IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160000522 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 IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160000522 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 amending the U.S. Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI), Number 0004-2008-CID563-31031-7F2A1/5M3A, dated 12  January 2011, by: a. removing the charge "Article 121, Uniform Code of Military Justice (UCMJ), Larceny"; and b. replacing it with the charge "Article 134, UCMJ, Obtaining Services under False Pretenses." 2. The Board further determined 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: a. amending USACIDC ROI Number 0004-2008-CID563-31031-7F2A1/5M3A, dated 12 January 2011, to show the stated violations (Articles 121 (Larceny) and 107 (Making a False Official Statement)) of the UCMJ were unfounded and/or b. expunging in its entirety USACIDC ROI Number 0004-2008-CID563-31031-7F2A1/5M3A, dated 12 January 2011. _____________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. IN THE CASE OF: BOARD DATE: 26 January 2017 DOCKET NUMBER: AR20160000522 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. This case comes before the Army Board for Correction of Military Records (ABCMR) on remand from the U.S. District Court for the District of Columbia. The court remanded the applicant's case to the ABCMR for further proceedings consistent with the court's ruling. 2. The applicant filed a civil lawsuit on 9 January 2015 with the U.S. District Court for the District of Columbia, against the Secretary of the Army, seeking a judicial review of a final decision of the ABCMR denying his request for correction of his records to relieve him of his debt to the Department of Defense (DoD) in the amount of $44,200. 3. On or shortly after 30 September 2010, the applicant received a letter from the Defense Finance and Accounting Service (DFAS) stating he owed a debt to DoD in the amount of $44,200. The letter indicated that the debt was due to a larceny charge reported in a Report of Investigation (ROI) prepared by the U.S. Army Criminal Investigation Command (USACIDC, AKA CID). The letter was the first notice of the alleged debt and the larceny charge. 4. The investigation performed by CID concerned events surrounding the applicant's enrollment of his children in a DoD school located at Fort Buchanan, Puerto Rico, (hereafter referred to as the Fort Buchanan school) between 2007 and 2008. It was alleged the applicant had fraudulently enrolled his children in the school by providing false information on the official application. The ROI concluded there was probable cause to believe the applicant had committed the alleged crimes (making a false official statement and larceny), resulting in a loss to the government in the amount of $44,200. 5. On 4 December 2008, the U.S. Attorney's Office, San Juan, Puerto Rico, declined prosecution of the applicant and referred any further action to DoD or the applicant's chain of command. No disciplinary or adverse administrative action was taken by the applicant's chain of command against him as a result of the investigation. 6. On or about 28 September 2010, the CID presented documentation and a structured timeline of events to DFAS with the intent that it pursue collection from the applicant in the amount of $44,200. DFAS accepted financial responsibility for the loss and agreed to collect the debt from the applicant. After the applicant protested the debt, DFAS informed him that the debt would remain valid until the CID overturned its prior determination. 7. In January 2013, pursuant to the Privacy Act, the applicant formally requested that CID amend its ROI and conduct an operational review in connection with referral of the ROI to DFAS. 8. On 9 April 2013, CID denied the applicant's request for amendment of the ROI. 9. In a letter dated 3 May 2013, CID addressed the referral issue, stating it has "no role in pursuit of the debt collection" and "all appeals in regard to the debt collection must be submitted to DFAS." 10. On 26 September 2013, the applicant submitted a petition for correction of his military records to the ABCMR, appealing the adverse decision of the CID with respect to his Privacy Act request. The applicant requested the following relief from the ABCMR: * the ROI be expunged, or alternatively amended, to show the offenses as "unfounded" * that a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action (CRDA)) be expunged from his records * that the debt assessed by DFAS be cancelled 11. On 12 August 2014, the ABCMR denied the applicant's requests and affirmed CID's decision to deny amendment of the ROI. 12. On 9 January 2015, the applicant filed an action with the U.S. District Court for the District of Columbia alleging the ABCMR decision was arbitrary and capricious, an abuse of its discretion, or otherwise not in accordance with the law. He contended the ABCMR decision was "rife with material errors": specifically, (1) the ABCMR cited and applied the wrong regulation when describing the applicable policy governing the eligibility of his children to attend the Fort Buchanan school; (2) the ABCMR disregarded the applicable legal standard and applied an unreasonable burden of proof with respect to the amendment of the ROI; (3) the ABCMR ignored the presumption of administrative regularity and required him to disprove a potential irregularity that may have explained the CRDA; and (4) the ABCMR failed to address the referral of the ROI to DFAS. 13. On 22 April 2015, the Secretary of the Army filed a motion for voluntary remand, requesting the ABCMR have the opportunity to address the inadequacies of its 12 August 2014 decision raised by the applicant in his complaint. 14. In a Memorandum Opinion, dated 19 October 2015, the U.S. District Court for the District of Columbia granted the Secretary of the Army's motion for a voluntary remand for further proceedings consistent with the Memorandum Opinion. Accordingly, the Court remanded so that the ABCMR may address inadequacies of its 12 August 2014 decision raised by the applicant. The ABCMR shall consider, among other issues, the applicant's allegations that (1) the ABCMR applied the incorrect regulation when determining his children were not eligible to attend the Fort Buchanan school and (2) the ABCMR failed to review the CID referral of the ROI to DFAS. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130017919 on 12 August 2014. 2. A memorandum issued by the San Juan Military Entrance Processing Station (MEPS), Fort Buchanan, Puerto Rico, dated 25 July 2005, shows the applicant, an officer in the U.S. Navy, signed in for duty at the San Juan MEPS on 25 July 2005. The memorandum also shows he was married, had three dependents, and his tour of duty was for 3 years. 3. By memorandum, dated 12 March 2007, the applicant requested an extension of his tour until 30 August 2008. His chain of command recommended approval of his request for a 13-month extension. 4. The Head, Human Resources Community (Navy), denied his request for a 13-month extension on 26 April 2007. 5. On 30 April 2007, the applicant completed a Supplemental DoD Education Activity (DODEA) Form 600 (Domestic Dependent Elementary and Secondary Schools (DDESS)), PR District, for the school year 2007-2008. He certified that he was on active duty and that his current orders would expire in July 2008. 6. The DODEA Form 600 includes the statement "If my orders change/terminate before the start of SY [school year] 2007-2008, I will notify the registrar immediately." The applicant's signature was not entered after this statement (although required). 7. On 29 November 2007, the applicant's spouse was involved in an incident within the boundaries of Fort Buchanan, which prompted CID involvement. Based on this incident, his spouse was prohibited from entering the installation. At that time, she argued that she needed access to the installation because her three children attended school on the installation and her husband was living and assigned in Texas. A special agent (SA) from the Puerto Rico Branch CID office reported this incident to the Florida Fraud Resident Agency (FFRA) CID for further investigation. 8. The FFRA conducted their investigation during the January-July 2008 time frame. The FFRA reported the following: a. On 24 January 2008, a copy of the applicant's permanent change of station (PCS) orders, dated 23 May 2007, were obtained from the first sergeant (1SG) of the Fort Buchanan MEPS. These orders show the applicant had a reporting date to the Naval Air Station (NAS), Kingsville, Texas, of 22 June 2007, with a four-day temporary duty (TDY) enroute. Additionally, these orders authorized him shipment of household goods and to be accompanied by dependents. The 1SG further stated the applicant arrived in Puerto Rico in August 2005 and he was aware that his assignment to the MEPS was a 24-month tour and that he would PCS no later than August 2007. The applicant requested an extension in April 2007. It was denied. b. On 25 January 2008, the Registrar, DDESS, Puerto Rico District, Fort Buchanan, Puerto Rico was interviewed and "presented the scenario involving the applicant." Based on the scenario, the Registrar informed the agent that the children could not attend the Fort Buchanan school because the sponsor was no longer assigned or stationed in Puerto Rico. The only exceptions were if the sponsor was on TDY, assigned to a combat zone or area where dependents could not accompany the sponsor, or a short tour. In addition, the children could finish the school year if the school year was in progress (September through May). She provided the agent with a copy of the DODEA Form 600 executed by the applicant on 30 April 2007 reflecting that his current orders would expire in July 2008. c. The applicant was contacted by the San Antonio, Texas, Fraud Resident Agency on 21 February 2008. After being read his rights, he provided his fingerprints and photograph. d. On 2 July 2008, the reporting agent contacted the Assistant General Counsel, DODEA, Atlanta, Georgia, office and discussed the enrollment of the applicant's children in the Fort Buchanan school. This official stated that the applicant was not eligible to enroll his children at the Fort Buchanan school. e. The applicant's former commander was contacted in July 2009. She affirmed that she personally informed the applicant within no more than a few days after the date on the letter that his extension had been denied. Further, he was issued transfer orders which he presumably executed, which would indicate that he knew he was no longer eligible to use the school. f. On 30 July 2009, a Status Report was generated to change the offenses from U.S. Code to Uniform Code of Military Justice (UCMJ) offenses and listed the offenses as "founded." It was previously reported that after interviewing personnel from his unit that the applicant's dependents remained in Puerto Rico even though they were authorized to travel with him to his new duty station in Texas. 