IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150003633 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 (USACIDC) Reports of Investigation (ROI) 1989-CIDC063-XXXXX and 1989-CID063-XXXXX-5M. 2. The applicant states: * he has exhausted all potential administrative remedies with USACIDC * Army Regulation 195-1 (Army Criminal Investigation Programs), in effect at the time, provided that requests to amend USACIDC reports would be granted only if the individual submitted new, relevant, and material facts that were determined to warrant revision of the report * the burden of proof rested with the individual to substantiate the request * requests to delete a person's name from the subject block would be granted if it was determined that probable cause did not exist to believe the individual committed the offense for which he/she was listed as a subject * it is clear in his case that probable cause did not exist to believe he committed the offense of false swearing, thus his name should be removed from the title blocks of the ROIs * as indicated throughout the ROIs, he was questioned in connection with an investigation into the suspected theft of a .38 caliber revolver during a training event in May 1989 * the narrative portion of the ROIs indicate he was interviewed at about 1420 on 26 May 1989, at which time he verbally explained he had counted seven .45 caliber handguns and six .38 caliber handguns * at around 1700 the same day, he provided a written statement to USACIDC investigators wherein he explained that he counted all of the .45 and .38 caliber handguns prior to removing them from the supply room * his sworn statements consistently state he counted the .45 and .38 caliber handguns prior to releasing them from the supply room on the day in question * there is an additional sworn statement included in ROI CID063-XXXXX-7F that supports his sworn statements in which he claims to have counted both sets of weapons, not just the .45 caliber handguns * the witness states Sergeant (redacted) brought the weapons into the orderly room and counted them as he was standing close by watching him * he said there were 10 .45 caliber pistols and 6 .38 caliber revolvers in the crate, then he put the crate in the supply room (closet) and closed the door * he put the key back and left the orderly room * he didn't actually touch the weapons, but he watched Sergeant (redacted) count them * between 0650 and 0710 the next morning, he came in and got the key to the supply room, took out the milk crate, and emptied the contents onto the floor * there were three .45 caliber pistols that were inoperative and they put tape on them so they could identify them * he took them out and put them in the supply room then locked the door to the supply room and again counted the weapons or it seemed he did because he had them lying on the floor in an orderly fashion * while he understands that the false swearing titling decision was based on an alleged inconsistency in the statements he provided to USACIDC, the additional witness statement corroborates the written statements he provided to USACIDC wherein he swore he counted both sets of weapons * despite the two consistent statements and the additional witness statement provided to USACIDC which corroborates his statements, he was asked to submit to a polygraph interview which occurred on 2 June 1989 * the ROI summary of this interview states he verbally admitted not counting the .38 caliber revolvers on the morning of 26 May 1989 when he took them from the supply room * to his knowledge, there is no transcript or written record of his polygraph examination documenting any alleged statements he may have provided during that examination * the fact that there is no written record of the polygraph examination in which he allegedly changed his story calls into question the veracity of USACIDC's version of what was said during the examination * considering that he had been consistent in his prior two statements, USACIDC clearly lacked the probable cause it needed to title him for the offense of false swearing * additionally, the agent in charge of the investigation had a significant bias as there is evidence that he went to high school with another drill instructor who had been interviewed in connection with the investigation and who many believed had something to do with the theft of the weapon * a witness statement not included in the ROI attests to the personal relationship between the USACIDC agent and the other drill instructor, raising significant doubt that his alleged admission ever took place * the legitimacy of the entire investigation is clearly in question * it was not until October 2012 that he became aware he was titled for false swearing after a background check conducted in connection with a new employment application was rejected as a result of this negative information 3. The applicant provides: * letter from USACIDC, dated 24 November 2014 * memorandum from U.S. Army Crime Records Center, dated 17 November 2014 * memorandum from USACIDC, dated 21 October 2014 * letter from USACIDC, dated 22 August 2014 * memorandum from applicant to USACIDC, dated 11 August 2014 * letter from USACIDC, dated 11 June 2013 * portions of the ROIs to include narrative portions, witness statements, interviews conducted by USACIDC * witness statement, dated 6 August 2013 not part of ROIs * email correspondence * identification cards CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After a prior period of active duty service from 4 January 1977 through 13 December 1979, the applicant enlisted in the Regular Army on 15 April 1981. 