ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 October 2020 DOCKET NUMBER: AR20200000189 APPLICANT REQUESTS: * correction of the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 2 March 1998, to show the offenses as underage drinking and entering the room of a member of the opposite sex instead of rape * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 4833, dated 2 March 1998 * DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 1 November 2017 * Letter, U.S. Army Criminal Investigation Command (CID), dated 19 September 2018 * Memorandum, U.S. Army Human Resources Command (HRC), subject: Delay of Promotion and Referral to a Promotion Review Board, dated 31 October 2018 REFERENCES: 1. 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 Army Board for Correction of Military Records (ABCMR). 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 2. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. Paragraph 4-4 (Individual Requests for Access to or Amendment of CID Reports of Investigations) states CID reports of investigations are exempt from the amendment provisions of Title 5, U.S. Code, section 552a, and the Army Privacy Program. Requests for amendment will be considered only under the provisions of this regulation. Requests to amend or unfound offenses in CID reports of investigations 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. The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 3. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the Department of Defense (DOD) and the Department of Justice, as appropriate; and for participating in the FBI's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. Paragraph 3-6a states: a. An amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. b. Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. c. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. d. In compliance with DOD policy, an individual will still remain entered in the Defense Central Index of Investigations to track all reports of investigation. 4. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's Army Military Human Resource Record. Paragraph 3-4 (Filing of Information on Sex-Related Offenses) provides that commanders will ensure that a Soldier's performance-disciplinary folder is annotated when a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense is received. Punitive administrative action means any adverse administrative action initiated as a result of the sex-related offenses identified, this includes aggravated sexual contact and includes, but is not limited to, memoranda of reprimand, admonishment, or censure, from all levels of command. If action is taken against a Soldier resulting in an Army law enforcement report in a civilian court, the disposition will be recorded on a DA Form 4833 in accordance with Army Regulation 190-45. Possible action(s) taken against a Soldier may include military action, civilian action, or both. a. The appropriate CID office will enter the law enforcement report into CID's reporting system (Army and State requirements to register as a sex offender contribute to this reporting, if applicable). b. In cases where an Army law enforcement report does not exist for a conviction in civilian court, once the Army is made aware of the incident/conviction (sexual offense), the appropriate CID office will generate a DA Form 4833 and enter the report into CID's reporting system (Army and State requirements to register as a sex offender contribute to this reporting, if applicable). 5. DOD Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. 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 Defense Central Index of Investigations is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 6. Army Regulation 25-22 (The Army Privacy Program) sets forth policies and procedures that govern personal information kept of the Department of the Army in Privacy Act systems of records. The purpose of the Army Privacy Program is to balance the Government's need to maintain information about individuals with the right of individuals to be protected against unwarranted invasions of their privacy stemming from the collection, maintenance, use, or disclosure of personal information. This regulation also provides general guidance on collecting, safeguarding, and disclosing personal information. Additionally, this regulation promotes uniformity within the Army's Privacy Program. However, CID reports of investigations have been exempted from the amendment provisions of the Privacy Act. Requests to amend these reports will be considered under Army Regulation 195-2 by the Commander, CID. Actions by the Commander, CID, will constitute final action on behalf of the Secretary of the Army under that regulation. 7. Army Regulation 600-8-29 (Officer Promotions), prescribes the officer promotion function of the military personnel system. It provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers. Chapter 8 provides guidance for promotion review boards. The board's recommendation is only advisory to the Secretary of the Army who may direct appropriate action. FACTS: 1. The applicant states he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 20 January 1998 for the offenses of underage drinking and entering the room of a member of the opposite sex. His punishment consisted of forfeiture of $210.00 pay for 1 month, extra duty for 14 days, and restriction to the company area for 14 days. However, the DA Form 4833, dated 2 March 1998, lists the offense of rape. In 2017, this error caused him to be flagged when he was selected for promotion to chief warrant officer four (CW4). Additionally, his promotion was delayed for over 16 months because the report stated the nonjudicial punishment was for rape instead of underage drinking and being in the room of a member of the opposite sex. 2. On 26 March 1997, he enlisted in the U.S. Army Reserve under the Delayed Entry Program for a period of 8 years beginning in the rank/grade of private/E-1 with an obligation to enlist in the Regular Army by 29 July 1997 for a period of not less than 4 years. 3. On 29 July 1997, he was discharged from the Delayed Entry Program and enlisted in the Regular Army in the rank/grade of private/E-1 for a period of 4 years. 