9. On 30 September 2010, DFAS notified the applicant of a debt owed to DoD based on larceny reported in a CID ROI. 10. The applicant contested the validity of the debt; however, on 20 April 2012, DFAS informed him that his out of service debt remained valid and that he should contact the CID office that completed the investigation in order to have the determination overturned. 11. On 20 October 2010, the agent in charge, FFRA, completed a CRDA. This form reported the disposition of the applicant's charges of larceny and false official statement as "action taken" and "accepted." The administrative action taken was restitution to the U.S. Government in the amount of $44,200. 12. On 12 January 2011, FFRA CID, issued the final ROI. The ROI established probable cause to believe the applicant committed the offenses of false official statement and larceny when he falsified documentation by registering his children in the DDESS for a year while he was not assigned to the geographic area. The applicant knowingly falsified these DDESS documents four days after his PCS extension request was denied. The loss to the U.S. Government was $44,200. 13. The U.S. Attorney's Office, San Juan, Puerto Rico, declined prosecution of this case and referred any action to DoD and the applicant's chain of command. The FFRA presented documentation and a structured timeline of events to DFAS. Upon review of this information, DFAS accepted financial responsibility for the $44,200 loss and collection of the debt from the applicant as he was still a Navy Reservist and Navy civilian employee. 14. On 24 January 2013, the applicant, through counsel, requested an amendment to the CID record. Specifically, he requested that (1) the ROI be amended to state the charges therein listed are "unfounded," (2) that the applicant's name be deleted from the title block thereof, and (3) that the applicant's name accordingly be removed from the Defense Central Index of Investigations (DCII). 15. On 3 April 2013, the CID Quality Control Polygraph Division provided a memorandum to the U.S. Army Crime Records Center addressing the request for amendment of the record and stated: a. The applicant should be retained in the subject block of the ROI for the listed offenses of larceny and false official statement. Credible information did exist at the time of the initial ROI to warrant the applicant being titled as a subject in this investigation. There was no error in mistaken identity or error in application of the credible information standard at the time of the initial ROI to support an amendment to this portion of the report. b. A re-review of the applicant's request for amendment failed to discover any substantive new information warranting amendment to the probable cause determination reflected in the summary of the ROI regarding the listed founded offenses. Further, by the applicant requesting an extension to his orders to remain in Puerto Rico for an additional year, he clearly knew he was due for a PCS in 2007. It seems to be clear the applicant was notified either by word of mouth or in writing that his extension was disapproved prior to him submitting the DODEA Form 600 on 30 April 2007. The official date of the declination of his extension request was 26 April 2007. Even if he was notified after the fact, he should have gone back to the school and rescinded his request for his children to be enrolled, as his children were not eligible to be enrolled when he actually relocated to Texas in June 2007. He should remain in the title block for the offenses of larceny and false official statement. 16. On 9 April 2013, the CID denied the applicant's request for amendment of the ROI. 17. In the applicant's previous request, he contended the following: a. He reported to the San Juan, Puerto Rico, MEPS in July 2005. His orders expired in July 2008. During his assignment, his children attended the Fort Buchanan school during the school years 2005-2006 and 2006-2007. b. In March 2007, he was notified that his orders would expire earlier than 2008 so he requested an extension through August 2008. On 20 April 2007, he submitted paperwork to enroll his children in school for the 2007-2008 school year based on the school's submission timeline. All information provided to the school was correct and accurate as he was unaware that his request for an extension had been denied. c. His spouse informed the Registrar that there was a chance that his assignment could change prior to July 2008 and she was informed that the children's eligibility to attend the Fort Buchanan school for the 2007-2008 term was tied to his current orders, which at that point still had him assigned to Puerto Rico. On 23 May 2007, he received his new PCS orders to report to Naval Air Station (NAS) Kingsville, Texas, not later than 30 June 2007. d. He immediately called the Registrar and informed her of this fact. At no time was he ever instructed to remove his children, or otherwise advised that his children were no longer eligible to attend the Fort Buchanan school. He was unaware that there was a problem until February 2008 when he was questioned by an investigator at NAS Kingsville. 18. The applicant's counsel argued the following: a. There was insufficient evidence to sustain a charge of false official statement. b. The information recorded on the Supplemental DODEA Form 600 on 30 April 2007 was 100 percent true and accurate because the applicant's current orders did not expire until July 2008 and his new orders were not issued until 23 May 2007. He notes that the agent only presented the "applicant's scenario" and did not ask specifically if the Registrar had personal knowledge of the applicant or the circumstances surrounding his enrollment of his children. The omission of the details of the interview with the Registrar effectively denies the applicant his due process. c. There is no evidence the applicant had actual knowledge that his request for extension had been denied at the time he completed the enrollment form. He references a fax header which shows the denial of his extension was forwarded by fax on 8 May 2007, more than a week after the enrollment application. The counsel contends that the 1SG's statement, which erroneously claimed the applicant's assignment was only 24 months in duration and expired in 2007, is hearsay and clearly disputed by his orders and other documents. d. There was no evidence showing intent to deceive. The CID investigator never bothered to interview the applicant; therefore, it appears the evidence of his intent to deceive was purely inferential, and a fait accompli once the CID investigator concluded the applicant had falsified the enrollment form. If the applicant had been interviewed, the investigator would have learned that the applicant notified the school when he received his orders in May. He never attempted to conceal that his children were attending school in Puerto Rico, and he listed on the berthing request to his commanding officer in Kingsville that his family, including his dependent children, were remaining in Puerto Rico. e. The applicant did nothing wrong or improper. It is clear why the Assistant U.S. Attorney declined to prosecute, why no charges were brought against the applicant, why disciplinary or adverse action was not taken by his chain-of command, and why no civil action for damages was ever instituted. The evidence of any wrongdoing is utterly lacking. Counsel asserts that because the applicant failed to sign the line acknowledging that he must report changes to his orders to the registrar immediately that he was arguably unaware of that requirement. Further, the Registrar expressly told the applicant that the change in his status did not change his children's eligibility to attend the school. f. There is no authority supporting the DFAS debt without the ROI. The only other record relevant to the ROI is the CRDA, dated 20 October 2010, signed by the "Agent in Charge" of FFRA. There is no authority for the FFRA agent to execute the CRDA or otherwise to order disciplinary action against the applicant. 19. The Board concluded the following; a. A CID ROI, dated 12 January 2011, concluded the applicant committed the offenses of larceny and making a false official statement when he enrolled his dependent children in a DDESS school at Fort Buchanan, Puerto Rico on 30 April 2007, having knowledge that his assignment in Puerto Rico was scheduled to end prior to the start of the 2007-2008 school year. b. The applicant's counsel argues that at the time the applicant completed the DDESS enrollment form on 30 April 2007, his assignment in Puerto Rico was scheduled to terminate on 25 July 2008 and the applicant had not been informed that his request for extension had been denied; therefore, the applicant did not make a false official statement. Further, the applicant's PCS orders were not published until 23 May 2007. Based on these facts, counsel states there is no evidence that the enrollment form was false or that the applicant had actual knowledge of any falsity. Without evidence of a false statement, larceny cannot be established. Additionally, the applicant and his spouse verbally notified the school Registrar of a possible change in his assignment on at least two separate occasions and they were told that his children would still be eligible to attend school. c. On 12 March 2007, the applicant requested an extension through 30 August 2008 in order to assist with a family crisis. The request was done approximately 45 days prior to him completing the enrollment form on 30 April 2007. Further, counsel contends the applicant and his spouse informed the Registrar of a possible reassignment and immediately upon receipt of his orders reassigning him to Texas, he called the Registrar but he was never instructed to remove his children, or otherwise advised that