PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            10 April 2003 
	DOCKET NUMBER:   AR2002072242

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Marla J. Troup		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, in effect, removal of her name from the title block of Criminal Investigation Division (CID) investigation number (#) 97-CID112-59583, from the Defense Criminal Investigation Index (DCII), and from any other records reflecting the titling action. 

3.  The applicant states, in effect, that the only evidence against her that resulted in the titling action was the uncorroborated statements of an admitted and proven liar.  She claims to have been titled in this case based solely on the uncorroborated statements of this individual, which has resulted in a serious injustice to her and the Army.  She states that in August 1997, her accuser wrote a letter to the Provost Marshal Office (PMO), Absent Without Leave (AWOL) section, Fort Lewis, Washington, claiming that she sexually harassed and raped him on several occasions between 13 and 15 October 1996, when she was a 
drill sergeant at Aberdeen Proving Ground (APG), Maryland.  

4.  The applicant also claims that in September 1997, this individual who accused her of these offenses made a written sworn statement to the CID detailing how she allegedly indecently assaulted, forcibly sodomized, and raped him.  In October 1997, he made two other sworn statements to this effect.  However, in November 1997, he made a sworn statement that indicated that she had not indecently assaulted, forcibly sodomized, or raped him, but that she had engaged in consensual sexual intercourse and sodomy with him.

5.  The applicant indicates that in December 1997, the APG CID office issued a final report of investigation (ROI), which listed her as the subject for adultery, indecent assault (unfounded), rape of an enlisted male (unfounded), sodomy, and violation of a general regulation by engaging in sexual intercourse and fellatio with a male private trainee.  The ROI stated that the investigation determined that the private and she had engaged in consensual sexual intercourse.  It further indicated that the investigation established that the offenses of rape and indecent assault did not occur as alleged by the private. 

6.  The applicant states that on 12 February 1998, subsequent to the original ROI being submitted, the Deputy Staff Judge Advocate (DSJA), APG, sent a memorandum to the APG CID office.  In this memorandum, the DSJA opined that in light of information that she was not aware of when she rendered her first titling opinion, she now found that no probable cause existed to believe that the applicant committed the offenses of adultery, sodomy, and violation of a lawful order or regulation.  This legal opinion was based on the fact that the individual alleging the offenses could not identify an obvious tattoo on the applicant’s chest, despite repeatedly claiming that she took off her t-shirt and bra during intercourse and that he saw her breasts.  

7.  The applicant further states that on 13 February 1998, as a result of the change of opinion on the part of the DSJA, the APG CID office issued a final supplemental ROI.  This report referenced the DSJA’s legal opinion.  However, the CID special agent in charge still found that credible information existed to believe the applicant committed the offenses of adultery, sodomy, and violation of a general order or regulation.  Consequently, no change was made to the title section of the CID report.  

8.  The applicant states that on 25 August 2000, after having requested and obtained a redacted copy of the ROI, she made a written request to Director, Army Crime Records Center, Criminal Investigation Command (CIC), to have all titling determinations against her removed.  In mid November 2001, she received a response to this request.  It stated that as a result of her request, the APG CID office issued a final supplemental ROI, which was amended to read that there was insufficient evidence to establish that she had committed the offenses of adultery, sodomy, and violation of a general regulation.  However, the report still stated that the investigation established that the male private and the applicant had engaged in consensual sexual intercourse.  Further, the report still listed her as a subject for adultery (insufficient evidence), indecent assault (unfounded), rape of an enlisted male (unfounded), sodomy (insufficient evidence), and violation of a lawful order or regulation (insufficient evidence).  

9.  The applicant’s military records show that she is currently on active duty, holds the rank of sergeant first class/E-7, and at the time of her application was serving in Korea.  

10.  On October 1997, a male private trainee alleged that the applicant, his former drill sergeant, had indecently assaulted him, forced him to engage in sodomy, and raped him on several occasions while he was assigned as an initial entry training (IET) soldier at APG.  As a result of these allegations, the applicant was made the subject of an investigation conducted by CID officials at APG.  

