BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170000160 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: 25 January 2018 DOCKET NUMBER: AR20170000160 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: 25 January 2018 DOCKET NUMBER: AR20170000160 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 removal of his name from the title block of U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) , dated 23 December 2013. He also requests a personal appearance before the Board. 2. The applicant states a. He wants the Board to review his package. When a background check is performed on him for medical and insurance credentialing, it shows that he was "arrested" on 17 July 2013 in Quantico, VA. This is incorrect; he was never arrested. He has [never] been to Quantico, VA, and it is having a significant recurring effect on his medical professional career. He wants his records to reflect that he was investigated in San Antonio, TX, for a sexual harassment allegation that was unfounded. He has exhausted his administrative options with CID and has included their response letter that states they will not remove his name from the titling action dated 17 July 2013. b. He received an administrative letter of reprimand that was deleted when he retired as per Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-4(a)(3), but the titling action is reported to the DCII (Defense Clearance and Investigations Index) database and subsequent translation to the Federal Bureau of Investigation (FBI) shows up as an arrest in Quantico, VA, which is incorrect. If the titling process does not allow for accurate reporting of the facts from the FBI, where he faced an administrative process, not a criminal one, he requests that CID be directed to correct his information to reflect initial questioning, not an arrest, in FBI criminal databases. c. The titling action poses significant potential problems with his license to practice medicine under any state health authority. He understands titling could be part of a CID investigation, but subsequently the allegations were uncorroborated, unsubstantiated, unfounded and eventually deleted, and at this point are unjust because he was never arrested. He was not arrested in Quantico, VA, and did not face the judicial or non-judicial system. If the titling process does not allow for accurate reporting of facts from the FBI, the error is unjust because the titling action is ultimately confusing to civilian licensing authorities, and it is very hard to explain how an unfounded allegation results in an inaccurate entry into a criminal database that erroneously shows that he was arrested. It is a travesty of justice that this should continue to have an incorrect prejudicial impact on him from licensing agencies and insurance companies on a recurrent basis long after the administrative action has been deleted and he has retired from the military. 3. The applicant provides: * Congressional correspondence * Multiple newspaper articles related to sexual harassment and/or assault * Various applications and letters related to his license * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) * Letters to and from CID * Memorandum related to a letter of reprimand * Development Counseling Form COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests removal of the applicant's name from the title block of the CID ROI , dated 23 December 2013, and reflecting the allegations of sexual harassment and indecent assault as "not founded." 2. Counsel states a. The applicant has prepared and attached to this request a further detailed discussion of what happened in this matter, why this injustice is likely to have occurred, and how this error has and will continue to unnecessarily impact his life. This Board has the authority to make corrections to his military record in the interest of propriety, justice, and overall fairness. Certainly the events related in the attached evidence package justify and require correction of his records under each of the criteria available to the Board for rectifying this serious problem. He requests this Board correct this grievous error in his record and take appropriate action to have that CID report removed from all data file systems including those belonging to the Army, the FBI, and any other records repository where a copy may exist. He was never arrested and this erroneous documentation should not continue to exist where it will give future reviewers of his record a suggestion otherwise. b. The applicant's licensing will be reviewed again in early 2016. He wants this immediate action be taken to suspend any release of the CID report pending the Board's action on this application. It would be unfair to the applicant for further damage to result to his professional status from this matter should the ABCMR ultimately approve the request. c. The applicant is a physician who served in the Army from 1990 to 1997 in the Corps of Engineers, then re-entered active duty service in 2001 after finishing medical school, retiring in 2014. His area of concentration at retirement was 60L, Dermatologist. He was last stationed at San Antonio Military Medical Center at Joint Base, Fort Sam Houston, TX, where the alleged events detailed herein occurred. His commander received a complaint against him in 2013 alleging improper conduct with a coworker, supposedly occurring in 2011. CID conducted an investigation which determined the allegation was groundless and did not justify or require Uniform Code of Military Justice (UCMJ) action. Despite the finding of no criminal activity, the commander presented the applicant with a "desk drawer" letter of reprimand with the stated intention of not placing it in his official military personnel file. He stated his purpose in the letter of reprimand was for the applicant to