ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 March 2019 DOCKET NUMBER: AR20160013446 APPLICANT REQUESTS: removal of his name from the National Crime Information Center (NCIC). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * letter from U.S. Army Criminal Investigation Command (CID), 17 June 2016 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 1 February 1994 * CID Report of Investigation, 24 January 1994 * self-authored letter, 23 July 2016 * Liberty County Schools application status, 18 July 2016 FACTS: 1. The applicant states: * he will articulate his argument in requesting removal from the NCIC * he waived legal assistance and later received a field grade Article 15 on 24 January 1994 * he was informed by his command that he was a rehabilitative Soldier * he was young at the time of the incident and had not been in the military a year * if he had known the impediment that came behind the incident he would have sought legal assistance and a court-martial to avoid being titled by CID * he learned he had been titled after losing a job opportunity in May 2016 as a Junior Reserve Officer Training Corps (JROTC) instructor * since he was rehabilitated in February 1994 he earned a Bachelor's and Master's degree * he had other milestones through his military career that clearly justify his growth and maturity level * he served in the Army for 23 years and 2 months * he's held several security clearances to include a Top Secret Sensitive Compartment Information clearance * he understands the severity of his misconduct * the U.S. Army felt he was worth of such privileges as reenlisting and progressing through the ranks to sergeant first class (SFC) * it is not until he retires that this titling hinders his progression and undermines his entire military career and character * he was honorably discharged from the service * he remains remorseful for the mistake he made * it resulted in him working hard to become a better leader to his Soldier because he could shed some light on what not to do * being titled for something over 20 years ago that he thought was behind him is beyond his understanding * he humbly asks for mercy and to be removed from NCIC * he is not a criminal, felon, or pedophile * he is a retired SFC who served this country honorably and was never disciplined again * he hopes at the Board's mercy he can move forward from a mistake he made in 1993 by not having this impediment 2. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 30 June 2016 after serving for 23 years, 2 months, and 10 days. He had a deployment to Afghanistan, Iraq, and Hatti. He retired as a SFC. 3. The applicant provides a redacted CID Report of Investigation final report, dated 24 January 1994. The investigation established there was probable cause the applicant committed the offenses of carnal knowledge and sodomy when he engaged in consensual sexual intercourse and oral sodomy with two females when they were under the age of 16 years old. 4. The applicant's commander completed a DA Form 4833 showing the following: * Offenses: Carnal Knowledge and Sodomy * Action Taken: Nonjudicial punishment, Article 15, Uniform Code of Military Justice * Resultant Sentences, Punishment, or Administrative Action: Reprimand/Admonition - oral, forfeiture of $416 for 2 months, Reduction to E-1, 45 days extra duty and 45 days restriction 5. The applicant applied for a job with Liberty County Schools as a JROTC instructor and was denied the position because he had been titled for the offense of carnal knowledge. The applicant requested release of information from CID and was advised he was listed as the subject in the report of investigation and his name will remain in the NCIC. 6. Army Regulation 195-2 (Criminal Investigation Activities) states requests for amendments of a CID report of investigation will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. 7. DODI 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) states once the subject of a criminal investigation is indexed, the name shall remain in the Defense Central Index of Investigations even if a later finding is made that the subject did not commit the offense under investigation, unless there was mistaken identity or if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the CID ROI were carefully considered. Based upon the preponderance of evidence, the Board agreed the titling record is accurate and does not warrant amending nor removal. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X X Deny 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. ADMINISTRATIVE NOTES: N/A REFERENCES: 1. 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 CID ROIs. It states that requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of a CID ROI will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the CG, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 2. DODI 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." The criteria for titling are a determination that credible information exists that a person: may have committed a criminal offense or is otherwise made the object of a criminal investigation. 3. DODI 5505.7 contains further legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in DCII. (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII. (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. d. Section 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 4. DODI 5505.7 also provides the following definitions: a. E1.1.1 – Credible Information: Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true. b. E1.1.2 – Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. c. E1.1.3 – DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DOD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies. d. E1.1.4 – Incidental: Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. e. E1.1.5 – Indexing: Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII. f. E1.1.6 – Subject: A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. g. E1.1.7 – Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. h. E1.1.8 – Titling: Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013446 2