his children were no longer eligible to attend the Fort Buchanan school. He contends the Registrar never directed him to remove his children from school. However, the applicant failed to provide any evidence to corroborate this interaction, such as a statement from the Registrar; such evidence would appear to be easily obtainable and could have resulted in an expeditious resolution of this matter. Lacking evidence to the contrary, it must be presumed that the Registrar followed applicable DDESS policy. d. The applicable policy in this case is found in DODEA Regulation 1342.13 (Eligibility Requirements for Education of Elementary and Secondary School-age Dependents in Overseas Areas) which states that if DoD dependent students are authorized to accompany their DoD sponsor to the country of the sponsor's assignment, such dependent students ordinarily will not be entitled to space-required, tuition-free education in a DoD dependents school in a different overseas country or to education in a non-DoD school at U.S. Government expense in that different country. Any exceptions to this policy must be approved by the Director, DODEA, or designee. There is no indication the applicant sought or received such approval. e. In reference to removal of the CRDA, it appears that this form was completed by a CID agent and not the applicant's commander as required by the applicable regulation; however, without the applicant's Naval record, or a statement from his chain of command denying that this information was provided to the agent, there is no way to determine that an error or injustice exists. f. Titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient 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. The applicant has failed to provide evidence satisfying this standard for removal. g. The evidence of record confirms the results of a CID investigation provided a sufficient legal basis for the applicant to be titled for larceny and making a false statement. Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met in the titling process, and that the rights of the applicant were protected throughout the process. 20. During the processing of this court-remanded case, the ABCMR requested an advisory opinion from CID. By memorandum dated 26 May 2016, the CID Chief, Investigative Operations, provided an advisory opinion. The ABCMR had inquired as to if CID had pursued the same action against the applicant if: a. He did not commit larceny but "stole" government services instead of government property. Yes, CID would have investigated the applicant had he "stole" government services instead of government property. The offense of larceny under the UCMJ covers both services and property synonymously. Article 121, UCMJ: Larceny states: "(a) any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money, personal property, or article of value of any kind." The services that DODEA provides have assigned monetary value through the tuition charged to those not authorized the services. b. He negligently, instead of criminally, obtained government services to which he was not entitled. Yes, CID would have investigated the applicant had he been negligent in obtaining government services to which he was not entitled. CID will thoroughly investigate all matters within its purview. If it is determined services were obtained through negligence or innocent ignorance, the subject was still provided service for which he/she was not entitled and could still have a monetary obligation to repay the government for those services. DFAS, not CID, is the determining body responsible for recouping funds. [The applicant] was aware of his denied request for extension prior to submitting a DODEA Form 600. By stating his rotation was not to take place until July 2008, while currently under PCS orders, he knowingly defrauded the government. c. He had innocently obtained government services to which he was not entitled. Yes, CID would have investigated the applicant had he obtained government services to which he was not entitled. CID will thoroughly investigate all matters within its purview. If determined services were obtained through negligence or innocent ignorance, the subject was still provided service to which he/she was not entitled and could still have a monetary obligation to repay the government for services. CID is not responsible for recouping funds and as such not a determining body as to who will assume such an obligation. [The applicant] was aware, or should have been aware, that his dependents were not authorized the services, which is why he would have provided the false date to ensure his dependents could enroll. He was interviewed by CID in February 2008 and this was reiterated; however, he did not remove his dependents from the school at that time. d. How did the investigator arrive at the amount of $44,200 as the amount owed by the applicant? During the course of the investigation, the CID office received a memorandum stating the tuition rates for the 2007/2008 school year. [The applicant] had three dependents enrolled in kindergarten, 3rd, and 4th grades respectively. The total was determined by…the Assistant General Counsel, DoD Education. The cost associated with all three was $14,740.00 each for the school year. The total would have been $44,220.00. e. According to Department of Defense Instruction (DoDI) 1342.25 (School Boards for DDESS), paragraph 6, the applicant's dependent children were not able to attend the school due to his subsequent PCS. He was aware of his PCS prior to submitting the DODEA Form 600, in which he stated he was not due for rotation until July 2008. By making this claim, he falsified an official document, which allowed his children to attend their perspective schools tuition free. f. On 24 January 2013, the applicant submitted a request to correct information in the files of the USACIDC. Between January and April 2013, a formal review of this investigation was conducted to determine if he was erroneously titled and to ensure the investigation was legally sufficient. The formal review included a review by senior investigators and an attorney. After careful consideration of the request by the applicant and the available evidence, on behalf of the USACIDC Commanding General, the Access and Amendment Refusal Authority for USACIDC records, and in accordance with Army Regulation (AR) 95-2 (Criminal Investigation – Criminal Investigation Activities), the request to correct his ROI was denied. As previously addressed on 3 May 2013 and 25 September 2014, USACIDC does not direct or participate in the collection of debts. CID offices are required to submit copies of ROIs to DFAS. 21. The advisory opinion was provided to the applicant and his counsel. In a letter dated 9 June 2016, the applicant's counsel responded and essentially stated that: a. The purpose of the remand order was to permit the Board to fully consider the issues raised by the applicant's initial application for correction of his records and to address its inadequacies of its previous decision identified in his complaint. b. The applicant's complaint alleged, among other things, that the investigative record lacked credible information that he had committed any crime and that the CID had disclosed the ROI to DFAS without authority and in violation of the Privacy Act. c. The advisory opinion provides no analysis of these issues whatsoever and instead offers conclusory assertions that the applicant "knowingly defrauded" the government without any reference to or support from the investigative record. The CID does not address any of the asserted defects in the investigative record or contest any of the facts underlying the applicant's arguments. d. For these reasons, the Board cannot adopt or otherwise rely upon the advisory opinion to satisfy its obligation to fully consider these issues and address the inadequacies of its initial decision as ordered by the U.S. District Court. 22. In a memorandum dated 28 September 2016, the CID Staff Judge Advocate provided an amended advisory opinion addressing specific topics pertaining to the applicant's case. The opinion states: a. Issue 1: What is the authority authorizing or permitting CID to refer the ROI pertaining to the applicant to DFAS for debt collection? Is CID aware of any authority that would prohibit such referral? (1) In general, it is USACIDC's position that the question presented has an inappropriate basis. First, it assumes that CID's motive to refer the ROI to DFAS was something other than furthering the investigation. Second, rather than seeking authority for a Department of the Army Direct Reporting Unit to provide information to a DoD organizational entity, we recommend that [the ABCMR] consider what laws or policies, if any, would be violated by such use of internal DoD information. For example, there is no violation of the Privacy Act or Privacy Act policy when USACIDC discloses information to an officer or employee of DoD who has a need for the record in the performance of their duties. (2) To the specific question presented, there is ample authority for USACIDC to provide investigative information to DFAS under existing DoD issuance, Army Regulation, and CID internal policy. Military criminal investigative organizations (MCIOs) have the authority to investigate fraud for the primary purpose of furthering Military Department functions. Specifically, …paragraph 2 of the DoDI [5505.2 (Criminal Investigation of Fraud Offences)] states that "[t]he respective MCIOs have primary responsibility for investigating all allegations of fraud within their specific Military Department, ... involving ... [a]llegations of fraud involving DFAS ... " and defines fraud as, "[a]ny intentional deception designed to deprive the United States unlawfully of something of value or to secure from the United States a benefit, privilege, allowance, or consideration to which he or she is not entitled. (3) Department of the Army General Order 1971-47, in establishing USACIDC, charges [the] command with a mission to make recommendations to higher echelons in regard to criminal investigative matters. DoD Instruction 5505.02, dated 29 August 2013, … paragraph 3b, charges the Secretary of the Army with the responsibility for ensuring that USACIDC provides copies of completed reports of investigation and other interim reports or documents necessary to support appropriate action by DoD organizational entities. AR 10-87 (Army