ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 August 2020 DOCKET NUMBER: AR20170015051 APPLICANT REQUESTS: 1. His name be removed from titling block in U.S. Army Criminal Investigation Command (USACIDC) Record of Investigation (ROI) Number. If this request is denied, that all "founded" allegations be changed to "unfounded" in the same ROI. 2. That the Department of the Army (DA) give official notice of such removal of titling or "unfounding" to any other federal agency, including the Federal Bureau of Investigation (FBI), to which USACIDC may have disclosed or provided this titling and "founding" determination. 3. All DA review and approvals be deemed favorably and satisfactorily completed concerning DA review of his selection for promotion to O-6. 4. All necessary and appropriate records concerning his DA selection for promotion to colonel (COL)/O-6 be then submitted for Senate review and action. 5. His date of rank (DOR) be adjusted to 26 April 2017, the date his promotion board results were released or his Mandatory Removal Date (MRD) of 31 August 2018 (age 60) be extended as to allow him to serve as an O-6 in the Army National Guard for a period of not less than 181 days. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 25 Exhibits A - W listed in a table of exhibits FACTS: 1. The applicant previously completed 12 years, 2 months, and 11 days of active service in the U.S. Coast Guard in an officer status. 2. On 4 February 2004, the applicant was appointed a captain (CPT) in the California Army National Guard (CAARNG). On 7 October 2010, he was promoted to lieutenant colonel (LTC). His Officer Record Brief (ORB) indicates his mandatory retirement date (MRD) is 31 August 2018 at age 60. 3. On 5 March 2012, the applicant was notified he had completed the required years of service and would be eligible for retired pay upon his application at age 60. 4. On 16 January 2015, USACIDC ROI Number stated that Special Agent (SA) , Headquarters, Major Procurement Fraud Unit, Quantico, VA reported that on 22 October 2008, the applicant received $5,000 in Guard Recruiting Assistance Program (G-RAP) funds for recruiting Major (MAJ) . a. The investigation determined probable cause existed to believe the applicant committed the offenses of theft and wire fraud. b. An Agents Investigation Report (AIR), dated 2 March 2015, signed by indicates he received Document and Packaging Brokers, Inc. (DOCUPAK) records and questionnaires pertaining to the nominees the applicant was compensated under the Guard Recruiting Assistance Program (G-RAP). (1) The DOCUPAK records show the applicant was paid $5,000 on 22 October 2008, for the recruitment of MAJ and he was paid $4,000 on 16 September 2010, for the recruitment of MAJ. The applicant completed the G-RAP training on 14 January 2008. (2) On 12 January 2015, SA telephonically interviewed MAJ who related he was a prior service active duty Army JAG officer who was trying to decide between the National Guard and the Army Reserves. MAJ stated that the applicant was the reason that he joined the National Guard. MAJ did not recall if he knew that the applicant had nominated him under the G-RAP nor did he recall if he gave the applicant his personally identifiable information (PII) but related he would have if asked. (3) On 14 January 2015, SA telephonically interviewed MAJ who related he was in the Army Reserves and contacted the applicant, who assisted him with transitioning from the Army Reserves to the National Guard. MAJ stated he did not know that the applicant was paid a G-RAP bonus and did not believe he had given him his PII. c. On 31 March 2015, SA I interviewed MAJ who provided a sworn statement wherein he stated he transferred from the Reserves to the CAARNG in the spring of 2008. MAJ F related he did so because he wanted to deploy and saw in a newsletter the CAARNG was getting ready to deploy to Kosovo. MAJ initiated contact with some members of the CAARNG and initiated his own transfer. Once at his unit, MAJ first line supervisor was the applicant (then a MAJ). Prior to joining the unit, MAJ had no interaction with the applicant and was not contacted by him about joining the CAARNG. d. On 31 March 2015, MAJ provided a sworn statement in which he stated that although he met and spoke with the applicant several times before entering the CAARNG, the applicant "formally" had nothing to do with his transition and "if I did provide him my PII it was not in any connection with any sort of recruitment aspect. It would have been strictly for his duties as my supervisor, and not recruitment purposes." MAJ also stated he did not think the applicant assisted with his recruitment because "other individuals were the ones who did it." e. An AIR, dated 1 June 2015, from SA, indicates the applicant's attorney LTC stated that the applicant declined to speak with the reporting agent about the allegations under investigation. f. An AIR, dated 3 June 2015, from SA , states Mr., Assistant U.S. Attorney, Northern District of California, San Francisco, CA declined to prosecute the applicant as insufficient evidence existed. g. An AIR, dated 10 August 2015, from SA, states he briefed all aspects of the investigation to Mr., Deputy District Attorney, Alameda County District Attorney's Office, Oakland, CA who declined to pursue a fraud case against the applicant as the incident exceeded the statute of limitations. h. An AIR, dated 18 August 2015, signed by SA , states he interviewed MAJ on 18 August 2015, regarding his knowledge of MAJ joining the CAARNG. (1) MAJ stated that he served as a Judge Advocate General (JAG) recruiter from about October 2007 until approximately October 2008. MAJ related he did recall bringing MAJ into CAARNG but did not recall who or how he came to him. (2) MAJ did recall that MAJ wanted to deploy to Kosovo with the CAARNG. MAJ denied that he gave MAJ PII to any person for the purpose of someone getting a G-RAP bonus. 5. On 2 October 2015, a legal opinion, dated 1 October 2015, was obtained by SA from Mr., Legal Counsel, USACIDC. Mr. concluded there was probable cause to believe the applicant committed the offense of theft (Title 18 U.S. Code section 641) (18 USC 641) arising when he worked as a Recruiting Assistant (RA) for the benefit of the CAARNG. There was also probable cause to believe he committed wire fraud (18 USC 1343). a. The G-RAP was intended to help the National Guard achieve its recruiting accessions mission and increase its number of military occupational specialty (MOS)- qualified officers and Soldiers. Unlike traditional recruiting programs that use military personnel who recruit while in an official capacity, G-RAP was executed through an Army contract awarded to a government contractor, DOCUPAK. Members of the National Guard voluntarily applied to DOCUPAK to serve as part-time "Recruiting Assistants" (RAs). DOCUPAK screened the RA applicants and made hiring decisions. While the RAs were recruiting, they were independent contractors working for DOCUPAK, not for the National Guard. b. The RAs were expected to find a potential Soldiers "from within their individual spheres of influence" such as families, friends, and neighbors. After identifying a potential Soldier, the RA was expected to become something of a mentor - extolling the benefits of service in the National Guard, encouraging the potential Soldier, and preparing him mentally, physically, and administratively for the rigors of life as a National Guardsman. c. The applicant completed G-RAP training on 14 January 2008. d. In the spring of 2008, MAJ was in an Army Reserve position with the 5045th Garrison Support Unit at Fort Sill. He wanted to deploy. He learned that the 40th Division, CAARNG was deploying to Kosovo. MAJ contacted the 40th Division Staff, LTC , and expressed his desire to deploy. LTC put MAJ in contact with a First Lieutenant and a warrant officer (no further information), who processed MAJ transfer to the CAARNG. MAJ received orders and deployed with the 40th Division, CAARNG to Kosovo. MAJ said the applicant did not initiate or facilitate his transfer to the CAARNG. MAJ said the applicant had no formal role in his transfer. He said he did not know the applicant received money for recruiting him into the National Guard until USACIDC contacted him. e. USACIDC found no evidence that the applicant did anything from 2 April 2008 to 22 October 2008 to facilitate MAJ accession into the CAARNG. There are no notes showing that the applicant set up required meetings, or monitored MAJ application, or even talked with MAJ during that time. 6. An AIR, dated 8 October 2015, from SA states he coordinated with CPT , trial attorney, Procurement Fraud Branch, who declined to pursue debarment action against the applicant. 7. On 11 February 2016, Major General (MG) issued the applicant a letter of admonition. a. In October 2015, USACIDC forwarded an investigation report to the CAARNG that related to his involvement in the G-RAP eight years ago. The report alleged the applicant wrongfully received monetary compensation for assisting with the recruitment of CPT , because the Soldier claims the applicant had no involvement with his recruitment. Although both federal and state authorities have declined to charge the applicant with theft or fraud, USACIDC found probable cause for these criminal acts. b. The applicant was hereby admonished. As a commissioned officer and judge advocate, he must ensure his conduct and performance are beyond reproach at all times. The attached USACIDC report contains information that, at a minimum, calls the applicant's motive and alleged recruiting efforts into question. MG was mindful that the basis for the USACIDC investigation occurred many years ago, and G-RAP lacked adequate management, rules, and procedures. Nonetheless, for an officer and judge advocate to be accused of these serious crimes is both troubling and disappointing. c. On 11 January 2017, MG thoroughly reviewed all matters submitted in response to the letter of admonition and directed the letter of admonition be filed in the local commander's file for a period of 2 years. 