11.  The offenses for which the applicant was investigated were adultery, indecent assault, rape, sodomy, and violation of a lawful order or regulation.  The investigation established probable cause to believe the applicant had committed the offenses of adultery, sodomy, and violation of a lawful order or regulation.  However, it found the charges of rape and indecent assault were unfounded.  

12.  On 12 February 1998, the Deputy Staff Judge Advocate (DSJA), APG, prepared a memorandum for record, in which she indicated that upon review of the final report in the applicant’s case, she no longer agreed with her original opinion reference the decision to title the applicant.  She commented that the titling decision was inconsistent with the information in the report.  She further claimed that the final report revealed information she was not aware of at the time she gave her original opinion.  The final report contained information that the applicant had a rather large, very distinguishable tattoo above her left breast that is visible even without the removal of her bra, and a large tattoo over her left shoulder.  

13.  The DSJA further indicated that the male private alleged that he did not see any unusual marks, tattoos, or scars on the applicant body during their alleged sexual intercourse episodes in her office.  He claimed it was too dark in her office to see anything.  However, CID agents conducted a light level analysis of the room.  This revealed that even with the curtains drawn, enough light entered the room to allow them to see and distinguish colors at various distances within the room at the time of day the male private alleged these incidents took place.  Based on this analysis, the private’s claim that he could not see anything because it was too dark is implausible in light of his statement that the applicant removed all of her clothing and that is was 1300 hours when these sexual encounters allegedly occurred.  Thus, the DSJA commented that it was her belief that the accuser could not tell CID about any distinguishing marks or tattoos on the applicant’s body because he never actually saw her unclothed as he claimed. Finally, the DSJA stated that based on the foregoing evidence, she no longer opined that there was sufficient credible evidence to support the decision to title the applicant.  

14.  On 13 February 1998, a supplemental ROI was submitted that indicated that the investigation had established that there was probable cause to believe the applicant had committed the offenses of adultery, sodomy, and violations of a lawful order or general regulation, when she engaged in consensual sexual intercourse and fellatio with a male private who was attending IET.  It further established that the offenses of rape and indecent assault did not occur as alleged by the male private.  This supplemental ROI also included a reference to the change of the DSJA opinion in the case, who now believed that there was not sufficient probable cause to believe that the applicant committed the offenses of adultery, sodomy, or violation of a lawful order or regulation.  

15.  On 10 October 2002, further investigation resulted in establishing that there was insufficient evidence to establish that the applicant had committed the offenses of adultery, sodomy, and violation of a lawful order or regulation when she allegedly engaged in consensual sexual intercourse and fellatio with the male private initial entry trainee.  Further, it stipulated that the offenses of rape and indecent assault did not occur and were unfounded.  However, the applicant was still listed as the subject of an investigation for adultery (insufficient evidence), indecent assault (unfounded), rape of an enlisted male (unfounded), sodomy (insufficient evidence), and violation of a lawful order or regulation (insufficient evidence).  

16.  In connection with the processing of this case, all CID and military police reports (MPR) on file for the applicant were requested and provided by the Director, Crime Records Center, U.S. Army Criminal Investigation Command (CIC), Fort Belvoir, Virginia, dated 26 June 2002.  The response to this records request indicated that she requested amendment of the ROI through the CIC.  As a result, a final supplemental report was published on 10 October 2001, which changed the determination on the adultery, sodomy, and violation of a lawful order or regulation to insufficient evidence, and the remaining offenses to unfounded.  It further indicated that the applicant had not requested an amendment to the MPR.  

17.  In addition, a member of the Board staff requested an advisory opinion from the CIC, asking for an evaluation of the applicant’s request for removal of the titling action.  The CIC provided an advisory opinion, dated 28 August 2002, that was prepared by a CIC Assistant Staff Judge Advocate (ASJA), a captain.  The ASJA stated that CIC found the administrative action for removal of the titling action in the applicant’s case is not appropriate.  He also stated that the original titling determination in this case was based on the standard outlined in Department of Defense Instructions (DODI) 5505.7, as well as current DOD Inspector General (IG) guidance, which states that names of individuals shall only be removed from the title block of a ROI in cases of mistaken identity, or when, based on all available information, there was no evidence to believe that a criminal offense occurred at the time of the initial titling determination.  He opines that neither of these situations apply in this case, and at the time the applicant was titled there was indeed credible evidence to believe that she may have committed the criminal offenses for which she was titled.  