Commands, Army Service Component Commands, and Direct Reporting Units), dated 4 September 2007, paragraphs 17-2d and 17-2e direct USACIDC to prepare reports of criminal investigations and distribute such reports to affected commander's organizations and activities to keep them aware of matters within their area of interest. Paragraph 17-2v… directs USACIDC to conduct investigations of fraud and other offenses arising in Army procurement activities. AR 195-2, 9 June 2014, paragraph 4-2c(1), charges the USACIDC Commanding General [CG] with the duty to establish policies and procedures for the transmittal and maintenance of USACIDC investigative records and reports. The USACIDC CG has done so by internal CID regulation, which details what office within DFAS receives investigative reports involving appropriated funds. In addition, AR 10-87, paragraph 17-2v directs CID to conduct investigations of fraud and other offenses arising in Army procurement activities. The underlying investigation is an example of how referral of an ROI is an appropriate way to keep DFAS aware of a matter within their area of interest, as well as to confirm that no waivers or exceptions had been applied to [the applicant]. (4) The case involving [the applicant] investigates whether he unlawfully registered his dependent children in the DoD DDESS at Fort Buchanan. The eligibility for such a benefit of tuition-free education within DoD DDESS is outlined in Section 2164 of title 10, U.S. Code and DoDI 1342.26, (Eligibility Requirements for Minor Dependents to Attend DoD DDESS). While eligibility for admission into DoD DDESS within [the continental United States (CONUS)] extends to dependent children of military members who occupy permanent living quarters on any military installation, eligibility within territories such as Puerto Rico generally requires the military member to be stationed in the territory. There are, of course, exceptions such as allowing sponsors to pay tuition for their dependents to attend school if space is available, as is outlined in DoD Education Activity Regulation 1030.1. Certainly, one way to determine whether [the applicant] was exercising such an exception would be to contact DFAS to determine whether he was having tuition payments regularly deducted or allotted from his pay. Had CID found evidence of such an exception, then it is unlikely that they would have found probable cause that [the applicant] had committed a fraud or wrongfully received the benefit of tuition-free education for his children. Absent evidence of an exception or waiver to policy, DFAS could confirm the value of the education benefits that [the applicant] had allegedly obtained through fraud. b. Issue 2: Is Article 121, UCMJ (Larceny) the appropriate offense to title in this case? Might Article 134, UCMJ (Obtaining Services under False Pretenses) be the more appropriate offense? (1) As to the specific offenses in the applicant's case, there is no investigative procedural difference between larceny under Article 121, UCMJ or obtaining services under false pretenses under Article 134, UCMJ. Based on the dollar amounts in this situation, both offenses fall under USACIDC's investigative purview under the provisions of AR 195-2, table B-1, and either offense would be investigated and reported in the same manner. (2) Titling is an administrative procedure based upon an operational decision as opposed to a legal one. The DoD standard that shall be applied when making a titling determination is whether credible information exists indicating that the subject committed a criminal offense. When reviewing the appropriateness of a titling 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 DoD standard. (3) USACIDC is an unbiased investigative agency and does not prosecute the offenses it investigates. Until recently, DoDI 5505.3 [Initiation of Investigations by Defense Criminal Investigative Organizations] was silent on the requirement to document legal coordination from supporting legal counsel in final investigative reports. However, now having the benefit of reviewing the titling decision made more than 5 years ago, it appears that there is no probable cause for Article 121, Larceny, because there is no evidence to meet the required element of the taking of certain property. "A debtor does not withhold specific property from the possession of a creditor by failing or refusing to pay a debt, for the relationship of debtor and creditor does not give the creditor a possessory right in any specific money or other property of the debtor." A more appropriate title and charge would be for the offense under Article 134, Obtaining Services under False Pretenses. (4) It is not unusual for a final report such as the one considered in this case dated 12 January 2011, to report a probable cause determination without citing the coordination with a judge advocate. USACIDC is currently prohibited from documenting an investigative conclusion under the provisions of DoDI 5505.03…dated 22 December 2015… The decision whether or not to prosecute and under what charges, or to take adverse action against an individual as a result of an investigation, remains solely within the discretion of a subject's chain of command or DFAS. 22. This USACIDC advisory opinion was provided to the applicant and his counsel. His counsel responded and stated, in pertinent part: a. There are two principal components to the applicant's lawsuit. The first challenges the merits of the USACIDC's refusal to amend the ROI. That claim asserts that the investigative record is insufficient to support the finding that probable cause existed that the applicant had committed a crime. Those issues were the subject of the first advisory opinion requested by the Board, and as set forth in his 9 June 2016 letter, the USACIDC failed to properly consider those issues or adequately respond to the deficiencies highlighted in the lawsuit. b. The second component of the applicant's lawsuit challenges the legality of the events subsequent to the investigation, specifically the USACIDC's referral of the ROI to DFAS for collection and making a Commander's Report of Disciplinary Action without authority. The second USACIDC's opinion fails to identify any statute or regulation authorizing it to refer the ROI to DFAS for collection. c. This opinion cites various regulations pertaining to its reporting requirements in cases involving fraud relating to procurement activities. The allegations do not relate to any procurement activity of the Army, and the USACIDC's referral of the ROI to DFAS for collection was not done pursuant to any known reporting requirement. At the time it referred the ROI to DFAS, the USACIDC was acting in a quasi-judicial capacity by determining the applicant's guilt and imposing an administrative penalty of restitution. Counsel asserts USACIDC has no authority to determine his guilt or impose a punishment, and its supplemental advisory opinion offers nothing that should persuade the Board otherwise. d. Issue 1: The CID lacked authority to refer the ROI to DFAS and impose debt. (1) The supplemental opinion shows CID fundamentally misstates its obligations with respect to criminal reports under the Privacy Act, as well as its own implementing regulations. Rather than admitting it exceeded its authority in this case, the CID re-characterized the facts to better fit into its justification of its conduct. The Board should not permit the CID to rewrite the factual history of this case through an advisory opinion. (2) The Privacy Act prohibits disclosure of the ROI unless expressly authorized: The supplemental opinion suggests the Privacy Act permitted specific disclosure to DFAS, which is wrong. The Privacy Act, Title 5, U.S. Code, section 552a, as implemented through AR 340-21 (The Army Privacy Program) governs the maintenance and release of investigative records, files and reports by the CID. In the simplest terms, the Privacy Act and its implementing regulations creates a presumption against disclosure, even within the agency responsible for maintaining the record, subject to limited and specifically enumerated exceptions. Title 5, U.S. Code, section 552a (b) ("No agency shall disclose any record which is contained in a system of records by any means of communication to any person ... except" as specifically prescribed); see also AR 340-21, paragraph 3-1a. "Access to USACIDC reports will be limited to those individuals whose official duties require them to have access to such reports and should be restricted to the minimum number of persons necessary." AR 195-2, paragraph 4-2e(2) "Release is authorized when it conforms with this regulation… AR 340-21, and policy on external agency information, as applicable." (3) USACIDC asserts the ROI was referred to DFAS pursuant to the Privacy Act exception that permits disclosure to employees of the DoD who "have a need for the record in the performance of their duties." This assertion is totally unsupported and amounts to a "bald attempt to rewrite the historical facts." USACIDC "feigns injury at the assumption that its referral of the ROI to DFAS was motivated by something other than 'furthering the investigation.'" The record shows CID determined the applicant's guilt and subsequently referred the ROI to DFAS with the intent of punishing him. (4) The investigative summary of the ROI establishes the following sequence of events: * the investigation established probable cause existed that a crime was committed * the report was referred to the Assistant U.S. Attorney for Puerto Rico, who declined to prosecute * the report was "presented" to DFAS, who "accepted financial responsibility for the $44,200.00 loss" initiating collection actions (5) There is nothing in the investigative record supporting the referral of the ROI to DFAS as "in furtherance" of the investigation. There are no phone call or meeting records between USACIDC and DFAS requesting information concerning applicable DDESS policy, nor any indication the allegations pertained to pay, allowances or travel. "In January 2008, the CID interviewed the registrar at the DDESS School, who advised the investigator what the 'exceptions' for eligibility were, and stated that they were not applicable to [the applicant]." The evidence firmly establishes "the CID sent the ROI to DFAS for the singular purpose of collecting the debt against [the applicant]." DFAS expressly denies any involvement in the investigation