avoid situations which could be misconstrued. He indicated that the reprimand would go nowhere and would be disposed of when applicant retired. In fact that is what occurred when the applicant retired, as documented in his personal statement and in the letter from his commander contained in the narrative summary file. d. Apparently the CID investigator was a novice special agent and he immediately took an action called ''titling" and he immediately and inappropriately titled the applicant by name in the investigation. This titling created a requirement that the report be sent to all federal criminal records repositories, specifically to the FBI permanent records system. As is reflected in applicant's record, he had previously received an Article 15 as nonjudicial punishment (NJP). Counsel must assume that resulted in the "creation OMPF file" since a grade determination was made at the time of his retirement. It is also likely that the rush to judgment by CID in establishing a ''titling" file was rationalized by their awareness of this prior matter. The two situations were totally unrelated, and one should not have been considered with the other. It must also be assumed that the commander was aware there was an OMPF, and had he had any desire whatsoever to make this reprimand a matter of record, he could easily have made it an OMPF entry. That did not happen. As the commander stated, he intended from the outset to keep the reprimand private and delete it on applicant's retirement, which did happen. These two actions by the commander must be contrasted. The commander's election to resolve one matter by NJP indicates that he considered it significant. The disposition of the later allegation by the letter of reprimand similarly proves that it was minor in nature. If the commander considered this allegation insufficient for even an NJP action, this further proves the CID report was erroneous, unjustified, and mishandled. e. Counsel adds that he submits that this immediate "titling" prior to evidence being collected and considered by the chain of command may also have been the result of the public clamor at the time regarding sexual assaults in the military. The publicity raised in the news, including statements from the Commander in Chief, were clearly made known to all levels of investigation in the services including CID. Whatever the rationale, this action resulted in a permanent "arrest record" in a matter which justified no more than an informal, destroyed letter of reprimand, and was inappropriate and unnecessary. f. During his retirement processing in 2014, the applicant applied for medical licensing in the State of Florida. This CID report was processed, distributed and reported to the licensing board as an arrest record, which it was not. He was neither arrested nor charged with any crime under the UCMJ or federal law. Consequently this erroneous data created in the federal criminal records system inaccurately and unfairly brands this officer and physician with a record that should not exist. The applicant has for the moment convinced the licensing board in Florida that this report is erroneous and should be ignored; however he is currently facing another scheduled review of his records for continuing certification as a physician. Past concerns may again arise and the applicant will be subject to continued inappropriate "flagging" if and when he applies for licensing in other states or jobs which may require background clearances, etc. The current state of his records either requires him to answer "yes" on an application inquiring if he was ever arrested, which he was not, or alternatively answering no and expecting a challenge when this erroneous record again in revealed and surfaces. 3. Counsel provides refers to the evidence provided by the applicant. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Regular Army commissioned officer and entered active duty on 31 May 1990. He completed the Engineer Officer Basic Course. He was honorably discharged on 1 August 1997. 2. He was appointed as a Reserve commissioned officer and executed an oath of office on 9 October 1997. He completed a medical degree and ultimately became a dermatologist in the Medical Corps. 3. He entered active duty on 13 January 2001. He served in a variety of stateside or overseas assignments, including Korea and Iraq, and he attained the rank of lieutenant colonel (LTC). At the time of his reprimand, he was assigned to Company B, Brooke Army Medical Center, Fort Sam Houston, TX. 4. On 4 September 2012, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for, on divers occasions between on or about 1 October 2011 and 30 January 2012, wrongfully having sexual intercourse with Mrs. CRE, a married woman and wife of a junior enlisted Soldier. 5. His punishment consisted of a forfeiture of $3,381.50 (suspended) and a written reprimand. The imposing general officer ordered the Article 15 filed in the restricted folder of the applicant's OMPF. The applicant elected not to appeal. 6. On 11 September 2012, the Commanding General (CG), Brooke Army Medical Center, reprimanded the applicant for adultery and the adulterous relationship he had with the wife of a junior enlisted Soldier. The reprimand reads: a. The applicant had had sex with her on at least 4 occasions. She had taken Plan B pills in case she became pregnant, and when the Plan B pills made her nauseous, he wrote her a prescription for Phenergan. b. The imposing general officer ordered the Article 15 together with the reprimand filed in the restricted folder of his OMPF. 7. On 15 July 2013, the U.S. Army Criminal Investigation Command, Fort Sam Houston, was notified by Special Agent (SA) XXXX, Air Force Office of Special Investigation, 301st Field Investigation Squadron, Scott Air Force Base, that MAJ ----- was sexually assaulted by the applicant in his office. 