IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150014671 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: 8 December 2016 DOCKET NUMBER: AR20150014671 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. To ensure this decision results in no unintended or additional harm to the individual concerned, this Record of Proceedings and associated documents will not be filed in the individual's Official Military Personnel File. However, this Record of Proceedings and all documents related to this appeal will be filed at the Army Review Boards Agency. ___________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: 8 December 2016 DOCKET NUMBER: AR20150014671 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, in effect, that Report of Investigation 2008-CIDxxx-xxxxx-xx, issued by the U.S. Amy Criminal Investigation Command (USACIC, referred to as CID) on 8 November 2008, be expunged from his Army records and its databases. 2. The applicant states, in effect, that he was never found guilty of any crime and both the Miami-Dade Police Department (MDPD) and the Army Family Advocacy Program (AFAP) found the accusations were unsubstantiated and cleared him. His CID background investigation stated the MDPD proved he was guilty of the accusations; however, nowhere in their report is that stated. He has attempted to appeal the decision to CID but they have refused to remove the titling action. 3. In a self-authored letter to the Board, the applicant, in effect, opined the following: a. He was assigned to the Miami Recruiting Battalion from October 2007 to February 2012. During the month of April 2008, he asked his wife for a divorce and a few days after this she accused him of rape. b. After the investigation by the MDPD, the case was deemed "exceptionally cleared" and the AFAP found the accusations unsubstantiated. He thought and he was told everything was good and he was able to continue his career. However, his chain of command requested a background check on him when they recommended him to be the unit's SHARP (Sexual Harassment/Assault Response and Prevention) program representative. After the results from the investigation came back, he was disqualified for the position. He attempted to reclassify into a new military occupational specialty (MOS) 79R (Recruiter) in order to better serve the Army, but he was denied based on his background check. c. As a result, he requested his background investigation from the CID and found that his record stated he sexually battered his wife according to the MDPD memorandum; however, the memorandum did not state this. He attempted to appeal and he was told he was titled for the incident and it would not be changed. He contacted legal assistance at Joint Base Lewis-McCord, WA, and he was instructed to obtain an attorney. d. He has tried to get assignments to enhance his career, but when he spoke to his career assignment manager, he was told that his options were limited due to his Type I disqualification report. He has submitted his evaluation reports to show his competence and character as a noncommissioned officer (NCO) and two letters of support from fellow NCOs who knew of his ex-wife's accusation plans. 4. The applicant provides: * a self-authored statement, dated 20 August 2016 (summarized above) * two letters of support * 13 DA Forms 2166-8 (NCO Evaluation Report (NCOER)), covering the periods June 2003 through February 2014 * a memorandum from his Company Commander, South Dade Recruiting Company, Miami Recruiting Battalion, subject: Letter of Concern/Direct Order, dated 16 April 2008 * a memorandum from his Company Commander, South Dade Recruiting Company, Miami Recruiting Battalion, subject; Letter of Concern/Direct Order: Change to “LOC,” dated 4 June 2008 * a memorandum from Chief, Social Work Services & Co-Chair Case Review Committee (CRC), subject: Family Advocacy CRC Incident Determination, dated 23 June 2008 * a letter from the MDPD, dated 29 October 2008, with his MDPD Case Report showing the incident occurred on or about 10 April 2008 * CID Report of Investigation (redacted), dated 8 November 2008 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 5 December 2008 * a memorandum from the applicant to the Office of the Secretary of the Army, subject: Appeal Process on (Applicant's) case * two memoranda from the Director, U.S. Army Crime Records Center (CRC), USACIC, dated 8 August 2014 and 5 December 2014, respectively 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. After serving a period in the U.S. Army National Guard and having been awarded MOS 13B (Cannon Crewmember), the applicant enlisted in the Regular Army on 28 February 2002. Through a series of reenlistments, he has continued to serve on active duty. He was promoted to the rank/grade of staff sergeant/E-6 on 1 December 2006. 3. On or about 15 April 2008, the applicant's spouse made accusations to various military and civilian law enforcement agencies, specifically, her husband's company commander and the MDPD, that her spouse, the applicant, had been sexually abusive towards her. 4. The applicant provides a memorandum, subject: Letter of Concern/Direct Order, dated 16 April 2008, from his Company Commander, South Dade Recruiting Company, Miami Recruiting Battalion, which states: a. On 14 April 2008, he was informed by the applicant's wife that the applicant had been verbally and physically abusing her since they were stationed in Oklahoma and this abuse had escalated to sexual abuse, in which consent was not given. b. The applicant's wife sought medical treatment and also reported the incident to the MDPD with no intent of accusing the applicant but to protect her from a reoccurring attack as she did not want to jeopardize his military career. c. He was directed to remove himself from their home, have no contact and to continue to pay all quality of life support. The letter was an administrative measure, only; however, it could result in further action if the misconduct continued. 5. On 4 June 2008, the memorandum was amended to reflect the fact that the applicant was only responsible for providing his wife a portion of his housing allowance. 6. A memorandum from Chief, Social Work Services, and Co-Chair, CRC, subject: Family Advocacy CRC Incident Determination, dated 23 June 2008, stated: a. The CRC met on 20 June 2008 to review the incident involving the applicant. The allegation was intimate partner sexual abuse of (wife) by (applicant). b. The CRC determined the incident to be unsubstantiated and deferred to the Department of Defense Central Registry database. c. The CRC recommended the service member be command-directed to continue Army Substance Abuse Program (ASAP) treatment, with the assigned case worker, to schedule and monitor treatment and to comply with recommended actions determined by the CRC. The recommended action for case stabilization had not been forwarded to personnel command. The Soldier was recommended to attend Domestic Violence Classes and Divorce Counseling. The applicant's commander concurred, and the memorandum was signed by the applicant and the commander on an unknown date. 7. It appears the applicant requested a copy of the MDPD Case Report, which was provided with an attached letter, dated 29 October 2008. The letter states the final disposition of the investigation is "Exceptionally Cleared." The MDPD Case Report, in pertinent parts, states that on 15 April 2008, the applicant's wife reported being sexual assaulted by him, on or about 10 April 2008, after midnight at their home. The wife wanted the incident to be documented but did not want to file charges as she did not want him to get into trouble. However, on 4 May 2008, she advised the police she had changed her mind and wanted to press charges. She received medical treatment on 21 April 2008. A narrative continuation page states that after reviewing the facts of the case, the State of Florida declined to file charges and the case's disposition was "Exceptionally Cleared." 