IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20170012718 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20170012718 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing. The Record of Proceedings and associated documents will not be filed in the individual's Official Military Personnel File or any other folder/section of his Official Military Personnel File. _____________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. IN THE CASE OF: BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20170012718 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, removal of information related to domestic abuse investigations be expunged from his Army records and databases. He also requests a personal appearance before the Board. 2. The applicant states Family Advocacy opened a case against him based on allegations of domestic abuse. An investigation was conducted by the Case Review Committee (CRC) and it was determined the incident did not meet the criteria to be founded. In fact, the CRC conducted two investigations and determined that no abuse was committed. On 14 June 2010, the City of Lawton Municipal Court dismissed the case because it was proven the allegations were false through witness statements, a Family Advocacy report, and on the basis that no evidence of abuse was presented. The CRC recommended the case be closed and entered this conclusion in the Department of Defense (DOD) database, on 22 July 2010. He adds there was no further action taken by civilian law enforcement authorities. a. He states that no action was taken by the chain of command against him under the Uniform Code of Military Justice (UCMJ) because the investigation revealed that he never hit or assaulted his ex-wife. In fact, the investigation shows he did exactly what is expected of a Soldier in such a situation; he removed himself from the situation and avoided physical conflict. b. He also states he would never disrespect anyone and most importantly anyone in his family. He was raised with strong morals, values, and ethics, and he believes in respecting the people around you. He always tries his best to set the example through his actions. He is very proud to be part of a professional organization like the U.S. Army and would never allow his actions to disrespect or taint his Army profession. c. He concludes by stating that he was removed from the Fiscal Year 2016 Sergeant Major Academy/Promotion Selection Board list due to the investigation records being filed in DOD/Army databases. He states both cases were closed favorably with no charges or UCMJ action and the records should be expunged. 3. The applicant provides a self-authored statement (summarized above) and Headquarters, 2nd Infantry Division Artillery, Joint Base Lewis-McChord, WA, memorandum, dated 2 May 2017, subject: Rebuttal to Derogatory Information, with five (5) enclosures. The applicant's memorandum is addressed to the Commander, U.S. Army Human Resources Command, and it contains a statement similar to that which he provides this Board, along with pertinent documents and character reference letters that include a: a. DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), referred on 7 December 2008, that identifies the applicant and, in pertinent part, shows in: * item 3 (Referral Information) – * Offense: "Interfere with A Police Officer (Lawton City Code 16-605) [9G2F]" * Commander Decision Date: 5 February 2009 – * Sexual Harassment – "No" * Action Taken – "No" * item 10a (Commander's Remarks) – * Case Closed on 22 January 2009, Pled Guilty and Paid $425 * No Report on Actions Taken * Batch Closure per Office of Personnel Management Guidance Policy 2013 * 24 December 2013, Migrated Data [DA Form] 4833 * No Action Taken Reason: [Is Blank (i.e., No Entry)] b. Headquarters, U.S. Army Medical Department Activity, Fort Sill, OK, memorandum, dated 8 October 2009, subject: Family Advocacy CRC Incident Determination (addressed to the applicant). It shows the CRC met on 1 October 2009 to review an incident that occurred on 32 [sic] March 2009. The allegation was adult emotional and physical abuse. The CRC determined the incident did not meet criteria for adult emotional and physical abuse and also determined that it will be entered into a DOD Central Registry database. The CRC recommended the case be closed. The commander concurred with the recommendation. c. Headquarters, U.S. Army Medical Department Activity, Fort Sill, OK, memorandum, dated 22 July 2010, subject: Family Advocacy CRC Incident Determination (addressed to the applicant). It shows the CRC met on 17 June 2010 to review incidents that occurred on 13 February 2010 and also on 57 [sic] February 2010. The allegation was adult physical abuse. The CRC determined the incidents did not meet criteria for adult physical abuse and also determination that it will be entered into a DOD Central Registry database. The CRC recommended the case be closed. The commander concurred with the recommendation. d. DA Form 4833, referred on 28 May 2010, that identifies the applicant and in pertinent part, shows in: * item 3 – * Offense: "Domestic Abuse (Simple Assault) (Lawton City Code 16-204.S) [9G2F]" * Commander Decision Date: 8 September 2010 – * Sexual Harassment – "No" * Action Taken – "No" * item 10a – * Civilian Case: Nothing Pending Through Military * Migrated Data [DA Form] 4833 * No Action Taken Reason: Civilian Case e. City of Lawton, Municipal Court, Lawton, OK, Dismissal, dated 13 June 2010, that shows the amended violation of domestic abuse in the case against the applicant was dismissed. It also shows the amount assessed (warrant cost) and paid in the case was $750. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted and entered active duty in the Regular Army on 3 January 2000. Through a series of reenlistments, he has continued to serve on active duty. He is currently serving in the rank/pay grade of first sergeant/E-8. 2. A review of the applicant's Official Military Personnel File (OMPF), maintained in the interactive Personnel Electronic Records Management System, failed to reveal any records/documents or information the applicant refers to in his application. A review of his Noncommissioned Officer Evaluation Reports issued during the cited periods also failed to reveal any reference to the matters under review. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-104 (Army Military Human Resource Record) serves as the authority for filing documents in the OMPF. Only those documents listed in Table B-1 (Authorized Documents) are to be filed in the OMPF. 3. DOD Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for U.S. Army Criminal Investigation Command titling decisions. It states that titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers. Titling or indexing alone does not denote any degree of guilt or innocence. 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. In other words, if there is a reason to investigate, the subject of the investigation should be titled. 4. DODI 5505.7 also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity. 5. DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI), by DOD law enforcement organizations for inclusion in the National Crime Information Center (NCIC) criminal history databases. Paragraph 6 (Procedures) shows that dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, 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. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The records in question/under review are not filed in the applicant's OMPF. 3. Based on the applicant's statement and the records he provided with his application, it appears he was properly titled at the time he was cited for the offenses in question. a. The evidence of record shows, on 22 January 2009, the applicant pled guilty to the charge of interfering with a police officer (on 7 December 2008) and that the record (DA Form 4833) was migrated into the DOD database. b. The evidence of record also shows that information pertaining to an incident involving adult emotional and physical abuse (in March 2009) and two incidents of adult physical abuse (in February 2010) were entered into the DOD Central Registry database. c. The evidence of record further shows the charge of domestic abuse (simple assault) referred on 28 May 2010 was amended to domestic assault and dismissed; the record (DA Form 4833) was migrated into the DOD database. 4. There appears to be no mistaken identity in the incidents cited. Therefore, there is no basis to remove the applicant's name from the title block of U.S. Army Criminal Investigation Command records that serve to update FBI records. 5. Dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal, etc.) are also filed. The applicant may contact appropriate law enforcement agencies to ensure any available official records of exculpatory information are also filed in the NCIC database. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170012718 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170012718 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2