8. On 17 July 2013, the applicant's company commander counseled him regarding the alleged sexual harassment investigation pending against him and informed him that he (the commander) had initiated a flag (suspension of favorable personnel actions) against him. 9. On 27 November 2013, in response to the alleged misconduct, the CG, U.S. Army Medical Department and School, issued the applicant a General Officer Memorandum of Reprimand (GOMOR). After he received the applicant's rebuttal, he ordered this reprimand to be filed in his local administrative file, which would be deleted from his official files upon his departure from the command or retirement. 10. The Final ROI , dated 23 December 2013, shows the investigation established probable cause to believe the applicant committed the offense of wrongful sexual contact when he inappropriately touched MAJ ----- without her consent. He was in violation of Article 120 of the UCMJ (Wrongful Sexual Contact). The ROI also indicated that a Commander's Report of Disciplinary Action (DA Form 4833) was required. Additionally, Trial Counsel, Office of the Staff Judge Advocate (SJA), Fort Sam Houston, opined that probable cause existed to believe the applicant committed the offense of "Wrongful Sexual Contact." 11. On 3 January 2014, CID referred the case to the commander who prepared a DA Form 4833. (Commanders are responsible and accountable for completing the DA Form 4833 with supporting documentation in all cases investigated by Military Police and CID; the Provost Marshal where the offense is reported generates the DA Form 4833.) * Item 3 (Referral Information) of this form lists the offense as "Wrongful Sexual Contact," the date of the offense as 1 February 2011, and the Commander's decision on 3 January 2014 is reported as "Sexual Harassment: No" and "Action taken: Yes" * Item 6 (Administrative Actions) of this form shows that a reprimand was imposed and that it was "filed in the official military personnel file" 12. The applicant retired on 31 May 2014 and he was placed on the retired list in his retired grade of LTC on 1 June 2014. He completed over 20 years of active service. 13. In December 2014, after receiving correspondence from certain agencies that a background screening revealed he had an "arrest" record, the applicant wrote to CID requesting a correction to the information in their files. 14. The Director, Crime Records Center (CRC), responded and advised him that CID made administrative corrections to the Commander's Report of Disciplinary or Administrative Action (DA Form 4833) which is contained in ROI dated 23 December 2013. The correction consisted of an amendment to the DA Form 4833 as follows: * Item 6 (Administrative Actions) to show the reprimand was filed in the local file vice the OMPF * Item 10 (Commander's Remarks) was updated to read "on 27 November 2013, the CG issued a memorandum of reprimand; on 25 February 2015, the record was reviewed for amendment; the amendment to the record by the CID CRC is as follows ‘The Commander's Report of Disciplinary or Administrative Action was updated to reflect the subject received a locally-filed GOMOR’” a. Other than this administrative correction, and after a review of the information in the ROI, CID found his titling and indexing correct. Those subjects who have resultant judicial, nonjudicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject has committed the offense in which they were titled, will remain in NCIC. b. A check of NCIC reflected that he was listed as the aforementioned ROI for wrongful sexual contact. The disposition reflects "Administrative Action Taken; Received General Officer Letter of Reprimand, 27 November 2013." Given these facts, retention of this criminal history data in the NCIC does conform to DOD policy. His name would remain in the NCIC. 15. The applicant provides multiple articles from The New York Times and The Washington Post concerning President Obama's views about sexual misconduct/assault in the military and/or Congress' position to step up its efforts against sexual assault in the military. He also provides a document titled "Executive Summary," wherein he states: a. He was stationed at the San Antonio Military Medical Center (SAMMC) at Fort Sam Houston during the period of 2006 to 2014, serving as a dermatologist. On or about 17 July 2013, his commander received a complaint from the spouse of another military member alleging that he (the applicant) had touched his wife inappropriately. There were no allegations of sex such as intercourse or kissing, the allegation centered on touching different body parts at different times such as the neck, arms, hands, legs, and on one occasion the buttocks. These incidents were alleged to have occurred 2 years earlier, in 2011, while his wife, also a military physician, was stationed at SAMMC. b. A CID inquiry was initiated under UCMJ, Article 120, Wrongful Sexual Contact, and it was determined that there had been no misconduct on his part and more definitely no criminal conduct. However, under the circumstances, the CG gave him an administrative letter of reprimand advising him against situations which could possibly be misconstrued or misinterpreted and raising the awareness of the parties involved on the issue of sexual harassment. He was advised the letter of reprimand would not be placed in any formal permanent record and it was destroyed at the time he retired from the Army on 31 May 2014 as per AR 600-37, paragraph 3-4(a) (3). A letter from the imposing CG verifies this information. c. Although his command ultimately considered this incident of no significant interest, when CID opened their investigation, he was immediately ''titled" in the report by name and other personal identifiers on 17 July 2013. This