8. On 14 April 2016, the Procurement Fraud Division, Office of the Judge Advocate General issued a letter, subject: Termination of Suspension, to the applicant. The applicant was suspended from contracting with any agency of the Executive Branch of the United States Government based a Felony Complaint for Arrest Warrant filed in the Superior Court of the State of. 9. On 19 December 2016, the Procurement Fraud Division, Office of the Judge Advocate General issued a letter, subject: Termination of Suspension, to the applicant. This letter advised the applicant that, in light of the 7 December 2016 dismissal of the criminal charges against him by Judge , Superior Court, , the applicant's suspension was terminated. Accordingly, his name was removed from the System for Awards Management, as have all restrictions placed upon him in accordance with Federal Acquisition Regulation (FAR) Subpart 9.406. 10. An email, dated 1 May 2017, from U.S. Army Human Resources Command (HRC) notified the applicant that although he was recommended for promotion to COL by the Fiscal Year 2017 COL, Army National Guard of the United States, Army Promotion List, Promotion Selection Board, his name was withheld from nomination by the Secretary of the Army. a. His name was withheld based upon the Secretary of the Army's knowledge of a Department of the Army Inspector General (DAIG) oversight review that was not viewed by the respective promotion board. Until the results of the review are known, HRC initiated a Headquarters, Department of the Army (HQDA) (F) FLAG. b. If the DAIG notifies HRC the case was unsubstantiated, the HQDA F FLAG would be removed and his name would be staffed as a single name nomination for approval. c. If the DAIG notifies HRC that the case was substantiated and upon full receipt of the redacted derogatory information and the Secretary of the Army's directive to initiate a Promotion Review Board (PRB), additional notification would be made. d. This serves as the officer's notification that they are in a flagged and non- promotable status until the flag is removed by HRC. 11. On 26 May 2017, a request, with five enclosures was submitted by COL , Chief, ARNG Trial Defense Service to remove the applicant's name from the title block in all USACIDC Command Records, close all open USACIDC investigations into the applicant, and validate the HQDA Selection of the applicant for promotion to the rank of COL in the Army Judge Advocate General Corps (JAG). This request did not contain the precise date when the titling decision was made by CID in the applicant's investigation. a. The handling of the applicant's USACIDC Investigation and resulting criminal charges has been the most politically charged and unjust by the U.S. Army that he has seen in his over 20 years as a Judge Advocate including while serving in numerous Army military justice positions such as Senior Trial Counsel and Chief of Military Justice of the Fort Drum Military Installation, Chief of Military Justice of the Fort Bragg Military Installation, Deputy Staff Judge Advocate for the 82d Airborne Division, Staff Judge Advocate of the Fort Bragg Military Installation, Chief of the U.S. Army Office of The Judge Advocate General Criminal Law Division and Chief of the Army National Guard Trial Defense Service. b. The Army's errors in its treatment of the applicant should stop now. The applicant's otherwise unblemished record should be restored and the Army should benefit from the applicant's continued faithful service by promoting him to the rank of COL. There has already been substantial litigation in this case resulting in a dismissal of criminal charges and a dismissal of an Office of the Judge Advocate General (OTJAG) Debarment action which has been attached to this request for reference (see letter from Ms., dated 26 April 2017, outlining the dismissal of criminal charges by the trial courts at enclosure 1, motion to dismiss filed by Ms. with Exhibits A-Z at enclosure 2, and the OTJAG Debarment termination decision with the applicant's rebuttal at enclosure 3). c. As part of the National Guard's G-RAP program, the applicant's efforts to link potential recruits with a recruiter to meet National Guard recruiting shortfalls would be rewarded with monetary compensation meant to compensate the M-day Guard member for their time since the G-RAP activity was not performed in a duty status. If the recruiter ultimately processed the individual into the CAARNG the M-day Soldier received the compensation directly from a federal contractor named DOCUPAK. As a CAARNG Judge Advocate, the applicant directed numerous individuals within his sphere of influence to CAARNG recruiters as part of the G-RAP program. d. Of the many individuals referred by the applicant pursuant to the G-RAP program only MAJ claimed an issue with the applicant's actions regarding the G-RAP program. MAJ left the CAARNG in 2010 upon redeployment from Kosovo and has a demonstrated record of career friction with and resentments towards the applicant who was his direct supervisor on the Kosovo deployment (see page 187 of enclosure 2). MAJ claims the applicant should not have received a G-RAP bonus because although MAJ admits the applicant did assist him with transitioning from the Army Reserves to the National Guard, he does not remember giving the applicant his PII as part of the G-RAP program (see page 153 of enclosure 2). MAJ , however, caveats his lack of memory by saying that if he did give the applicant his PII, "it would have been strictly for his duties as his supervisor, and not recruitment purposes" (see pages 163 and 164 of enclosure 2). However, the applicant was not MAJ supervisor at the time he gave the applicant his driver's license number, social security, and other identifying information in April 2008 because MAJ was not yet in the CAARNG nor was MAJ yet in touch with a CAARNG recruiter (see pages 199-202 of enclosure 2). In fact, MAJ admits to meeting with the applicant in person in June of 2008 and speaking on the phone with him prior to that regarding coming into the CAARNG, but MAJ didn't enter the CAARNG until September 2008 (see pages 181 and 202 of enclosure 2). e. The applicant assisted MAJ with coming into the CAARNG, but MAJ erroneously thinks he either did not give his PII to the applicant or if he did, he erroneously believes it was as his supervisor. It is disturbing that USACIDC would make a probable cause determination based upon the subjective interpretation of MAJ as to how much the applicant helped him and MAJ erroneous belief the applicant was his supervisor at a time when MAJ was not even in the CAARNG yet. MAJ subjective beliefs are not what matter. The evidence is what matters, and it is severely lacking. The G-RAP requirement for the applicant to successfully participate in the G-RAP program was for him to make referrals through the G-RAP online system to recruiters so that the recruiters could bring referred persons into the CAARNG. All evidence shows that this is what happened with MAJ . MAJ, the Judge Advocate recruiter who brought MAJ into the CAARNG, says he did not give MAJ PII to anyone, including the applicant (see page 189 of enclosure 2). Where did the applicant obtain MAJ social security number, height, weight, home address, and driver's license number from in April 2008 if he did not get the information from the recruiter? With an unblemished record as a Judge Advocate, shouldn't USACIDC have assumed the applicant obtained MAJ PII from MAJ ? Is it surprising that when asked about actions from nearly 8 years prior, MAJ does not have a good recollection as to the specifics of giving his PII to the applicant? No reasonable finder of fact would believe that MAJ failing memory from events 8 years prior is sufficient evidence of fraud or theft. f. Based on a review of USACIDC's investigation, the Assistant U.S. Attorney with jurisdiction in the State of California refused to prosecute the case due to insufficient evidence (see page 27 of enclosure 2). The applicable county District Attorney Office refused to prosecute citing the running of the statute of limitations (see page 29 of enclosure 2) and the applicable trial attorney from the OTJAG Procurement Fraud Branch refused to pursue a debarment action based on the underlying evidence in the applicant's case (see page 167 of enclosure 2). When no U.S. Attorney or Command Judge Advocate would give a probable cause determination to the USACIDC SA investigating the case, a SA specifically appointed as part of a G-RAP task force known as Task Force Raptor (TFR) obtained a probable cause determination from USACIDC command's in-house administrative law attorney Mr. (See legal opinion of Mr. at enclosure 4). g. When no U.S. Attorney or District Attorney office who had jurisdiction would prosecute the case, the USACIDC SA shipped the case to a Special Attorney General (AG) program set up in the CAARNG by MAJ (See pages 31 and 32 of enclosure 2). MAJ has a history of negative feelings towards the applicant. In seeking approval in March 2014 from his superiors to prosecute G-RAP cases via the newly formed Special AG program, MAJ represented that he along with MAJ and MAG would review G-RAP case files and that MAJ then "would weigh in on the cases' strength" (see pages 37-42 of enclosure 2). After MAJ was suspended from JAG duties later in 2014 due to a report of unethical conduct, which MAJ erroneously believed the applicant had made, MAJ alleged in a filed declaration that "[f]or many years, [the applicant] has demonstrated personal animus toward me, an enmity displayed repeatedly over our lengthy respective Departmental Careers," and labeling the applicant a "direct professional adversary," since