8. A redacted "Final Collateral" copy of the CID Report of Investigation, dated 8 November 2008, shows the CID initiated an investigation on 1 May 2008, where the applicant's company commander reported the applicant had raped his wife at their off-post residence. The date of the occurrence was 11 April 2008 and was reported to the MDPD on 15 April 2008. Investigation by the MDPD determined (applicant) sexually battered (wife). The Florida Assistant State Attorney declined to pursue charges against (applicant). 9. A DA Form 4833 that was referred on 12 November 2008, which was signed by the Tampa Recruiting Battalion Commander on 5 December 2008, identifies the applicant and, in pertinent parts, shows in: a. Item 3 (Referral Information), the following: * Commander's Decision Date - 5 December 2008 * Offense - "Sexual Battery" - Article 120 UCMJ [Uniform Code of Military Justice] * Date - "11 April 2008" * Sexual Harassment - the "NO" block was checked * Action Taken -the "NO" block was checked * Reason - "Other" b. Item 10 (Commander's Remarks), the following: * "Soldier was found to have been innocent of all charges. No actions were taken by this command." * "Memorandum from the MDPD in Miami, FL, wrote a letter that was attached to the original of this form which stated: 'Your request for a copy of the MDPD Case Report Number PD8xxxxxxxxx5 was researched. The final disposition of the investigation is Exceptionally Cleared.'" 10. The applicant was promoted to the rank/grade of sergeant first class/E-7 on 1 February 2011. 11. The applicant petitioned the CRC, USACIC, on or about 4 August 2014, for correction of information on his CID report and expungement of information related to his incident. By letter, dated 8 August 2014, the Director, CRC informed him: a. In accordance with federal statutes of the Freedom of Information Act, they withheld personnel information from the report in regards to law enforcement personnel, the special agents involved with the incident, as well as investigatory records or information compiled for law enforcement purposes where the techniques or procedures for law enforcement investigations or prosecutions would be disclosed. b. However, the information he provided did not constitute new or relevant information needed to amend the report. He could appeal and request amendment of the Report of Investigation but information about career goals, exemplary changes in life, and similar justifications are not part of the amendment criteria and will not be considered. 12. He again petitioned the CRC, USACIC on 7 October 2014, for the expungement of the CID report and information related to his incident. 13. On 5 December 2014, the Director, CRC, USACIC denied the applicant's request to amend the CID Report of Investigation. The Director, CRC indicated the information the applicant provide did not constitute new or relevant information needed to amend the report. She indicated that he, the applicant, had been titled for an incident that occurred and the record originated from the MDPD. The Report of Investigation is a Federal investigative document complied [sic] and maintained for law enforcement purposes. The determination to list an individual as the subject is based on the investigative findings irrespective of the judicial, non-judicial, or administrative action taken (emphasis added). 14. The applicant provides: a. Two memoranda, dated 23 June and 26 June 2015, from fellow recruiters that worked with him who state the applicant's wife told other recruiters' wives that she did not approve of him recruiting and working alongside women and would try to get him fired. They also noted the applicant is a very responsible and respectful person and would never do such an act. b. Thirteen DA Forms 2166-8, covering the timeframe from June 2003 through February 2014, which shows no derogatory or adverse information and that all his NCOERs rated him with all "Yes" check blocks for Army values with outstanding performance and unlimited potential ratings/comments. 15. The applicant's Official Military Personnel File does not contain any documents that reference the issues and allegations raised in this case. REFERENCES: 1. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of USACIC Reports of Investigation. It states that requests to amend USACIC Reports of Investigation will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of USACIC Reports of Investigation 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 is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a USACIC Report of Investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 2. Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for USACIC titling decisions. a. It states that titling ensures investigators can retrieve information in a Report of Investigation of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal decision. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled. b. It also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. 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) database is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. c. 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. 3. DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the FBI, by DOD law enforcement organizations for inclusion in the National Crime Information Center (NCIC) criminal history databases. Paragraph 6 (Procedures) shows that dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed. 4. "Exceptionally Cleared" in the State of Florida refers to a disposition of a criminal case for which probable cause exists that an identified suspect committed the offense, but one for which an arrest or formal charge is not initiated or in the case of a death investigation, one for which no evidence exists that the death was the result of a crime or neglect. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests expungement of USACIC Report of Investigation 2008-CIDxxx-xxxxx-xx, dated 8 November 2008, from his Army records and its databases. 2. The evidence of record shows the applicant was investigated by the MDPD and CID for sexual battery. This investigation was ultimately titled in the DCII database. 3. The applicant previously petitioned CID for the removal of the Report of Investigation from his records and their databases; however, they denied his request due to a lack of new and relevant information. 4. 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 database is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014671 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014671 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2