PROCEEDINGS

IN THE CASE OF:      

BOARD DATE:           3 November 1999
DOCKET NUMBER:   AC93-12366A
	AR1999021176

I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Stanley Kelley		Member	

The applicant and counsel if any, did not appear before the Board.

The Board considered the following evidence:

Exhibit A - Application for correction of military 
            records
Exhibit B - Military Personnel Records (including
            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests a reconsideration of the denial of his previous application to correct his records by deleting his name from the title block of Criminal Investigation Report (CID) Report of Investigation (RIO) 0065-92-CID-446-06-60519 and reimbursement of monies ($2,215) withheld in concert with this case.

3.  The applicant states that he was found not guilty of all offenses at an Article 15, UCMJ proceeding.  Further, he was cleared by subsequent investigations undertaken by the Commander, U.S. Army Intelligence Center, Fort Huachuca, and the Commander U.S. Army Intelligence Center, Fort Belvoir, both of whom opined that the investigation appeared to be improperly handled.  He contends that the findings of not guilty should preclude the recoupment of the money he was given for the damage done to the Hummel figurine.  He further contends that retention of his name in the titling block of the CID investigation has resulted in detrimental actions and impairments to his career.  The applicant also raises the question of whether or not one of the parties conducting the investigation should have excused themselves as they were married but not using the same last name.  

4.  In August of 1991, the applicant was transferred from Germany to Fort Huachuaca, Arizona.  Upon receipt of his household goods he reported several damaged items including a German-made Hummel figurine.  He submitted a claim for $3,540.99 for replacement of the damaged goods and was originally allowed only $1,727.00.  Upon notice of this payment, he filed the proper request for replacement value of the Hummel ($2,200.00) as opposed to the standard maximum amount allowed by regulation for similar items ($750.00).  It is noted that one of the reasons many people purchase Hummel and similar items is due to their ever-increasing value to collectors.  This fact is supported by the submission of a brokerage price listing showing the significant appreciation in value of this figurine.  Following the turn in of the broken figurine to Defense Reutilization Marketing Office (DRMO), his request was approved and he received a $2,200.00 reimbursement for the Hummel.

5.  During this time frame the applicant’s wife bid on a selection of Lladros figurines offered for sale through a DRMO auction.  As a result of questions raised surrounding this purchase and then return of it to DRMO, CID was contacted and an investigation was undertaken.  This investigation resulted in CID titling the applicant on the charges of making false official statements regarding the applicant’s obligation to replace the figurine, fraud (false claim) against the government, larceny and conduct unbecoming an officer.

6.  In April of 1992, the Army debited the applicant’s pay $2,215.00, the reimbursement amount plus interest.

7.  On 14 May 1992, the applicant appeared before the Commander, Army Intelligence Center, Fort Huachuaca for an NJP proceeding.  The Commanding General, after an extensive hearing, rendered a decision of not guilty on all charges and noted that the charges were “without substance and in some specific instances it appears that the CID investigation was not complete and that some statements may not have accurately represented the testimony provided by the witnesses.”  

8.  On 29 May 1992, following the NJP proceedings, the applicant requested a reconsideration of the recoupment of the monies he had been given for the damaged figurine.  Finance requested additional information, which the applicant supplied.  On 4 August 1992 the Personnel Claims Office denied his request of the reimbursement stating that their independent determination was that the applicant had materially misrepresented the facts.  They further cited that the difference in purchase dates reported by the applicant, 1989, and his wife, 1980, indicate that a greater depreciation had occurred in the value of the figurine.

9.  Upon completion of the NJP proceeding, a request to delete the applicant’s name from the title block of the referenced CID report was submitted.  After an additional investigation the request was endorsed by the applicant’s entire chain of command.  The Army Criminal Investigation Command then amended the CID report to show the charges of submitting a false claim and conduct unbecoming an officer to read as unfounded, however, it retained the offenses of false official statement and larceny as founded.  A subsequent action on 1 April 1993 again amended the CID report to indicate that the remaining charges were also determined to be unfounded.

10.  In May 1993, as a result of the applicant being listed in the title block of the CID report, his appointment to a command position was delayed while his file was forwarded for a Command Review Board (CRB) investigation. The CRB investigation concluded that with the findings of not guilty there was no reason to preclude the applicant from assuming command.  Although this was done on an informal basis it resulted in the applicant not being allowed to assume the command position at Ft. Stewart for which he had been selected.  Upon completion of this investigation the applicant was placed back on the command list and ultimately received a command in Germany. 

11.  In accordance with an agreement with the Criminal Investigation Command, this case was referred to that agency for review and comment.  In their advisory opinion they stated that the actions of the investigating personnel were proper and in accordance with regulation.  They opined that probable cause for the investigation was found and therefore the titling action was proper.  

12.  The applicant was contacted via phone and afforded an opportunity to review and comment on the CIDC opinion (See attached record of conversation).  The applicant voiced concerns on the report's focus but agreed to have his application forwarded to the Board without a formal rebuttal on his part.

