BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20140014461 


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) 08-CID446-XXXX4-6EX, dated 8 October 2008. 

2.  The applicant states he was titled by CID for aggravated sexual assault.  He also states: 

	a.  No arrest was ever made.  He was named as a suspect.  He voluntarily went to the local CID agent to answer questions and left freely after the questioning was complete.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) given in conjunction with the above ROI has nothing to do with the sexual assault, only Article 92 violations. Per CID "Since adverse action was given in conjunction with their involvement, a titling will occur."  CID agents neglected to close out their own records which resulted in the titling.  He was charged and the titling action was a case of mistaken identity and/or false accusation.  The accuser identified the applicant as sexually assaulting her.  The facts presented are the statements from people he was with the night in question to include statements from people (named in her own statements) the accuser was with, the babysitter he came home to, his commander at the time, and the CID report itself.  

	b.  The CID report only documents the accuser’s statement; no assessment was given by CID.  The sexual assault forensic evidence (SAFE) and DNA test did not match.  The vehicle and location also do not match that of the statement of the accuser.  He received an Article 15 for the Article 92 violation.  He never committed or received any type of punishment for anything related to assault.  He has been labeled and identified incorrectly.

	c.  The only evidence of a sexual assault offense in his records is the product of a CID report that has his name in the titling block as a subject.  The offense was never "founded" and this distinction is crucial.  CID regulations do not allow for the removal of a subject's name from the titling block unless there is a case of mistaken identity.  This effectively means that even if evidence is gathered after the credible evidence threshold is met (at the time of titling) and that later-in-time evidence reveals the earlier evidence (statement of an alleged victim) to be not credible, the titling decision does not change.  In this case, investigation beyond the initial interview of the alleged victim discovered evidence that failed to corroborate her story or discredited it entirely as there was no determination of even probable cause in this case.  Probable cause is required for CID to make an investigation "founded."  In other words, it is not even "more likely than not" that he committed the alleged offenses that are now cause for his relief, and he is being relieved ultimately because he cannot disprove an individual's allegation.

	d.  The facts are that he pled and was found guilty in Article 15 proceedings on 3 April 2009, by the authority of U.S. Army 5th Recruiting Brigade Commander.  The UCMJ action was for three counts of violating Article 92 that occurred in excess of 5 years ago; nothing sexual related is listed on the DA Form 2627.  Sexual assault was not charged, SAFE and the DNA test did not match, and the vehicle the accuser named did not match.  Statements provided by the company commander and witness of the night in question testify that no type of assault ever occurred and that he went home alone. 

3.  The applicant provides:

* Letters, dated 7 April 2010, 5 May 2010, 24 May 2010, and 6 April 2011, from the U.S. Army Crime Records Center (CRC), CID, Fort Belvoir, VA
* Letter, dated 21 July 2014 from the CRC, Quantico, VA
* Removal of arrest entries
* DA Form 2627, dated 3 April 2009
* DA Form 2823 (Sworn Statement)
* Initial ROI dated 30 September 2008 with allied documents (sworn statements, investigative agent's report, and rights warning waiver certificate)
* Company Commander's statement, dated 17 March 2011
* three letters of support, dated in 2013 and 2014



COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests removal of the applicant's name from the title block of the CID ROI 08-CID446-XXXX4-6EX, dated 8 October 2008. 

2.  Counsel states: 

	a.  The applicant was notified back on 23 August 2013 by the U.S. Army Recruiting Command (USAREC) Commanding General that he was being relieved for having credible evidence of a sexual assault offense in his records and three violations of USAREC regulation.  In regard to the alleged sexual assault offense, the only evidence in his record is a CID report that has his name in the titling block as a subject.  The offense was later determined to not be founded as CID failed to uncover evidence to corroborate the victim‘s allegation and actually uncovered evidence to discredit her.

	b.  CID regulations do not allow the titling block to change unless it was a case of mistaken identity.  So even in the case where evidence initially indicates that a person should be titled but during the course of the investigation it is determined that the person should not have been, the CID regulations still state that the original titling decision should stand.  

3.  Counsel does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 5 October 1999 and he was trained in and holds military occupational specialty 79R (Field Recruiter). 

2.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Germany and Iraq, and he was promoted to staff sergeant (SSG)/E-6.   

