IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20150009197 


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 defers his request, statement, and evidence to counsel.  The applicant also requests a personal hearing.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's name from the title block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation 
(ROI) 062-06-CID-25-70XXX, dated 27 September 2006, and reflecting the allegations of sexual harassment and indecent assault as "not founded." 

2.  Counsel states the applicant is a member of the U.S. Army Medical Corps.  He is board-certified in family medicine and psychiatry.  He serves as supervising and a treating psychiatrist as well as a forensic psychiatrist in Uniform Code of Military Justice matters.  Counsel argues that there was insufficient evidence to support the decision to title the applicant; the CID's 2008 determination that the allegations against the applicant are founded is unsupported by substantial evidence and the CID's failure to grant his request to amend the 2008 supplemental ROI was contrary to law; the governing Army regulation did not authorize CID to issue an adverse supplemental ROI in response to the applicant's request; and CID's issuance without notice of an adverse supplemental ROI violated his right to due process and fundamental fairness.

	a.  In July 2006, he was notified that one of his previous coworkers had filed a complaint alleging that he had sexually harassed her on multiple occasions and indecently assaulted her on one occasion.  CID investigated this allegation and received 8 statements impugning the applicant's honesty and motivation.  The ROI, prepared on 20 September 2006, recorded investigative activity from 13 July to 20 September 2006.  The CID Special Agent (SA) briefed a military attorney (captain) who opined there was no credible information to believe the applicant committed the offense of sexual harassment and indecent assault.  The captain also stated the applicant received a General Officer Memorandum of Reprimand (GOMOR) for misusing a government computer and stated he required no further assistance from this office.  The CID SA also briefed a colonel (COL) who stated she (the colonel) was taking no further action against the applicant.   The ROI made no mention of one statement from Mr. P. Rom--- and the SA did not interview any of the individuals who provided statements. 

	b.  On 27 September 2006, CID issued the ROI and indicated the investigation did not develop sufficient evidence to prove or disprove the allegations that he indecently assaulted Major (MAJ) M----- when he approached her from behind, pushed her down on her desk, and rubbed his pelvic region against her buttocks.  Further MAJ M----- stated he sexually harassed her on several occasions but the applicant denied doing so.  The CID report noted it was a final report and that the investigation was terminated in that the prosecutor intended to take action amounting to less than court proceedings.  The applicant's commander indicated the applicant received a GOMOR.  The Fort Riley Staff Judge Advocate General declined to prosecute the applicant after his office determined no credible information pertaining to the allegations of indecent assault and sexual harassment.  The Army considered the matter closed.

	c.  In 2008, the applicant petitioned the Army Crime Records Center, CID, to remove his name from the subject block of the CID report.   The Army denied his request.  The applicant was then selected for promotion to COL during Fiscal Year 2012 (FY12).  However, a post-selection review determined the promotion selection warranted consideration by a Promotion Review Board (PRB).  That was the only adverse information on file.  He provided a detailed statement to the PRB but the Secretary of the Army (SA) ordered the removal of his name from the promotion list, despite the PRB's recommendation to keep his name on the list.  The applicant was also selected for promotion by the FY13 promotion board and the PRB reviewed his records and the SA again ordered his name removed. 

	d.  In a memorandum, dated 8 July 2014, prepared by the CID Investigative Operations Division, asserted that based on the totality of the investigation, the available information, probable cause existed to believe the applicant committed the offense for which he was indexed.  The CID Investigative Operations Division also asserted that the offenses for which the applicant was indexed should be reflected as "founded."  As such a supplemental report was prepared changing the investigative summary conclusion from "insufficient" to "founded" for the offenses listed on the ROI.  A final report was initiated on 8 July 2008 confirmed the change.  The Army did not inform the applicant of this change.  When the applicant again petitioned CID for a change in 2014, his request was denied.

3.  Counsel provides:

* Final ROI, dated 27 September 2006
* Final Supplemental ROI, dated 24 July 2008
* Declarations of COL DS, COL MB, Lieutenant Colonel (LTC) WK, COL LF, and Ms. HB, related to the 2006 ROI
* Letters from Mr. PB, dated 25 and 30 August and 7 September 2006
* Email from Mr. PB to CID
* Applicant's 2008 and 2014 requests to CID and denial memoranda
* 2012 and 2014 promotion delay 
* Applicant's declaration 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Navy and the Regular Army, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 27 April 1989. 

2.  He entered active duty on June 1990 and served in a variety of stateside or overseas positions.  He was honorably discharged on 22 July 1994 for miscellaneous/general reasons.

3.  He was appointed as a Reserve commissioned officer of the Army, Medical Corps, and executed an oath of office on 23 July 1994.  He was ordered to active duty on or about 15 June 1998.

4.  He served in a variety of staff or command assignments and he was 
promoted to MAJ on 21 May 2002 and LTC on 21 November 2008.  At the time of this incident, he was assigned as Chief, Department of Behavioral Health, U.S. Army Medical Department Activity (MEDDAC), Fort Riley, KS. 

5.  In July 2006, CID agents were notified by the Commander, MEDDAC that a female officer alleged she was indecently assaulted.  She reported that during the first week of December 2005, while in her office, the applicant indecently assaulted her when he approached her from behind, pushed her down on her desk, and rubbed his pelvic region against her buttocks.  She also stated he sexually harassed her on several occasions.  The applicant denied.

