IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160011910 BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160011910 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by expunging from all military records U.S. Army Criminal Investigation Command Report of Investigation 167-XXXXX-XXXX, dated 27 February 2013, and the associated DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 3 September 2013,. _____________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: 14 November 2017 DOCKET NUMBER: AR20160011910 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests expunction of U.S. Army Criminal Investigation Command (USACIDC or CID) Report of Investigation (ROI) 167-XXXXX-XXXX, dated 27 February 2013, and DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 3 September 2013, from all military records. 2. The applicant states: a. The allegations made against him were false, unfounded, and were rescinded by his accusers. He was never charged with any offense regarding these matters and has maintained his innocence from the first moment he was made aware of the allegations. As of 9 September 2013, the case was closed with no action taken against him, and this action was final. b. The allegations in the investigation arose after he informed his ex-wife that he would be filing for full custody of their four children and only after his command requested initiation of an investigation into his ex-wife's boyfriend for adultery. Shortly after returning to Baumholder, Germany, from Afghanistan in 2011, he began divorce proceedings against his now ex-wife, C____ M____, who was having an extramarital affair while he was deployed to Afghanistan. The proceedings quickly became contentious with the primary issues being the custody of their four children, financial support, and the investigation against his ex-wife for adultery. c. In an effort to discredit him, his ex-wife alleged that he assaulted his daughter A____ M____ in 2007 while they were stationed at Fort Bragg, NC. It was proven that his ex-wife coerced his daughter into making a false statement regarding the allegation, which his daughter has repeatedly renounced since then. He provided his daughter's subsequent statements regarding the false allegations. d. Officials in CID asked to interview him about this allegation in Baumholder, Germany, and he fully cooperated in the investigation, maintaining his innocence throughout. After reviewing the completed investigation from CID, his brigade commander, Colonel (COL) P____ M____, and the brigade executive officer, Lieutenant Colonel (LTC) S____ K____, correctly determined he had not committed the alleged offenses and refused to take any action on the allegations. He included electronic mail (email) correspondence from LTC S____ K____ for review. e. He then made a permanent change of station move from Baumholder, Germany, to Fort Leavenworth, KS. In February 2013 while assigned to the Command and General Staff College, the Special Troops Battalion Commander, LTC T____ B____ II called him into his office and informed him that the investigation had not been officially closed out and that the CID office from Baumholder, Germany, called him asking what the disposition of the investigation was. He explained the alleged incident to LTC T____ B____ II and gave him the contact information for his last commander, COL P____ M____, for verification. f. LTC T____ B____ II then spoke with the legal office at Fort Leavenworth, KS, and recommended no action against him, closing the case. Item 10 (Commander's Remarks) of the DA Form 4833 reflects this case was closed due to unreliable and insufficient evidence to support the allegations. As before, there was no action taken by his command, the office of the Staff Judge Advocate, or CID. He again believed the matter to be closed with no further action. g. In October 2015, he requested that CID expunge these records for the reasons previously stated: the allegations were false, unfounded, and rescinded by his accusers. That request was denied by CID in a 25 March 2016 memorandum, which he included for review. The memorandum indicated he had exhausted his administrative remedies and could appeal to the Army Board for Correction of Military Records. h. The basis of his request is fundamental fairness. From the inception of this case, he has fully cooperated with the Government in all phases of the investigation and maintained his innocence throughout the case. CID conducted a full and complete investigation that concluded the allegations were unsubstantiated and false. He was never charged, punished, or administratively sanctioned for the matters alleged. Moreover, his daughter provided numerous statements indicating he never assaulted her. Where criminal allegations against Soldiers are made, fully investigated, and determined to be unfounded and then later recanted, he questions why any records should be left intact that would taint the reputation of a Soldier who faithfully served his country for more than 18 years. i. These documents do nothing more than prove his ex-wife engineered a vicious lie and executed a plan to destroy his military career and corrupted his daughter in the process. They serve no legitimate Government interest and are unduly prejudicial to his service record. 