3.  On 3 September 2008, the Company Commander, Recruiting Company Colorado Springs, CO, submitted a memorandum for record, titled: Alleged Recruiter Impropriety for [Applicant].  He stated: 

	a.  On 3 September 2008, he conducted a face-to-face interview with a future Soldier, Ms. SLJ.  She alleged that in June 2008, she was involved in an inappropriate intimate contact with a recruiter, [Applicant], formerly of the Citadel Recruiting Battalion.  She provided a sworn statement wherein she alleged that the applicant provided her alcoholic beverages and, in her intoxicated state, took her to his residence.  She further alleged inappropriate intimate contact on the part of the applicant at his home.  

	b.  On 2 September 2008, he also interviewed the future Soldier's recruiter, Sergeant First Class (SFC) F-----l.  He stated that on 3 August 2008 Private (PVT) SLJ contacted him via telephone, concerning the alleged impropriety of the applicant.  SFC F-----l also provided a sworn statement to the facts stated to him by PVT SLJ.  

	c.  As the company commander, he believed that this allegation is extremely serious in nature and warrants investigation as a recruiter impropriety. 

4.  On 30 September 2008, CID agents received a memorandum of transmittal from the 37th Military Police Detachment (CID) at Fort Jackson, SC, wherein PVT SLJ, female, B Company, 1st Battalion, 61st Infantry, Fort Jackson, SC, reported she had been sexually assaulted by the applicant while she was a member of the Delayed Entry Program, prior to attending basic training.  Preliminary investigation determined PVT SLJ disclosed the applicant purchased her and her friend several alcoholic beverages while at the Dublin House Sports Bar, Colorado Springs, CO.  When the party began to break up, the applicant suggested she was too intoxicated to drive and suggested he give her a ride home.  After leaving the bar, she reported she passed out and later awoke to the applicant engaging in sexual intercourse with her without her consent.  When she confronted him about the activity, he informed her that he thought she wanted him and instructed her not to tell anyone because she would also be in trouble.  On 30 September 2008, he was advised of his rights which he invoked and he requested an attorney. 

5.  A CID investigation was initiated upon notification by the applicant's commander that he (the applicant) sexually assaulted a female.  The ROI shows the investigation established probable cause existed to believe the applicant committed the offense of sexual assault.  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 08-CID446-XXXX4-6EX.

6.  On 3 April 2009, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for violating Article 92 as follows: 

* violating a lawful general regulation by providing alcohol to applicant SJ, a subject of recruiting efforts, on or about 7 and 8 June 2008
* violating a general regulation by asking applicant AO out for dinner and drinks and sending text messages of an unofficial nature, between on or about 1 September 2008 and 18 September 2008
* violating a lawful general regulation by having unofficial social contact with applicant CD, a subject of recruiting efforts, by meeting with her at a bar, on or about 21 January 2009

7.  His punishment consisted of a reduction to E-5, forfeiture of $1,335.00 pay per month for 2 months (suspended), and restriction for 45 days.  He appealed his punishment to the CG, USAREC, but his appeal was denied on 27 April 2009. 

8.  It appears the applicant petitioned the Director, CRC, between 2010 and 2014, to remove his name from the title block of the subject CID ROI.  

	a.  On 7 April 2010, the Director, CRC, Fort Bevloir, VA, responded to his request, dated 23 March 2010, for release of information from the files of CID.  He was provided with a copy of the ROI and a full explanation of the appeal process, the amendment process, and the standard in accordance with Department of Defense Instruction (DODI) 5505.11, which establishes policies and procedures for reporting criminal history data to the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC) for all military service members investigated by DOD criminal investigative organizations for commission of certain offenses and who are subjects of resultant judicial or non-judicial military proceedings.  

	b.  On 5 May 2010, the Director, CRC, Fort Belvoir, VA, responded to his request, dated 14 April 2010, to correct records from the files of CID.  CID records indicated he was previously provided a copy of the ROI on 7 April 2010 together with the amendment criteria.  Along with his request, he submitted page 1 of a DA Form 2627 and memorandum, dated 5 December 2009, digitally signed by his commander.  The documentation he provided referenced the ROI previously provided to him, but does not disprove the aggravated sexual assault occurred; therefore, did not substantiate new or relevant information needed to amend this ROI.  The CID has added to his ROI a copy of his request and the memorandum, dated 5 December 2009.  CID has also sent correspondence to the FBI to update the NCIC entry pertaining to him to reflect a disposition of "Non-Judicial Field Grade Article 15, Dated 27 April 2009, for providing alcohol to Recruiting Applicant, Violation of USAREC Regulation 600-25 and Article 92, UCMJ, forfeiture of $1,335.00 pay for 2 Months (suspended for 6 months), 45 days restriction, reduction of grade from E-6 To E-5."  He would be provided with a follow-up response upon completion of that action.  No action will be taken to review the ROI for amendment at this time.  He should resubmit a request for amendment, along with new and relevant information (if available) to the Director, CRC, Fort Belvoir, VA.  In order to bring his request for a formal review, new and relevant information must meet the amendment criteria.  Information about career goals, exemplary changes in life, and similar justifications are not part of the criteria and these are not considered.

