RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00898

XXXXXXXX	COUNSEL: XXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Removal of titled offenses of Articles 120, 92 and 134 of the Uniformed Code of Military Justice (UCMJ).

APPLICANT’S CONTENTIONS

His chain of command made an error in believing the word of a troubled youth over him.  The unfavorable information in his Office of Special Investigation (OSI) records has damaged his good name and character, and will continue to cause inequitable harm.  While serving as a recruiter one of his recruits accused him of inviting the recruit to his rental property, providing the recruit with alcohol, and sexually assaulting the recruit.  He was charged with Article 120, causing bodily injury, Article 92, dereliction in the performance of his duties, and Article 134, furnishing alcohol to a minor.  An appeal to OSI in Nov 18 to remove the titled offenses from his OSI records was denied. 

OSI made an error by titling him for the offenses.  DoDI 5505.07, Titling and Indexing Subjects of Criminal Investigations in the Department of Defense, requires the defense criminal investigative organizations (DCIO) place the name and identifying information of people under military criminal investigation in the title blocks of investigative reports, also known as “titling.”  In accordance with paragraph 4.a.3, titling is done as soon as the investigation determines that credible information exists that the subject committed a criminal offense.  Titling is an administrative procedure and shall not connote any degree of guilt or innocence.  Titling is not a law enforcement record, and he should not have been titled based on unreliable testimony from a minor.  He has maintained from the onset he was innocent of accused wrongdoing.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Regular Air Force staff sergeant (E-5).

On 17 Aug 15, the applicant requested discharge in lieu of trial by court martial.  He was counseled by Area Defense Counsel.

On 17 Aug 15, his wing commander recommended the applicant’s request for discharge in lieu of trial by court martial be approved.

On 17 Aug 15, the staff judge advocate found the discharge action legally sufficient and recommended the discharge authority approve the applicant’s request.  The discharge authority approved the recommendation on 17 Aug 15. 

On 12 Nov 15, the applicant received an under other than honorable Conditions discharge, and was credited with 11 years, 6 months and 23 days of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

DoDI 5505.07, Titling and Indexing Subjects of Criminal Investigations in the Department of Defense:

4. POLICY.  It is DoD policy that: 
a. Defense criminal investigative organizations (DCIOs) and other DoD law enforcement organizations that conduct criminal investigations shall place the names and identifying information of people under criminal investigation in the title blocks of investigative reports. 
(1) All names of individual subjects of criminal investigations by DoD organizations shall be listed in the Defense Central Index of Investigations (DCII). 
(2) This Instruction does not preclude the titling and indexing of victims or incidentals associated with criminal investigations. 
(3) Titling and indexing in the DCII shall be done as soon as the investigation determines that credible information exists that the subject committed a criminal offense. 
(4) The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence.
b. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if the subject is found innocent of the offense under investigation, subject to the following exceptions: 
(1) In the case of mistaken identity; i.e., the wrong person’s name was placed in the report of investigation as a subject or entered into the DCII. 
(2) It is later determined that a mistake was made at the time of titling and indexing, and no credible information indicating that the subject committed a crime existed.
d. If a subject’s identifying information requires removal or correction in accordance with paragraphs b.(1) or b.(2) of this section, investigating organizations shall remove such information as soon as possible in accordance with section 6. 
e. Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation. 
f. All criminal investigative files will be maintained in accordance with DoD privacy policies in DoD Directive 5400.11 and DoD 5400.11-R (References (d) and (e)).

AIR FORCE EVALUATION

AFOSI/XIC recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  On 16 Dec 14, AFOSI initiated a substantive criminal investigation for an alleged offense of Abusive Sexual Contact, a Violation of Article 120 of the UCMJ; Dereliction of Duties, a Violation of Article 92 of the UCMJ; and Conduct Discrediting by furnishing alcohol to a minor, a Violation of Article 134, UCMJ.  These allegations were investigated and a Report of Investigation was provided to the applicant’s command and the servicing base legal office.  On 15 Jun 15, all three offenses were referred to a Special Courts-Martial.  On 16 Aug 15, the offense of Abusive Sexual Contact was dropped.  On 17 Aug 15, the applicant submitted a request for Discharge in Lieu of Courts-Martial under Chapter 4.  The discharge was approved by the 18th Air Force Commander on 17 Aug 15.

DoDI 5505.07 specifically directs “DoD components authorized to conduct criminal investigations…will title and index subjects of the criminal investigations as soon as the investigation determine[s] there is credible information that the subject committed a criminal offense.”  The DoDI defines credible information as “information disclosed or obtained by a criminal investigator that, considering the course and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained criminal investigator to presume the facts or facts in question are true.”  The allegation against the applicant was determined to meet the credible information standard prescribed in DoDI 5505.07.  Additionally, the DoDI, as identified in the applicant’s request, directs there are only two conditions for which the applicant’s titling information may be removed even if the subject is found not guilty; “there is mistaken identity” or “it is later determined no credible information existed at the time of titling and indexing.”  Based on this specific criteria, the applicant’s request does not meet either of the two conditions prescribed in DoDI 5505.07 for removal of the titled record.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Nov 20 for comment (Exhibit D), and the applicant’s counsel replied on 4 Dec 20.  In his response, the applicant’s counsel reiterates that the OSI made an error in discretion and by titling the applicant for various UCMJ offenses.  OSI investigators relied on the testimony of a questionable minor.  The applicant has maintained his innocence; however, there is no physical evidence the applicant can use to support his argument that he is innocent.  The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFOSI/XIC and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The allegation against the applicant was determined to meet the credible information standard prescribed.  Guidance directs there are only two conditions for which titling information may be removed even if the subject is found not guilty: mistaken identity, or if it is later determined no credible information existed at the time of titling and indexing.  The applicant’s request does not meet either of the two conditions prescribed for removal of the titled record.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-00898 in Executive Session on 14 Dec 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Dec 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFOSI/XIC, dated 31 Aug 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 2 Nov 20.
Exhibit E:	Applicant’s counsel response, dated 4 Dec 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding AFBCMR Docket Number BC-2020-00898, as required by AFI 36-2603, paragraph 4.11.9.