the applicant was often on the opposite side from MAJ in court-martial proceedings (See pages 47 and 51-52 of enclosure 2). MAJ and MAJ assisted MAJ in his response to the ethics allegations and were also adversaries in the case which formed the basis of the ethics allegations against MAJ (see pages 65-83, 87-94, 96-106, 110-135 and 141-151 of enclosure 2). MAJ was also the roommate of the applicant during their 2008-2009 Kosovo deployment and the applicant was their direct supervisor on the deployment. MAJ was upset with the applicant during the deployment causing MAJ to leave the CAARNG upon re-deployment from Kosovo and return to the USAR (See pages 163 and 187 of enclosure 2). h. It is not by accident that the only deficiency in G-RAP participation raised against the applicant was the uncorroborated, subjective statements of MAJ and the only entity willing to prosecute charges against the applicant was the program set up and managed by MAJ and his friends MAJ and MAJ. It is still unclear how MAJ was put in touch with USACIDC in the first place when the applicant was not identified in the AAA audit which identified most G-RAP transactions investigated by CID. i. On 6 April 2016, some eight years after the applicant first entered MAJ information into the G-RAP database, criminal charges of wire/identity fraud and larceny of government funds were brought in California State Court by the Special AG Program established and managed by MAJ. In the interests of justice and before a probable cause determination was made by the trial judge as part of the indictment process, the trial judge dismissed the charges brought via the Special AG program against the applicant after the judge found that the Statute of Limitations had run (see enclosure 1). It is highly unusual for a prosecution to fail to achieve a probable cause determination prior to trial, but the trial judge believed it was necessary in this case to further the interests of justice. Despite OTJAG Procurement Fraud Division's initial refusal to debar the applicant from military contracting based on the evidence, the state criminal charges triggered a debarment action by OTJAG Procurement Fraud Division. Upon reviewing the rebuttal provided by the applicant and the dismissal of the civilian criminal charges, OTJAG terminated the debarment action against the applicant (see enclosure 3). j. After the trial judge dismissed the charges against the applicant, the Special Attorneys General filed a motion to reinstate the charge with another Superior Court judge. This was essentially an appeal of the trial judge's ruling. On 30 March 2017 after review of the trial court file, written briefings, and oral arguments, the second judge denied the State's motion to reinstate the charges. Subsequent to that ruling, Ms. and Mr. , the applicant's civilian attorneys, wrote a letter to the California Department of Justice urging the government to not appeal the dismissal of charges by several California trial court judges (see enclosure 1). (1) The applicant did not make any false statements to DOCUPAK concerning his role in assisting the recruitment of MAJ , and DOCUPAK did not rely on any such false statement in dispensing to him the $5,000 for his role in MAJ recruitment. SA , along with SA the lead investigators in the case, interviewed Mr., the president of DOCUPAK. Mr. did not say that any statement entered into the applicant's RA account concerning MAJ was false, much less that DOCUPAK relied on any false statement in paying the applicant the MAJ bonus. Indeed, SA could not identify which, if any, information the applicant entered into his RA account that the prosecution alleged to be false. (2) The prosecution's principal theory of the case was that, when interviewed in January of 2015, MAJ told USACIDC investigator SA in a telephone interview that he was of the opinion that the applicant had not "recruited" him into CAARNG. Indeed, the applicant had not "recruited" MAJ , because that is not what RAs such as the applicant are expected, or even permitted, to do. Rather, they obtained the PII of candidates from the candidates and entered that information into the DOCUPAK computer. The company then forwarded that information on to professional military recruiters. MAJ subjective opinion that he did not feel that he had been "recruited" by the applicant into the CAARNG does not in any way tend to establish that the applicant made a false statement to DOCUPAK on which the company relied in paying him the MAJ bonus. (3) The other component of the state's fraud theory was that the applicant did not actually obtain MAJ PII from MAJ himself, but somehow obtained it through other means and (impliedly) informed DOCUPAK that MAJ had given him the information. But the 2 April 2008, entry by the applicant of MAJ PII contains not only the home address of MAJ in Oklahoma, but his height, weight, social security number, Oklahoma driver's license number, and even the time period that he had spent at that Oklahoma residence-four months. That information could only have been given to the applicant from MAJ prior to the computer entry. (4) At the preliminary hearing, SA testified that in a telephone interview, MAJ had told him that "if [the applicant] got his PII, it was because when he deployed he was -- he fell under his chain of command." (After joining CAARNG, MAJ was deployed to Kosovo where the applicant was his superior officer for nine months.) That was the theory of fraud that Mr. argued to Judge in support of a finding of probable cause: the defendant took advantage of his position of leadership over MAJ, took MAJ PII that he apparently had access to as his commanding officer and utilized that for the purpose of engaging in G-RAP fraud. He took PII without the permission of MAJ and utilized that to commit a fraud. (5) The record evidence proves that theory of fraud is not only without merit but patently ridiculous. The applicant was MAJ superior after MAJ had transitioned into the CAARNG, when both served on a CAARNG mission in Kosovo. The applicant entered MAJ PII into the DOCUPAK computer many months earlier on April 2, 2008, while MAJ was still in the Army Reserve in Oklahoma and months before he transferred in the CAARNG. In April of 2008, the applicant had no means of access to MAJ PII other than MAJ himself. (6) In the preliminary hearing, SA testified about events that occurred on 14 January 2015, when MAJ was called by USACIDC SA. In that interview, MAJ told SA that he contacted a COL by phone to tell him that he was looking to deploy with the CAARNG as a JAG. MAJ later spoke to the applicant who "assisted his transfer from the USAR to the CAARNG." According to SA notes, in that interview, MAJ told SA that in 2008 MAJ "was in the USAR and contacted the applicant, who assisted him in transitioning from the USAR to the CAARNG." (7) The facts conform precisely to the applicant's version of events. At the urging of COL, MAJ contacted the applicant in the spring of 2008; the applicant then took MAJ PII, and entered it into the DOCUPAK computer, thereby assisting MAJ to transition into CAARNG. There is no probable cause to support the allegation of fraud on the federal government or DOCUPAK. k. Throughout the processing of the USACIDC investigation and its resultant criminal charges, the applicant's military leadership and the Adjutant General (TAG) of California himself have stood behind the integrity and trustworthiness of the applicant. (see letter of support from the California TAG, dated 24 October 2016 at enclosure 5). In March 2017, the applicant was re-instated as the Deputy State Judge Advocate of the California National Guard and he has officially resumed that post. l. Despite the fact that the G-RAP program was instituted by the Army National Guard to meet its recruiting mission, the charges against the applicant were brought not in military court where he would be assigned a military lawyer at government expense, but in civilian court where he was left with no government provided representation. For some reason, the National Guard developed the G-RAP program to utilize Soldiers to meet their recruiting shortfalls through a contractor called DOCUPAK rather than create the G-RAP program within the official Army recruiting structure. This created a dubious program both in terms of its legality and management. Perhaps it was to quickly get the program working since there was a critical shortage of recruits during a time of combat operations with high operation tempo. Whatever the reason, the errors in the set up and management of the G-RAP program are now being held against individual Soldiers rather than erring on the side of Soldiers who provided their best efforts to support a severely flawed program instituted by the Army. The Active Component Criminal Investigation Command was determined to be the appropriate investigative agency to investigate allege G-RAP misconduct, yet the Army determined that resulting prosecutions should be in civilian court rather than through the court-martial process where government defense counsel are provided free of charge. Thus, the applicant was forced to hire a civilian attorney resulting in legal expenses of over $50,000 due to the complexity and number of motions filed in his case. m. Given the relentless pursuit of a criminal case against the applicant in the face of such weak evidence and determinations by several independent entities to not go forward with adverse action based on MAJ lack of memory, there is no doubt that the politically charged failures of GRAP as a program and the embarrassment it caused the U.S. military, influenced decisions at every step of the way in the Army's treatment of the applicant (see article from NGAUS at pages 55-63 of enclosure 2). n. The allegations against the applicant should not only have been unfounded by USACIDC, but the applicant's name should now be