	c.  On 24 May 2010, the Director, CRC, Fort Belvoir, VA, further responded to the applicant's request for release of information from the files of the CID and supplements their response of 5 May 2010.  The Director stated his office coordinated with the FBI to update the NCIC entry pertaining to the arrest entry of 30 September 2008.  On 4 May 2010, the FBI advised CID that the CID entry in connection with FBI report 6xxxxxDD6, has been amended to reflect the appropriate disposition.  

	d.  On 17 March 2011, the applicant's commander, U.S. Army Recruiting Company, Tucson, AZ, submitted a memorandum for record.  He stated the purpose of this memorandum is to state that the applicant was not charged with aggravated assault on 9 September 2009.  He was never charged or found guilty or punished for aggravated assault.  He was accused of aggravated assault while stationed in Colorado.  The investigation into the aggravated assault began after he reported to the Tucson Recruiting Company.  The sexual assault accusation was determined to be unfounded and the charge was dropped.  He received an Article 15 for an inappropriate relationship with an applicant.  He was found guilty of this infraction and he was punished.  During the sexual assault investigation and subsequent Article 15 (for an event unrelated to the sexual assault charge), he (the author) was the applicant's company commander. 

	e.  On 6 April 2011, the Director, CRC, Fort Belvoir, VA, responded to the applicant's request, dated 22 March 2011, to correct information from the files of CID.  A review of CID files has determined that a similar request was submitted to this headquarters on 23 March 2010 and 14 April 2010 in which CID provided him (the applicant) the agency’s amendment criteria on 7 April 2010 and the updated NCIC status on 5 May 2010.  Given a complete review of his records, retention of this criminal history data in the NCIC does conform to DOD policy and cannot be removed.  He has exhausted his remedies to correct information contained in the NCIC in connection with his CID record.  He may appeal this action to the Army Board for Correction of Military Records (ABCMR).

	f.  On 21 July 2014, the Director, CRC, Quantico (CID had relocated from Fort Belvoir to Quantico) responded to the applicant's request, dated 26 June 2014, to correct information from the files of CID and supplements CID's response of 
26 June 2014.  His initial request was received on 10 June 2014.  After a careful review and consideration of his request and the evidence available, on behalf of the CG, CID and in accordance with Army Regulation 195-2 (Criminal Investigation Activities) his request to remove his name as titled in the contested ROI is denied.  This denial constitutes final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2.

9.  The applicant provides three letters of support: 

	a.  In one letter, dated 10 November 2013, an individual states she has known the applicant and his family since December 2007 when she started babysitting their child.  The applicant and his family showed a lot of love to the child and he was a great father to his son.  He always demonstrated a kind heart and there was never a time when he brought a female home with him.  The false allegations against him seem to be made by a desperate young woman.

	b.  In a second statement, dated 10 February 2014, an individual states she was a detailed recruiter with the applicant in Colorado Springs, CO.  She recalls the night of 7 June 2008 when they celebrated a birthday at a bar.  He bought many birthday rounds but he was also concerned about not staying late.  Before leaving for the night, he exchanged phone numbers with two girls and went home.  She recalls seeing him leaving the bar alone.  She later heard about the future Soldier accusing him of sexually assaulting her.  She thought it was unbelievable.  Having worked with the applicant, she believed such action was impossible.  She also believed the future Soldier fabricated the accusation so she could be back to see her boyfriend once he returned from deployment.  All she could talk about during basic training was how upset she and her boyfriend were because they won't see each other, once she left for basic training.  The future Soldier sought this to be her way out. 

	c.  In a third statement, dated 6 April 2014, an individual states she spent a great amount of time with the applicant throughout the summer of 2008 and 2009 and she believes the accusations of sexual assault are false.  She describes the applicant as very respectful and courteous.  The future Soldier was simply looking for a way to void her contract and found this as a loophole. 

10.  Army Regulation 195-2 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.

11.  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 Defense Central Index of Investigations (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 or is otherwise made the object of a criminal investigation.

12.  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.

13.  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.  CID received a memorandum alleging the applicant's sexual assault against a female recruit.  A subsequent investigation was initiated upon notification by the applicant's commander of the alleged misconduct.  The investigation established probable cause existed to believe the applicant committed the offense in question.  As a result of that investigation, the applicant was titled in CID ROI   08-CID446-XXXX4-6EX

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 offense.  Even the Article 15 he received indicates offenses that would have led investigators to believe there was credible information to title him for the assault.  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.  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)                                         AR20140014461



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ABCMR Record of Proceedings (cont)                                         AR20140014461



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