or determination that the applicant was indebted to the United States. (6) The applicable Privacy Act regulations do not authorize disclosure of the ROI to DFAS: "The exception to the Privacy Act that the CID claims authorized its disclosure of the ROI to DFAS is applicable only where DFAS requests the record." The evidence of record shows DFAS did not request the ROI. (7) "The USACIDC cites DoD Directive 5400.11-R, paragraph. C.4.2.1 as authorizing disclosure of a record to an officer or employee of DoD who has a need for the record in the performance of their duties." The record shows CID forwarded the ROI to DFAS as an unsolicited document. Subsequently, DFAS used the ROI as evidence of a debt that it then sought to collect. DFAS has consistently stated that it was not responsible for the debt, but that it was merely collecting the debt documented by the CID ROI. "This fact is further borne out by the correspondence between the Board and DFAS that was enclosed with the October 7 letter… DFAS's response unequivocally stated that it is not a debt originator." It acts as a collector for military departments which are responsible for determining whether the debt is valid and should be pursued. (8) If CID did reach out to DFAS, it was not required to disclose the entire ROI, but was permitted only to request information necessary to confirm that the applicant was not having any tuition payments regularly deducted from his pay. Thus, the facts preclude the exception to the rule prohibiting disclosure found in DoD 5400.11-R, paragraph C.4.2.1. (9) The allegations in this case did not involve DFAS or any procurement activity: CID cites DoDI 5502.05 as the instruction that authorizes it to investigate fraud. "There has never been any dispute that the CID is empowered and authorized to investigate allegations of fraud; however, what they undertook with respect to [the applicant] goes beyond an investigation: it extended to determination of guilt, and enforcement of a punishment." (10) The CID cites various regulations to support its transmittal of criminal investigations to anyone remotely interested in the subject matter of the investigation. AR 195-2, paragraph 4-3 governs the "release of investigative information", to include "any visual access, oral disclosure, explanation of contents, or reproduction of material in investigative records, reports, or related documents of CID origin." Release of information is authorized only when it complies with the regulations implementing the Privacy Act. Regarding distribution within the DoD, "Routine distribution within DoD, but external to CID, of final CID ROIs will be through the next higher field grade commander to the commander responsible for initiation of disciplinary or corrective action. Copies will also be provided to the JAG supporting the action commander, the installation law enforcement activity responsible for law enforcement in the area in which the incident occurred, and as further directed by the CG, CID." (11) Therefore, AR 195-2 expressly limits routine disclosure of a final ROI within the DoD to the subject's commanding officer who has the authority to initiate disciplinary or corrective action. The CID violated AR 195-2 by disclosing the ROI directly to DFAS without any authority under the Privacy Act. It violated the regulation by initiating disciplinary action without authority as documented in the DA Form 4833, which the Board has already acknowledge was improper. The only person authorized to see and act upon the ROI was the applicant's commanding officer. The CID sent the applicant's commander an interim ROI in February 2008, but there is no record that he initiated any disciplinary action. Thus, there is no authority for the CID to initiate disciplinary action against the applicant, which it did when it referred the ROI to DFAS for collection. d. The CID concedes that no larceny occurred: (1) In its opinion, there is no probable cause for Article 121 (Larceny) because there is no evidence to meet the required element of the "taking" of property. The CID concludes Article 134 (False pretenses, obtaining services under) would be the appropriate charge. The significance of the CID's conclusion that larceny was not supported by the record has significant impact on the validity of the debt. (2) The CID notes it is an investigative agency, and does not prosecute the offenses it investigates. It also notes that the decision to title and index a criminal suspect is an administrative proceeding, not a legal one, which does not connote any degree of guilt or innocence, and cannot support adverse judicial or administrative actions against the named individual. In this case, CID determined the applicant committed a crime referring the ROI to DFAS for collection. (3) The questions as to whether there was in fact a loss to the United States Government remains unanswered. The allegation is the applicant knowingly provided false information on his enrollment application to obtain tuition-free education. However, the fact that his children received a free education that they allegedly were not entitled to does not necessarily mean there was a loss of funds to the Government. There is no documented actual lost to the government. The loss, if any, would be the marginal cost to the DoDEA resulting from educating his three children, which is not equivalent to the tuition it charges non-DoD federal agencies. 23. On or around 13 October 2016, an advisory opinion was obtained from DFAS. It recounts the applicant’s military history, including his assignment to MEPS at San Juan, Puerto Rico. a. He completed and signed on 30 April 2007 a form titled "Domestic Dependent Elementary and Secondary Schools DDESS Puerto Rico District" listing his three children stating he was on an active duty. His current orders expired in July 2008. The applicant did not complete the statement, “If my orders change/terminate before the start of SY 2007-2008 I will notify the register immediately." He registered his three children for DODEA SY 2007-2008 in order for his children to be eligible to continue to attend the school tuition-free. b. The applicant is liable for the cost of his three children's tuition for the SY 2007-2008. Based on the CID report, the tuition debt totaled $44,220. The debt is based on the SY 2007-2008 tuition of $14,740 per child. c. When the DoDEA SY began on 13 August 2007, the applicant was permanently reassigned to his new duty station. Documentation listed in the CID report shows, and the applicant has admitted, that he officially changed his permanent duty station in June 2007. Based on his permanent reassignment, per DoDI 1342.26, his children were no longer eligible for tuition-free schooling outside CONUS. As a result, he owes the U.S. Government the cost of his three children's tuition for SY 2007-2008. d. Government officials stated the children could not attend school if the sponsor was serving in a new assignment and was no longer outside CONUS. There is an exception that, if the PCS occurred during the SY, the children could have remained in the school for the remainder of the SY. A government official stated the applicant's children should not have been enrolled in the DoDEA school as he was reassigned when school was not in session. As he enrolled them, there is a tuition debt for reimbursing the U.S. Government for SY 2007-2008. e. The fact that he was not charged with a crime does not negate this debt to the U.S. Government. The issue is simply whether his children were eligible for tuition-free education after he had made his PCS move which occurred before the start of the DoDEA SY 2007-2008. According to the rules in effect, his children were not eligible for the tuition-free education and, hence, he has a valid debt to the U.S. Government. f. In conjunction with their advisory opinion, DFAS attached a Memorandum of Agreement (MOA), dated April 2004, between DFAS, the U.S. Army Finance Command (USAFINCOM), and CID. The purpose of the MOA is "to establish policy and procedures for the recoupment of in-service debts by DFAS/USAFINCOM Field Finance Offices and DFAS-Indiana, Centralized Processing, General Processing that stem from substantiated Report of Investigations (ROls) by CID involving fraud and larceny of government-appropriated funds by Army personnel." In the MOA, DFAS essentially articulates to CID a standing and on-going "need to know" with respect to CID investigations that indicate fraud-related indebtedness. g. It also noted, "it is important to remember that there were a finite number of slots available for eligible dependents to attend the DDESS School located at Fort Burhanna, Puerto Rico. [The applicant's] three ineligible children took slots away from three other children of members who would have been eligible to attend this school." 24. The DFAS advisory opinion was provided to the applicant and his counsel. In a letter dated 19 October 2016, the applicant's counsel responded to the DFAS advisory opinion and stated, in pertinent part: a. DFAS asserts that it is not a debt originator but merely acts as a debt collector. It does not determine the amount of a debt. b. Counsel argues the advisory opinion only addressed the cost of the children's tuition for 2007-2008. DFAS is not qualified to opine on educational costs. c. Counsel argues CID took the position that DFAS was responsible for the decision to impose the debt. Communications from DFAS deny that assertion. DFAS claims it did not have any responsibility and played no role in the decision to impose a debt against the applicant. Instead, DFAS stated that it was merely acting as a debt collector at the direction of the CID. DFAS has no responsibility for determining whether it should or should not pursue a debt based on the merits of an investigation; accordingly, its opinion on the merits of the applicant's liability, based solely on the ROI, should be afforded no weight. d. The opinion improperly attempts to enter facts without any foundation or support into the record which counsel objects too finding it irrelevant because, whether true of false, it has no bearing on whether he committed a crime or whether the Government suffered a loss. e. DFAS attached an MOA between DFAS and, among others, CID. The stated purpose of the MOA is "to establish policy and procedures for the recoupment of in-service debts by DFAS that stem from substantiated Report of Investigations (ROls) by CID involving fraud and larceny of government-appropriated funds by Army personnel." As the CID has now conceded, the allegations against the applicant do not pertain to theft of appropriated funds, but services. Accordingly, the MOA DFAS provides is irrelevant. f. Counsel recommends striking this DFAS opinion from the record. REFERENCES: 1. DoD Instruction Number 1342.26 (Eligibility Requirements for Minor Dependent Children to Attend DoD Domestic Dependent Elementary and Secondary Schools) applies to DoD DDESS Arrangements operated by DoD within the continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands and to students enrolled of seeking to enroll in the DoD DDESS Arrangements and their parents. It provides that the DDESS Arrangements within territories, possessions and commonwealths of the United States shall provide a tuition-free education at an installation served by a DDESS Arrangement for dependent children of the following: a. Military members on active duty assigned permanent living quarters on a military installation in the territory or possession. b. Civilian employees of the Federal Government assigned permanent living quarters on a military installation in the territory or possession. 