BOARD DATE: 22 April 2014 DOCKET NUMBER: AR20130022391 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 Military Police Report (MPR) Number 01xxx-2008-MPCxxx be expunged from his records. 2. The applicant states: * on 4 February 2013, he wrote the U.S. Army Criminal Investigation Command (USACIDC, referred to as CID), requesting to expunge a titling action from the Defense Central Index of Investigations (DCII) * the titling action involves a suspended violation of Article 134 of the Uniform Code of Military Justice (UCMJ) * he was titled with impersonating a Department of the Army (DA) civilian police officer on 26 May 2008 * on 23 March 2011, he requested a copy of the MPR detailing the investigation of his actions * it was recommended that he make an appointment with a local legal assistance office for guidance on how to proceed * since his case was almost five years old at the time, he chose not to contact a legal assistance office * he included four documents with this request: * first, a letter from a DA Freedom of Information Officer, dated 23 March 2011, informing him that his case did not contain a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) * this letter recommended he contact a legal assistance office * second, a DA Form 4856 (Developmental Counseling Form), dated 30 October 2008, documenting a change of duties in the Mobilization and Deployment Brigade while he was being investigated * third, a DA Form 5248 (Report of Unfavorable Information for Security Determination), dated 28 May 2008, which shows he was returned to duty, following the completion of his investigation, without any negative administration action * his commander's recommendation contains the entries "15-6 investigation was completed and results indicate no negative administrative action is warranted" and "remove incident report and any negative consequences associated with it" * fourth, a memorandum from his brigade commander, dated 21 April 2009, requesting new orders beginning 6 May 2009 without a break in service due to a pending legal issue that was resolved in his favor and he was not at fault * he attached the CID response from 12 April 2013 * MPR 01xxx-2008 needs to be removed from his military record * the provided documentation shows no disciplinary action was taken against him; however, a DA Form 4833 was never filed * this record has caused him injustice since his former unit wanted to use it as a way to harass and discriminate against him * his former unit "flagged" him and tried to prevent his return to the Individual Ready Reserve (IRR) so he could apply for federal employment 3. The applicant provides: * a letter from the Freedom of Information Office at Headquarters, U.S. Army Garrison, Fort Bliss, TX, dated 23 March 2011 * DA Form 4856, dated 30 October 2008 * DA Form 5248-R, dated 28 May 2008 * a memorandum from the Commander, Fort Bliss Mobilization and Deployment Brigade, Fort Bliss, TX, dated 21 April 2009, subject: Request for Adjusted CO-ADOS (Contingency Operations – Active Duty Operational Support) Report Date * DA Form 4856, dated 30 April 2012 * a letter from the CID, Quantico, VA, dated 12 April 2013 * Release of Derogatory Information sheet pertaining to MPR Number 01xxx-2008-MPCxxx CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 16 September 2005, after previous service as a Reserve commissioned officer of the Army, the applicant enlisted in the U.S. Army Reserve, in the rank/grade of sergeant (SGT)/E-5. Based on qualifications he obtained as a commissioned officer, he was awarded military occupational specialty (MOS) 31B (Military Police (MP)). 3. On 18 November 2006, he was mobilized and ordered to active duty at Fort Bliss, TX, in support of Operation Enduring Freedom (OEF). 4. On 28 June 2007, Fort Bliss MP officers were notified that during the routine cleaning of unassigned lockers, a noncommissioned officer (NCO) from the Fort Bliss Mobilization and Deployment Brigade informed MPs he had found contraband along with personal documents belonging to the applicant. According to the DA Form 3975, dated 27 August 2007: * the investigation revealed that while the unit was cleaning out unassigned lockers, 450 rounds of government issue ammunition (9 millimeter (mm)), magazines, and a Glock 10mm semi-automatic pistol were found with personal documents belonging to the applicant * the weapon was found to be unregistered * all of the items were photographed, itemized on a DA Form 4137 (Evidence/Property Custody Document), and retained as evidence * the applicant was contacted by telephone * when he arrived at the MP station, he was apprehended, advised of his legal rights, further processed, and released to his unit first sergeant As a result of this investigation, the applicant was titled in MPR Number 01515–2007–MPC014. 5. On 24 August 2007, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * failing to obey a lawful general regulation by having an unregistered 9mm weapon in his assigned locker at or near the MP station on Fort Bliss, TX * stealing 450 rounds of 9mm government ammunition, at or near Fort Bliss, TX, between on or about 1 November 2006 and on or about 28 June 2007 * stealing 2 9mm government magazines, at or near Fort Bliss, TX, between on or about 1 November 2006 and on or about 28 June 2007 6. On 17 November 2007, he was honorably released from active duty and returned to the control of his USAR troop program unit (TPU) of assignment. 7. On 1 April 2008, he was re-mobilized and ordered to active duty at Fort Bliss, TX, in support of OEF. 8. On 26 May 2008, he was stopped for speeding by a patrolman of the Fort Bliss MP Station. According to the DA Form 3975, dated 26 May 2008: * on 26 May 2008, the applicant presented a Fort Bliss DA police badge and stated he was a member of the Fort Bliss civilian police force in an activated status * the patrolman checked and he was not found to be a member of the Directorate of Emergency Services * he then stated he was employed as a Directorate of Emergency Services police officer at Fort Sam Houston, TX * the patrolman checked and he was found to no longer be employed by the Directorate of Emergency Services at Fort Sam Houston * he was apprehended and transported to the MP station, where he was advised of his legal rights, which he invoked * he was further processed and released to his unit * the badge he presented was obtained as evidence As a result of this investigation, the applicant was titled in MPR Number 01xxx-2008-MPCxxx. 