BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160011973 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 BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160011973 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. BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160011973 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 correction of his military records by removing two military police reports from U.S. Army Criminal Investigation Command files. He further requests to personally appear before the Army Board for Correction of Military Records (ABCMR) to plead his case. 2. The applicant states he wants a military police report, number MPN 04I00-2002-HPC0XX, for simple assault, removed from Army files. a. He recently applied for a special duty assignment at Joint Base Lewis McChord (JBLM), Washington. His request was returned stating that he was disqualified for the assignment due to a type I violation that happened in June 2002. The incident involved his word over the other parties’ word. The two parties made their sworn statements, and he, the Service member, was released to his unit. Almost 14 years later, the incident came up that he was founded for simple assault. This offense never actually happened. The other party involved returned to the military police and gave another sworn statement saying that the accusation never happened. The statement was recorded on the backside of the military police report, saying the events as stated earlier had never happened. This offense needs to be taken off of his record as soon as possible because it could follow him after he leaves the military service and hinder his efforts when he applies for a government civilian job. He never received punishment under the Uniform Code of Military Justice (UCMJ) or was otherwise reprimanded in any way, shape, or form for this offense. He sent numerous requests to the U.S. Army Criminal Investigation Command and to the U.S. Army Intelligence and Security Command requesting correction and justification. He cannot have this offense/violation affect his military career any longer or when he soon retires and possibly joins the Department of Defense as an Army Civilian employee. b. The applicant also states he wants a second military police report number MPN 00553-2004-PC0XX for communicating a threat removed from Army files. In 2013, when he was a Sexual Harassment/Assault Response and Prevention (SHARP) Representative, the Army conducted an investigation on all SHARP representatives and Victim Advocates, and this offense/violation came up on the re-investigation. It disqualified him for SHARP Duty and his Department of the Army SHARP credentials were taken from him by his chain of command. This was a special appointed duty in the Army. The incident occurred in 2004 when he was getting ready for an overseas assignment to the Republic of Korea (ROK). He wanted to see his daughter from a previous marriage before leaving for the ROK. At the time, his daughter was living at Fort Lewis. When he arrived he talked with the other party involved, stating he wanted to see their daughter. The other party did not want him to see their daughter and called the military police. The other party told them that he had threatened their lives. Later, when he drove through the Fort Lewis front gate, the military police pulled him over and took him in for questioning. He made his statement and was released. The next day he made his port call and left for duty in the ROK. He had no knowledge whatsoever that he had been founded for violating Article 134, UCMJ, by communicating a threat until the Army conducted their reinvestigation for all SHARP personnel in April 2014. He was never given punishment under the UCMJ or otherwise reprimanded in any way, shape or form for this offense. There is no other witness or evidence that clearly justifies that he was guilty of committing this offense based on a sworn statement. He needs this offense/violation taken off his record. Again, he cannot have this offense effecting his military career and/or future government civilian employment. He has exhausted all administrative remedies to correct the alleged error or injustice with the U.S. Army Criminal Investigation Command and the U.S. Army Intelligence and Security Command. 3. The applicant provides: * Letter from the Director, Crime Records Center, Quantico, Virginia, to the applicant, dated 3 September 2015 (3 pages) * Letter from the Director, Crime Records Center, Quantico, Virginia, to the applicant, dated 15 September 2015 (1 page) * Memorandum for Record, written by the applicant, dated 15 September 2015 (No addressee indicated on the document) (2 pages) * Standard Form 180 (Request Pertaining to Military Records) dated 25 September 2015 * Letter from the Director, Crime Records Center, Quantico, Virginia, to the applicant, dated 30 September 2015 (1 page) * A Letter from the Freedom of Information/Privacy Office, Fort George G. Meade, dated 2 October 2015 (1 page) * A Memorandum, U.S. Army Human Resources Command, dated 5 October 2015 (1 page) * Letter from the Director, Crime Records Center, Quantico, Virginia, to the applicant, dated 19 October 2015 (1 page) 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. At the time of his application, the applicant was serving on active duty in the Regular Army in the rank of staff sergeant, pay grade E-6. 3. A DA Form 3975 (Military Police Report (MPR) Number 2002-MPC023-3170R-XX, dated 10 June 2002, reports a military criminal complaint evaluated as “founded.” The applicant is listed as the first subject of the report. The report contains the following narrative: At 1045 hours, 10 Jun 02, [redacted] reported a domestic disturbance to the PMO D/SGT [redacted]. Investigation disclosed that at 1045 hours, 10 Jun 02 [redacted] and [the applicant] were involved in a verbal altercation which escalated into a physical altercation when [the applicant] struck [redacted] in the stomach with a closed hand. [Redacted] then struck [the applicant] in the head with an open hand. While at [redacted] neither subject required medical attention. [Redacted] was advised of her rights, cited DD [Form] 1805, advised of her mandatory court appearance and released at the scene. [The applicant] was apprehended, transported to the PMO, advised of his rights, further processed and released to his unit. 4. A DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) dated 23 September 2002, reports that the applicant was identified with the offense of simple assault consummated with battery occurring on 10 June 2002. The remarks block of this form contains the statement, “Wife withdrew statement of accusation and admitted it was untrue. Soldier received reprimand from chain of command. Both were sent to AFAP for counseling.” 