MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 October 2000
	DOCKET NUMBER:   AR1999032889

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  The applicant requests, in effect, that incorrect information pertaining to his being arrested and convicted of sodomy be removed from his criminal record.

APPLICANT STATES:  The applicant states, in effect, that his criminal records indicate that he was convicted of a felony and that a deal was made for a reduced sentence, which is incorrect.  He states that he was never arrested and that honorable discharges are not given to convicted felons.  He goes on to claim that the inaccurate information in his criminal record has cost him the opportunity for employment in numerous career fields.  He indicates that what he did was wrong and the records reflect his total cooperation with the investigation.  He comments that he did not agree with the way the summary court-martial was conducted and he did appeal the results to the regimental commander, but because of the timing his appeal was denied.  He accepted his punishment and tried to start a new life but he is still being handicapped by the falsehoods in his record.  He contacted his attorney and the prosecutor on his case when he discovered the error in the record, but all attempts by them to correct the record have failed.  He finally requests that some consideration be given to all the personal and financial problems that he and his family have endured and based on this his records be expunged of this incorrect information.

EVIDENCE OF RECORD:  The applicant's military records show:

He served on continuous active duty from 19 July 1977 until 30 April 1998, when he was honorably released from active duty (REFRAD), in the rank of Staff Sergeant/E-6 (SSG/E-6).  He was separated under the provisions of chapter 12, Army Regulation 635-200, by reason of attaining sufficient service for retirement after completing 20 years, 9 months, and 12 days of active military service.  

In July 1997, the applicant was placed under investigation by the Criminal Investigation Division (CID) based on a sodomy charge.  This resulted in his being investigated and titled by the CID.  He was eventually tried by a summary court-martial on 19 December 1997.  

The DD Form 2329 (Record of Trial by Summary Court-Martial) contained in the record shows that three charges were preferred against the applicant as follows: charge I, four specifications of maltreating four junior female soldiers; charge II, for sodomy with a junior soldier; and charge III, for indecent assault upon a junior soldier.  He was found guilty of all the specifications of charge I and of charge III but not guilty of charge II, which was the sodomy offense.  The resultant sentence was a reduction to SSG/E-6.  This record of proceedings contains no reference to a pre-trial agreement committing the applicant to retirement.

On 15 January 1998, the applicant’s defense counsel prepared a memorandum of appeal of the summary court-martial proceedings against the applicant, which is enclosed.  In this appeal, counsel indicates that there were inconsistencies and unfair treatment during the summary court-martial proceedings.  

Defense Counsel further alleged that the presiding officer had access to information that should have been excluded from his review and this resulted in the presiding officer rendering an excessive sentence.  He also pointed out that the applicant had his character witnesses available to testify in his behalf for two weeks, but the trial was delayed to the point that most of these witnesses had left on holiday leave.  This resulted in the applicant being unfairly criticized by the presiding officer for the low number of character witnesses he called to testify in his behalf.  

In addition, the appeal claimed that the court-martial hearing was conducted improperly, without a court-reporter present, and the applicant was provided no documentation at the time of the hearing and finally that the reduction was excessive.  The appeal authority was requested to rescind the reduction and to impose an appropriate fine under the procedures of Article 15 of the UCMJ.  The reply to Defense Counsel’s appeal is not contained in the evidence of record but the applicant indicates, in his statement to this Board, that this appeal action was denied.

On 16 April 1998, the trial counsel (prosecutor) in the applicant’s case provided a statement to the records section of the Mobile Alabama Police Department in regard to the applicant’s titling record with their department.  The prosecutor indicated that it was his understanding that the Mobile Police Department had records which indicated that the applicant had been convicted of sodomy and discharged from the service based on that conviction, which was incorrect information.  He pointed out that while the applicant was investigated for sodomy, among other things, the investigation did not support the sodomy charge and he was ultimately found not guilty of this sodomy charge by the summary 
court-martial that heard his case.  He also stated that the applicant’s discharge was not related to the court-martial, but rather he was REFRAD as a result of attaining the service necessary to qualify for length of service retirement. 

In connection with processing this case, the staff of this Board requested and received a copy of a Federal Bureau of Investigation (FBI) identification record pertaining to the applicant.  This criminal report contains an entry which indicates that the applicant was arrested or received on 21 July 1997; that the agency responsible for the titling action was Fort Belvoir, Virginia; and the titled charge was sodomy.  It also contains a court entry which indicates that, based on a charge of sodomy, the applicant’s case went to summary court-martial on 
19 December 1997, and that he was reduced to E-6 and retired per a pre-trial agreement.  
In addition, the Board requested of and received an advisory opinion from the Army Criminal Investigation Command (CIC), Fort Belvoir, Virginia.  This opinion states that under current Department of Defense (DOD) standards, contained in DOD Instruction 5505.7, titling only requires credible information that an offense may have been committed.  They opined that there was and still is credible evidence sufficient to have titled the applicant with the offenses listed.  They further state that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a subject’s name from the title block of a Report of Investigation (ROI) is show either mistaken identify or a complete lack of credible evidence to dispute the initial titling determination.  They opine that in this case the applicant has failed to provide any evidence to dispute the initial titling determination by showing either of these conditions are applicable.

The CIC advisory opinion also indicates that in characterizing titled offenses, a founded label only requires a finding of probable cause to believe that the offense was committed.  The governing DOD Instructions and Army regulations state that titling is an operational decision made by the investigators and does not depend on any parallel judicial action.  Thus, the fact that the applicant was court-martialed and found not guilty of the offense of sodomy had no bearing on the titling and characterization of the sodomy titled in the ROI.  Moreover, there is sufficient probable cause to characterize the titled offenses as founded just by the applicant’s own admission to such in the ROI.  

In their advisory opinion, CIC also addressed the inaccuracies contained in the Department of the Army (DA) Form 4833 (Commander’s Report of Disciplinary or Administrative Action) and indicated that they will issue a new and corrected report, in line with the official record of the trial by summary court-martial 
(DD Form 2339), and insure that this corrected copy is provided to those agencies who receive such reports.  

Department of Defense Instructions (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense), dated 14 May 1992, contains the CID’s authority and criteria for titling decisions.  It states, in pertinent part, that titling ensures investigators can retrieve information in an investigation 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 attorneys.  

DODI 5505.7 further indicates that titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling are a determination that credible evidence exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation.  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 had 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.  Simply stated, if there is reason to investigate, the subject of the investigation should be titled.  

The DODI also directs that judicial or adverse administrative 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. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  That the ROI pertaining to the applicant provided sufficient probable cause for CID investigators to title the applicant for sodomy based on the information contained in the ROI.  This CID titling action was accomplished in accordance with the applicable DOD Instruction and Army regulations, and the applicant has failed to provide a sufficient evidence to support removing the titling action from his record. 

2.  The Board noted that the CIC has admitted that the DA Form 4833 contained inaccuracies and has committed to taking administrative action to correct this erroneous information by issuing a corrected report, in line with the official record of summary court-martial (DD Form 2339), to all the agencies who receive such reports.  

3.  The Board finds this CIC administrative corrective action sufficiently addresses the inaccurate information issue and concludes no further action is necessary or warranted in this case. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__ewl ___  ___cjp __  ___tp ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999032889	
SUFFIX		
RECON		
DATE BOARDED	2000/10/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1998/04/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400	
2.		
3.		
4.		
5.		
6.