BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016293 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016293 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. BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016293 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests correction of her military records by removing her name from U.S. Army Criminal Investigation Command (USACIDC) files, 2014-CID025-85200-XX. She also requests removal of her name from the National Crime Information Center (NCIC) files. 2. The applicant states investigators reviewed and accepted everything told to them by a thief who has a criminal record. The applicant does not believe the wrong she did justifies lifelong punishment. a. Having her name on the NCIC is unjust due to the level of wrong she did compared to the wrong that was done to her. The investigators acceptance of the lies from a thief and not believing a word from her has ruined her military career and negatively impacted her life. b. She knows she did wrong when she gave two Tramadol pills to another person. [Tramadol is similar to opioid (narcotic) analgesics. It works in the brain to change how the body feels and responds to pain. It is used to treat moderate to severe pain.] She states she was punished by her command for her action. After this first incident, she did not give her any more Tramadol or Percocet and she did not receive any medication from her. c. For USACIDC to believe the story of a known criminal who has spent multiple times in rehabilitation for medication overdoses and suicidal tendencies and who has an arrest record, makes the applicant feel like a common criminal. She was just trying to help someone who she thought was a friend. She was being used and manipulated by a clever individual who took advantage of her. 3. The applicant provides a copy of the USACIDC letter with redacted information, dated 5 June 2015, denying her appeal. CONSIDERATION OF EVIDENCE: 1. With prior active and inactive service, the applicant enlisted in the Regular Army on 12 April 2011. She completed training and was awarded military occupational specialty 68P (Radiology Specialist). She entered service as a specialist (SPC)/pay grade E-4. 2. A review of the applicant's military personnel records failed to reveal any evidence of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), memorandum of reprimand, or any other documentary evidence related to the matter under review. 3. On 4 June 2015, the applicant was retired due to physical disability and transferred to the Temporary Disability Retired List (Enhanced), in pay grade E-4. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she had 4 years, 1 month, and 23 days of active duty service during this period with prior active and inactive service. 4. In June 2015, in response to the applicant's 19 March 2015 request to have her name removed, USACIDC reviewed the case Report of Investigation (ROI) 00497-14-CIDO25-85200-XX, to determine if the credible information standard was correctly applied when the applicant was titled for the offense of wrongful distribution, possession and use of Tramadol. The reviewer found: a. The applicant had an individual living with her who stole and used the applicant's prescribed medication, Tramadol. The individual stated that the applicant also gave her one or two Tramadol pills (dates unknown) when her prescribed medication was depleted. b. The third party stated she gave the applicant Tramadol when the applicant did not have her prescribed medication with her. c. On 21 October 2014 after waiving her rights, the applicant admitted she gave the individual one or two Tramadol pills when the individual's prescription was depleted, but denied any illegal use of the individual's Tramadol. d. A review of the applicant's medical records revealed she had an active prescription for Tramadol from 2 October 2013 to 2 October 2014. e. On 8 January 2015, the final report of investigation was approved titling the applicant for wrongful distribution, possession and use of Tramadol. f. The reviewer citied the totality of the case and the source and nature of the information, he recommending dropping the offenses of wrongful possession and use (emphasis added) of Tramadol. He further stated the investigation should show there was insufficient evidence or it should show it was unfounded. 5. A memorandum from USACIDC Quality Control – Polygraph Division, dated 17 June 2015, noted the applicant admitting providing some of her prescribed Tramadol and concluded the applicant had been properly titled. The Investigative Operations Division again reviewed the case and noted that Tramadol did not become a Schedule IV controlled substance until 21 October 2014. However, the applicant's admission that she knew it was wrong furthered the impression that the two women had been sharing medications on a regular basis. He added, "if Mrs. [third party] is to be believed, SPC [applicant] was providing her with Percocet, which has also been a Scheduled II Controlled Substance." 6. A 16 July 2015 email from Investigative Operations, USACIDC pointed out that the staff judge advocate concluded that there was probable cause. 7. On 17 August 2015 the Director, Crime Records Division, USACIDC, provided a letter to the applicant denying her appeal to remove her name from the subject investigation, thus she would remain titled in accordance with Army Regulation 195-2 (Criminal Investigative Activities) and Department of Defense Instruction (DODI) 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements). The Director also denied her request to remove her name from the NCIC. She was provided a redacted copy of the CID Action Officer opinions. She was further informed she had exhausted her appeals and could apply to the Board for Correction of Military Records. REFERENCES: 1. DODI 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for USACIDC titling decisions. a. It states that titling ensures investigators can retrieve information in a report of 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 lawyers. Titling or indexing alone does not denote any degree of guilt or innocence. 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. In other words, if there is a reason to investigate, the subject of the investigation should be titled. b. It also directs that judicial or adverse 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. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity. 2. DODI 5505.11 implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI). By law, DOD law enforcement organizations will submit information for inclusion in the NCIC criminal history databases based on a probable cause standard determined in conjunction with the serving Staff Judge Advocate or other legal advisor. Further it states military service members who violate Article 112a (Wrongful use, possession, etc., of controlled substances) of the UCMJ by law must be reported to criminal data bases. 3. Army Regulation 195-2 (Criminal Investigation Activities) provides that individuals listed in the title block of reports of investigation who have no action taken against them will be notified that their name will remain in the title block of the report and that the report will be indexed and therefore, retrievable by their name. This regulation also requires that such individuals be informed of the purposes for which the reports are used and the fact that such use may have an impact upon their military or civilian careers. Individuals will be informed that they may submit a request for amendment of the report in accordance with paragraph 4-4 (Individual requests for access to, or amendment of, Army CID Command reports of Investigation). Requests may be granted if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof rests with the individual. Requests to delete a person's name from the title block can be granted, if it is determined that credible information did not exist to believe that the individual comment the offense. DISCUSSION: 1. The applicant contends that her name should be removed from CID and NCIC files because the witness or third party is a thief and should not be trusted. The applicant provided no evidence to substantiate her characterization of the other individual involved or to show that this individual committed criminal acts against her. 2. There is some merit to the applicant's argument that she did not wrongfully "possess" Tramadol because she had a valid prescription. However, by her own admission she did share it with the individual so it is clearly established she distributed the controlled substance to a third party. 3. Based on the evidence of record, it appears the applicant was properly titled at the time she was cited for the offense in question and that the investigation revealed that she did admit to committing the offense. There does not appear to be a case of mistaken identity in this case. As such, there is no basis to remove the applicant's name from the title block of USACIDC records that serve to update FBI records and/or other Federal databases (e.g., Defense Central Index of Investigations (DCII), NCIC, etc.). The government has an interest in maintaining the records in question. The applicant did not provide evidence to support her contention. It appears that there is probable cause she distributed a controlled substance as shown through her own admission. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016293 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016293 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2