5. A DA Form 3975, Number 2004-MPCo16-1339W-5XX, dated 23 March 2004 reports a military offense/complaint evaluated as "founded." The applicant is listed as the first subject of the report. The report narrative states: At 1755 hours, 23 Mar 04, Military Police were notified by Liberty Gate of a found [be on the lookout for] BOLO that was put out on 22 Mar 04. Investigation revealed that [the applicant] and his ex-wife, victim 1 had exchanged telephone conversations the previous day where [the applicant] threatened to cause serious bodily harm and/or death to victims 1-3. [The applicant] was apprehended and transported to this station where he was advised of his legal rights, which he waived rendering a sworn statement denying the offense. [The applicant] was further processed, released on his own recognizance and instructed not to return to post until 24 Mar 04. 6. A DA Form 4833, with referral date 23 March 2004. The form does not show any action taken by the commander. 7. On 3 September 2015, the Director, Crime Records Center, informed the applicant that his request for amendment of the military police report number 2002-MPC023-3170R-XX had been carefully reviewed, considered and denied. The applicant was further informed that he could appeal the denial to the Department of Army (DA) within 60 days of the date of this letter. 8. A Memorandum for Record, subject: Appeal, signed by the applicant and dated15 September 2015, contains the applicant’s restatement of the two military police reports and his understanding of the circumstances of the incidents. He stated that he knew in his heart, mind and soul, that the founded charges in both reports were untrue. He contended that only recently did he have any knowledge that he was founded for these charges and that if he had actually been charged and punished for these offenses at the time they happened he would have taken appropriate action then. 9. On 30 September 2015, the Director, Crime Records Center, sent the applicant a letter informing him that his Privacy Act appeal concerning the military police reports was forwarded to the DA Freedom of Information and Privacy Office, Privacy Review Board (PRB). 10. On 2 October 2015, the Chief, Freedom of Information/Privacy Office, sent the applicant a letter informing him that his appeal dated 15 September 2015 came under the purview of the U.S. Army Crime Records Center. Accordingly, his appeal was forwarded to that office. 11. On 19 October 2015, the Director, Crime Records Center, sent the applicant a letter informing him that his appeal dated 30 September 2015 was being processed under FA15-3743 and therefore, his appeal under FA 16-0064 was being closed. 12. On 11 August 2016, the director, Case Management Division (CMD), Army Review Boards Agency (ARBA), sent a letter to the U.S. Army Crime Records Center, requesting a copy of the redacted military police reports related to the applicant’s request in this case. 13. In a memorandum dated 12 August 2016, the Director, Crime Records Center, provided redacted copies of the subject military police reports. 14. On 23 August 2016, CMD, ARBA, forwarded the information and documents provided by the Director, Crime Records Center, to the applicant. He was given the opportunity to review and respond accordingly. No response was received. REFERENCES: 1. Department of Defense Instruction (DODI) Number 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense), contains the authority and criteria for titling decisions and 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 Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an report of investigation (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 or is otherwise made the object of a criminal investigation. 2. DODI 5505.7 contains further legal guidance. a. Section 6.1. 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. 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. 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. 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. 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. d. Section 6.9. 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. 3. DODI 5505.7 also provides the following definitions: a. E1.1.1 – Credible Information: 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. b. E1.1.2 – Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. c. E1.1.3 – DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the 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. d. E1.1.4 – Incidental: Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. e. E1.1.5 – Indexing: Refers to 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. f. E1.1.6 – Subject: 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. g. E1.1.7 – Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. h. E1.1.8 – Titling: 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. 4. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program and military police reports. 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 reports. It states that requests to amend reports will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of a report 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 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 report 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 CG, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. Also applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justices requires it. DISCUSSION: 1. The applicant contends that his military records should be corrected by removing two military police reports from the U.S. Army Criminal Investigation Command files. In effect, he requests that he not be titled on two military police reports. 2. The applicant requests a personal appearance before the Board; however, because there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted. 3. There is no evidence showing the applicant was ever charged, tried or convicted of any crime or misconduct as a result of the information contained in the subject military police reports. However, it is not necessary that the person titled receive punishment or face prosecution. Titling is an administrative action based on credible evidence showing that a subject was under investigation for an offense. This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burden 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). 4. In order to support removal of his name, or to change any portion of the title block of the subject reports, the evidence must show the original titling decision was in error. The decision to list a person's name in the title block of a report is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the result of such action. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011973 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011973 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2