4. The memorandum from the CID Fort Gordon Resident Agency, 3rd Military Police Group (CID), dated 5 January 1998, subject: CID Report of Investigation – Final, states the investigation established probable cause to believe the applicant committed the offense of rape (Article 120, UCMJ) when he engaged in sexual intercourse with the victim without her consent and knowledge while she lay unconscious as a result of ingesting a large quantity of alcohol. The report further states: a. On 19 October 1997 at 0255, the Provost Marshal's Office, Fort Gordon, GA, was notified that a victim was found unconscious and without clothing on the lower part of her body in her barracks room. She was transported to the local hospital by ambulance where a rape kit was completed. b. Multiple witness statements reported the applicant was overheard stating he "got some" (had sexual intercourse) or that he had "screwed" the platoon guide. c. Prior to the incident, the applicant, who was 19 years old at the time, purchased a bottle of liquor from another Soldier. Witnesses reported the applicant was drinking from a canteen and later appeared to be intoxicated. d. On 19 October 1997 at 0718, the applicant provided a sworn statement to the investigating special agent. The applicant waived his legal rights and related that during the evening of 18 October 1997, he and the victim drank alcohol from his canteen in her room and had consensual sexual intercourse. The applicant stated the victim was awake and conscious. e. On 19 October 1997 at 1000, the Office of the Staff Judge Advocate Trial Counsel was briefed on all aspects of the case. The trial counsel opined there was probable cause to believe the applicant committed the offense of rape. f. On 20 October 1997 at around 1032, the victim provided a sworn statement to the investigating special agent. She stated at no time did she give her consent to the applicant to have sexual intercourse with her. She did remember sharing an alcoholic beverage with the applicant, but stated she did not recall what happened. g. On 20 October 1997 at 1416, the applicant provided a sworn statement to the investigating special agent. The applicant waived his legal rights and admitted the victim was probably asleep when he had sexual intercourse with her. The applicant also admitted the victim was not physically capable of giving consent to have sexual intercourse. h. On 22 October 1997 at 1547, the applicant provided a sworn statement to the investigating special agent. The applicant waived his legal rights and admitted he provided alcohol to the victim knowing her inhibitions would be lowered if she consumed alcohol. The applicant stated when he had sexual intercourse with her, she was incoherent and unable to give consent due to the amount of alcohol she consumed. i. On 17 November 1997, an investigating special agent advised the applicant of his legal rights as a subject of rape, false swearing, and obstruction of justice. The applicant invoked his legal right to remain silent and did not provide an additional statement. j. On 18 November 1997, the company commander informed the investigating special agent that she would pursue court-martial charges against the applicant. k. On 11 December 1997, the applicant was referred to a general court-martial following an Article 32 hearing. A copy of the charge sheet and the Article 32 hearing record of proccedings are not available for review. 5. A copy of the applicant's DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is not available for review. 6. The DA Form 4833, dated 2 March 1998, shows nonjudicial punishment was imposed against the applicant under the provisions of Article 15, UCMJ, for the offense of rape committed on 18-19 October 1997. His punishment consisted of forfeiture of $210.00 for 1 month, extra duty for 14 days, and restricted for 14 days effective 20 January 1998. 7. On 23 April 2007, the applicant was honorably discharged in the rank/grade of sergeant first class/E-7 to accept appointment as a Reserve warrant officer in the rank/ grade of warrant officer one/WO1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 8 months, and 25 days of net active service. 8. On 24 April 2007, the applicant executed the oath of office for appointment in the rank/grade of warrant officer one/WO1 for an indefinite term. 9. On 1 November 2017, HRC initiated a flag against the applicant's records for delay of or removal from a selection list. 10. The memorandum from HRC, dated 31 October 2018, subject: Delay of Promotion and Referral to a Promotion Review Board, notified the applicant he had been recommend for promotion to CW4. However, the criminal investigation, dated 5 January 1998, shows he was the subject of substantive derogatory information. He was further advised he had been flagged and his records would be referred to a promotion review board which will recommend to the Secretary of the Army, one or more of the following: * his retention on the promotion list * removal of his name from the promotion list * he show cause for retention on active duty 11. On 1 August 2018, the applicant was promoted to the rank/grade of CW4. 12. The letter from the CID U.S. Army Crime Records Center, dated 19 September 2018, denied the applicant's request to remove his name from the National Crime Information Center. The U.S. Army Crime Records Center Director stated the applicant is listed as the subject in report of investigation for rape. Retention of his name in this criminal history data conforms to DOD policy. The applicant was advised of the appeal process. 13. The memorandum from the Assistant Secretary of the Army for Manpower and Reserve Affairs, dated 2 June 2019, subject: Promotion Review Board AP1902-01, Fiscal Year 2017 CW4, Technical Services, Promotion Selection Board, states the applicant was retained on subject promotion list. 14. On 6 August 2020, the Army Review Boards Agency Case Management Division requested a copy of the applicant's CID and military police reports from CID to facilitate processing of this case. 15. On 27 August 2020, CID provided a redacted copy of the CID Report of Investigation – Final. The redacted report of investigation does not include copies of the 24 exhibits listed in the report. 16. On 28 August 2020, the Army Review Boards Agency Case Management Division provided the applicant with a copy of the CID report of investigation to allow him the opportunity to submit comments and placed his application on hold for 10 days. He did not respond. BOARD DISCUSSION: 1. The Board determined the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board agreed that the evidence clearly shows there was cause to investigate the applicant for potentially having committed rape. The Board found insufficient evidence to support a conclusion that the record should be corrected to show he was investigated for an offense other than rape. The Board determined the DA Form 4833, dated 2 March 1998, is not in error or unjust as currently constituted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000189 8 1