action by the investigator was unnecessary and inappropriate as explained in detail in the "Narrative Statement" he provides. Essentially, he was a victim to then prevalent and understandable publicity regarding sexual harassment complaints in the military, which resulted in the unnecessary referral to and his immediate titling by CID. The titling action by the investigator has created a permanent error in his civilian FBI records. d. This titling action was unknown to him until after he applied for an unrestricted medical license in the State of Florida in March 2014. Although the incident involved no criminal activity, no judicial or nonjudicial military proceedings, the CID report erroneously appears in the FBI crime records as an arrest, which never occurred. The existence of this erroneous FBI crime record due to the initial titling caused a serious conflict in his medical licensing efforts in Florida. Although he was licensed, his medical license will be reviewed in 2018 and the issue is likely to arise again. He will face similar problems throughout his career with applications for federal and private medical insurance reimbursement programs. Furthermore, should he desire to move to and be licensed in a different state, that licensing board will again scrutinize the incorrect criminal database entry. A review of the detailed ''Narrative Statement" as well as the related documentation in this application package will be necessary to see the extent of this error. 16. He also provides a detailed document, titled "Narrative Statement," wherein he attributes his titling action to command influence. He states: a. An article in The New York Times, dated 13 July 2013, reported concerns of military commentators that remarks made by the President of the United States is causing problems for courts-martial on the issue of unlawful command influence. However, the issue was more expansive than what was reported, not only publicly affecting judicial courts-martial proceedings but also affecting more obscure military administrative processes. He feels that he has been unfairly registered in a criminal database as a result of those remarks. b. A few days after The New York Times article, and weeks after the President made his influential remarks on 7 May 2013 on "a system built on obeying orders of the commander immediately and without question," his command received a complaint that he had sexually harassed the wife of another service member almost two years prior to the date of the complaint. If the complaint had been made just several weeks earlier, the chain of command would have ordered an AR 15-6 (Procedures for Investigating Officers and Board of Officers) administrative investigation. The issue at hand was that he, as single service member, interacted with a co-worker who was pondering divorce action in 2011 and the spouse came forward two years later in 2013 at a time when Congress was developing legislation intended to increase the number of people who report on sexual harassment. An administrative AR 15-6 investigation would have been the usual and appropriate course of action, and with that, there is no option for titling the subject of an investigation. c. Given the scrutiny by the President and Congress on this subject matter at the time, rather than starting an AR 15-6 administrative investigation, the command routed the complaint to the local CID office for investigation. A CID investigation includes the option for titling the subject of an investigation. He understands that titling can occur at an early stage of an investigation, but, with the President's directive of "I expect consequences" very firmly in their minds, the CID agents in his case prematurely titled him – he was titled several hours after his chain of command informed him he was being investigated for sexual harassment on the morning of 17 July 2013. He has included his counseling statement informing him of the pending CID investigation and subsequent meeting with his supervisor at 0730 on 17 July 2013. He was titled that same day, hours later, as evidenced by his FBI background check that erroneously shows that he was arrested, not titled, on 17 July 2013. Because of the President's directive just weeks before, he was titled first and investigated after. After the investigation was completed, months later, the CID admitted that the complaint was completely unfounded. They closed their investigation, and returned it to his chain of command. After review of the evidence, the CG found that the allegation was uncorroborated, unsubstantiated and ultimately unfounded. An administrative letter of reprimand which heightened awareness was deleted from his records upon his retirement. The letter of reprimand was not the result of a nonjudicial military proceeding such as an Article 15. In the end, CID never informed him that he was titled. He learned about the titling process when he applied for a medical license in Florida. d. Because of the titling process, as shown in the licensing application for the State of Florida, Medicaid insurance application, and numerous other medical insurance agencies (not attached because of repetitious request for the same information), his name appears in FBI background checks showing that he was arrested, in Quantico, VA. It is completely incorrect that his name, as it appears in background checks, is associated with an arrest, and he has never been to Quantico, VA. e. He has been assisted in responding to those medical credentialing inquiries with a letter by the legal assistance office explaining the military titling process but this is temporary response, with a timeframe of 12-24 months, and it has not been sufficient to address all agency inquiries. The FBI background check will again be the subject of future inquiries when he comes up for