13.  An advisory opinion was obtained from The Judge Advocate General (TJAG) which opined that no improper actions occurred in the prosecution of this case and recommended that his request be denied.  TJAG opined that the applicant had not supported his contention that the titling had adversely affected his career.  Therefore, relief based upon equity was not warranted.

14.  The applicant was afforded the opportunity to rebut the TJAG opinion.  In a statement of 12 October 1999, he requests that the Board carefully review the statements previously submitted by senior members of his chain of command in the course of their reviews.  He believes that these statements support his request and clearly show the inequity of the situation.  In regards to the TJAG statement that the titling has not adversely affected his career, he asks that the Board note the personal and professional effects of the titling that he outlined in his application.  He notes that the Army has had to conduct several additional investigations in this case despite the findings of not guilty and the changes on the CID report that indicate that the charges were unfounded or unsubstantiated.

15.  Department of Defense Instruction 5505.7 contains the CID authority and criteria for titling decisions.  It states that titling alone does not indicate any degree of guilt or innocence.  The criteria for titling are a determination that credible information exists that a person (a) may have committed a criminal offense or (b) is otherwise made an object of a criminal investigation.  Simply stated, if there is reason to investigate, the subject of the investigation is titled.  The instruction states, generally, that once a person has been indexed the name shall not be removed, except in the case of mistaken identity.  That a person is subsequently found not to have committed the offense or that the offence did not occur are not sufficient basis for removal. 

16.  Title 10 United States Code, section 1552, provides the Secretary of the Army, acting through the Army Board for Correction of Military Records, discretion to correct an Army record when it is necessary to correct an error or remove an injustice.  CID records and hence titling decision, are Army records subject to this provision. 

CONCLUSIONS:

1.  The applicant was found not guilty on all counts of making false official statements (regarding his obligation to replace the figurine), committing fraud (making a false claim against the government), larceny and conduct unbecoming an officer.

2.  This matter has been the focus of constant investigation, charges rebuttals and countless legal reviews.  Setting prices on collectibles is a matter fraught with difficulties, and divining the truth in this matter is virtually impossible.

3.  What we do know is that this officer has served with honor and distinction for many years.  He has been selected for promotion and for command.  Given the Army's trust and confidence in this officer, one can reasonably conclude that he did not act improperly in any way in this matter.
 
4.  The indication that the applicant misrepresented the value of the figurine and the date of its purchase has been extensively addressed in all of the proceedings that have occurred in relationship to this case.  The assessment by the Personnel Claims Office that the value of the figurine should have been less not more than the purchase price does not take into account the very nature of the item under discussion.  The price list submitted the request for replacement of the damaged figurine clearly documents that this item which may have originally cost $800 in either 1980 or 1989 was, at the time of its loss, worth almost three times that value at the time it was damaged.  To continue to penalize the applicant in this manner is an injustice.  It is, therefore, appropriate to return the monies recouped for the figurine.

5.  The fact that the investigators were married and using different names was not improper.  It could give the appearance of a conflict of interest.  The Board does not find any actual conflict  nor any adverse effect on the applicant's case.

6.  While listing the applicant on the CID title block was proper, in accordance with Department of Defense Instruction 5505.7, it is noted that titling information is routinely used as a part of the selection process of officers in the rank of colonel and above and for command assignments for lieutenant colonels and above.  The appearance of the applicant’s name in a titling block has and will continue to adversely affect him in considerations for promotion and duty assignments.  In view of the circumstances of this case, the multiple investigation that the titling has already necessitated, and the repeated finding of no deliberate wrong doing on the part of the applicant, the Board concludes that it is inequitable to continue to show his name on this form.  Therefore, it is in the interest of justice and equity to delete his name from the title block of the CID report.

7.  Deleting the title block entry without also placing all related documentation in the applicant’s restricted file would defeat the intent of this Board’s action. Therefore, it is also appropriate to transfer all documentation relating to the applicant’s appeals of this matter to the restricted portion of his Official Military Personnel File.

8.  With the findings of not guilty of the charge of making a false claim by the UCMJ authority and the notation by the commanding general that the charge was unfounded the continuation of withholding of monies is inequitable.  The continued administrative decision that an improper action occurred precluding reimbursement after the charges were dismissed by the UCMJ action is inconsistent with official finding in the case and reimbursement is warranted.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  reimbursing to the individual concerned all monies recouped as a result of the finding of impropriety in his claim for reimbursement for the Hummel figurine;

b.  deleting the name of the individual concerned from the Report of Investigation 0065-92-CID-446-06-60519 and the Automatic Criminal Investigative Reporting System; and,

c.  transferring all documents related to this report, the intervening investigations, and this Board’s actions to the restricted portion of the OMPF of the individual concerned.

BOARD VOTE:  

__fne___  ___esc __  __sk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

	__ Fred N. Eichorn______
	       CHAIRPERSON

INDEX

CASE ID	AC93-12366A
AR1999021176	
SUFFIX		
RECON	 	
DATE BOARDED	19991103	
TYPE OF DISCHARGE	( )	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	134.00 	
2.		
3.		
4.		
5.		
6.