ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 August 2019

	DOCKET NUMBER:  AR20170008331


APPLICANT REQUESTS: the removal from her records the offenses of conspiracy, cruelty and maltreatment, and failure to obey general orders as shown on an investigation conducted by the U.S. Army Criminal Investigation Command (CID) in March 2013.  In effect, she requests the removal of her name from the title block of the CID Report of Investigation (ROI) 00XX-XX-CIDXXX-XXXXX, dated 24 March 2013.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Personal statement
* Two statements from a staff sergeant (SSG)
* Sworn Statement
* CID Report of Investigation 

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 her case was considered unfounded.  The Staff Judge Advocate (SJA) decided there was not enough evidence to refer charges.  Additionally, she has been reviewing the investigation report and she does not see on what grounds probable cause was established or documented.  There is only documentation that probable cause existed but that is not proof of probable cause by itself.  She denied at the time and continues to do so now having been present at that incident.  She is innocent and those offenses are unfair.  She explains further: 

	a.  She requests a review of a CID investigation conducted in March 2013 on the 493rd Military Police (MP) Company, from Joint Base Lewis-McChord, WA which resulted in the following charges being added to her criminal record: Conspiracy, Cruelty and Maltreatment, and Fail to Obey General Order.  She believes there must have been some errors in completing and closing out this investigation because she was not present at the incident which was investigated.  She has received a (redacted) copy of the case files from the U.S. Army Crime Records Center (CRC) and has reviewed them thoroughly in order to ascertain how the investigation came to convict her of such offenses and from what she sees in the records, there is no substantiating evidence which proves her to have been involved in the incident, other than the SJA simply stating so.  She has included with this letter, copies of all documents in the case files which include her name, statements that she believes to have been made by SSG X__, the victim in this incident (though the name was redacted for privacy), and SSG X__ has composed a couple of letters on her behalf as well.  She hopes the Board will see that the statements from her and other Soldiers do not corroborate the claim that probable cause existed to prove that she was guilty of the above mentioned offenses.  At the time the incident occurred, she was waiting on a meeting with Captain X__ where they would be demoting one of her own Soldiers for APFT failure.  

	b.  Additionally, she has a complaint.  She was never made to be aware that those offenses existed on her record until a background check conducted by the Texas Board of Nursing came back positive in February of 2017.  Those offenses are four years old now!  She does not believe it is fair for her not to have been notified about this.  She would have refuted these claims four years ago.  More troubling, perhaps, is the fact that other Soldiers involved in that investigation have had the same problem she is encountering now and they have not yet been able to resolve the issue themselves.

	c.  She has submitted a request to amend the records (by amend, her intention is that those offenses be entirely removed from her records) to the CRC.  That request was denied, so she has submitted an appeal.  She has also submitted her concerns to her congressional representatives in the state of Texas.  This issue has been a known problem for quite some time now; she would like to have this resolved immediately.  She is working very hard on her career and it just so happens that she would be taking her Registered Nurse exams soon and the background check they conduct will also find those offenses and words like "cruelty," "maltreatment," and "conspiracy'' do not resonate well when her job is to care for vulnerable populations (the young, the old, the ill, the disabled) and it will negatively impact her earning potential.  Not to mention the fact that she was not present at the incident; those offenses are unfair, unsubstantiated, and erroneous. 

3.  The applicant provides: 

	a.  Statement from SSG X__ who states that an incident of hazing occurred during the February 2013 battle assembly of the 493n1 MP Company.  The personnel directly involved in the incident were her (the author), the company 1SG (E8), two platoon sergeants (E7), and two squad leaders (E7 and E6).  The Monday following the battle assembly, an anonymous report of the incident was made to the 104th Training Command's Equal Opportunity (EO) office.  This report was forwarded to the 416th Theater Engineer Command's EO office, and then was referred by that command to the CID.  The local CID office conducted an investigation into the charge of conspiracy. During the course of this investigation, every non-commissioned officer assigned to the 493rd MP Company was interviewed and identified as a subject in the investigatory report.  To the best of her knowledge, no one was apprehended or arrested in conjunction with this investigation.  At the conclusion of the investigation, the CID report was sent to Major X__, SJA for the 301st Maneuver Enhancement Brigade (MEB) and higher headquarters of the 493rd MP Company.  Major X__ reviewed the report and opined that the evidence collected was not sufficient to warrant any referral of charges or Uniform Code of Military Justice (UCMJ) action.  This information was confirmed directly to her during a conversation with MAJX__.  The company 1SG and two squad leaders received letters of reprimand.

