ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 September 2019 DOCKET NUMBER: AR20170008301 APPLICANT REQUESTS: to have the following records removed or expunged: * DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 2 May 2014 * Military Police Report (MPR) 00207-2013-CID043 * Criminal Investigation Division’s (CID) Report of Investigation (ROI) 2013-CIDXXX-XXXXX-XXX * Defense Clearance and Investigation Index (CDII) * U.S Army Crime Records Center (CRC) * Other records or databases indicating indecent assault charges * He also requests an appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Case Docket Request from Attorney FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he would like any reference to an incident of assault charges removed from his military records to include Military Police Report (MPR) XXXXX-2013-CIDXXX (Enclosure 1), Criminal Investigations Division's Report of Investigation (ROI) 2013-CIDXXX-XXXXX-XXX (Enclosure 2), the Defense Clearance and Investigations Index (DCII), and the United States Army Crime Records Center (CRC). He also requests an appearance before the Board. 3. The applicant provides case docket request submitted by his attorney that states he has exhausted all other administrative remedies in requesting the removal of a Military Police Report (MPR) XXXXX-2013-XXXXX, Criminal Investigations Division's Report of Investigation (ROI) 2013-CIDXXX-XXXXX-XXX, the Defense Clearance and Investigations Index (DCII), and the United States Army Crime Records Center (CRC). He requests that the Board consider his case based on errors and injustice. a. The 2013 criminal reports substantiating this offense are unjustly based on the uncorroborated statement of a female Soldier who alleged that the applicant patted her buttocks at work one time in the break room sometime in 2006. The applicant asks that the Board consider not only the lack of corroboration for this allegation, but also the fact that she made this allegation to investigators seven years after it allegedly happened. The applicant’s command chose not to hold him criminally responsible for the alleged indecent assault. The MPR report indicates that the applicant was given a Field Grade Article 15 for the alleged assault. However, this is an error. The applicant’s command did give him an Article 15 for a completely unrelated Article 93 violation in 2014. Through this Article 15, the command sentenced the applicant to a forfeiture of $1,000.00 pay for two months, extra duty for 45 days and an oral reprimand. This is the exact punishment that the MPR erroneously shows was given to the applicant for indecent assault. b. The Board should remove the applicant’s name from this MPR report, CID report, based on this error and expunge the report from his records. The applicant cites ABCMR case AC95-07077 where the Board decided to amend CID reports substantiating alleged offenses against a United States Army Reserve Sergeant First Class (SFC) based on a finding of injustice. In this case, CID titled the SFC for conspiracy to obtain false military identification cards and other offenses. The Board concluded that, "in the absence of any corroborating evidence that the applicant was involved in this incident and especially in light of the command's conclusion that no further action is appropriate, the current situation is unjust." Based on this Board's decision, the Board recommended that any reference to the Soldier be deleted from the records and expunged from the soldier's military records. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 15 October 1997. He reenlisted on 4 April 2003, 25 March 2005, and 18 May 2007. b. Military Police Report, dated 29 August 2013, presents questionnaire results from potential witness to the case concerning the applicant. The witnesses were asked if they knew the applicant, had they been touched inappropriately by the applicant, witnessed the applicant touch another individual inappropriately, received a complaint or have been told the applicant said anything inappropriate. c. CID Form 94 (Agent’s Investigation Report), dated 26 September 2013, state that the alleged victim contacted the Sexual Harassment Assault Response Program (SHARP) on 27 August 2013 for an incident that occurred in October 2005. The alleged victim stated that the applicant provided her with a copy of a book by the author Zane and told her to read a specific passage. She further stated that in 2006 (she was unable to remember the exact date) that she walked into the break room and the applicant walked in behind her and smacked her on the bottom. On 3 September 2013, the applicant was advised of his legal rights and he requested a lawyer. d. He accepted Non judicial punishment (NJP) on 22 January 2014 for maltreatment of a person subject to his orders by making offensive comments and gestures of a sexual nature on or about 1 August 2012 and 5 August 2013. e. CID Final Report, dated 30 April 2014, states that the applicant was a subject for indecent assault and indecent acts unfounded. The investigation established probable cause to believe that applicant committed the offense of indecent assault when he approached the alleged victim and slapped her buttocks with his hand. Investigation also determined probable cause did not exist to believe the applicant committed the offense of indecent acts against another alleged victim who did not believe the incident which the applicant rubbed his hand up and down his thigh was sexual in manner or physical harm. f. DD Form 4833, dated 2 May 2014, shows in section II (Referral Information) the applicant’s former commander annotated indecent assault under