removed from the Title block in all USACIDC documents, and all USACIDC files on the applicant should be closed. The title decision was erroneously based on the evidence considered at the time of the title decision. The evidence considered at the title decision does not lead a reasonable person to believe that the applicant committed theft or wire fraud because it was based on the hazy recollection of a biased individual and speculation. There is no evidence of intentional or wrongful misuse of MAJ PII nor sufficient evidence that the applicant took government funds to which he knew he was not entitled. The USACIDC file remains open despite the fact that each court or administrative review of his conduct found insufficient evidence to support adverse findings and it now blocks Army action on his selection for COL by a recent DA Promotion Selection Board. o. The initial telephonic interview on 14 January 2015, by USACIDC of MAJ , states MAJ "related he was in the Army Reserves and contacted the applicant who assisted him with transitioning from the Army Reserves to the CAARNG. MAJ stated he did not know the applicant was paid a G-RAP bonus and did not believe he gave him his PII" (see page 153 of enclosure 2). p. In a later sworn statement given by MAJ on 31 March 2015, he stated that although he met and spoke with the applicant several times before entering the CAARNG, the applicant "formally" had nothing to do with his transition and "if I did provide him my PII it was not in any connection with any sort of recruitment aspect. It would have been strictly for his duties as my supervisor, and not recruitment purposes" (see pages 163 and 164 of enclosure 2). This statement is disingenuous and misleading on MAJ part because during the referenced period of time, MAJ was not yet in the CAARNG so the applicant could not have had access to his PII as his supervisor. In fact, MAJ admits to meeting with the applicant in person in June of 2008 and speaking on the phone with him prior to that regarding coming into the CAARNG, but MAJ didn't enter the CAARNG until September 2008 (see pages 181 and 202 of enclosure 2). MAJ went on in his 31 March 2015 statement to say he did not think the applicant assisted with his recruitment because "other individuals were the ones who did it" (see pages 181 and 182 of enclosure 2). This statement is also misleading because the JAG recruiter in California at the time and would have worked with individuals after initial identification by a G-RAP recruiting assistant (RA). In this case, the DOCUPAK record itself shows that the RA was the applicant. USACIDC then conducted an attempted rehabilitative interview of MAJ on 21 March 2016, where MAJ makes subjective conclusions that the applicant did not "recruit" him into the CAARNG, but "recruiting" MAJ was not the applicant's duty under the GRAP program, it was to enter MAJ information into the G-RAP system, answer his questions and put him in touch with a formal recruiter who would perform the actual "recruitment" in the CAARNG (see pages 213-14 of enclosure 2). q. What is not mentioned in the USACIDC investigation is that per the design of the G-RAP program, once a recruit's information was entered into the G-RAP database, the information was provided to the appropriate recruiter so that the recruiter could pick up the recruit and bring them into the military service. That is why the recruiter did not recall how MAJ came to him but that he was sure that he did not give MAJ PII to anyone. Per design, the RA was paid for getting the recruit from their "spheres of influence" into the G-RAP database so that the official recruiter could take over and assist with the actual transition to military service. (See page 1 of enclosure 4). The witness testimony showed a proper functioning of the GRAP program. The applicant answered MAJ questions and helped him to the next step of the recruiting process, into the G-RAP system and linking him up with an actual recruiter. r. In its legal opinion finding probable cause, USACIDC Office of the Staff Judge Advocate (OSJA) used as evidence to show the applicant did not assist MAJ into the CAARNG the purported lack of RA notes entered by the applicant in the G-RAP database related to MAJ as opposed to the purported RA notes entered into the database by the applicant for another recruit named MAJ. Thus, according to USACIDC OSJA's analysis, the applicant entered notes for one of his recruits showing his efforts, but because he entered no notes for MAJ , this shows that he did nothing to bring MAJ into the CAARNG. USACIDC OSJA misunderstood the evidence in that: (1) The document entitled "RA Overview Nominations Tab" in the USACIDC investigation shows that the applicant had 12 nominations of individuals from 2006-2012 (see page 197 of enclosure 2). The document entitled "RA Overview Notes Tab" in the CID investigation is DOCUPAK entered information capturing the status of the applicant's potential recruits from 2006-2012 (see pages 194- 195 of enclosure 2). It mentions only some of the recruits and is clearly incomplete in that is does not record all of the efforts the applicant made for his 12 potential recruits. The documents entitled "RA Overview RA Notes Tab" in the CID investigation is information entered by the applicant for his potential recruits (see pages 201 and 206-208 of enclosure 2). Again, this information is incomplete in that there are no "RA Overview RA Notes Tab" entries for any period of his recruits other than initial entries for MAJ dated 2 April 2008 and the 2010 notes for MAJ. The fact that Docupak did not produce records that show detailed actions for many of the applicant's potential recruits, including MAJ, is not sufficient evidence to conclude that the applicant took no actions related to MAJ or the other potential recruits. (2) The only information provided by DOCUPAK in the USACIDC investigation relating to MAJ recruitment are the documents entitled " Notes for Mr. and "Nomination Overview" dated 2 April 2008 (see pages 199 and 201 of enclosure 2). This was the initial entry by the applicant of MAJ information as a recruit into the G-RAP databases. This information would have been provided to the recruiter after its entry into the G-RAP system by the applicant so that then-First Lieutenant (1LT) could follow up with the recruit. The initial entry by the applicant shows that he had been speaking with the recruit for less than two weeks and that he entered MAJ driver's license number, home address, and social security number among other information that would have been provided to then- 1LT. This initial entry on 2 April 2008 is shown in the Nomination Overview screenshot which is consistent with 1LT statements in his USACIDC interview. MAJ unequivocally says he did not give any of MAJ PII to the applicant. (3) Finally, USACIDC OSJA's legal opinion states that "other than answering the above questions [referring to the 2 April 2008 initial entry of MAJ by the applicant into the GRAP database], USACIDC found no evidence that the applicant did anything from 2 April 2008 to 22 October 2008 to facilitate MAJ accession into the CAARNG (See para 5e of page 3 of enclosure 4). This conclusion that formed the basis of the USACIDC "founding" decision is contradicted by the 31 March 2015 sworn statement by MAJ that states that the first meeting with the applicant was in June 2008 in civilian clothes and that several other conversations occurred via telephone during that time and that "we might have had conversations about the unit structure, mission, and personnel" (see page 181 of enclosure 2). It is also contradicted by the 14 January 2015 USACIDC interview of MAJ wherein MAJ "related he was in the Army Reserves and contacted [the applicant] who assisted him with transitioning from the Army Reserves to the National Guard" (see page 153 of enclosure 2). s. Because the evidence considered at the time of the title decision does not amount to theft or wire fraud due to insufficient evidence of intentional or wrongful misuse of MAJ PII nor sufficient evidence that the applicant took government funds to which he knew he was not entitled, the applicant's name should be removed from the titling block in all USACIDC records. If the applicant's name is not removed from the title block, his case should be changed to "unfounded" rather than "founded." The USACIDC file should also be closed immediately so that the applicant's selection by the recent HQDA 06 Promotion Selection Board can be processed. Finally, because the applicant has an unblemished record of outstanding performance and potential, his selection to COL should be validated and sent to the Secretary of the Army for approval immediately. 12. The applicant's name appears on the Fiscal Year 2017, Reserve Component, COL, Army Promotion List Selection Board Released, dated 27 April 2017, in the Non-Active Guard Reserve and Army National Guard competitive categories. 