re-credentialing with the state medical board and medical insurance companies. He is required to undergo background checks on a recurrent basis for professional licensing as well as insurance certification and he will continue to have issues with delayed or rejected licensing because the CID titling system is inflexible and has no way to differentiate an arrest from the fact that he was once subject to questions for an unfounded allegation. After an initially accepted timeframe of 12-24 months, his ability to practice medicine is in jeopardy. It is a travesty of justice that this should continue to have an incorrect prejudicial impact long after he retired from the military. f. Pursuant to his request, CID amended their records to reflect their error and confirmed that he received a locally filed administrative letter of reprimand which was removed when he retired. The intent to have the administrative letter of reprimand filed locally and subsequently deleted upon retirement was to not have a permanent record as per AR 600-37, paragraph 3-4(a)(3), and in turn, not cause issues in his future outside the military. A letter of reprimand from a non-judicial proceeding such as an Article 15 would become a permanent part of his record, but he did not receive a letter of reprimand due to NJP. g. CID in the same response refused to change the titling action. This causes what was intended to be a temporary matter, to be an incorrect permanent mark showing civilian entities that he was arrested or convicted on FBI background check. This is an unfair result and contrary to the final analysis of the evidence and ultimate intent of the CG when he directed local administrative filing. The initial titling action is a result of initial prejudicial choice to investigate through CID instead of AR 15-6 administrative investigation, influenced by the political climate, and shows "consequences" as voiced by the President. Although premature, the titling is correct per regulations, but the amendment process through CID following the titling is inflexible and deprived of due process where the judgement of the investigating special agent is not questioned nor are the initial facts available to the special agent at the time of titling revisited for any reason. Its report to the DCII database and subsequent multi-step translation to the FBI at this point continues to unfairly prejudice his professional career because on background check, the titling at the beginning of an investigation, which was later unfounded, is reported to the FBI as an arrest, and that is not correct. h. In addition, the CID response, third paragraph, states: "Those subjects who have resultant judicial, non-judicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject has committed the offense in which they were titled, will remain in NCIC." As seen on the amended DA Form 4833, page 2, paragraph 4, he did not have resultant judicial or non-judicial military proceedings, it was administrative. Furthermore, on page 1 of the same DA Form 4833, paragraph 3, the sexual harassment column was checked "No" which is contrary to the idea that CID, SJA, or other legal advisor found probable cause for the offense - and thus should he be removed from the NCIC? i. Finally, the next paragraph in the CID response, page 3, paragraph 4, states: "A check of the NCIC reflects you are the subject of in the aforementioned ROI for Wrongful Sexual Contact. The disposition reflects ‘Administrative action taken. Received General Officer Memorandum of Reprimand, 27 November 2013.’ Given these facts, retention of this criminal history data in the NCIC does conform to DOD policy. Your name will remain in the NCIC." j. These facts are incorrect: he submitted new evidence and CID accepted a memorandum signed by the CG stating that the letter of reprimand was deleted upon retirement and is therefore non-existent at this point. With this new information, CID updated the DA Form 4833. Specifically, the new DA Form 4833 shows that the Administrative Actions, on page 3, paragraph 6, and Commander's Remarks, page 6, paragraph 10, were updated to reflect local filing of the administrative GOMOR, but CID did not take this new amended information into account. As for the ROI, he supposed it was not amended with the new information? It seems that CID did not review the reason he continues to be in the NCIC. If such administrative action no longer exists, there was no sexual harassment, no judicial or non-judicial proceeding, and no probable cause. The CID response did not acknowledge that they considered the new information in the memorandum stating the administrative reprimand was deleted. With that, it might be understood that the CID bureaucracy is difficult, and it seems like there was insufficient analysis of his case. He might be caught in circular reasoning for being in a criminal database (I remain in the NCIC because I am in NCIC?) and it forces one to become an unintended subject matter expert trying to navigate the appropriate next step with CID so hopefully the ABCMR can help. k. In general, the initial titling action is confusing to civilian licensing authorities, and after the initially accepted timeframe, continues to be a distinct unfair disadvantage when competing with his medical peers in the credentialing process with insurance companies and could deny him the opportunity to qualify for an unrestricted license to practice medicine. These various institutions are currently on stand-by awaiting an update on the review of the inequity of the FBI background check. He understands titling at the beginning of a CID investigation and it was probably an overreaction of the current political situation at the time, but subsequently the allegations were uncorroborated, unsubstantiated, unfounded and eventually deleted, and at