed to remove his children, or otherwise advised that his children were no longer eligible to attend the Fort Buchanan School.  He contends that the Registrar never directed him to remove his children from school.  However, the applicant failed to provide any evidence to corroborate this interaction such as a statement from the Registrar; such evidence would appear to be easily obtained and could have resulted in an expeditious resolution of this matter.  Lacking evidence to the contrary, it must be presumed that the Registrar followed applicable DDESS policy. 

5.  The applicable policy in this case is found in DODEA Regulation 1342.13 which states that if DOD dependent students are authorized to accompany their DOD sponsor to the country of the sponsor's assignment, such dependent students ordinarily will not be entitled to space-required, tuition-free education in a DOD dependents school in a different overseas country or to education in a non-DOD school at U.S. Government expense in that different country.  Any exceptions to this policy must be approved by the Director, DODEA or designee.  There is no indication that the applicant sought or received such approval.  

6.  In regard to removal of the CRDA, it appears that this form was completed by a USACIDC agent and not the applicant's commander as required by the applicable regulation; however, without the applicant's Naval record, or statement from his chain of command denying that this information was provided to the agent, there is no way to determine that an error or injustice exists.

7.  Titling only requires credible information that an offense may have been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient 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.  The applicant has failed to provide evidence satisfying this standard for removal.

8.  The evidence of record confirms the results of a USACIDC investigation provided a sufficient legal basis for the applicant to be titled for larceny and making a false statement.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process.

9.  In view of the foregoing, his request should be denied.

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)                                         AR20130017919





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ABCMR Record of Proceedings (cont)                                         AR20130017919



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