13. On 27 May 2017, MG , Adjutant General for the State of California, submitted a memorandum to the Director of Military Personnel Management (DMPM) and USACIDC, subject: Request to Promote [the applicant] and Remove Name from Title Block. a. MG has known the applicant for many years and his conduct prior to and since the GRAP matter at issue has been exemplary. b. MG requested that the applicant's selection by the December 2016 HQDA O6 Reserve Components Army Promotion Selection Board be approved and forwarded to Congress for confirmation and that the applicant's name be removed from the title block of all USACIDC documents and applicable criminal databases. MG restored applicant to the position of Deputy State Judge Advocate and asks that the applicant be enabled to continue his military service as a COL. c. When the GRAP recruit (MAJ) was asked nearly 7 years after coming into the CAARNG what role the applicant played regarding his entry 7 years earlier, the officer told investigators that he "contacted [the applicant] who assisted him with transitioning from the Army Reserves to the National Guard." The officer also told investigators that he could not recall giving the applicant his PII but said "if I did it was not in any connection with any sort of recruitment aspect. It would have been strictly for his duties as my supervisor, and not recruitment purposes." However, MAJ statement does not make sense because the applicant was not MAJ "recruiter" but only an assistant to get MAJ to an official recruiter and also the applicant was not MAJ supervisor until October/November 2008 when MAJ entered the CAARNG. MAJ admits to meeting the applicant in person in June 2008 and he admits to several other phone conversations with the applicant about "unit structure, mission, and personnel" before entering the CAARNG in late 2008. d. This investigation was based entirely on weak and contradictory recollections regarding an event that occurred 7 years prior. MG found that there is simply not credible information or reasonable grounds to believe that the applicant committed the offenses of theft and wire fraud. MG review, and the applicant's exemplary character and impeccable integrity cause him to believe that in fact the applicant acted completely and consistently with the G-RAP requirements. Upon review, the Assistant U.S. Attorney (AUSA) with jurisdiction over the case and OTJAG Procurement Fraud Division came to similar conclusions. The AUSA refused to prosecute due to insufficient evidence and OTJAG Procurement Fraud withdrew debarment proceedings. Further, the local District Attorney office also refused to prosecute the case due to its age. After the above legal history, two military prosecutors who opposed the applicant as defense counsel in a previous contentious case were able to get themselves appointed as Special Attorneys General. These two prosecutors filed charges which were dismissed prior to any probable cause determination being made. e. The evidence simply does not support the USACIDC Investigator's findings. It appears that the applicant appropriately assisted an officer into the CAARNG under a hastily put together program at a time when the National Guard needed officers for contingency operations. Now an officer's lack of memory from an event 7 years prior is potentially stalling an excellent officer's career. MG B reviewed the request from the applicant's military attorney, dated 26 May 2017, and he fully supports it. MG B asks that the applicant's name be removed from the title block in all USACIDC records pertaining to his G-RAP investigation and that the applicant be promoted to the next rank. 14. On 16 June 2017, the U.S. Army Inspector General Agency (USAIGA) notified the applicant that the inquiry into three complaints against him for violation of the Whistleblower Protection Act were dismissed. The case was closed and the applicant's name was removed as a suspect in the IG database. 15. A memorandum, dated 19 June 2017, to the U.S. Army Crime Records Center from the 701st Military Police Group (CID) stated a request had been received concerning USACIDC Law Enforcement Report (LER). a. Department of Defense Instruction (DODI) 5505.07 provides the guidelines for titling and indexing a subject in an investigation conducted by any Defense Criminal Investigative Organization and other DOD law enforcement organizations. b. It was determined the information acquired during the LER met the threshold of credible information pertaining to the applicant. c. Based on the guidelines provided by DODI 5505.07, it was recommended that the applicant should not be removed as a subject for USACIDC. 16. On 21 June 2017, the Chief, Investigative Operations (CIO), USACIDC conducted a review of to determine if the credible information standard was correctly applied when the applicant was indexed as a subject for the offense of wire fraud. The CIO stated the following: a. The applicant was titled for the offense of wire fraud in a Major Procurement Fraud Unit (MPFU) CID Sacramento Office Initial Law Enforcement Report dated 3 March 2015. MPFU had received a TFR headquarters cell request for investigation (RFI) dated 30 January 15. The TFR headquarters cell conducted telephonic interviews of potential Soldiers (PSs), and reviewed DOCUPAK and Interactive Personnel Electronic Records Management System (iPERMS) data. One PS telephonically interviewed by TFR stated that he was a JAG officer in the USAR and became aware that the CAARNG was looking for a JAG officer to deploy to Kosovo. The PS said he contacted the CAARNG COL in charge of the Kosovo mission and volunteered for the deployment. The PS added that after he volunteered for the Kosovo mission, he was telephonically contacted by the applicant. The PS stated that the applicant did not identify himself as a DOCUPAK G-RAP recruiting assistant, and he did not provide the applicant his PII to be used for G-RAP. b. The RFI further provided DOCUPAK information reporting that the applicant's recruiting assistance account was disabled on 15 Mar 12, pending a CID inquiry. TFR analysis of the applicant's recruiting assistant DOCUPAK internet protocol activity data indicated that he utilized a government domain resource to access G-RAP to submit his nominations, and analysis of iPERMS records disclosed the applicant was in charge of the CAARNG Office of the Staff Judge Advocate's Recruiting Program between 2009- 2011, both of which were in violation of G-RAP policy and contract specifications. c. Based on these observations, the CIO believe that at the time of the initial report on 3 March 2015, there was credible information to establish a crime occurred and that the applicant committed it. d. On 1 October 2016, the Attorney Advisor, 701st Military Police Group, USACIDC, opined probable cause existed to believe the applicant committed the offenses of theft and wire fraud. e. Based on the preponderance of evidence, it was the CIO's opinion the threshold for credible information was met at the time of the initial report. Further, the CIO opined that probable cause existed to believe the applicant committed the offenses of theft and wire fraud. f. The CIO recommended the applicant remain in the title block and founded in the investigation. 17. On 22 June 2017, an attorney-advisor, USACIDC conducted a review of CID LER and appeal. He found there was no basis for granting the applicant's request for an amendment. There is credible information to support the titling decision. a. In accordance with DODI 5505.7, Titling and Indexing Subjects of Criminal Investigations in the Department of Defense, January 27, 2012, a person is titled as a subject in the LER when there is credible information to believe that person may have committed the crime. Credible information is defined as "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 in question are true." The attorney-advisor found that this standard had been met. b. Based on his review of the LER, the attorney-advisor found that the credible evidence did exist to title him for both offenses and the LER contains sufficient evidence to support the titling decision. In addition, he found that there was probable cause to believe the applicant committed wire fraud and theft. c. In accordance with DODI 5505.7 and Army Regulation 195-2 (Criminal Investigations Activities) once a subject is titled, requests to amend offenses LERs will only be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name was entered as a result of mistaken identity. Neither of these two reasons exists. Credible information existed to believe that the applicant committed the offenses he was titled for and the wrong person's name was not entered into the title block as a result of mistaken identity. No new, relevant or material facts were submitted in the appeal to warrant revision of the titling determination. 18. On 23 June 2017, a memorandum for the Director, U.S. Army Crime Records Center was submitted. On the copy provided by the applicant the signature block was redacted. It was the opinion of the individual submitting the memorandum that: * credible information existed to title the applicant as a subject of the investigation in the initial LER, dated 3 March 2015 * probable cause existed to believe the applicant committed the offenses cited in the final LER, dated 1 May 2017 * recommended the ROI remain unchanged 19. On 6 July 2017, USACIDC provided a response to the applicant's request to correct information from the files of USACIDC. After careful review and consideration of the applicant's request and the evidence available, on behalf of MG , USACIDC, the Access and Amendment Refusal Authority for USACIDC records, and in accordance with Army Regulation 195-2, the applicant's request to correct Law Enforcement Report (LER) was denied. This denial constituted final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2. 