MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 March 2001                   
	DOCKET NUMBER:   AR2000044145

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

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. John P. Infante 		Member	
	Ms. Regan K. Smith 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his name be removed from the title block of Criminal Investigation (Division) Command (CID) Report of Investigation (ROI) #0132-94-CID013-33725-6E1C1/5A1.

APPLICANT STATES:  In effect, that he was unaware of the CID investigation or the fact that he had been titled; that because he was never confronted with the charges at the time of the alleged offense (either by CID or by his commander through disciplinary action), he has been placed in an impossible position of trying to prove his innocence after more than 6 years; that he has exhausted all other means of gaining relief; and that this matter has caused serious damage to his career.

EVIDENCE OF RECORD:  The applicant's military records show:

He was honorably separated in the rank of captain on 1 March 2001.  At the time of the subject ROI, he was a captain attending the Infantry Officers' Advance Course (IOAC) at Fort Benning, Georgia, and living in an apartment complex in Columbus, Georgia.  The record indicates that the applicant was a one time nonselect for promotion to major.

On or about 15 February 1994, a female, dependent spouse of an Army junior enlisted soldier contacted the Columbus (Georgia) Police Department (CPD) and reported that the applicant had raped her on the evening of 25 January 1994.  Investigation by the CPD resulted in the dependent spouse changing her story to say that she had engaged in consensual intercourse with the applicant.  The CPD closed their investigation without preferring any charges; however, they notified the CID at Fort Benning and the subject ROI was opened.  In the ROI, the applicant was listed as a subject and charged with adultery and rape; the rape charge was listed as unfounded.

The CID interviewed the alleged victim who stated that the applicant telephoned her at 1500 hours, 25 January 1994, while her husband was performing field duty, and asked her to go to a movie.  She declined.  Later, at approximately 1900 hours, she met the applicant at the apartment mailboxes and he asked if he could come by her apartment to talk.  She agreed and he came to her apartment at 1930 hours.  They played video games and talked.  The conversation turned to sex and led to them taking a shower together.  Afterwards they went into her bedroom and engaged in consensual sexual intercourse until she asked him to stop.  He stopped and left her apartment.

The final CID ROI, dated 14 March 1994, does not indicate that the applicant was ever apprehended or interviewed in conjunction with the investigation.  It does reflect that coordination was made with the applicant's battalion commander who indicated that the matter would be resolved with a letter of reprimand.  No letter of reprimand was found in the applicant's Official Military Personnel File (OMPF).
In September 1996, the applicant states that he was renewing his Top Secret security clearance and discovered that he had been titled in the subject CID ROI. He contacted the local CID Office and attempted to resolve the matter.  The CID reopened the investigation and conducted a new series of interviews.  In a statement to the CID given on 23 December 1997, the applicant said that he first learned that he was the subject of a CID ROI when he renewed his security clearance.  After reviewing the subject ROI, he stated that he remembered the alleged victim; that she was a neighbor in Columbus, Georgia; that he had helped her and her husband move in to the apartment complex; and that she had come by his apartment on one occasion to borrow some sugar.  He stated emphatically that he had never had any other contact with her and did not have sexual intercourse with her.

The alleged victim was located and reinterviewed on 23 January 1998.  She stated that she and her husband had divorced; that she had originally stated that she had been raped to prevent her marriage from ending; that she recanted the rape charge because it wasn't true and she didn't want to get the applicant in trouble; that she had invited the applicant into her apartment and they sat on the floor and played video games; that they took a shower together and had consensual sexual intercourse afterwards.

The CID also interviewed the applicant's wife and a former neighbor and fellow IOAC student.  The IOAC student stated on 9 December 1997 that he remembered the alleged victim coming to the applicant's apartment once when he and the applicant were studying.  She entered without knocking and invited the two to come to her apartment and watch movies, but they declined as they were studying for examinations.  He then asked the applicant who the woman was and the applicant explained that she and her husband had just moved in to the apartment complex and that she was unhappy because her husband was always on field duty.  The applicant's wife stated in her interview that her husband would not commit adultery.

On 5 February 1998, the CID issued a "Final Supplemental" to the subject ROI.  It listed the applicant and the alleged victim as subjects.  The applicant was charged with adultery and rape (unfounded).  The alleged victim was charged with adultery and false swearing.  She was also listed as the victim of rape (unfounded).  The "Final Supplemental" ROI concluded that there was insufficient evidence to prove or disprove that the applicant and alleged victim committed the offense of adultery.

Army Regulation 195-2 states that requests to amend CID ROI will be granted only if the requester submits new, relevant, and material facts which would warrant such a revision.  When the requested amendment is to delete a person from the title block of an ROI, the request will be granted only if it ". . . can be conclusively established that the wrong person's name has been entered as a result of mistaken identity."  In previous cases, the Board has directed removal only when necessary to correct an error or injustice.  To prove an error, the applicant must show that 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 may have occurred.  To remove an injustice, the applicant must demonstrate that the titling decision, which has later been determined to be unfounded, has created harm.  When the applicant has established that he has been harmed, the Board first looks at whether it can rectify the injustice by correcting the records related to the outcome of the titling, instead of reversing the titling decision.

The Manual for Courts-Martial (MCM) establishes the elements for the offense of adultery as follows:  (1) That the accused wrongfully had sexual intercourse with a certain person; (2) That, at the time, the accused or the other person was married to someone else; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The alleged victim reported the applicant to the CPD stating that he had raped her.  Under investigation by the CPD, she changed her story to say that she and the applicant had engaged in consensual sexual intercourse.  The alleged victim stands by that story and it has not changed over time.

3.  A review of the subject CID ROI suggests that the CID never initially interviewed the applicant.  Although the Board finds this a serious omission by the CID, it nevertheless believes that a reasonable CID investigator, given the facts available at the time of the initial investigation, would have had cause to pursue the investigation against the applicant.

4.  The decision to list a person's name in the title block of a CID ROI is purely an investigative determination based upon the existence of credible information that the individual may have committed a criminal offense.  As such, it is independent of judicial, non-judicial, or administrative action taken against the individual or the results of such action.  Thus, the fact that a letter of reprimand cannot be located in the applicant's file is of no consequence in the matter of titling the applicant.

5.  In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___slp___  __jpi____  __rks____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000044145	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.