BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014541 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ____x____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014541 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. removing the DA Form 4833 dated 7 May 2003 associated with CID ROI 2003-CID014-54XXX-XX, dated 25 April 2003, and b. correcting CID records underlying the related NCIC record so that the NCIC record will show no disposition instead of "Received Nonjudicial, Article 15, UCMJ, dated 7 May 2003. Forfeiture of $200 for 2 months, Reduced from E-4 to E 1, 45 Days Extra Duty and Restriction." 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing his name as the subject of CID ROI 2003-CID014-54XXX-XX, dated 25 April 2003. _____________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: 21 February 2017 DOCKET NUMBER: AR20150014541 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 the U.S. Army Criminal Investigation Command (USACIDC) (also known as CID) Report of Investigation (ROI) 2003-CID014-54XXX-XX, dated 25 April 2003, reflecting the allegations of rape. 2. The applicant states: a. He previously contacted this Board 3 years ago in an attempt to correct an injustice found during a background check with fingerprints. A background check done by the State of Indiana revealed that CID had filed his fingerprints and notification that he was "convicted" of a rape charge that was only investigated. It was brought to his brigade commander “in reference to only assault.” He received an Article 15 that resulted in a punishment of 45 days of restriction and extra duty and forfeiture of pay. His punishment was completed without incident. He has been denied work solely based on a fingerprint analysis and the analysis was based on the illegitimate information that is contained within the Federal Bureau of Investigation (FBI) fingerprint database. He was discharged based on a collection of marital issues that resulted in infractions, not based on an investigation. b. Because of the State of Indiana investigation, he had to contact the Fort Bliss, TX, Criminal Records Division, who provided a statement that showed and verified that he was never convicted or brought to an Article 15 hearing for a rape charge. Furthermore, the investigation by the Criminal Records Division revealed he had no civilian investigations either. He contacted this Board 3 years ago about the same issue, and it the recommendation of this Board to contact CID, Fort Belvoir, VA. He has exhausted all attempts to have his record corrected. CID provided him a final denial letter. This gross injustice has subsequently hampered his attempts to get positions in his career field. This issue has also limited his personal life in other terms. He requests this Board modify the FBI/CID record to show that his investigation was just that, and not a conviction. 3. The applicant provides two letters, dated 7 March 2014 and 13 February 2015, from CID (now at Quantico, VA). CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 12 September 1999. 2. He held military occupational specialty (MOS) 31B (Military Police (MP)) and he was assigned to the 76th MP Battalion at Fort Bliss, TX. 3. On 10 December 2002, the applicant notified the MP Station of a domestic dispute that occurred at his quarters on 7 December 2002. An investigation revealed the applicant and his spouse were involved in a verbal altercation that turned physical. They began to spit on each other. The spouse scratched the applicant, hit him with a broom, and threatened to kill him if he hurt her. They were both apprehended and advised of their rights. The Staff Judge Advocate opined there was sufficient evidence to title both parties with assault consummated by battery and the applicant's spouse with communicating a threat. There was also sufficient probable cause to title the applicant with a false official statement. 4. On 14 April 2003, the 72nd MP Detachment (CID) at Fort Bliss was contacted by the applicant's spouse who reported the applicant raped her on or about 11 April 2003. An investigation established probable cause to believe the applicant committed the offense of rape when he had sexual intercourse with his wife against her will. 5. The Final ROI 2003-CID014-54XXX-XX, dated 25 April 2003, shows the investigation was terminated in accordance with CID Regulation 195-1 (Criminal Investigation Program), paragraph 4-17a(13), in that the applicant's commander indicated his intent to take action amounting to less than court-martial and no further investigative assistance by CID was required by the commander. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was pending. 6. On 1 May 2003, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for unlawfully dragging his wife by her pants and unlawfully biting her on the neck. His punishment consisted of a reduction to E-1, forfeiture of pay, and 45 days of extra duty and restriction. He elected not to appeal his punishment. 7. On 9 September 2003, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) (pattern of misconduct) of AR 635-200 (Active Duty Enlisted Administrative Separations. He recommended a general discharge. 8. The applicant acknowledged receipt and waived his rights. Accordingly, his commander initiated separation action against him. His battalion commander recommended approval. 9. On 30 September 2003, the separation authority approved the applicant's discharge from the Army under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) discharge. The applicant was discharged on 17 October 2003. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, due to misconduct with a general characterization of service. 10. On 20 April 2010, the applicant petitioned this Board for removal of a "falsely charged conviction" from his records and that all other records be screened for security purposes. On 6 January 2011, the Board denied his request and advised him to contact CID regarding clearing his records from the DCII (Defense Central Investigations Index) for removal of the allegedly false charges. 