3. USACIDC ROI 0210-89-CID063-XXXXX-7F8A1/5M2/9G1, dated August 1989, stated: a. On 26 May 1989, USACIDC was notified by the Provost Marshal of a stolen .38 caliber revolver. b. At about 1420 on 26 May 1989, the applicant was interviewed by a USACIDC special agent during which he verbally related he had counted seven .45 caliber revolvers and six .38 caliber revolvers when he departed the unit at 0700. At about 1300 when the unit was getting ready to depart the training site, he only counted five .38 caliber revolvers. c. At about 1700 on 26 May 1989, the applicant was re-interviewed by the USACIDC special agent and rendered a sworn statement reflecting his actions before and after the .38 caliber revolver was discovered missing. d. The applicant's sworn statement states that at 1500 on 18 May 1989, he signed for ten .45 caliber revolvers and six .38 caliber revolvers to be used in training. The weapons were accounted for each day. Staff Sergeant M____ and Staff Sergeant D____ checked the weapons and assured they were all accounted for and secured in the supply room. Around 0700 on 26 May 1989, he secured all the equipment for training. He unlocked the supply room door and removed the container which held the weapons. He then took all of the weapons out of the container and laid them on the floor and counted them. He separated them into two groups and put six .38 caliber revolvers and seven .45 caliber revolvers back into the container and placed the other three back in the supply room in their container. They convoyed to the training area and he informed the instructors that there were seven .45 caliber revolvers and six .38 caliber revolvers. He then left the training area to obtain needed supplies and later returned. Around 1300 after the trainees completed their weapons training, a private approached him, giving him the weapons. The applicant counted the weapons and counted only five .38 caliber revolvers and seven .45 caliber revolvers. They returned to the testing area and searched for the missing weapon with the instructors and trainees. e. In the course of the investigation, numerous individuals aside from the applicant were interviewed by the USACIDC special agent, 11 of whom also rendered sworn statements (included in the ROI) pertaining to their actions and observations relative to the missing .38 caliber revolver, all of which were considered in the investigation. f. At about 0910 on 2 June 1989, the applicant was advised of his rights for the offenses of larceny by a special agent at the Department of Defense Polygraph Institute. He waived his rights and verbally stated he did not steal the .38 caliber revolver from his unit, nor did he know where the .38 caliber revolver was located. He verbally admitted to not counting the .38 revolvers on the morning of 26 May 1989 when he took them from the supply room. g. At about 1100 on 5 June 1989, the USACIDC special agent discussed this investigation with the Staff Judge Advocate Office trial counsel. Trial counsel opined there was not enough evidence to warrant placing the applicant in the title block for the offense of larceny. He further stated there was sufficient evidence to place him in the title block for false swearing based on his verbal statement on 2 June 1989. h. The applicant provided a second sworn statement on 12 June 1989 in order to provide additional information. This statement reiterates the claim in his initial sworn statement that he inventoried and counted the weapons on 26 May 1989 before leaving to go to the range and there were six .38 caliber revolvers present at that time. i. At about 1325 on 28 July 1989, the special agent again discussed this investigation with trial counsel. Probable cause was established to believe the applicant committed the offense of false swearing and should be titled for false swearing when he rendered a sworn statement on 26 May 1989 regarding the theft of a U.S. Army .38 caliber Smith and Wesson, Model 10 revolver in which he related he had counted all of the weapons, when in fact his subsequent polygraph statement revealed he only counted the .45 caliber revolvers and not the .38 caliber revolvers. 4. A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 31 August 1989, shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for the loss of military property and failure to obey an order or regulation on 26 May 1989. 