3. The applicant provides: * partial email correspondence (page 1 of 4) between the applicant and defense counsel, dated 4 April 2012 * CID ROI 0045-2012-CID167-XXXXX-XXXX/XXXXX, dated 27 February 2013 * DA Form 4833, dated 3 September 2013 * email from LTC S____ K____, dated 11 October 2013 * DA Form 2823 (Sworn Statement), dated 18 October 2013 * sworn statement, dated 20 January 2016 * CID letter, dated 25 March 2016 * self-authored memorandum, dated 3 May 2016 * self-authored letter, dated 14 November 2016 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 22 May 1996. He was honorably released from active duty on 16 August 1999 and transferred to the U.S. Army Control Group (Reserve Officers' Training Corps). He was appointed a Reserve commissioned officer of the Army of the United States on 19 May 2001 and is currently serving in the rank of major stationed in Naples, Italy. 2. He provided page 1 of a four-page email sent between himself and his defense counsel, dated 4 April 2012. a. The defense counsel stated he spoke with the prosecutor and he was trying to disprove this (presumably the allegations of abuse) as unfounded, which shouldn't be hard. The prosecutor was pulling the investigation against Sergeant B____ because the allegations against the applicant appeared right after that investigation, which he found strange and correlated. He also requested the applicant send him some email messages. b. The applicant responded by attaching email messages from his two oldest daughters, stating that a few of them were email chains between them. The email correspondence between the applicant and his daughters was not provided for review. 3. The USACIDC final ROI 0045-2012-CID167-XXXXX-XXXX/XXXXX, dated 27 February 2013, shows: a. The applicant was investigated by special agents for assault on a child under the age of 16, which was reported to the Hohenfels, Germany, CID office by his then-wife on 6 March 2012. b. The assaults were reported to have occurred between 1 May 2009 and 30 June 2009 at Sanford, NC; between 1 May 2009 and 30 June 2009 at Sanford, NC; and between 1 June 2010 and 31 August 2010 at Parsberg, Germany. c. The victim was his juvenile daughter who was under the age of 16. d. The investigation established probable cause to believe the applicant committed the offense of an assault on a child under the age of 16 when he grabbed her by her neck and struck her in her face. The Group Judge Advocate, 202nd Military Police Group (CID), Kaiserslautern, Germany, opined probable cause existed to believe the applicant committed the offense of assault on a child under the age of 16. e. The ROI lists the following attached exhibits (none of these documents were provided by the applicant nor were they available for review): * Agent's Investigation Reports (AIR), dated 6 March 2012, 7 March 2012, 11 May 2012, 14 June 2012, and 31 October 2012 * four juvenile interview consents, dated 1 March 2012 * two statements from the victim, dated 1 March 2012 * two sketches prepared by the victim, dated 1 March 2012 * rights waiver certificate of the applicant, dated 6 March 2012 * memorandum, dated 29 October 2012 * AIR from the investigator, dated 6 December 2012 f. This was a final report. The Commander's Report of Disciplinary Action (DA Form 4833) was to be completed and returned to the Baumholder CID office within 45 calendar days of the date of the report. 4. The DA Form 4833, dated 3 September 2013, is partially completed. a. It shows three offenses of assault on a child under age 16 were reported to have occurred on 28 February 2009, 30 April 2009, and 31 May 2010. No action was taken in all three instances due to weak or insufficient evidence. b. Item 10 (Commander's Remarks) states the investigation was closed after deactivation of the offender's unit. As such, the Brigade Judge Advocate, Major ____(name redacted), for the former and successor unit reported this final action and was named the point of contact for all matters related to this case. It further states the offender's then-current command at Fort Leavenworth, KS, refused to sign the document due to a gross misunderstanding of the law on their part. c. Item 11 (Commanding Officer) shows the applicant's commander at Fort Leavenworth, KS, LTC ____ (name redacted), did not sign the form. 5. The applicant provided an email from LTC S____ K____ addressed "To Whom It May Concern," dated 11 October 2013, subject: Disposition of Allegation, wherein he stated: a. He was writing on behalf of the applicant regarding the allegation of abuse of a minor while assigned to the 170th Infantry Brigade Combat Team. The chain of command took any incident of domestic violence very seriously and this particular allegation against the applicant resulted in the issuance of a letter of concern. b. The investigation did not produce substantive evidence to support the allegation and, due to other extenuating circumstances related to the applicant's divorce from his spouse at the time, CID and the chain of command chose not to pursue the matter further. c. It is not clear from the email correspondence who LTC S____ K____ is in relation to the applicant. Neither his signature block nor the content of his email identifies his title or position or what command he belonged to at either the time of the writing or the time of the report of domestic violence, although the applicant identified him in his own correspondence as the former brigade executive officer of his former command. d. The letter of concern referenced in the email is not available for review. 