2. Provide a tuition-free education at an installation served by a DDESS Arrangement for the dependent children of the following personnel who reside in a territory, possession, or commonwealth of the United States, when there is space available, as determined by the Secretary of Defense. Space available will be allotted to dependents of listed personnel in the following order of priority: a. Military members on active duty, stationed of homeported in a territory, possession, or commonwealth and not residing in permanent quarters on a military installation. b. Full-time civilian employees of the Federal Government, not residing in permanent quarters on a military installation residing in a territory, possession or commonwealth, who are subject by policy and practice to transfer or reassignment to a location where English is the language of instruction in the schools normally attended by dependent children of Federal personnel. c. Full-time, permanent, professional excepted service employees of the DDESS Arrangement within a territory, possession or commonwealth not residing in permanent quarters on a military installation. 3. Army Regulation 10-87 provides in: a. paragraph 17-2d, USACIDC prepares reports of criminal investigations and distributes these reports to affected commander’s organizations and activities. b. paragraph 17-2e, USACIDC reports incidents or situations to the Secretary of the Army, Army Chief of Staff, field commanders, and agency heads to keep them aware of matters within their areas of interest. c. paragraph 17-2v, USACIDC conducts investigations of fraud and other offenses arising in Army procurement activities. 4. Army Regulation 195-2 provides in paragraph 4-2c(1), The CG, USACIDC, will establish policies and procedures for the transmittal and maintenance of USACIDC investigative records and reports; recommend to Department of the Army, Army Records Management and Declassification Agency standards for the retention of this material; direct the conduct of special studies and research utilizing data contained therein; and determine the release ability of information in these files. 5. Army Regulation 340-21, paragraph 3-1a (Disclosure without consent) states the Army is prohibited from disclosing a record from a system of records without obtaining the prior written consent of the data subject, except when disclosure is, among other reasons, made to officers and employees of DoD who have a need for the record in the performance of their duties. 6. DoDI 5505.2, dated 6 February 2003, states that MCIOs have the "primary responsibility" for investigating all allegations of fraud involving, inter alia, "all DoD dependent schools outside the Continental United States. 7. DODI 5505.2, dated 6 February 2003, paragraph E.3.2.8 defines "fraud" as: any intentional deception designed to deprive the United States unlawfully of something of value or to secure from the United States a benefit, privilege, allowance, or consideration to which he or she is not entitled 8. DODI 5505.2, dated 6 February 2003, paragraph E2.1.2., states that fraud investigations conducted by the MCIO are undertaken for the primary purpose of furthering a function of DoD. 9. DODI 5505.2, dated 6 February 2003, paragraph 4.4. states that MCIOs (such as CID) have the primary responsibility for investigating all allegations of fraud involving DFAS where they pertain to pay and allowance or travel fraud by a Service member in a Military Department. 10. DoD 5400.11-R (DoD Privacy Program) provides in paragraph C4.2. (Non-consensual conditions of disclosures) and paragraph C4.2.1. (Disclosures within the DoD) that: a. C4.2.1.1. Records pertaining to an individual may be disclosed to a DoD official or employee provided: (1) The requester has a need for the record in the performance of his or her assigned duties. The requester shall articulate in sufficient detail why the records are required so that the custodian of the records may make an informed decision regarding their release; (2) The intended use of the record generally relates to the purpose for which the record is maintained; (3) Only those records as are minimally required to accomplish the intended use are disclosed. The entire record is not released if only a part of the record will be responsive to the request; (4) Rank, position, or title alone does not authorize access to personal information about others. 11. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. It provides in paragraph 2-9 (Burden of proof) that 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: 1. The applicant and his counsel assert CID's decision to refer the ROI to DFAS violated the Privacy Act and was otherwise contrary to law. The purpose of the Privacy Act is to promote governmental respect for the privacy of citizens by requiring all departments and agencies of the executive branch and their employees to observe certain rules when collecting, managing, using, and disclosing information about individuals. The Privacy Act and the various regulations that implement it generally prohibit the non-consensual disclosure of information gathered and maintained about individuals. The Privacy Act has a number of exceptions to this general rule, two of which are disclosures made to further routine governmental uses and which are made to satisfy a legitimate governmental "need to know." 2. On 28 September 2016, CID provided an advisory opinion to the ABCMR regarding the propriety of CID referring the investigation to DFAS. In its response, CID disputes the premise of the question, specifically the premise that the ROI was necessarily "referred" to DFAS for debt collection. The advisory opinion cautions that it might be "inappropriate" to assume that CID's motive in referring the ROI to DFAS was "something other than furthering the investigation." The opinion explains that: [O]ne way to determine whether [applicant] was exercising such an exception would be [for CID] to contact DFAS to determine whether he was having tuition payments regularly deducted or allotted from his pay. Had CID found evidence of such an exception, then it is unlikely they would have found probable cause that [applicant] had committed a fraud or wrongfully received the benefit of tuition-free education for his children. Absent evidence of an exception or waiver to policy, DFAS could confirm the value of the education benefits that [applicant] had allegedly obtained through fraud. 3. The advisory opinion thus asserts that CID's coordination with DFAS regarding the investigation was not improper because CID was not merely referring a case file to DFAS, but instead was furthering its investigation relative to the applicant. On the assumption that CID's actions did have Privacy Act implications, the CID advisory opinion goes on to assert that CID's subsequent referral of the ROI to DFAS fully complied with the Privacy Act. 4. As previously discussed, the Privacy Act places a general prohibition upon the unauthorized release by government agencies of personal information gathered and compiled about an individual. The Privacy Act allows for twelve statutory exceptions to the general rule prohibiting unauthorized disclosures regarding records that come under the Act's purview. One such exception is the "routine use" exception. The Privacy Act defines a "routine use" as "the use of [a] record for a purpose which is compatible with the purpose for which it was collected."' (See generally, Department of Justice website, "Overview of the Privacy Act of 1974," https://www.justice.gov/opcl/conditions-disclosure-third-parties#routine.) Another exception authorizes the intra-agency disclosure of a record necessary for the receiving agency to conduct its official purposes. The Privacy Act's legislative history indicates an intent that the term "agency" be given its broadest statutory meaning, and it recognizes the propriety of "need to know" disclosures between various components of large agencies. (See generally, Department of Justice website, "Overview of the Privacy Act of 1974," https://www.justice.gov/opcl/ conditions-disclosure-third-parties#need.) 5. The CID advisory opinion cites several regulations purporting to permit as "routine use" or "need to know" CID's referral to DFAS of investigative reports involving cases similar to applicant's. CID's advisory opinion cites to DODI 5505.2 (29 August 2013). However, the 6 February 2003 version of DODI 5505.2 is the more appropriate instruction to rely upon inasmuch as it was the regulation in force during the relevant time period. The 2003 version of DODI 5505.2 provides that MCIOs (like CID) have the "primary responsibility" for investigating all allegations of fraud involving, inter alia, "all DoD dependent schools outside the Continental United States." The instruction defines "fraud" as: any intentional deception designed to deprive the United States unlawfully of something of value or to secure from the United States a benefit, privilege, allowance or consideration to which he or she is not entitled 6. DODI 5505.2 (6 February 2003) paragraph E2.1.2. also provides that fraud investigations conducted by the MCIO are undertaken for the primary purpose of furthering a function of the Department of Defense. 