5. USACIDC ROI – Second Supplemental – 0210-89-CID063-XXXXX-7F8A1/ 5M2/9G1, dated 8 May 1991, stated: a. On 27 November 1990, USACIDC was notified that the investigation needed additional information. b. The applicant was re-interviewed by a USACIDC special agent. He did not provide a written statement, but verbally stated he suspected Sergeant First Class (redacted) stole the weapon in retaliatory attempt to make him look guilty and exact revenge. The applicant had previously caught Sergeant First Class (redacted) drinking on duty on more than one occasion and reported the incident to the chain of command. Sergeant First Class (redacted) received a letter of reprimand and was command-directed into the drug and alcohol rehabilitation program. c. Multiple interviews were held and sworn statements were rendered, all of which are included in the ROI and considered in the investigation. d. A Report of Survey, dated 21 November 1990, listed the unit price for the stolen .38 caliber revolver as $90.54. Since the actual time of service for the revolver was unknown, a 25-percent standard depreciation was used, rendering the applicant liable for the amount of $67.90. 6. On 31 May 1998, the applicant retired after completing over 20 years of active service. 7. In May 2013, he requested removal of his name from the title block of the USACIDC ROIs in question. In USACIDC's response to him, dated 11 June 2013, the Director, Crime Records Center, stated: a. Army Regulation 195-1, current at the time, provided that requests to amend USACIDC reports would be granted only if the individuals submitted new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof rests with the individual to substantiate the request. Requests to delete a person's name from the subject block would be granted only if it was determined that probable cause did not exist to believe the individual committed the offense for which listed as a subject. b. No action was taken to review the requested ROI for amendment and he was advised to resubmit his request with new and relevant information. 8. On 11 August 2014, the applicant reapplied to USACIDC for removal of his name from the title block of the ROIs in question. On 24 November 2014, USACIDC advised him that his request was denied. The USACIDC and U.S. Army Crime Records Center reviewed his request and determined he should be retained in the subject block of the ROIs for false swearing. The review of his request for amendment failed to uncover any substantive, new information warranting amendment to the probable cause determination reflected in the summary of the ROI regarding the listed founded offense. He provided a verbal statement on 2 June 1989, admitting that he never counted the .38 caliber revolvers he took to the training site, which was not consistent with his previous statement wherein he said he did inventory and count the .38 caliber revolvers. Probable cause existed at the time he was indexed as a subject in the investigation and on two separate occasions the supporting Staff Judge Advocate's Office recommended he remain indexed as a subject for the cited offense. 9. 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 the USACIDC elements. It states requests to amend or unfound offenses in USACIDC ROIs 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 if the wrong person's name was entered as a result of mistaken identity. The decision to list a person's name in the title block of a USACIDC ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. 10. 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 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for removal of his name from the title block of USACIDC ROIs 1989-CIDC063-XXXXX and 1989-CID063-XXXXX-5M was carefully considered. 2. The evidence of record confirms the results of a USACIDC investigation provided a sufficient legal basis for the applicant to be titled for false swearing, as his sworn statement that he counted the .38 caliber weapons was contradicted by him in a subsequent verbal polygraph examination wherein he stated he did not count the .38 caliber weapons. All requirements of law and regulation were met and the rights of the applicant were protected throughout the titling process. 3. Although he denies stating during the polygraph examination that he did not count the .38 caliber weapons and states there is no written proof he verbally recanted his written statements, absent evidence to the contrary, regularity is presumed in the factual recounting of his polygraph examination within the USACIDC ROI. 4. The applicant previously requested USACIDC to remove his name from the title block of the ROIs in question and they denied his request. By law and regulation, titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, in order to administratively remove a titling action it must be shown that either mistaken identity or a lack of credible evidence supported the initial titling determination. The applicant failed to provide evidence satisfying this standard for removal. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ 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. ___________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. ABCMR Record of Proceedings (cont) AR20150003633 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003633 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1