	b.  Statement, dated 31 March 2017, from SSG X__ to the Texas Board of Nursing.  She states that she had the honor of serving with [Applicant] in the 493rd MP Company.  During the time we served together, she found the applicant to be a skilled medic with a good bed-side manner, as well as a professional Soldier, and a friend.  In February of 2013, there was an incident of hazing that occurred between her and five of the senior enlisted Soldiers in the unit.  The applicant was not present during this incident.  She is currently working with Major X__, Staff Judge Advocate, to correct the record regarding the closure of the criminal investigation.  This matter concluded with no UCMJ charges referred.  She completely recommends the applicant without reservation, and hope that the information regarding this incident will in no way negatively impact her opportunities or potential within the medical field. 

	c.  Sworn Statement, dated 22 March 2013, wherein the applicant told CID that she heard that a SSG was injured but she was not herself present at the incident. 

	d.  Letter, dated 2 March 2017, from the Texas Board of Nursing, asking the applicant to answer questions and/or clarify the issues related to the CID charges, as part of the licensing process. 

4.  Review of the applicant’s service records shows: 

	a.  She enlisted in the U.S. Army Reserve (USAR) on 18 February 2009. 

	b.  She entered active duty for training (ADT) on 15 July 2009 and completed training for award of military occupational specialty 68W (Health Care Specialist).  She was honorably released from ADT on 30 July 2010 to the control of her USAR unit.

	c.  She promoted to E-5 in August 2011.  She was assigned to the 493rd MP Company at Fort Lewis, WA. 

	d.  On 2 March 2013, a CID investigation was initiated upon notification by Lieutenant Colonel (LTC) [redacted], commander 301st Maneuver Enhancement Brigade (MEB), 416th Theater Engineer Command that SSG [redacted] reported that members of the 493rd MP Company hazed her during a promotion ceremony.  SSG [redacted] provided CID with photographs of her bruising she had taken with her cell phone on 26 February and 28 February 2013.  CID conducted canvas interviews of Soldiers assigned to the 493rd MP Company. Canvas interviews revealed the names of Soldiers who related information pertinent to the investigation.  The applicant was advised of her rights on 22 March 2013 and provided a statement wherein she related that not being present for the gauntlet. 

* The investigation established probable cause to believe several by-name Noncommissioned Officers, including the applicant, committed the offenses of failure to obey a regulation, cruelty and maltreatment, and conspiracy when they participated in a hazing ritual wherein they punched subordinates in the arms and shoulder after their promotion ceremony
* The investigation established probable cause did not exist to believe the above Soldiers committed assault because the assault on their subordinate Soldiers was an element included in the offense of cruelty and maltreatment

	e.  The Brigade Judge Advocate, 301st MEB, opined probably cause existed to believe those NCOs, including the applicant, committed the offenses of failure to obey a general order, cruelty and maltreatment, and conspiracy.  There was no probably cause to believe those Soldiers committed the offense of assault. 

	f.  A Commander's Report of Disciplinary or Administrative Action (DA Form 4833), dated 13 November 2014, shows the purpose of this referral was the applicant's offenses of conspiracy, cruelty and maltreatment, and failure to obey general order.  The Commander, 301st MEB decided not to take any action against the applicant. 

	g.  The applicant was honorably discharged from the USAR on 21 February 2017.

5.  By regulation (AR 190-45) and DOD Instruction (DODI 5505.7), the criteria for reporting an individual in the subject block was based upon credible information to believe the individual committed the offense.  Request for amendment of such records ate processed under the provisions of paragraph 3-6a, AR 190-45, which provides, in part, that an amendment of record is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete.  Amendment procedures are not intended to permit challenging an event that actually occurred.  For example, a request to remove an individual's name as the subject of an MPR would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported.  Expungement of a subject's name from a record because the commander took no action or the prosecutor elected not to prosecute will not be approved.  In compliance with DOD policy [DODI 5505.7, paragraph 6], an individual will still remain entered in the Defense Clearance and Investigations Index (DCII) to track all reports of investigations.

6.  Titling or indexing 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).  In order to support removal of his name from or to change any portion of the title block of the subject CID ROI, the applicant must show the original titling decision was in error.  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.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record.  After reviewing the facts and circumstances, the Board concluded that the applicant failed to provide sufficient evidence to show that she was not a suspect in the case at the time of the publication of the report and that her name appeared in the report as a result of an administrative or other error.  By her name appearing in the report as a suspect does not signify a level of guilt or innocence.  For that reason, the Board recommended that denying the requested relief 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.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 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 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.

3.  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 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.

4.  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.

5.  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.

ABCMR Record of Proceedings (cont)	 AR20170008331


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