6.  In August 2006, the applicant's attorney, Mr. P. Rom--- provided multiple statements (declarations) and asked the investigation be conducted expeditiously and opined that this issue falls within the equal Opportunity (EO) rules. 

7.  The Final ROI 062-06-CID-25-70XXX, dated 27 September 2006, shows the investigation did not develop sufficient evidence to prove or disprove her allegations that he sexually harassed and indecently assaulted her.  It also shows this investigation was terminated in accordance with section V, paragraph 4-17(a)(11) of CID Regulation 195-2 (Criminal Investigation Program) in that the prosecutor indicated intent to take action amounting to less than a court proceeding and no further investigative assistance of CID is required by the prosecutor.  On 20 September 2006, the MEDDAC Commander indicated the applicant received a GOMOR.

8.  On 2 June 2008, by memorandum, the Chief, Investigative Operations Division, stated that this is in response to the applicant's request for amendment of the contested ROI.  He reviewed the ROI and found there was credible information to list the applicant as the subject of the initial report.

	a.  MAJ M----- reported that she was indecently assaulted and sexually harassed by the applicant between 10 October and 15 December 2005.  She reported the alleged incidents to her superiors which were then reported to CID on 13 July 2006.  The initial report listed the applicant as the subject and listed MAJ M----- as the victim. 

	b.  A review was conducted by Agent Activities Summaries and Agents Investigative Report of the CID SA from the initiation of investigation until the initial report was dispatched on 14 July to determine if there was credible information.  The applicant provided a sworn statement via his attorney.  Prior to the dispatch of the initial report, the SA also interviewed two people who were mentioned in MAJ's statement.  Both individuals corroborated her statement that they had been told of the sexual harassment and indecent assault by the applicant.  One individual states she was notified in late November 2005 which would have been soon after the incident occurred.

	c.  Because of the above information, the Chief recommended the applicant remains in the subject block as there was credible information when the CID office initially placed him there. 

9.  On 17 June 2008, by memorandum, a polygraph supervisor indicated that on 28 May 2008 the applicant requested removal of his name from the title block of the ROI.  He argued that a mistake was made at the time of titling in that credible information did not exist which indicated he committed the crime in question.
	a.  During the review process of the applicant's request for amendment, the final CID report, and related documents were reviewed.  After this review, the polygraph supervisor opined that the credible information standard was met at the time of the initial CID report was dispatched and the applicant was correctly listed as the subject for the offenses.  His decision was based upon a review of the CID report and related documents coupled with the current definition of credible information as cited in DOD Instructions 5507.7 and CID Regulation 195-2 which defines credible information.

	b.  He further believes the probable cause standard was incorrectly applied to the applicant in that there was probable cause to believe he committed the listed offenses.  The victim reported the applicant showed her an email containing a pornographic image of a nude male.  The applicant admitted that he received an email with a man naked from the waist down and related that he made a passing remark to the victim that he had received such an email.  He reported that she asked to see the email and he showed it to her.  The victim further reported that during one occasion, on civilian dress down day, the applicant hooked his finger in her shirt and pulled it enough to see her bra.

	c.  The applicant stated that during civilian dress down day, the victim wore clothing that revealed her bra and he told her she needed to cover it up.  She also alleged that he entered her office on one occasion and pushed her head down on the desk and made sexual grinding motions with his crotch against her buttocks.  She also stated that on other occasions, he entered her office and kissed her.  He denied these specific allegations.  He admitted that the victim would give him appropriate supportive hugs as he was having family problems which he had discussed with her.

	d.  Based on his admission and the similarities between her allegations and his version of the events, he (the polygraph supervisor) believed probable cause existed to found the case.  He recommended a supplemental report founding the listed offenses on the applicant. 

10.  On 1 July 2008, CID issued a Supplemental Report.  This report was generated to change the final status of this investigation from "insufficient evidence" to "founded" and to list the applicant as the subject of these offenses.  On 22 July 2008, a memorandum for record was received from the U.S. Army Criminal Records Center stating that after a review by higher headquarters, credible information existed to index the applicant as the subject of the investigation and to change the status to "founded." 

11.  On 27 May 2014, he submitted a request to CID to remove this titling action. In response, on 25 July 2014, the Director, CRC, Quantico (CID had relocated from Fort Belvoir to Quantico) responded to the applicant's request to correct information from the files of CID.  After a careful review and consideration of his request and the evidence available, on behalf of the Commanding General, CID and in accordance with Army Regulation 195-2 (Criminal Investigation Activities) his request to remove his name as titled in the contested ROI was denied.  This denial constitutes final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2.

12.  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.

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 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.

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.

16.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  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 ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant 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.  CID agents were notified in July 2006 by the Commander, MEDDAC that a female officer alleged she was indecently assaulted.  A subsequent investigation was initiated upon notification of the alleged misconduct.  The investigation did not develop sufficient evidence to prove or disprove her allegations that he sexually harassed and indecently assaulted her. 

3.  The applicant requested removal of his name in 2008.  When the case file was reviewed, the Chief, Investigative Operations Division, and others at CID headquarters reviewed the ROI and found there was credible information to list the applicant as the subject of the initial report.  The investigative review established probable cause existed to believe the applicant committed the offenses in question.  As a result of that investigation, the applicant was titled.

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. 
6.  The ROI shows that credible information regarding the applicant's involvement in the alleged offense.  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 ABCMR is not an investigative agency.  

7.  He has provided insufficient evidence to show the titling decision was in error. He should not receive 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 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.
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS



ABCMR Record of Proceedings (cont)                                         AR20150009197



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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