20. On 11 July 2017, COL , submitted a memorandum for record. COL was the full time AGR Staff Judge Advocate for California during the period of 2005 through 2013. In 2005, he was the full time Deputy State Staff Judge Advocate as a LTC. He took over as the full time State Staff Judge Advocate in 2009 and was promoted to Colonel. He was primarily responsible for the delivery of legal services to the CAARNG during this period. a. COL encouraged several officers to participate in G-RAP, and had a general understanding that they were using it appropriately. He was also willing to acknowledge and investigate when it came to light in 2011-2012 that the program was potentially misused. b. COL had no reason to believe that the applicant misused the program and still does not have any such reason. As best he can tell the actions taken by USACIDC in 2015 against the applicant were based on information that USACIDC (and COL) had already seen in 2012, and the information had shown no evidence of misuse. c. COL D was surprised that USACIDC never called him to make a statement or answer any questions about the applicant's involvement in G-RAP, how the G-RAP program in California worked in general, or about California's critical need for personnel back then which resulted in JAs being encouraged to participate in the G-RAP program. d. The applicant was tasked with attempting to recruit MAJ into the CAARNG since he was already part of G-RAP. The applicant told MAJ that he would need to join the CAARNG to deploy to Kosovo. MAJ agreed to recruit in and was entered into the G- RAP system by the applicant. The applicant did nothing to hide the fact that he was putting MAJ into the G-RAP system. In fact, COL encouraged several of his officers, including the applicant, to use G-RAP to bring in Soldiers to the CAARNG prior to the deployment because they were so short of personnel. e. COL is intimately familiar with all aspects of the multiple investigations into the CAARNG for Incentives Fraud cases and GRAP. COL personally met with the AUSA in the Central District of CA to get the cases prosecuted before Task Force (TF) Raptor existed. As to the conduct of Judge Advocates in the CAARNG regarding incentives and G-RAP, we twice had an outside person review our actions (COL, USAR) to ensure full transparency. Again, COL has not been interviewed and he is a relevant witness. He should have been at least consulted before any Titling action was done. 21. On 24 July 2017, LTC, Ethics Attorney, NGB issued a memorandum to the applicant, subject: Close-Out of Allegation of Professional Misconduct. a. The applicant was facing allegations of grand theft and identity theft as a result of a USACIDC investigation pertained to the professional conduct of lawyers. The NGB Chief Counsel, BG, as the Senior Supervisory Judge Advocate, reviewed the allegation in accordance with Army Regulation 27-1 (Judge Advocate Legal Services). b. BG determined that the allegations of violations of Professional Responsibility were not supported by credible evidence and did not raise a substantial question as to the applicants honesty, trustworthiness, or fitness as a lawyer. He has decided to close the applicant's case with no further action. 22. On 28 August 2017, MG withdrew his Letter of Admonition, dated 11 February 2016 effective the date of issuance. Upon review of the original investigation that was the basis of the administrative letter of admonition dated 11 February 2016; of the adjudicative decision of the Chief Counsel, National Guard Bureau, the promotion recommendation of The Adjutant General, and the known facts and circumstances of the matter, MG was no longer convinced that the basis for the letter of admonition, namely, that the applicant's motives were called into question and that CID titled him with an offense, warranted the action taken. 23. On 27 September 2017, MG submitted a second memorandum to USACIDC concerning unfound offenses attributed to the applicant and removal of his name from the title block. MG submitted supplemental new, relevant, and material facts in support of the applicant's request for relief, that be revised to unfound the offenses attributed to the applicant and delete his name from the title block. Upon completion of these actions, immediately notify HRC Officer Promotion Special Actions Branch, so they can complete processing the promotion of the applicant. a. In MG B's 27 May 2017 memorandum, he provided information that showed that credible information did not exist to believe that the applicant committed the alleged GRAP related offenses for which he was titled. Over these past months compelling evidence has continued to accumulate that the information relied upon was incomplete and erroneous. Since his initial memorandum, the following individuals have prepared additional records that further lead to this conclusion: (1) A Memorandum for Record, dated 1 July 2017, from COL (enclosure 2), showing that the applicant acted in complete good faith when he assisted MAJ in joining the CAARNG in 2008, and that the applicant had every reason to believe he was lawfully complying with the requirements of the G-RAP program. (2) A Memorandum, dated 24 July 2017, from LTC , Ethics Attorney, NGB Office of the Chief Counsel, in her capacity as professional conduct inquiry officer, detailing the NGB Chief Counsel's conclusion that the allegations of grand theft and identity theft were not supported by credible evidence and did not raise a substantial question as to the applicant's honesty, trustworthiness, or fitness as a lawyer. (3) Memorandum, dated 28 August 2017, from MG , Commander, CAARNG finding insufficient evidence to believe that G-RAP related offenses occurred and withdrawing a previously issued local letter of admonition. b. The additional information shows that the applicant's request for relief is warranted. The applicant is less than 11 months away from his Mandatory Removal Date at age 60. Without immediate completion of ClD's action to amend this report, he risks losing his well-deserved promotion. 24. In a memorandum, dated 7 October 2017, the applicant's attorney COL, requests the ABCMR remove the applicant's name from the title block in all USACIDC records, validate the December 2016 HQDA Selection of the applicant for promotion to the rank of COL, and adjust the applicant's date of rank or extend his Mandatory Retirement Date (MRD) to ensure he is not denied the opportunity to retire as an COL. If the ABCMR denies the applicant's request to remove his name from the title block of all CID records, COL asks the ABCMR to change all allegations of misconduct from "Founded" to "Unfounded." a. In January 2015, the USACIDC opened a criminal investigation into allegations that the applicant committed grand theft and identity theft when he assisted MAJ into the CAARNG in 2008 and was paid $5,000 under the G-RAP for such assistance. The CID investigation resulted in a "Founded" decision for grand theft and identity theft in October 2015. No further investigative activity occurred after October 2015. b. Based on the CID investigation, the CAARNG issued a locally filed letter of admonition to the applicant because the "CID report contains information that, at a minimum, call[ed] [the applicant's] motive and alleged recruiting efforts into question." After an additional review of the evidence, the applicant's local letter of admonition was rescinded .The applicant's Commanding General gave him a top block OER prior to the December 2016 HQDA Promotion Selection Board and reinstated the applicant to the position of Deputy State Judge Advocate, California National Guard. 25. On 7 February 2018, BG R, Chief Counsel, National Guard Bureau (NGB) submitted a memorandum to the President of the Promotion Review Board (PRB). a. In February 2016, his office was informed that the applicant faced allegations of grand theft and identity theft as a result of a CID investigation into his participation in the G-RAP. As the Senior Supervisory Judge Advocate in the National Guard, BG directed his staff to conduct a professional responsibility review of the aforementioned allegations, which was completed on 21 July 2017, and the applicant was notified on 24 July 2017. b. BG concluded that the allegations against the applicant were not supported by credible evidence and did not raise a substantial question as to his honesty, trustworthiness, or fitness as a lawyer and closed the case with no adverse or disciplinary action. BG considered the applicant's past character and the senior supervisory judge advocate in the California Army National Guard's assessment of the applicant. BG determined that the applicant remained mentally, morally and professionally qualified to serve in the Army National Guard Judge Advocate General's Corps. This decision was coordinated with the Office of the Judge Advocate General, Professional Responsibility Branch. 26. On 15 February 2018, General , USAF, Chief, NGB submitted a memorandum to the President of the PRB. a. General reviewed the delay of promotion and referral to a PRB memorandum, dated 27 December 2017, and the supporting documents to that memo. He also reviewed the applicant's rebuttal to the PRB and two memorandums in support of him signed by MG , the California Adjutant General, dated 27 May 2017 and 27 September 2017. b. After discussing this matter with his Chief Counsel, General believed that the applicant's conduct in regards to the G-RAP program should not disqualify him from meeting the exemplary conduct standard required for promotion to COL. Absent some other disqualifying reason, he should remain on the promotion selection list. 27. A memorandum from HRC, Secretariat for the Department of the Army Selection Boards, dated 3 May 2018, shows that on 2 May 2018, a Promotion Review Board (PRB) convened to consider the applicant's promotion to COL. The memorandum states the applicant was referred to the PRB as a result of adverse information discovered during promotion post-board screening. An investigation was initiated against the applicant; however, the case was dismissed due to Statute of Limitations and he was issued a Letter of Admonition. The PRB, after reviewing the applicant's overall record, a majority of the members of the board recommended his retention on the Fiscal Year 2017 (FY17) COL, Army National Guard of the United States (ARNGUS), Army Promotion List (APL). 28. Orders issued by the CAARNG on 8 August 2018, directed the applicant's separation from the ARNG and his transferred to the U.S. Army Reserve Control Group (The Retired Reserve) effective 31 August 2018. 