this point, is unjust because he was certainly never arrested, he was not arrested in Quantico, or, much less, faced the judicial system at all and it is very hard to explain how an unfounded allegation results in an inaccurate entry into a criminal database. l. He requests that his records reflect that he was investigated in San Antonio for an allegation that was unfounded. If the titling process does not allow for accurate reporting of the facts to the FBI, where he faced an administrative process, not a criminal one, he requests that CID be directed to remove his information from a criminal database. REFERENCES: 1. AR 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 CID ROI's. It states that requests to amend CID ROI's will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of a CID ROI 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 CID ROI 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. 2. DODI 5505.7 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 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 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. 3. 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. 4. 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. 16. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant requests removal of his name from the title block of a CID ROI dated 23 December 2013. He also requests a personal appearance. 2. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 3. CID agents were notified on 15 July 2013 that MAJ ---- was sexually assaulted by the applicant in his office. The applicant's commander counseled him and initiated a flag against him for the alleged offense. Additionally, in response to the alleged misconduct, a GO issued the applicant a GOMOR and ordered it filed in his local file (which would be deleted from his official files upon his departure from the command or retirement). 4. The Final ROI shows the investigation established probable cause to believe the applicant committed the offense of wrongful sexual contact when he inappropriately touched MAJ ----- without her consent. Additionally, Trial Counsel, Office of the SJA, Fort Sam Houston, also opined that probable cause existed to believe the applicant committed the offense of "Wrongful Sexual Contact." That is why he was titled. 5. His commander prepared a DA Form 4833 that reflected an erroneous entry regarding the filing of the reprimand in the official file instead of the local file. His case was reviewed and the DA Form 4833 was corrected to show the reprimand was actually filed locally. The investigative review, however, did not change the fact that the investigation established that probable cause existed to believe the applicant committed the offense in question. That is why he remained titled. 6. 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 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). 7. The applicant his counsel make several arguments: a. One of his arguments is that he was never arrested. A review of the CID ROI reveals the applicant was investigated; it does not state he was arrested. Neither the Commander's Report of Disciplinary or Administrative Action nor the CID Final ROI mention the word "arrest" anywhere. b. A second argument by counsel states that the allegation of "sexual harassment and indecent assault" should be determined to be "unfounded." Again, a review of the CID ROI does not show the allegation was or was not founded. The investigator indicated that the investigation determined probable cause to believe the member may have committed a certain offense. c. A third argument focuses on the political environment, public clamor, and command influence. The evidence here shows the CID investigation clearly established probable cause that the applicant may have committed the offense in question. The DOD "probable cause" criteria has existed for many years, before the Administration and Congress took their stand on sexual assault and sexual harassment. The evidence does not show the investigator's findings were influenced by any political factors. d. A fourth argument made by the applicant is that his titling action was premature. The investigation began on 15 July 2013 and he was flagged on 17 July 2013. The final CID ROI was prepared on 23 December 2013. That is when the applicant was titled and that is what was transmitted to DCII. His commander flagged him in July 2013 – he did so because the applicant was under investigation. The more important issue, however, is the fact that the investigation determined probable cause existed to believe the applicant committed the offense in question, regardless of whether he received a local GOMOR or any legal action and regardless of where the GOMOR was filed. e. He also argues that he was never informed of the titling action. There is no statutory or regulatory requirement for CID to inform him of the titling action. In order to support removal of his name from or to change any portion of the title block of the subject CID ROI, 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 CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. 8. The ROI shows that credible information regarding the applicant's involvement in the alleged offense. As a result, he was properly titled. Based on the CID investigation, it is clear that there was credible information obtained by investigators that – considering the source and the nature of the information and the totality of the circumstances – was sufficiently believable to lead a trained investigator to presume the fact or facts in question were true at the time the titling and indexing decision was rendered. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000160 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000160 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2