Title 18 and Article 134 on 1 January 2006. The commander decision made on 2 May 2014, show the applicant was not cited for sexual harassment and that action was taken. * section IV (Action Taken) the applicant was given a field grade NJP and [no NJP was found in the applicant’s records concerning the 1 January 2006 indecent assault] * section V (NJP/Court-Marital/Civilian Court Proceedings Outcome) the applicant was found not guilty (NG) for one specification of indecent assault and guilty (G) for one specification of indecent assault not involving sodomy and [no NJP was found in the applicant’s records concerning the 1 January 2006 indecent assault] * section VI (Administrative Actions) shows that on 2 May 2014 the applicant received an oral reprimand * Section VIII (NJP Sanctions) shows that on 2 May 2014 the applicant forfeited $1000 per month for 2 months and extra duty for 45 days and [this punishment is for NJP received on 22 January 2014 and does not pertain to the 1 January 2006 indecent assault case] with no sanctions suspended * section XI (Commanding Officer) states that no DNA sample was collected from the applicant and [the form is not signed by the commander nor does it provide identifying information of the individual who completed the form] g. He was discharged from active duty on 11 December 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for misconduct-commission of a serious offense, under the provisions of AR 635-200 (Personnel Separation – Enlisted Personnel) paragraph 14-12c (misconduct-commission of a serious offense) with an under other than honorable conditions discharge. It shows that he completed 17 years 10 months, and 20 days of active duty service. 5. AR 600-20 (Army Command Policy) paragraph 4-7, states that a. Commanding officers exercise broad disciplinary powers in furtherance of their command responsibilities. Discretion, fairness, and sound judgment are essential ingredients of military justice. b. In accordance with AR 190-45 (Law Enforcement Reporting), [commander’s must submit DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) within 45 days of receipt of offense notification from the Provost Marshal’s Office (PMO), Director of Emergency Services (DES), or U.S Army Criminal Investigation Command (USACIDC)]. Commanders must refer to Army Law Enforcement (Military Police Investigation or CID) every credible allegation (for example, probable cause) that an assigned Soldier committed a crime that falls outside of the commander’s investigative purview. In accordance with AR 190-45 and AR 195-2, if a commander has probable cause to believe that a Soldier assigned to his or her unit has committed a criminal offense that commander must decide the appropriate authority to handle the investigation. (1) Commanders will report disposition of offense investigated during a command investigation or inquiry under their authority, meeting the reporting requirements of AR 195-2 (Criminal Investigation Activities), when a military law enforcement activity is not involved. Commanders must ensure there are reasonable grounds to believe an offense has been committed and that the person to be identified as the offender committed it. Referral of charges, imposition of non-judicial punishment, approval of separation from the service, and conviction by a civilian court are all examples of reasonable grounds. Commanders will complete DA Form 4833 when they obtain legal review of the investigation or inquiry, and determine to take action against the offender about an incident. 6. Department of Defense Instruction 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense (DOD)) establishes policy and assigns responsibilities providing a uniform standard for titling and indexing subjects of criminal investigations in the DOD. It states that titling only requires credible information that an offense may have been committed. The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time, for law enforcement and security purposes. This is strictly an administrative function. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure 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 BOARD DISCUSSION: 7. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. Board Discussion After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found relief was not warranted. The applicant’s contentions were carefully considered. Based upon the preponderance of the evidence, the Board agreed there was no clear and convincing proof of an unfounded determination as the DA Form 4833 shows a punishment was provided. The CID ROI shows there was credible information regarding the applicant's involvement in the alleged offense. As a result, he was properly titled. Titling or indexing on CID reports does not denote any degree of guilt or innocence. If there is a reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of evidence), and in searches (probable cause). 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. REFERENCES: 1. Army Regulation 195-2 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 ROI's. It states that requests to amend CID ROI's 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 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 Defense Central Index of Investigations (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 a report of investigation 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 15-185, (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The application has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing a request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicant’s do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008301 0 6 1