11. On 7 March 2014, by letter, the U.S. Army Criminal Records Center, responded to the applicant's request, dated 10 February 2014, regarding correction of information in CID files. The CID provided him a copy of the ROI and stated: a. At the time the ROI was completed, the legal standard for titling and indexing an individual as the subject of a criminal investigation was established by Department of Defense Instruction (DODI) 5505.7, paragraph 6·1, which provides: (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 the DCll. Titling and indexing in the DCll shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. (2) Credible information is 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 in question are true. Titling an individual or entity is an operational rather than a legal decision. The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence. The listing of a subject's name and other identifying information in the DCll indicates only that a report of investigation concerning that person or entity has been created. Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on that fact that they have been titled or indexed due to a criminal investigation. (3) Once a person is properly titled and indexed in the DCll, that person's name will only be removed 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 DCll or 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 (DODI 5505.7, paragraphs 6.6.1 and 6.6.2.). However, he had the right to challenge the investigative findings of the report of investigation pursuant to AR 195-2, paragraph 44b, which provides, in part: a request to amend USACIDC ROls 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 that the individual committed the offense for which titled as a subject. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. b. He may request amendment of the ROI; however, it is emphasized that the conclusion reflected in the investigative summary is an investigative determination that is independent of whether judicial, non-judicial or administrative action was taken against the subject, or the results of such action. He should also be aware that "new and relevant" information to bring his request for a formal review must meet the attached criteria. Information about career goals, exemplary changes in life, and similar justifications are not part of the criteria and these are not considered. c. No action was taken to review the ROI for amendment at the time. He can submit a request for amendment, along with new and relevant information (if available) to: Director, U.S. Army Crime Records Center, Quantico, VA. d. A check of NCIC reflects that he is listed as the subject in the aforementioned ROI for rape. The NCIC entry pertaining to him reflects a disposition of: "Received Nonjudicial, Article 15, UCMJ, dated 7 May 2003. Forfeiture of $200 for 2 months, Reduced from E-4 to E 1, 45 Days Extra Duty and Restriction." 12. On 13 February 2015, the U.S. Army Criminal Records Center sent the applicant another letter in response to his request and to supplement the CID's response, dated 9 December 2014. The letter stated: a. As we previously notified on 7 March 2014, DODI 5505.11 establishes policies and procedures for reporting criminal history data to the FBI NCIC for all military service members investigated by DOD criminal investigative organizations for commission of certain offenses and who are subjects of resultant judicial or non-judicial military proceedings. Reporting information to the NCIC depends on the offense committed and the punishment received. b. The U.S. Army Criminal Records Center, CID-Quantico verified the NCIC entry in connection with ROI 2003-CID014-XXXXXX. Given a complete review of his record, retention of this criminal history data in the NCIC does conform to DOD policy and cannot be removed. He has exhausted his remedies to correct or remove information contained in NCIC in connection with CID. 13. Included with the documents provided by CID in this case is a partially completed DA Form 4833 bearing a suspense date of 7 May 2003 that shows in item 5 (NJP/Court-Martial/Civilian Criminal Court Proceeding Outcome) that the applicant was charged with rape, pled not guilty, and was found guilty. The form was not signed. REFERENCES: 1. AR 195-2 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. DISCUSSION: 1. CID agents were notified in April 2003 of the applicant's spouse's allegation of rape. An investigation was initiated and established probable cause to believe the applicant committed the offense of rape when he had sexual intercourse with his spouse against her will. As a result of that investigation, the applicant was titled. 2. Titling or indexing does not denote any degree of guilt or innocence. It requires only credible information that the accused may have committed the offense. This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burden 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). 3. In order to support removal of his name, or to change any portion of the title block of the subject CID ROI, the evidence 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 result of such action. The fact that the applicant would later receive NJP for unlawfully dragging and biting his wife has no relevance to the titling action. 4. The ROI shows 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 there was ample credible information obtained by investigators considering the source and nature of the information and the totality of the circumstances it was sufficiently believable to lead a trained investigator to presume the facts in question were true at the time the titling and indexing decisions were rendered. The ABCMR is not an investigative agency. 5. It is clear that the applicant was not found guilty of rape, as incorrectly shown on the unsigned DA Form 4833 included in CID's records. The evidence supports a conclusion that this document should be removed from CID's records. Further, he was punished for assault, not rape. The record should not reflect any punishment for committing rape. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014541 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2