6. The applicant provided a sworn statement from his daughter A____ M____, the named victim of the assault for which the applicant was investigated, dated 18 October 2013, wherein she stated: a. She is her father's oldest daughter and wanted the opportunity to explain the unfortunate experience of her parent's nasty divorce and the manipulative situation with her mother. Once her mother figured out she was no longer a pawn in her endless game against her father, she moved into her best friend's family home and stayed there from April 2013 through August 2013. She would have lived with her father, but high school graduation requirements kept her from moving away from Washington State. At the time she made this statement in October 2013, she was living with her father. b. At the time of her parent's separation when all of this started, she was an obedient 16-year old who felt she had to set a good example as the oldest of four children and someone her sisters looked up to. She just wanted her mother to be happy and she wanted to do what her mother asked of her. At the time she thought that would be best for her and her sisters, and she believed the lies her mother told her about her parent's separation. She felt she was supposed to do whatever it took to make sure she and her sisters would be fine and help her mother, even if that meant lying and hurting her father. c. No child should have to choose between her mother and father, but she had to. Her mother told her that if she and her sister would make a police report stating their father assaulted her 2 years prior at Fort Bragg, NC (which never happened), she and her sisters would always live with their mother and that was the best thing for everyone. Her mother told her it would not hurt her father's career, but it would help with her custody case and get the investigation against her boyfriend out of the spotlight. d. She was only doing what her mother asked her to do and what she thought would help her get back to the United States and attendance at a stateside school again, which at the time she very desperately wanted. Looking back on it now, she realizes she was easily influenced, especially because there was something in it for her and because her mother was someone she trusted and looked up to at the time. What she didn't understand then, which she fully understands now, is the lasting effect this would have on her father's career. e. Now that she has nothing to gain, she looks back and sees herself as a girl being unknowingly manipulated and used for someone else's benefit and personal satisfaction. She hates that it ever got so ugly and she hates that she allowed her mother to manipulate her and hurt her father the way she did. f. Through all of this, her Dad has been there for her. While she knows this situation is her fault, her father never blamed her for any of it and always told her that he loved her and understood that she was a young child being manipulated. When she told him she had no place to stay because her mother abandoned her and kicked her out when she would no longer allow her mother to manipulate her, he was there for her. She hopes her coerced actions do not have a lasting effect on her father because he is a great guy, an amazing father, and an awesome Soldier who shouldn't have his entire career ended because of her actions. 7. He provided a sworn statement from another one of his daughters, J____ D____, dated 20 January 2016, wherein she stated: a. She had a great childhood and her family seemed normal, although she never thought her parents would end up divorced. Around the time she was 14 years old, her mother started to bring her "friend" around when her father was deployed. Her parents got divorced shortly thereafter. b. She didn't really remember her previous interview pertaining to the allegation of her father striking her sister and doesn't remember what she was asked. She didn't recall if she gave a verbal or written statement. c. Growing up, the discipline was mostly done by her mother since her father was away with work, but when he was home it was split equally between them. The worst of the discipline was getting a "whooping" on the butt with a belt, over whatever clothing they had on at the time. d. She and her sisters were never struck in a manner outside of discipline. She did not recall a time when her father grabbed her sister by the neck and hit her in the face, and she has no idea how that allegation came about. She had only ever seen her father place his hand on his sister's shoulder while yelling at her. She never witnessed him hit her in the face or place his hands on her neck. e. She doesn't remember her mother or sister ever talking with her about the incident. She was only recently made aware that her sister recanted her previous statement. When speaking with her sister on the phone, her sister told her she got a call from an investigator and she would probably get a call as well. f. When asked why her sister recanted, she responded they didn't really talk about it. She believed her sister could definitely have been influenced by their mother to make the original statement and she knows the incident didn't occur. She's doesn't know why her mother would influence her sister to make the allegation she did, but maybe to ensure she got custody of the children in the divorce and to justify her own actions of cheating. She believes her sister might have made a false allegation because they were young at the time and didn't really know what was going on, and they only heard their mother's side of the story. They were raised to listen to their parents when they told them something. 