7. DoDI 5505.2 paragraph 4.4. The DoDI also is clear that MCIOs such as CID have the primary responsibility for investigating all allegations of fraud involving DFAS where they pertain to pay and allowance or travel fraud by a Service member in a Military Department. 8. These regulatory provisions indicate that 1) DoD had directed Army CID to investigate fraud allegations that involve certain DoD entities, even when those entities are not Department of the Army entities; 2) non-Army entities contemplated for these kinds of investigations included DoD dependent schools outside the Continental U.S., such as the DODEA school applicant's children attended at Fort Buchanan, Puerto Rico; 3) CID was also tasked with investigating fraudulent DFAS-administered pay and allowance issues; and 4) Army CID investigations of this sort were not undertaken for the primary purpose of furthering a function of the Department of the Army; instead, they were undertaken for the primary purpose of furthering a function of DoD. 9. Based on the foregoing, it appears that CID's investigation into whether the applicant defrauded the Fort Buchanan school was not a Department of the Army investigation that later was referred to DFAS (a DOD entity) for appropriate action. Instead, the DoDI's language indicates that the investigation was a DoD investigation ab initio, and that CID's subsequent coordination with and referral to a DoD component such as DFAS merely was a natural progression of a "[f]raud investigation conducted by a MCIO [CID] undertaken for the primary purpose of furthering a function of DoD." (DODI 5505.2 (6 February 2003) paragraph 4.4). This view is bolstered when one considers that the applicant is not an Army officer (he's a Navy officer) and that DoDEA itself is a DoD component. 10. Given that the investigation in this case was initiated pursuant to a DoD instruction and was conducted to further DoD purposes, it is difficult to credit applicant's argument that the resulting ROI should never have been released to DFAS, particularly when DFAS itself was arguably a principal in the case by virtue of the "[DFAS] pay and allowance fraud" language of DoDI 5505.2 (6 February 2003 ) paragraph E.3.2.). Therefore, there are multiple bases upon which to conclude that no Privacy Act violation occurred. Consequently, the available evidence does not support a conclusion that CID's referral to DFAS was an improper coordination with an intra-agency DoD component. Because DFAS had an ongoing requirement to be informed about fraud investigations in order to carry out its "pay and allowance" oversight and debt collection missions, the applicant has also failed to carry his burden demonstrating that the intra-agency referral was not permitted by the Privacy Act's "need to know" exception. 11. As for applicant's counsel's argument that paragraphs C4.2.1 through C4.2.1.2 of DoD 5400.11-R prohibit the referral from CID to DFAS that occurred in this case, it appears this argument elevates form over substance. DoD 5400.11-R recognizes that DoD, and all of its subsidiary components, are considered a single agency for purposes of disclosure and disclosure accounting. CID's referral in this case was therefore an intra-agency disclosure. As for the language cited by applicant's counsel, that portion of the regulation requires the requester of records to articulate to the records custodian why the records are required so that the custodian may make "an informed decision regarding their release." Applicant's counsel argues that there is no evidence that DFAS made such a request or that it articulated a need for the records. But the purpose of the regulation's language in this regard is to permit the custodian of the records to "make an informed decision" regarding the intra-agency release. In applicant's case, it appears CID itself arrived at the conclusion that release to DFAS was appropriate. Consequently, requiring DFAS to articulate a need would have been superfluous. Moreover, CID's referral decision was entirely reasonable inasmuch as an intra-agency referral to DFAS of a fraud ROI directly satisfies DFAS's "need to know" about debt recoupment cases, a category of cases indisputably within DFAS's sphere of responsibility. The fact that DFAS accepted the ROI and acted to recoup applicant's debt seems to have affirmed and ratified CID's referral decision. 12. Further evidence that CID substantially complied with Privacy Act requirements is an April 2004 MOA between DFAS and CID in which DFAS essentially articulates to CID a standing and on-going "need to know" with respect to CID investigations that indicate fraud-related indebtedness. The MOA was intended to "establish policy and procedures for the recoupment of in-service debts that stem from substantiated ROIs by CID involving fraud and larceny of government-appropriated funds by Army personnel." (See MOA Between DFAS and CID, SUBJECT: In-Service Debt Recoupment Stemming from U.S. Army Criminal Investigation Command Investigation, April 2004.) Thus, to the extent DFAS was required to make a request for records in this case, and to the extent it was required to articulate in sufficient detail why the records were required, DFAS did so via the April 2004 MOA. 13. The April 2004 MOA refers to "Army personnel" and not to Sailors or Navy officers. Applicant is a Navy officer. This language in the MOA, however, does not undermine the propriety of CID referring applicant's ROI to DFAS. This is so for two reasons. First, the issue the MOA addresses in this case is whether DFAS articulated to CID a legitimate "need to know" about fraud investigations that might trigger debt recoupment. According to the MOA, DFAS has such a "need to know" and, given that DFAS is a DoD component, DFAS's "need to know" would necessarily exist irrespective of the Service member’s branch of service. Second, DODI 5505.2 (6 February 2003) makes clear that fraud investigations of this type are not Navy investigations, or Army investigations, or Air Force investigations. Rather, these investigations are "for the primary purpose of furthering a function of DoD." This language establishes the primacy of DoD interests in cases like the applicant’s. Logic dictates that these DoD interests cannot be undermined by a CID-DFAS MOA purporting to limit CID referrals to only those ROIs pertaining to Army personnel. Consequently, DFAS’s need to know, and its articulation of that need, was in no way vitiated by the language limiting the MOA to "Army personnel." Thus, the MOA establishes that Army CID was informed and on notice in 2004 that DFAS had an official need to know about fraud investigations, including the investigation pertaining to the applicant. 14. Applicant’s counsel asserts that the MOA is "wholly irrelevant" because it refers to fraud and larceny of "government-appropriated funds." The sentence to which counsel refers is in the "Purpose" paragraph and the operative language reads: Purpose: To establish policy and procedures for the recoupment of in-service debts that stem from substantiated ROIs by CID involving fraud and larceny of government-appropriated funds by Army personnel. 15. Applicant’s counsel construes "government-appropriated funds" as modifying both "fraud" and "larceny." But counsel’s construction is not necessarily the correct one. Removing the larceny language of the sentence would yield, if counsel were correct, a clause that reads, "(ROIs) by CID involving fraud … of government-appropriated funds." This syntax is both awkward and nonsensical. A reasonable alternative interpretation of the sentence at issue is that the purpose of the MOA is to establish policy relative to CID ROIs involving fraud, and CID ROIs involving larceny of government-appropriated funds. This seems the better construction because, if it were intended to have the meaning counsel suggests, the sentence would likely have been written more clearly, such as: … that stem from substantiated Reports of Investigations (ROIs) by CID involving fraudulent acquisition and larceny of government-appropriated funds by Army personnel Consequently, the ABCMR interprets the MOA as being applicable to cases involving fraud and to cases involving larceny of government-appropriated funds. 16. To be clear, the pertinence of the MOA would be unaffected even if counsel’s construction of the sentence were correct. This is so because the relevant effect of the MOA for purposes of this case is that it notified CID, and articulated to CID, DFAS’s need to know about fraud investigations that might trigger in-service debt recoupment. Consequently, counsel’s argument, even if accepted, does not undermine the MOA’s relevancy as it pertains to applicant’s situation. 17. Applicant’s counsel cites AR 340-21 and AR 195-2 as support for his argument that CID’s referral of the ROI to DFAS was improper. But nothing in either of those regulations undercuts the provisions of the aforementioned DoD regulations that appear to authorize the referral CID made to DFAS. Counsel cites to paragraph 4-3b and 4-3c of AR 195-2. But that portion of the regulation merely pertains to how a CID ROI routinely should be forwarded once the ROI is finalized. Counsel’s argument implies that the provisions of paragraph 4-3 are the exclusive means by which CID can properly move a ROI from one of its field offices to another DoD component. But this, of course, is not true. As previously indicated, DoD regulations contemplate a myriad of circumstances in which a CID ROI might properly be released to DoD components beyond those described in AR 195-2. See, e.g., DOD 5400.11-R, Appendix 3, DOD Blanket Routine Uses, which lists fourteen blanket routine use exceptions, several of which would seem to apply to CID ROIs. Furthermore, and as previously discussed, section C.4. of the same regulation also lists numerous ways a CID ROI might properly be referred from a CID office. Consequently, counsel’s implicit assertion that paragraph 4-3 of AR 195-2 is the sole means by which a CID ROI may be released is unavailing. 18. Based on the foregoing, it appears the applicant has failed to demonstrate by a preponderance of evidence that relief is warranted. It also appears the applicant has failed to show that CID’s interactions with DFAS were not a legitimate furthering of applicant’s ongoing fraud investigation. Additionally, the applicant has failed to demonstrate by a preponderance of evidence that CID’s referral of the ROI violated the Privacy Act. In this regard, applicant has failed to carry his evidentiary burden that CID’s referral was not permissible under the Privacy Act’s "routine use" exception, or not permissible under the Act's "need to know" exception. 