ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20170015911 APPLICANT REQUESTS: a. expungement of the two charges shown on his DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) and Army Law Enforcement Reporting and Tracking System (ALERTS) profile (Case 00564-2014-MPCXXX (Offense of Rape), dated 23 December 2013, and Case 00564-2014-MPCXXX (Offense of Sexual Assault), dated 24 April 2014; or b. removal of his name from titling and amendment of the subject to "Person's Related" or "Person of Interest" if his request for expungement is denied; or c. waiver of or exemption from the specified time period if his request for expungement and removal of titling are denied and the charges are required to remain in his permanent records for a specified time period. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter, dated 9 August 2017 * U.S, Passport * U.S. Army Criminal investigation Command (CID), Yongsan CID Office, Final Report of Investigation (ROI), dated 18 November 2014 * DA Form 4833, dated 31 July 2015 * Three Letters, CID, dated 31 March 2017, 22 June 2017, and 26 June 2017 * Installation Management Command (IMCOM) Form 24 (IMCOM Installation Record Check Background Check Request), dated 25 April 2017 * ALERTS Name Check Results * Six DA Forms 67-9 (Officer Evaluation Report) covering the period 6 March 2008 through 31 January 2015 * Officer Record Brief, dated 26 August 2015 * Three Letters, dated 10 September 2015, 22 September 2015, and undated * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. a. Paragraph 4-2c(1) states the Commanding General, CID, will establish policies and procedures for the transmittal and maintenance of CID investigative records and reports; recommend to Department of the Army, Army Records Management and Declassification Agency standards for the retention of this material; direct the conduct of special studies and research utilizing data contained therein; and determine the release ability of information in these files. b. Paragraph 4-4b (Amendment of CID Reports) provides that: (1) Requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. (2) The burden of proof to substantiate the request rests with the individual. (3) Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. (4) The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. (5) The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. FACTS: 1. The applicant states both investigation findings were unfounded and assigned a survey code of "insufficient evidence" in ALERTS. a. He acknowledged that being in a relationship with a woman who was not his spouse was conduct unbecoming of an officer and he regrets his actions. He was an outstanding and model Soldier during his time in the service. During the 7-month CID investigation and after his Article 15 hearing, he continued to strive as a Soldier as noted in his letters of endorsement from his chain of command. b. While serving in the rank of captain, he received general officer-imposed nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for violation of Article 134 (Adultery). His punishment consisted of forfeiture of pay for 2 months. The CID report shows there was no evidence of offense and the accusations were unfounded, resulting in closure of the investigation due to insufficient evidence. His security clearance was never suspended after his accusation because his leadership knew this was an isolated incident and it would not interfere with his performance as a Soldier. He acknowledges the seriousness of the offenses and the U.S. military's strong stance on eliminating sexual assault and sexual harassment, but he never committed the crimes of which he was accused. b. Due to the charges of rape and sexual assault and violation of Article 134, he was discharged from the service with under other than honorable conditions. He submitted an application to the Army Discharge Review Board on 1 February 2016, requesting an upgrade of his discharge. He strongly believes the two charges should have been dismissed during the investigation phase. His adultery was neither substance-related nor resulted in a criminal conviction. The incident was solely a personal matter between two individuals and never affected his performance as a Soldier. When he was a service member, he was 100-percent supportive of the unit and the Army's Sexual Harassment Assault Response and Prevention Program. c. Having this in his Army and Federal Bureau of Investigation records is affecting his career and his security clearance. He has been denied Federal employment after pre-employment background checks were conducted. He has suffered physically, mentally, and emotionally from this traumatic experience and he would like to continue his life without having this embarrassment in his permanent record. He would like to continue serving his country by becoming a Federal employee. Furthermore, he is also ineligible to volunteer with children within his community. He would like to continue serving this great nation and mentor youth in his community by coaching them in sports. d. This was an isolated incident and he has no prior derogatory issues or events in his permanent records. The Office of the Staff Judge Advocate at his installation did not want to pursue a court-martial based on insufficient evidence and inconsistencies from his accuser. 