IN THE CASE OF: BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20160015375 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: 17 November 2016 DOCKET NUMBER: AR20160015375 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 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 Army Military Human Resource Record or 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, Army Board for Correction of Military Records. __________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: 17 November 2016 DOCKET NUMBER: AR20160015375 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 the criminal history data recorded in Federal Bureau of Investigation (FBI) records and all Army records and databases. 2. The applicant states, in effect, the recorded criminal history data should be corrected to show the true and actual disposition of the investigation. a. He states there are a number of inaccuracies on the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). These include the entries in item 4 (Action Taken), item 5 (NJP [Nonjudicial Punishment]/Court-Martial/Civilian Criminal Court Proceeding Outcome), item 6 (Administrative Actions), and item 10a (Commander's Remarks). (1) Item 4 should not reflect any action was taken because administrative action was not taken against him. He was not issued a written reprimand that was locally filed; the administrative reprimand was withdrawn and destroyed. He adds that this disposition information should be annotated in item 10a. (2) Item 5 is incorrect because the applicant was not charged with any offense. He adds there were no pleas of "No Contest" and, therefore, there should be no indication of "Guilty" because there was no trial or NJP. Thus, item 5 should also be blank (no entries). (3) Item 6 should not reflect that any action was taken. The Commander 504th Battlefield Surveillance Brigade (BSB), indicates there was a written, locally-filed reprimand; however, the Deputy Commanding General, III Corps, Fort Hood, TX, withdrew and destroyed the written reprimand. b. He states the evidence he provides shows a partial correction of the records was approved. However, additional corrections should also be made. He adds that it would be great to have his name untitled and the whole event behind him. 3. The applicant provides copies of the following documents: * a self-authored statement, dated 1 September 2016 (summarized above) * General Officer Memorandum of Reprimand (GOMOR) and allied documents * DA Form 4833 * memorandum authored by his attorney * United States Government Identification Card * U.S. Army Criminal Investigation Command (USACIDC) memoranda CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 23 June 1997. He was awarded military occupational specialty 25U (Signal Support Systems Specialist). Through a series of reenlistments he has continued to serve on active duty. He was promoted to master sergeant (MSG)/pay grade E-8 on 1 March 2011. 2. A DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report (NCOER)) pertaining to the applicant shows for the period 15 July 2014 through 15 June 2015 – * no derogatory or adverse information * favorable performance and potential ratings/comments 3. Headquarters, III Corps, Fort Hood, TX, Orders 098-0122, dated 7 April 2016, shows the applicant has an approved retirement, effective 28 February 2017, with placement on the retired list in the grade of first sergeant/pay grade E-8 on 1 March 2017. 4. In support of his application the applicant provides the following pertinent documents/records: a. Headquarters, III Corps, Fort Hood, TX, GOMOR, dated 18 March 2015, issued by Major General (MG) KPC, Deputy Commanding General, that reprimanded the applicant for, on 28 August 2014, abusing and taking advantage of his wife. Additionally, his wife reported that he was physically abusive towards his children on several occasions. (1) MG KPC added that Fort Hood CID and the State of North Carolina Child Protective Services conducted investigations into the allegations and (during the investigations) one of the applicant's children corroborated the allegations. (2) The applicant acknowledged receipt of the GOMOR on 27 March 2015 and indicated his intent to submit written matters within 7 days. (The applicant did not provide his personal response to the GOMOR with his application.) b. Headquarters, III Corps, Fort Hood, TX, memorandum, dated 14 May 2015, subject: Filing Determination on Reprimand, showing MG KPC directed the reprimand be withdrawn and destroyed. (The memorandum listed nine enclosures.) c. A DA Form 4833, referred on 10 February 2015, identifies the applicant and, in pertinent part, shows in: * item 3 (Referral Information) – * Offenses – * "Assault on Child Under 16 [5C2C]), UCMJ [Uniform Code of Military Justice], 1 July 2014" * "Rape of an Adult by Force [6E1A4], UCMJ, 28 August 2014" * "Assault [5C2B], UCMJ, 1 February 2011" * Commander Decision Date: "26 May 2015; Action Taken – Yes" * item 4 (Action Taken): "Administrative" (Non-Adverse Referrals – Adverse Personnel Actions) * item 5 (NJP/Court-Martial/Civilian Criminal Court Proceeding Outcome) [Format: Charged Offense, Plea, Finding Offense, Trial/NJP Finding] – * "Assault on Child under 16 [5C2C]), No Contest, Assault on Child Under 16 [5C2C], Guilty" * "Assault [5C2B], No Contest, Assault [5C2B], Guilty" * "Rape of an Adult by Force [6E1A4], No Contest, Rape of an Adult by Force [6E1A4], Guilty" * item 6 (Administrative Actions): Adverse – * Date Imposed: "18 March 2015" * Reprimand: "Written, Local" * item 10a, is blank (no entries) d. On 9 September 2015, Captain KFH, Attorney, Client Services, requested resubmission of a corrected DA Form 4833 by the Commander, 504th BSB, to reflect the actual disposition of matters pertaining to the applicant's case, which concluded on 14 May 2015. (1) He noted that, on 14 May 2015, MG KPC, directed that the reprimand be withdrawn and destroyed. The entry in item 4 of the DA Form 4833 is incorrect. He stated that, per the regulation, "[s]hould the commander take no action, the DA Form 4833 must be annotated to reflect that fact." He added that item 6 should be empty. (2) He also stated that item 5 is incorrect because there were no pleas of "No Contest" given, as the applicant was not charged with any offense. There should not be any indication of "Guilty" by "Trial or NJP." Item 5 should be empty. e. USACIDC, U.S. Army Crime Records Center, Quantico, VA, memorandum, dated 4 March 2016, showing the applicant was advised his request to correct information from the files of USACIDC was partially granted. The DA Form 4833 was updated to reflect the filing determination of the reprimand. The USACIDC coordinated to have a copy of the DA Form 4833 compiled into his file, and a copy of the updated DA Form 4833 was prepared and provided to the applicant. Further amendment of his DA Form 4833 was denied. (A copy of the updated DA Form 4833 was not provided by the applicant.) f. USACIDC, U.S. Army Crime Records Center, Quantico, VA, memorandum, dated 25 March 2016, showing the applicant was advised his appeal regarding the amendment action of the Report of Investigation (ROI) had been forwarded to the Army Review Boards Agency (ARBA), ABCMR. g. USACIDC, U.S. Army Crime Records Center, Quantico, VA, memorandum, dated 25 March 2016, showing the applicant had exhausted his remedy to correct records through that agency and his appeal regarding the amendment action of the ROI was forwarded to ARBA, ABCMR. 5. A review of the applicant's Army Military Human Resource Record (AMHRR), which includes his Official Military Personnel File (OMPF), failed to reveal copies of the records/documents the applicant submits with his application and that are under review in this case. REFERENCES: 1. Army Regulation 600-8-104 (AMHRR Management) serves as the authority for filing documents in the AMHRR. Only those documents listed in Table B-1 (Authorized Documents) are to be filed in the AMHRR/OMPF. 2. Department of Defense Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense (DOD)) serves as the authority and criteria for USACIDC titling decisions. a. It states that titling ensures investigators can retrieve information in an ROI 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 determination made by lawyers. 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. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity. 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 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. 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 contends, in effect, that records pertaining to his criminal history data should be corrected in FBI records and all Army records and databases to show the true disposition of the charges and investigation. 2. The records in question are not filed in the applicant's AMHRR/OMPF. 3. Based on the information provided by the applicant, it appears he was properly titled at the time he was cited for the offenses in question and that investigations revealed that he did commit at least one of the offenses. Thus, there appears to be no case of mistaken identity in this case. a. The evidence of record shows the GOMOR issuing authority withdrew and destroyed the GOMOR. The applicant requested update of the DA Form 4833. USACIDC partially granted his request and issued an updated DA Form 4833. The applicant did not provide a copy of the updated DA Form 4833 to the Board. (1) The regulations governing the Board's operation require that the titling process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. (2) In the absence of evidence to the contrary, the actions taken by USACIDC to update the DA Form 4833 are presumed to have been proper and correct. b. The applicant contends there were no pleas of "No Contest" given because he was not charged with any offense and, therefore, item 5 should be corrected. Notwithstanding his contentions, the evidence the applicant provides to this Board does not offer any clear indication that an error was made. 4. Dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal, etc.) are also filed. Thus, the applicant may contact appropriate law enforcement agencies to ensure any available official records of exculpatory information are also filed in the NCIS database. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015375 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015375 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2