18.  The CIC opinion further states that the subsequent supplemental report characterizing the offenses of adultery, sodomy, and violation of a general order or regulation as having “insufficient evidence” does not warrant removal of the applicant’s name from the title block of the original ROI.  He contends that the analysis required to determine a subsequent characterization of the titled offenses is separate and distinct from the analysis made at the time of the original titling determination, and involves a different evidentiary threshold.  
19.  The applicant was provided a copy of the CIC advisory opinion in order to have the opportunity to rebut or response to its contents.  To date, she has failed to reply.  

20.  Department of Defense Instructions (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that 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.  

CONCLUSIONS:

1.  The Board notes the applicant’s claim that her name should be removed from the title block of CID investigation number # 97-CID112-59583, from the DCII, and from any other records reflecting the titling action, based on the lack of evidence to show she committed any offenses, and it finds her claim has merit.  

2.  DoD policy specifies that titling only requires credible information that an offense may have been committed.  It further indicates that 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.  

3.  The Board understands the basis on which CID officials made their initial titling decisions pertaining to the applicant.  However, it does not concur with the conclusion of the CIC advisory opinion, which indicates that at the time of the original titling action, there was credible evidence to believe that the applicant may have committed the offenses for which she was titled.  

4.  In the opinion of the Board, there is more than a sufficient evidentiary basis to conclude that there was a complete lack of credible evidence to support the initial titling determination. The evidence of record in this case confirms that the titling action on the applicant was based solely on the unsubstantiated statements of the male private who accused her of these offenses.  These statements are not now nor were they ever corroborated by any other source or by information obtained during the investigation conducted by the CID.  

5.  In addition, the Board finds the credibility of the accuser in this case to be highly questionable, considering he was titled for false swearing based on false sworn statements he made during the course of the investigation in question, and was ultimately declared a deserter from the Army.

6.  The Boards finds the lack of credibility of the primary accuser, coupled with the statement of the DSJA involved in the original titling action, which indicates that the decision to title the applicant was inconsistent with the evidence and information contained in the original ROI, is more than sufficient to conclude that there is a complete lack of any credible evidence to support the original decision to title the applicant.  

7.  In view of the facts of this case, the Board concludes it would be appropriate to remove the applicant from the title block of the investigation in question, and to remove her name from DCII and all other criminal records systems that were updated based on this ROI.  

8.  Notwithstanding the fact that the supplemental reports cleared the applicant of the offenses for which she was originally titled, the initial titling action could still unfairly deny the applicant the opportunity to compete for nominative assignments or positions, and unjustly inhibit her military career progression.  Thus, the Board finds it necessary to take this action in the interest of justice and equity.

9.  The Board does recognize the importance of maintaining comprehensive records that could assist law enforcement agencies in conducting future 
investigations, and it understands the general reluctance on the part of CIC officials to remove titling actions.  Therefore, the Board finds that it would be appropriate to address these concerns in this case by listing the applicant as a witness in the ROI in question.  

10.  Listing the applicant as a witness would result in no formal titling action that would unfairly prejudice the applicant’s professional development.  However, it would still provide an audit trail that would allow law enforcement officials access to information on the applicant’s involvement in this particular investigation if that ever becomes necessary. 

11.  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 removing the name of the individual concerned from the title block of Criminal Investigation Division (CID) investigation number 97-CID112-59583, from the Defense Criminal Investigation Index (DCII), and from any other records reflecting the titling action; and by instead listing her as a witness in the report of investigation in question. 

BOARD VOTE:  

___fe ___  ___mt___  ___fe____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002072242	
SUFFIX		
RECON		
DATE BOARDED	2003/04/10	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  267	123.0700	
2.		
3.		
4.		
5.		
6.