8. A letter from the Director, Crime Records Center, CID, to the applicant, dated 25 March 2016, states: a. The letter was in further response to his request to correct information in CID files and supplemented their 29 October 2015 response to his initial request received by that agency on 14 October 2015. Both the applicant's original request and CID's response to his request from October 2015 are unavailable for review, thus it is unclear what specific correction the applicant requested. b. After careful review of his request and the available evidence, the access and amendment refusal authority for CID records denied his request to correct ROI 2012-CID167-XXXXX-XX. This denial constituted final action by CID. c. The enclosed 1st Final Supplemental Law Enforcement Report (LER) 2012-CID167-XXXXX-XX responsive to his request (presumably for a copy of the LER) was part of a system of records exempt from the disclosure provisions of the Freedom of Information Act (FOIA). The names of law enforcement personnel, as well as names, social security numbers, and other personal items of information pertaining to third parties referenced in the report were withheld. Removal of that information constituted a partial denial of his request, but was consistent with FOIA requirements prohibiting the release of information that could violate the personal privacy of other individuals mentioned in the report as well as exemptions which permit withholding of information under the deliberative process privilege or information that could be withheld under civil discovery, attorney-client, or attorney work product privilege. The LER is not available for review. 9. On 23 June 2016, CID informed the applicant that his Privacy Act appeal regarding the amendment action pertaining to ROI 2012-CID167-XXXXX-XX was received on 7 June 2016 and forwarded to the Army Review Boards Agency, as he had exhausted his recourse to correct his records through their agency. REFERENCES: 1. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. It states requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or if the wrong person's name was entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The CID ROI states the investigation established probable cause to believe the applicant committed the offense of an assault on a child under the age of 16 when he grabbed her by her neck and struck her in her face. 2. The special agent's AIR, the victim statements and sketches, and the applicant's rights waiver referenced in the ROI and the LER referenced in subsequent CID correspondence are not available for review. However, there is no evidence of record to suggest they were not duly considered, that they helped form the basis of the final ROI, or that the ROI itself is in error. 3. In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were protected throughout the investigation. 4. He denies assaulting his daughter and provided a sworn statement from his daughter several years after the incidents referenced in the ROI stating she was manipulated by her mother into providing the initial statements and a sworn statement from another one of his daughters wherein she says the incident never occurred. 5. The DA Form 4833, dated 3 September 2013, is only partially completed. It shows three offenses of assault on a child under 16 were reported to have occurred on 28 February 2009, 30 April 2009, and 31 May 2010. No action was taken in all three instances due to weak or insufficient supporting evidence. The document was not signed by his commander. 6. The applicant also provided an email from an individual he identified as his former brigade executive officer stating the chain of command took any incident of domestic violence very seriously and this particular allegation against the applicant resulted in the issuance of a letter of concern. He also stated the investigation did not produce substantive evidence to the allegation and, due to other extenuating circumstances related to the applicant's divorce from his spouse at the time, the chain of command chose not to pursue the matter further than the issuance of a letter of concern. 7. While the evidence indicates the applicant previously requested that CID make corrections to the ROI and potentially the DA Form 4833, up to and including removal of the documents, it is unknown what specific corrections he requested as his original requests are not available for review. CID denied his initial request and denied his request upon appeal. By law and regulation, titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, in order to administratively remove a titling action, it must be shown that either mistaken identity or a lack of credible evidence supported the initial titling determination. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011910 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011910 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2