19. A separate issue in this case is whether CID should have titled the applicant with the offense of obtaining services under false pretenses instead of larceny. The applicant is accused of fraudulently enrolling his children into the Fort Buchanan school and fraudulently keeping them enrolled despite his knowledge he did not qualify for that benefit. The gist of the accusation is that he wrongfully obtained government services, not government property. Article 121, UCMJ, Larceny, defines larceny as the wrongful taking of property belonging to another with the intent to permanently deprive or defraud that person of the benefit of the property. As used in Article 121, "property" includes only tangible items having corporeal existence and does not include services or other intangibles. Theft of services may not be charged under Article 121, but may be charged under Article 134, Obtaining Services Under False Pretenses. The elements of this offense are similar to those of Article 121, but contemplate the wrongful obtaining of services rather than tangible property. Given that the applicant was never accused of stealing tangible property, and was instead investigated for wrongfully obtaining the educational services of the Fort Buchanan school, it appears the applicant should have been titled under Article 134. The CID advisory opinion supports this conclusion. However, because both offenses imply roughly the same degree of culpability, this change does not afford the applicant any relief relative to liability for the debt or to the amount of the debt. 20. In its order remanding this case, the U.S. District Court for the District of Columbia directed the ABCMR to determine whether it applied the incorrect regulation in its 12 August 2014 decision denying the applicant relief. In its previous decision, the ABCMR cited to DODEA Regulation 1342.13, SUBJECT: Eligibility Requirements for Education of Elementary and Secondary School-age Dependents in Overseas Areas. Because the relevant facts of this case involve a DODEA school at Fort Buchanan, Puerto Rico, the ABCMR likely assumed that this regulation’s reference to "overseas areas" necessarily included Fort Buchanan. The regulation, however, specifically excludes Puerto Rico from the definition of "overseas area." Consequently, this regulation was not applicable to applicant’s situation and should not have been applied in the ABCMR’s August 2014 decision. 21. The regulation applicable to the applicant’s case is DoD Instruction 1342.26, SUBJECT: Eligibility Requirements for Minor Dependents to Attend Department of Defense Domestic Dependent Elementary and Secondary Schools. But application of this instruction to the applicant’s case does not improve his case. The instruction limits eligibility for tuition-free admission to dependents of military members on active duty "assigned permanent living quarters on a military installation in the territory." On a space available basis, tuition-free admission is available for dependents of military members on active "stationed in a territory and not residing in permanent quarters on a military installation." Both provisions require the military member to be assigned or stationed to the applicable territory, which in this case is Puerto Rico. Neither provision is helpful to applicant’s case because the record indicates the applicant’s duty station was permanently changed from Puerto Rico to Texas prior to his children’s enrollment at the Fort Buchanan school for the SY 2007-2008. Applicant’s children would have been ineligible to enroll in either case given applicant’s departure from Puerto Rico. Consequently, application of DODI 1342.26 instead of DODEA Regulation 1342.13 affords the applicant no avenue of relief. 22. Applicant’s counsel also objects to CID estimating the value of the services the applicant wrongfully obtained at $44,200. He argues that the value should have been calculated not by assessing the value of the services (as reflected by the tuition rates), but instead by calculating the actual loss suffered by the United States Government. Applicant’s counsel asserts that because the record is devoid of information about the marginal expenses DoD incurred to educate applicant’s three children, applicant’s debt should be reduced to zero. 23. The record indicates CID sought to assess the value of the education services applicant received by consulting with officials at DODEA. DODEA officials responded by providing tuition rates for the appropriate school year and by taking into account that applicant’s three children enrolled in the grades of kindergarten, 3rd grade, and 4th grade. Based on that consultation, CID arrived at the figure of $44,200. Given this information is in the record, it is not readily apparent that CID acted inappropriately or contrary to law. 24. As for applicant’s counsel’s arguments regarding the debt valuation issue, the burden of proof in cases before the ABCMR rests with the applicant. This burden requires that the applicant prove by a preponderance of evidence that the relief he seeks is warranted due to demonstrated error or because justice requires the relief sought. But applicant’s counsel has not demonstrated any error by citing a statute, regulation or other authority that requires or recommends a cost-based debt valuation rather than a value-based one. Furthermore, equity does not support the relief applicant seeks. The record supports the inference that applicant inappropriately, and perhaps criminally, obtained services to which he was not entitled. It is unclear how justice and equity would be served if the applicant were permitted to evade 100 percent of the financial responsibility for services he wrongfully received. 25. Applicant’s counsel also objects to the portion of the DFAS advisory opinion suggesting that the applicant’s children "took slots away from 3 other children of members who would have been eligible to attend this school." DFAS’s assertion is speculative without further evidence that other children actually were prevented from enrolling. This portion of the DFAS advisory opinion should be disregarded. 26. To the extent the Court’s remand requires the ABCMR to revisit the question of whether the CID investigation disclosed credible information to believe the applicant fraudulently obtained services from the United States Government, the ABCMR adheres to its 12 August 2014 decision. The record indicates that CID investigated the case thoroughly and in accordance with applicable regulations. It interviewed witnesses and studied the documentary evidence. There is no evidence CID improperly gathered evidence or misapprehended the evidence collected. At applicant’s counsel’s request, CID senior officials re-examined the investigation and confirmed the case investigators’ determination that credible evidence existed that the applicant obtained government services fraudulently. Except for the error previously discussed relative to the larceny charge, no manifest error exists relative to the way the investigation was conducted or to the way the investigators assessed the applicant’s culpability. 27. The applicant’s counsel’s arguments that applicant was unaware that his request to extend his duty tour at Fort Buchanan was denied at the time he enrolled his children; that he in fact believed his extension would be granted; that he orally notified officials at the Fort Buchanan school that his orders might require him to soon move from Puerto Rico; that school officials allayed his concerns by orally telling him that the eligibility determination was based on his orders at the time of enrollment; and that all of these events occurred without applicant intending to deceive or defraud school officials into believing his children were eligible for tuition-free schooling that they were not entitled to have been carefully considered. However, the CID file is also replete with evidence that the applicant did know he shortly was to be moved from Puerto Rico. A witness interview with the Navy assignments officer indicates the applicant knew well in advance that he would be changing duty stations sometime in the summer of 2007. This is confirmed by his many requests to be extended at Fort Buchanan. There is also evidence that, before he began submitting enrollment paperwork, he was notified orally and/or in writing by a Navy assignments officer that his request to extend his duty tour in Puerto Rico had been denied. The record also discloses that he physically arrived in Texas in June 2007, months before the beginning of the 2007-2008 academic year began at the Fort Buchanan school. The record further indicates he made no effort to dis-enroll his children when he knew, or reasonably should have known, that his change of station orders taking him to Texas had the obvious effect of making him and his family ineligible for tuition-free education at the Fort Buchanan school. Such evidence indicates, at best, a regrettable lack of candor on the part of a military officer and, at worst, a criminal intent to defraud. 28. The record indicates CID investigators in 2008 and 2009 spoke to the appropriate DODEA officials and interviewed the Navy assignments officer who handled applicant’s 2007 change of station orders. It indicates the CID investigators used their investigative training to assess reliability of the relevant documents and assess the credibility of the relevant witnesses. In the end, the CID investigators determined there was credible evidence to believe the applicant fraudulently obtained education services from the government and did so by means of a false official statement. There is no evidence to suggest CID officials acted incompetently, contrary to law, or in bad faith. 29. Based on the foregoing it appears the applicant nor counsel have demonstrated by a preponderance of evidence that, except for the aforementioned larceny charge, the CID ROI should be expunged or altered in any way or that he applicant should be relieved of his debt. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000522 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000522 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2