ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2021 DOCKET NUMBER: AR20170003896 APPLICANT REQUESTS: removal of his name from the Defense Clearance and Investigations Index (DCII). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Denial Letter from the United States Army Criminal Investigations Command (USACIDC) * DA Form 5016 (Chronological Statement of Retirement Points) * AHRC Form 4143 (Enlisted Record Brief) * DA Form 4833 (Commanders Report of Disciplinary or Administrative Action) * Personnel Records Review document * DA Form 2166-8 (NCO Evaluation Report) x 2 * DD Form 4 (Enlistment Contract) x 2 * Excerpt from the Enlisted personnel Management Directorate (EPMD) website * DD Form 214 (Certificate of Release or Discharge from Active Duty) x 2 * DA Form 4187 (Personnel Action) * Order# 200-5 * Order# 014-0031 * DA Form 2648 (Preseparation Counseling Checklist) * Order# 040-0008 FACTS: 1. The applicant request appellate review of the denial letter received from the USACIDC regarding his request to be removed from the DCII. He contests that his records are void of any evidence indicating that he was at Fort Lewis in September of 2004. He separated from active duty on 24 April 2004 and later returned to active duty within the Active Guard Reserve (AGR) Program. He further contests that he was promoted from Specialist (SPC)/E-4 to Sergeant (SGT)/E-5 in July of 2003 and received an evaluation as a SGT in 2003 as well as in 2004 while serving in the AGR. He also states that it is impossible to have been demoted to Private (PVT)/ E-2 in 2004 and then subsequently receive an annual evaluation covering 2004-2005 as a SGT. Lastly, he contests that review of his records will not reflect a signed field grade Article 15 during this timeframe. 2. A review of the applicant’s service records indicates the following on: a. 12 February 1999 – he enlisted in the Regular Army for 3 years. b. 25 April 2001 – he reenlisted as a SPC for 3 years. c. 19 February 2002 (Order# 043-602) – he was assigned as a SPC to the 555th Engineer Group at Ft. Lewis, WA. d. 24 April 2004 – released from active duty as a SGT. e. 25 April 2004 (Order R-03-471614) – he was assessed into the AGR program and assigned to Seagoville, TX as a SGT. f. 25 October 2004 (Order# R-08-475792) – reassigned to a unit in Mesquite, TX as a SGT. g. 1 May 2016 (Order# C-02-602335) – released from the AGR program as a Staff Sergeant 3. On 19 February 2020 the Army Review Boards Agency requested a release of information pertaining to the applicant from the Criminal Investigations Command. On 27 February 2020 they provided documentation which shows: a. The applicant’s following offenses occurring on or about 30 December 2002 at Fort Lewis, WA were: * Family Member Abuse * Aggravated Assault (Assault on a Child under the Age of 16 years old) b. On 14 June 2004, DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) reflects that the applicant was found to be guilty of the above offenses. His commander elected to impose non-judicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ). The applicant received 14 days restriction and 14 days of extra duty. He was reduced in grade from SPC to Private (PVT)/ E-2. 4. The applicant provides: a. Denial Letter from the USACIDC dated 14 February 2017 – reflective of the USACIDC decision to partially deny the applicant’s request for removal of the titling information currently reflected within the DCII because the information the applicant provided did not constitute as new or relevant information needed to amend the report. b. DA Form 5016 (Chronological Statement of Retirement Points) dated 23 February 2016 – reflective of service in the active component from 12 February 1999 through 24 April 2004 and service in the Reserve Component (AGR) from 25 April 2004 through 3 February 2015. c. AHRC Form 4143 (Enlisted Record Brief) dated 17 February 2016 – reflective of an assignment in Mesquite, TX effective 25 October 2004 as a Supply Sergeant. d. DA Form 4833 (Commanders Report of Disciplinary or Administrative Action) dated 1 September 2005 – reflective of an Article 15 being issued to the applicant on 21 September 2004 resulting in reduction in rank from E4 to E2,14 days of extra duty and restriction; two offenses listed: Aggravated Assault (30 December 2002) and Family Member Abuse (14 October 2002); information verified by a legal NCO assigned to the 555th MEB. The applicant's records are void of