9. He was charged with the following UCMJ violations: * Article 134 – impersonating an agent (civilian police officer) * Article 107 – making a false statement (on post) * Article 121 – larceny of government property (less than $100) (on post) 10. Neither the DA Form 1574 (Report of Proceedings By Investigating Officer/Board of Officers) nor any allied documents related to the investigation of this matter are available for review. 11. On 28 December 2009, a DA Form 4833 was completed in support of MPR Number 01xxx-2008-MPCxxx. On this form the Commander, Mobilization and Deployment Brigade, Fort Bliss, TX, remarked that no action would be taken since the affected Soldier was demobilized. Despite this remark, the applicant was on continuous active duty at Fort Bliss during this period. 12. On 3 May 2012, after continuous service since 1 April 2008, the applicant was honorably released from active duty and transferred to the IRR. 13. It appears he appealed to the U.S. Army Criminal Records Center (CRC) to have the subject MPR expunged from his records. By letter, dated 12 April 2013, the CRC informed him: * the CRC coordinated with the Federal Bureau of Investigation (FBI) to update the National Crime Information Center (NCIC) entry pertaining to the arrest entry of 28 June 2007 * the FBI advised that the USACIDC entry in connection with FBI report number 173889xxx was amended to reflect the appropriate charges and disposition * the FBI further advised that the USACIDC entry in connection with FBI report number 173889xxx, fingerprints in connection with the arrest entry dated 26 May 2008, was deleted from the criminal files * the destruction of the fingerprint card results in the completion expunction and removal of arrest data from their files 14. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures and responsibilities for preparation, reporting, use, retention, and disposition of the DA Form 3975 and documents related to law enforcement activities. a. An incident will be reported as a founded offense when adequately substantiated by a police investigation. A person or entity will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person or entity committed a criminal offense. The decision to title a person is an operational rather than a legal determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence but, rather, ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. b. Offenses are codes on the DA Form 3975 with the offense code describing, as nearly as possible, the complaint or offense by using an alphanumeric code as provided in table 4-1. This offense code list will be amended from time to time based on new reporting requirements mandated by legislation or administrative procedures. The offense code 5J3G (impersonating a civilian police officer – Article 134, UCMJ) is an authorized code. MPR's are forwarded to the CRC for processing and permanent filing. 15. NCIC is a computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons). It is available to Federal, State, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year. 16. Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions. This DODI 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 DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination (emphasis added). 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 and/or is otherwise made the object of a criminal investigation. 17. DODI 5505.7 contains further legal guidance as follows. a. Section 6.1 states 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 states 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 states that 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 states 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 states 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. (emphasis added) d. Section 6.9 states that 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. e. Section E1.1.1 defines credible information as 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. f. Section E1.1.2 defines criminal investigation as an investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. g. Section E1.1.3 defines DCII as a centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in 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. h. Section E1.1.4 defines incidental as any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. i. Section E1.1.5 defines indexing as 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. j. Section E1.1.6 defines subject as 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. k. Section E1.1.7 defines title block as the portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. l. Section E1.1.8 defines titling as 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. The evidence of record shows he was investigated and arrested for impersonating a civilian police officer. This investigation was ultimately titled in the DCII. Whether or not charges were filed, or disciplinary action was taken, is irrelevant. 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 the DCII, 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 investigation report is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. In other words, the fact that there was no administrative action taken against him has no bearing on the fact that he was the subject of an investigation. 4. DODI 5505.7 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 DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. Neither of these conditions applies in this case. 5. After a comprehensive review of this case, the applicant is not entitled to 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. ABCMR Record of Proceedings (cont) AR20130013342 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130022391 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1