BOARD DATE: 9 January 2019 DOCKET NUMBER: AR20160012512 APPLICANT REQUESTS: * Removal of his name as a subject on a U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 18 September 2015 * General Officer Memorandum of Reprimand (GOMOR), dated 6 August 2015 * Florida Department of Law Enforcement (FDLE) Form 40-020, Applicant's fingerprints * Two FDLE letters, respectively dated 3 and 13 November 2015 * Two letters from the applicant to the U.S. Army Crime Records Center (USACRC), dated 1 December 2015 and 25 March 2016 * Letter from the USACRC to the applicant, dated 5 January 2016, with redacted documents * Administrative elimination board findings and recommendations * USACRC letter to applicant, dated 20 April 2016 * Applicant's letter to the Department of the Army Suitability Evaluation Board (DASEB), dated 23 March 2017 * Memorandum, dated 20 March 2017, Subject: Action on Show-Cause Proceedings concerning [applicant] * Summary Transcript Involuntary Separation Board, AR (Army Regulation) 135-175 (Separation of Officers), dated 22 March 2016 * DA Form 67-10-2 (Field Grade Plate (O4-O5; CW (Chief Warrant Officer) 3 -CW5) Officer Evaluation Report) for rating period 20140813 through 20160411 FACTS: 1. Applicant states, in effect: a. He is a U.S. Army Reserve (USAR) officer and, while deployed under Title 10, U.S. Code orders to Guatemala in 2015, a predeployment urinalysis detected the presence of benzodiazepines (a class of drugs primarily used for treating anxiety; they are illegal for use without a prescription). As a result, his chain of command redeployed him, terminated his orders, and a GOMOR was permanently placed in his official military personnel file (OMPF). Subsequently, his command ordered the convening of a retention board, during which he was able to prove the positive urinalysis was due to accidental consumption. b. The positive urinalysis also triggered a CID investigation and he was unjustly titled in the ROI. He makes this assertion because he was not the subject of a criminal investigation, he was never charged with a criminal offense, and was not convicted of a crime. He noted the retention board determined he had not violated the Uniform Code of Military Justice (UCMJ). c. He presented the results of the retention board to USACRC, but they declined his request to remove his name from the ROI title because, "the information provided was not considered new or relevant information." As a career USAR officer with over 29 years of service, he contends he deserved to have his record corrected; retaining his name in the ROI title is an unlawful defamation of his character, and is detrimental to his military career, especially considering the board proved him innocent. 2. A review of the applicant's service records shows: a. Having had prior service, the applicant was appointed a Reserve commissioned officer and executed his oath of office on 10 June 1988. He transferred to the Illinois Army National Guard on 10 May 1995, then transferred back to the USAR, effective 1 June 1996. b. On 8 May 2008, the U.S. Army Human Resources Command (HRC) advised the applicant he was eligible for non-regular retired pay at age 60. c. HRC ordered him to active duty for operational support; the orders directed him to report to Fort Bragg, NC by 9 February 2015. d. On 11 February 2015, he participated in a unit urinalysis and tested positive for temazepam (controlled substance; used for insomnia) and oxazepam (controlled substance; for anxiety). He was not able to show a physician had prescribed either drug. e. On 27 April 2015, CID initiated an investigation into the applicant's alleged use of temazepam and oxazepam. On 7 July 2015, the Chief of Military Justice, U.S. Army South concurred that probable cause existed to believe the applicant had committed the UCMJ offense of wrongfully using a controlled substance. f. On 6 August 2015, the Commanding General (CG), U.S. Army South, issued the applicant a GOMOR based on his positive urinalysis tests. As part of his rebuttal, the applicant maintained he might have accidently taken his wife's diazepam (controlled substance prescribed for anxiety), which he contended metabolizes to temazepam and oxazepam. On 14 September 2015, the imposing officer elected to file the GOMOR in the applicant's OMPF. g. On 18 September 2015, he was honorably released from active duty (REFRAD). 3. Based on FDLE's disapproval of his firearm purchase, the applicant wrote the USACRC requesting removal of his name from Army (i.e. CID ROI) and National Crime Information Center (NCIC) records. On 5 January 2016, USACRC responded by denying his request. In addition, USACRC provided redacted copies of a DA Form 4833 and memorandum (Subject: Law Enforcement Report – SIR (Serious Incident Report) (Category 3)/Final – CID ROI), both of which pertained to the applicant. 4. At some point prior to 22 March 2016, the applicant's chain of command initiated a show-cause administrative elimination action. An involuntary separation board convened on 22 March 2016 to determine if he should be retained or separated. The administrative board found the applicant had not wrongfully violated the UCMJ by a preponderance of evidence. Additionally, the board recommended retention. 5. On 25 March 2016, the applicant again wrote the USACRC and provided the involuntary separation board's recommendations. He argued, because the final action would take several months, USACRC should move forward with the removal of his name from the ROI title. On 20 April 2016, USACRC advised the applicant via letter that the information he had provided did not constitute the new or relevant information required to warrant ROI amendment. 6. On 20 March 2017, the CG for the applicant's USAR command concurred with the board's findings and recommendations, and directed retention. 7. On 30 September 2017, the applicant was ordered to active duty; he served in Panama. 8. On 23 May 2018, the Case Management Division (CMD), Army Review Boards Agency requested USACRC provide a redacted copy of the CID report pertaining to the applicant; USACRC responded on 14 June 2018 with the requested reports. On 15 June 2018, CMD provided a copy to the applicant for review and/or comment; the applicant did not submit a response. 9. On 1 July 2018, he was honorably REFRAD and effective 1 October 2018, the applicant was reassigned to the Retired Reserve because he reached the maximum authorized years of service. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that relief was not warranted. Titling an individual is appropriate if there’s creditable information of an offense. The Board found, at that time of the titling, that there was a positive urinalysis of the applicant, so the titling of the applicant was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// REFERENCES 1. Army Regulation (AR) 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of USACIDC ROI's. It states that requests to amend USACIDC ROI's will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of USACIDC ROI's will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a USACIDC ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 2. Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions. It states titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. The criteria for titling determination are that credible information exists that a person: * may have committed a criminal offense * is otherwise made the object of a criminal investigation c. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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 (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). https://arbaacts.hqda.ds.army.mil/Case/AR20160012399/Narratives ABCMR Record of Proceedings (cont) AR20160012512 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2