IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150010916 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150010916 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150010916 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's request, argument, and supporting documents are provided by his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the correction of all law enforcement records in the U.S. Army Criminal Investigation Command (USACIDC) regarding his client. 2. Counsel states in effect, that: a. The USACIDC report should be removed for an alleged rape of a juvenile by force, regarding his client for which no formal charges were ever brought against him by the military or any other agency. b. His client has no criminal record whatsoever as demonstrated by the criminal history record search issued by the New York System (NYS) Unified Court System. c. The military never provided his client with due process of law with respect to the alleged charge of rape of a juvenile by force. d. His client has no history of any criminal convictions. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Honorable Discharge Certificate * NYS Unified Court System Report * USACIDC Report, dated 31 December 2013 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, and 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 27 May 2009, the applicant enlisted in the Regular Army (RA). 3. The complete facts and circumstances of the alleged offense(s) against the applicant are not available. 4. On 4 April 2013, the applicant was honorably discharged from the RA. He completed 3 years, 10 months, and 8 days of net active service this period. 5. Counsel submits of copy of the USACIDC’s response letter, dated 11 December 2013, in what appears to be a request to remove his client’s name from the Defense Clearance and Investigation Index (DCII) database for an alleged charge of rape of a juvenile by force. USACIDC stated that: a. The “Report of Investigation (ROI) 2010-CID014-27665-6E is part of a system of records exempt from the disclosure provisions of the Freedom of Information Act (FOIA). The names of law enforcement personnel, as well as names, social security numbers and other personal items of information pertaining to third parties have been withheld. The removal of this information constitutes a partial denial pursuant to Title 5 U.S.C. Section 552, Exemptions (b) (6), and (b) (7) (C) of the FOIA, because release could violate the personal privacy of other individuals mentioned in the report. We applied Exemption (b)(7)(E) to withhold the identification number of special agents, as well as investigatory records or information complied for law enforcement purposes where the techniques or procedures for law enforcement investigations or prosecutions would be disclosed.” b. The ROI responsive to your request was completed after July 1992. At The time the ROI was completed, the legal standard for titling and indexing an individual as the subject of a criminal investigation was established by the Department of Defense Instruction (DODI) 5505.7, paragraph 6-1, which provides: 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 investigation by the DoD organizations shall be listed in the DCII…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. c. Credible information is 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 in question are true. Titling an individual or entity is an operational rather than a legal decision. d. The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence. The listing of a subject’s name and other identifying information in the DCII indicates only that a ROI concerning that person or entity has been created. Judicial or adverse administrative actions shall not be taken against individuals or entitles based solely on that fact that they have been titled or indexed due to a criminal investigation. e. Once a person is properly titled and indexed in the DCII, that person’s name will only be removed in the case of mistaken identity or if it is later determined a mistake was made at the time titling and/or indexing occurred in the credible information indicating that the subject committed a crime did not exist. f. USACIDC ROIs 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’s determined that credible information did not exist to believe. REFERENCES: 1. The DODI 5505.7 contains the authority and criteria for titling decisions. It states 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 DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. DODI 5505.7, dated 7 January 2003, provides that titling of an individual or entity is an operational rather than a legal decision. 2. Credible information is defined 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 in question are true. DISCUSSION: 1. The applicant's counsel contends the no formal charges were ever brought against his client by the military, that he has no criminal record of a conviction with the NYS Unified Court Systems, and that the military never provided his client with due process with respect to the alleged charge of rape of a juvenile by force. 2. The available evidence shows the applicant’s counsel requested the USACIDC to remove any records regarding an investigation for an alleged rape of a juvenile by force from their files. However, on 31 December 2013, his client was granted partial relief by granting the applicant’s request for a copy of the ROI, but they denied his request to remove his client’s name from the DCII database. 3. By law and regulation, titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient 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. The applicant has failed to provide evidence satisfying this standard for removal. 4. The evidence of record confirms the results of a USACIDC investigation provided a sufficient legal basis for the applicant to be titled for an alleged rape of a juvenile by force. Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010916 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010916 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2