2. The CID ROI, dated 18 November 2014, shows the applicant was the subject of an investigation for violation of Article 120 (Sexual Assault (Adult)), Uniform Code of Military Justice (UCMJ), and violation of Article 120 (Rape (Adult)), UCMJ. The investigative summary states the investigation did not develop sufficient evidence to establish probable cause to prove or disprove that Mrs. D____ was raped or sexually assaulted. After a thorough investigation and a review of the totality of the investigative facts, evaluation of evidence, witness interviews, and laboratory analysis, the initial complaint by Mrs. D____ could not be substantiated or refuted. 3. The DA Form 4833, dated 31 July 2015, shows the applicant received general officer-imposed nonjudicial punishment under the provisions of Article 15, UCMJ, on 26 November 2014 for wrongfully having sexual intercourse with Mrs. D____, a married woman not his wife, on divers occasions between 4 December 2013 and 24 April 2014, such conduct being to the prejudice and good order and discipline in the Armed Forces in violation of Article 134 (Adultery), UCMJ. His punishment consisted of forfeiture of $2,843 pay per month for 2 months. 4. On 31 March 2017, CID amended the DA Form 4833 to reflect the correct charge of violation of Article 134 (Adultery), UCMJ. CID determined the information the applicant provided did not constitute as new or relevant information needed to further amend the report. a. At the time the ROls were completed, the legal standard for titling and indexing an individual as the subject of a criminal investigation was established by Department of Defense Instruction 5505.7, paragraph 6-1, which provides: Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in the [Defense Clearance and Investigations Index] DCII...Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Credible information is 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. Titling an individual or entity is an operational rather than a legal decision. The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence. The listing of a subject's name and other identifying information in the DCII indicates only that a report of investigation concerning that person or entity has been created. Judicial or adverse administrative actions shall not be taken against individuals or entities based solely on·that fact that they have been titled or indexed due to a criminal investigation. c. Once a person is properly titled and indexed in the DCII, that person's name will only be removed 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 or if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. 5. The IMCOM Form 24, dated 25 April 2017, shows a background check through the ALERTS revealed the following: * Rape – Insufficient Evidence * Sexual Assault – Insufficient Evidence * general officer-imposed nonjudicial punishment under the provisions of Article 15 for the offense of Adultery 6. The applicant provided six officer evaluation reports showing he was senior rated as follows: * 6 March 2008 through 26 October 2010 – Best Qualified * 27 October 2010 through 31 March 2011 – Best Qualified * 1 April 2011 through 31 March 2012 – Best Qualified * 1 April 2012 through 25 December 2012 – Best Qualified * 26 December 2012 through 31 January 2014 – Best Qualified * 1 February 2014 through 31 January 2015 – Qualified 7. The letter of personal recommendation from Colonel (Retired) A____, dated 10 September 2015, states he has known the applicant for several years. The applicant is an outstanding young leader with tremendous potential. The applicant was selected over 20 of his peers to escort a retired four-star general during one of the annual exercises in the Republic of Korea. During the applicant's 2 weeks of providing administrative and logistical support for the general, he received accolades from both the U.S. Forces Korea and the 8th U.S. Army Commanding Generals. 8. The letter of personal recommendation from Lieutenant Colonel (LTC) K____, dated 22 September 2015, states he served with the applicant during his tenure as the 1st Signal Brigade Deputy Commander from August 2014 to July 2015. The applicant served as the training officer and supervised seven Soldiers. The applicant was an invaluable member of their team and always exceeded expectations and constantly displayed a commitment to the unit's mission and the team. He planned, coordinated, and executed their annual "Signal Week" event consisting of morale, team building, and professional development-related events culminating with the Signal Ball for over 1,200 geographically dispersed Soldiers throughout the Republic of Korea. 9. The letter of personal recommendation from LTC L____, undated, states as the former 1st Signal Brigade Operations Officer, the applicant worked for him from June 2013 through June 2015. During this time, he was assigned to multiple positions, each increasing in levels of responsibility. Overall, the applicant was charged with high- visibility functions within the brigade and always met his high expectations. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the CID ROI showing him as a subject for violations of Articles of the UCMJ, the CID amended charge, the NJP, and contents of the IMCOM Form 24 regarding a background check and the listing of charges found in ALERTS reflecting disposition of each. The Board considered the applicant’s evaluation reports and letters of personal recommendation. The Board further considered the criteria for Titling and Indexing as an operational decision. Based on a preponderance of evidence, the Board determined that the applicant’s name as a subject and the charges investigated were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015911 7 1