29. A Department of the Army, Deputy Chief of Staff, G-1, Staffing and Approval Record, shows the applicant was recommended for promotion to COL by the FY17, ARNGUS, APL, PRB. He was withheld from the nomination scroll pending review of adverse information. A PRB convened and recommended retaining him; however, his nomination was not confirmed by the Senate before his Promotion Eligibility Period expiration on 1 October 2018. Therefore, pursuant to Title 10, U.S. Code, section 14310(c), he must be removed from the recommended promotion list. 30. On 21 February 2019, the Secretary of the Army directed the applicant's removal from the FY17 COL, ARNGUS, recommended promotion list pursuant to Title 10, U.S. Code, section 14310. BOARD DISCUSSION: The Board carefully considered the applicant’s contentions and evidence regarding his requests for removing his name from the USACIDC ROI, giving official notice to other federal agencies of his name removal or “unfounding” of the USACIDC ROI, correcting the record to show that all DA reviews and approvals were deemed favorable for promotion to COL/O-6, submitting his corrected records for Senate review and action, adjusting his DOR to 26 April 2017, and extending his MRD to allow him to serve as an O-6 in the ARNG for at least 181 days and found insufficient evidence to grant relief. 1. Regarding the applicant’s request to remove his name from the USACIDC ROI, the Board found insufficient evidence of error or injustice in the titling action for the following reasons: a. As noted in DoDI 5505.07 (27 January 2012), "titling" is the term used to describe the process that occurs when the name and identifying information of a person is placed in the title of block of an investigative report (or in this case a CID ROI). "Titling" occurs when an "investigation determines that credible information exits that the subject committed a criminal offense." "Credible information" is defined as "[i]nformation disclosed or obtained by a criminal investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained criminal investigator to presume that the fact or facts in question are true." b. DoDI 5505.07 (27 January 2012) states that "titling" is an administrative procedure and the fact that an individual is titled does not "connote any degree of guilt or innocence." Furthermore, “adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled...due to a criminal investigation." The fact that an individual may later be found to be innocent of the offense(s) under investigation does not, with two exceptions, allow the individual to seek the removal of their name from the title block. c. The two exceptions which would allow an individual to later have their name removed from the title block of a CID ROI are as follows: (1) mistaken identity; and (2) when "[i]t is later determined that a mistake was made at the time of titling and indexing, and no credible information indicating that the subject committed a crime existed." See DoDI 5505.07, paragraph 4.b. (27 January 2012); see also AR 195- 2, paragraph 4-4b. Notably, "[w]hen reviewing the appropriateness of a titling…decision, the reviewing official shall consider the investigative information available at the time the initial titling ...decision was made...." See DoDI 5505.07, paragraph 6.c. d. On 26 May 2017, the Applicant (through counsel) made a formal amendment request to CID (pursuant to AR 195-2, paragraph 4-4b. and 4-4c.) to have his name removed from the title block of CID ROI 00005-2015-CID266-50400 (amendment request). In that request, the Applicant did not identify the precise date when the titling decision was made by ClD in the Applicant's investigation. As was noted above, this piece of information (i.e., the date of the titling decision) is critical because any request to CID to have one's name removed from the title block of an investigation requires ClD to evaluate the request by reviewing the investigative information/evidence that was available "at the time" of the titling decision in order to determine whether there actually was a lack of "credible information" at that specific point in time. e. The titling date in the record is revealed in the documents provided by CID to the Applicant in response to the Applicant's 26 May 2017 amendment request. Specifically, two separate CID memos reveal that the titling decision was made on 3 March 2015, as part of the initial Law Enforcement Report. See 21 June 2017 memorandum from the CID Chief, Investigative Operations (name redacted); 23 June 2017 CID memorandum (author unknown). Notably, the 21 June 2017 memorandum from the CID Chief, Investigative Operations, appears to elaborate on the evidence that had been obtained prior to 3 March 2015, which supported the conclusion that "credible information" existed (as of 3 March 2015) and led to the decision to title the Applicant: [The Applicant] was titled for the offense of Wire Fraud in a MPFU CID Sacramento Office Initial Law Enforcement Report dated 03 March 2015. MPFU had received a Task Force Raptor (TFR) HQs Cell Request for Investigation (RFI) dated 30 Jan 15. The TFR HQs Cell conducted telephonic interviews of potential Soldiers (PSs), and reviewed DOCUPAK and iPERMS data. One PS telephonically interviewed by TFR stated that he was a JAG officer in the USAR and became aware that the CA ARNG was looking for a JAG officer to deploy to Kosovo. The PS said he contacted the CA ARNG COL in charge of the Kosovo mission and volunteered for the deployment. The PS added that after he volunteered for the Kosovo mission, he was telephonically contacted by [the Applicant]. The PS stated that [the Applicant] did not identify himself as a DOCUPAK G-RAP Recruiting Assistant (RA), and he did not provide [the Applicant] with his Personally Identifiable Information (PII) to be used for G-RAP. The RFI further provided DOCUPAK information reporting that [the Applicant's] RA account was disabled on 15 March 12, pending a CID inquiry. TFR analysis of [the Applicant's] RA DOCUPAK Internet Protocol (IP) Activity data indicated that he utilized a Government Domain resource to access G­ RAP to submit his nominations, and analysis of iPERMS records disclosed [the Applicant] was in charge of the CA ARNG Office of the Staff Judge Advocate's Recruiting program between 2009-2011, both of which were in violation of G-RAP policy and contract specifications. Based on these observations I believe at the time of the initial report on 03 March 2015, there was credible information to establish a crime occurred and that LTC Edwards committed it. f. The evidence that existed prior to the 3 March 2015 titling decision, included: (a) the telephonic statement of the "PS" (MAJ) to a TFR Investigator that, after volunteering to transfer from the USAR to the CA ARNG (in order to deploy), he was telephonically contacted by the Applicant, who never identified himself as a G-RAP RA and to whom the "PS" never provided his Pll2; (b) TFR analysis indicating that the Applicant "utilized a Government Domain resource... to submit [G-RAP] nominations; and (c) analysis of the Applicant's iPERMS records which reflected that the Applicant was in charge of the CA ARNG Office of the Staff Judge Advocate's Recruiting program between 2009-2011. g. The Board found that these three items of evidence constituted "credible information", as of 3 March 2015, for the purpose of titling the Applicant with the offenses of theft and wire fraud. h. The Applicant does not address this pre-3 March 2015 evidence, or its effect on the 3 March 2015 titling decision. Instead, the Applicant focuses on the evidence obtained after 3 March 2015, as indicative of the fact that no "credible information" existed to title the Applicant for the two offenses. However, per DODi 5505.07 (27 January 2012), the only relevant question is whether credible evidence existed of an offense at the time the titling decision was made (i.e., 3 March 2015). i. Additionally, the Applicant places great emphasis on his argument that the titling decision in his case was improper based on favorable decisions related to his case made by the Assistant U.S. Attorney, Northern District of (declined to pursue criminal prosecution); the Deputy District Attorney, County District Attorney's Office (declined to pursue criminal prosecution); OTJAG Procurement Fraud Branch (refused to pursue a debarment action); Dismissal of State Court charges brought by Special Attorney General Program); and the Commander, California Army National Guard (rescission of letter of admonition). However, these favorable decisions (which occurred after 3 March 2015) are irrelevant to the question of whether the 3 March 2015 titling decision was proper. See DoDI 5505.07, paragraph 4b. ("Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if the subject is found innocent of the offense under investigation, subject to the following exceptions: (1) In the case of mistaken identity... (2) It is later determined that a mistake was made at the time of titling and indexing, and no credible information indicating that the subject committed a crime existed."). j. Furthermore, because this decision comes to the ABCMR with the presumption of administrative regularity, see AR 15-185, paragraph 2-9, the Applicant's failure to identify the date of the titling decision and the Applicant's failure to offer any challenge to the evidence that existed prior to that titling decision date, the Board found no basis on which to grant his request to delete his name from the title block in ROI; the Applicant has failed to meet his burden of proving an error or injustice in the CID titling decision by a preponderance of the evidence. 