the DA Form 2627 (Summarized Record of Proceedings Under Article 15, UCMJ). e. Personnel Records Review document dated 29 October 2014 – reflective of a chronological listing of documents currently reflected in the Soldiers military records. f. DA Form 2166-8 (NCO Evaluation Report) dated 3 January 2004 – reflective of the applicant’s performance during the period of July through December of 2003 as a SGT with a 1 July 2003 date of rank. g. DA Form 2166-8 (NCO Evaluation Report) signed but not dated – reflective of the applicant’s performance from November 2004 through October 2005 as a SGT with a 1 July 2003 date of rank. h. DD Form 4 (Enlistment Contract) dated 25 April 2001 – reflective of the applicant’s reenlistment in the Army as a SPC for 3 years. i. DD Form 4 (Enlistment Contract) dated 2 November 2005 – reflective of the applicant’s enlistment in the AR as a SGT for 6 years. j. Excerpt from the Enlisted Personnel Management Directorate (EPMD) website dated 2 March 2017 reflective of the eligibility requirements to enter the AGR program as of 18 January 2017; indicative of the consideration of enlisted Soldiers between the ranks of E4 through E8. k. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 24 April 2004 – reflective of his release from active duty at the rank of SGT. l. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 1 May 2016 reflective of service during the period of 25 April 2004 through 1 May 2016 in the Reserve Component. m. DA Form 4187 (Personnel Action) dated 3 July 2003 – reflective of a conditional promotion to SGT/E5 request. n. Order# 200-5 dated 19 July 2003 – reflective of his conditional promotion from E4 to E5 effective 1 July 2003; required to complete NCOES requirement within 12 months. o. Order# 014-0031 dated 14 January 2004 – reflective of the applicant being separated from the active component as a SPC effective 24 April 2004. p. DA Form 2648 (Pre-separation Counseling Checklist) dated 21 January 2004 – reflective of the applicant completing separation requirements; rank indicated as a SGT. q. Order# 040-0008 dated 9 February 2004 – reflective of an amended assignment order releasing him from active duty and assigning him to the 145th LOG SPT Co in Seagoville, TX as a SGT. 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 reviewing the application and all supporting documents, the Board found the relief was not warranted. Based on documentation available for review, the Board determined that there was insufficient evidence to warrant removal of the applicant’s name from the Defense Clearance and Investigations Index (DCII). The Board considered the applicant's statement, his record of service, evaluations and the DA Form 4833 (Commanders Report of Disciplinary or Administrative Action). Documentation indicates the investigation to have been procedurally correct. Based on a preponderance of evidence, the Board determined there was no evidence of error or injustice. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX 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. 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. 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. 5. AR 27-10 (Military Justice) states that for Soldiers who are at the rank of E4 and below (prior to punishment) the original will be filed locally in unit nonjudicial punishment or unit personnel files unless the Soldier has been found guilty of a sex-related offense, in which case, the document must be filed in the performance folder in the Soldier’s OMPF. Locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another GCMCA, whichever occurs first. For those UCMJ, Art. 15 forms directed for filing in the performance folder of the OMPF, file a photocopy of the completed DA Form 2627 in the unit nonjudicial punishment files. This copy will be maintained permanently in the unit nonjudicial punishment file and will be forwarded to the gaining unit upon the Soldier’s transfer to another GCMCA unless the original Art. 15 is transferred from the performance to the restricted folder of the OMPF. In this case, this copy will be withdrawn from the unit nonjudicial punishment files and destroyed. For those UCMJ, Art. 15 reports directed for filing in the restricted folder of the OMPF, a photocopy will be filed in the unit nonjudicial punishment files and destroyed at the expiration of 2 years from the date of punishment or on the Soldier’s transfer, whichever occurs first.