2. The Board further found insufficient evidence to grant relief regarding the applicant’s remaining requests: (1) that all "founded" allegations be changed to "unfounded" in ROI; (2) his request that the Department of the Army give official notice of the removal of titling or "unfounding" to any other federal agency to which CID may have disclosed the titling and "founding" determination; (3) his request that all DA review and approvals be deemed favorably and satisfactorily completed concerning DA review of his selection for promotion to 0-6; (4) his request that all necessary and appropriate records concerning his DA selection for promotion to colonel/0-6 be submitted for Senate review and action; and (5) his date of rank or his mandatory removal date be adjusted. a. With respect to his request to change any "founded" allegations in ROI to "unfounded", none of the CID investigative records located within ABCMR case number AR20170015051 reflect a determination by any CID Special Agent that any of the offenses for which the Applicant was titled were later determined to be "founded" (or "unfounded" for that matter). Per DoDI 5505.03, enclosure 2, paragraph 7a, now prohibits CID special agents from documenting investigative conclusions, such as "founded" or "unfounded" in any investigative reports. As a result, there is no military record to correct. b. Regarding the Applicant's requests related to his promotion to O-6, per 10 USC 624c, only the President, with the approval and consent of the Senate, has the authority to appoint officers to a certain grade; the ABCMR does not have the authority to correct records by appointing officers to promotion. Although the Applicant made the FY17 RC COL Army Promotion List that was released on 27 April 2017, per regulation, he was notified by U.S. Army Human Resources Command that his name was being withheld from nomination by the Secretary of the Army (SA) due to a pending DAIG oversight review. Further inquiry by the Applicant revealed that the subject CID investigation was the reason for the withholding of the Applicant's name. Per regulation, any Soldier under investigation is flagged while undergoing an investigation and upon referral to a PRB. The applicants CID investigation, under ROI, was closed on 1 May 2017 when the Final Report was issued. The record reflects that in 2018 the Applicant's case was heard by a PRB. The PRB rendered its decision in May 2018 and recommended that the SA retain the applicant on the FY 2017 promotion list. Per law, the applicant’s promotion eligibility period (PEP) expired on 1 October 2018, 18 months after the month applicant’s promotion list was approved (April 2017). Per regulation, the SA, as delegated by the President, may accept or decline the PRB’s recommendation. Also, per law, the SA must remove an officer from the promotion list if the PEP expires before the Senate confirms/approves the promotion. The SA removed the applicant from the FY 2017 promotion list after the Senate failed to confirm and approve the applicant’s promotion at the end of the PEP. Therefore, the Board found no error, inequity, or injustice regarding the applicant’s case. 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. DODI 5505.07 states "titling is the term used to describe the process that occurs when the name and identifying information of a person is place in the title block of an investigative report (in this case a CID ROI). "Titling" occurs when an investigation determines that credible information exits that the subject committed a criminal offense. a. Defense criminal investigative organizations (DCIOs) and other DOD law enforcement organizations that conduct criminal investigations shall place the names and identifying information of people under criminal investigation in the title blocks of investigative reports. (1) All names of individual subjects of criminal investigations by DOD organizations shall be listed in the Defense Central Index of Investigations (DCII). (2) This Instruction does not preclude the titling and indexing of victims or incidentals associated with criminal investigations. (3) Titling and indexing in the DCII shall be done as soon as the investigation determines that credible information exists that the subject committed a criminal offense. (4) The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence. b. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if the subject is found innocent of the offense under investigation, subject to the following exceptions: (1) In the case of mistaken identity; i.e., the wrong person’s name was placed in the report of investigation as a subject or entered into the DCII. (2) It is later determined that a mistake was made at the time of titling and indexing, and no credible information indicating that the subject committed a crime existed. c. Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled or indexed due to a criminal investigation. 2. Army Regulation 195-2 (Criminal Investigation Activities) provides that individuals listed in the title block of reports of investigation who have no action taken against them will be notified that their name will remain in the title block of the report and that the report will be indexed. This regulation also requires that such individuals be informed of the purposes for which the reports are used and the fact that such use may have an impact upon their military or civilian careers. 3. 10 USC 624(c) (Promotions: how made) states that appointments to promotion for advancement to the rank/grade of CPT/O-3 or above, shall be made by the President, by and with the advice and consent of the Senate. 4. 10 USC 629 (Removal from a list of officers recommended for promotion) (a) Removal by President. The President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter. (b) Removal Due to Senate Not Giving Advice and Consent. If, after consideration of a list of officers approved for promotion by the President to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Senate, the Senate does not give its advice and consent to the appointment of an officer whose name is on the list, that officer's name shall be removed from the list. (c) Removal After 18 Months.- (1) If an officer whose name is on a list of officers approved for promotion under section 624(a) of this title to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Senate is not appointed to that grade under such section during the officer's promotion eligibility period, the officer's name shall be removed from the list unless as of the end of such period the Senate has given its advice and consent to the appointment. (2) Before the end of the promotion eligibility period with respect to an officer under paragraph (1), the President may extend that period for purposes of paragraph (1) by an additional 12 months. (3) Paragraph (1) does not apply when the military department concerned is not able to obtain and provide to the Senate the information the Senate requires to give its advice and consent to the appointment concerned because that information is under the control of a department or agency of the Federal Government other than the Department of Defense. (4) In this subsection, the term "promotion eligibility period" means, with respect to an officer whose name is on a list of officers approved for promotion under section 624(a) of this title to a grade for which appointment is required by section 624(c) of this title to be made by and with the advice and consent of the Senate, the period beginning on the date on which the list is so approved and ending on the first day of the eighteenth month following the month during which the list is so approved 5. Army Regulation 600-8-29 (Officer Promotions). Chapter 8 (Promotion Board Reviews) provides regulatory procedures and guidelines for conducting PRBs. a. Paragraphr 8-1b states that the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (10 USC 629(a)). This authority has been delegated to the Secretary of the Army (SA). PRBs are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. b. Paragraph 8-1c states that, if, after consideration of a list of officers approved for promotion by the President and requiring confirmation by the Senate, the Senate does not give its advice and consent to the promotion of any officer whose name is on the promotion list, his or her name will be removed from the list. The provisions of 10 USC 629(c) govern subsequent treatment of officers so removed. c. Paragraph 8-2 states that a post-board screening will be conducted for officers selected for promotion to COL. A board will review any adverse information in other official files, for example, those maintained by the Criminal Investigation Command and the DAIG, including the restricted portion of the official military personnel file (OMPF) (R-fiche). These files are screened to ensure that officers who have engaged in conduct that would warrant their non-selection for promotion, if known by the original selection board, are not promoted. The files of those officers, along with the derogatory information, may be presented to a PRB to reevaluate the recommendation for promotion to COL. The officers concerned will be notified and offered an opportunity to respond to the board. d. Paragraph 8-2d states that For officers selected for promotion to colonel, HQDA will conduct a post-board screening of the restricted fiche of recommended officers and information in other official files such as those maintained by the Criminal Investigative Command and the DA Inspector General. A review board convened at HQDA will consider any adverse information from this screening and advise the DCS, G-1, or the DCS, G-1’s designee, whether the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation, such that either the SA should consider recommending removal of the officer’s name from the report of the selection board or the officer should be referred to a PRB. e. Paragraph 8-8c states that The PRB’s recommendation is only advisory to the SA. In cases involving promotion to the grade of colonel or below, the board’s report will be forwarded to the SA who, on behalf of the President, may remove from the promotion list the name of the officer, in a grade above second lieutenant, retain the officer on the promotion list, return the report to the DCS, G-1, or direct other appropriate action. ABCMR Record of Proceedings (cont) AR20170015051 26 1