ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170015945 APPLICANT REQUESTS: removal of both fraud and larceny cases from his report of investigation (ROI). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant letter to the Army Review Board Agency (ARBA) * DA Form 5960, Authorization to Start, Stop or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA) * Emails * Criminal Investigation Division (CID) Form 94, Agent's Investigation Report * United States (U.S.) CID Memorandum, Subject: Law Enforcement Report – Final * DA Form 4833, Commander’s Report of Disciplinary or Administrative Action * Three CID response letters to applicant FACTS: 1. The applicant states information in his record is inaccurate, he is innocent and never did anything to defraud the government or the Army. Previously he sent ARBA evidence to prove he did his duty as a Soldier and Noncommissioned Officer (NCO) and reported everything in a timely manner within 30 days to his company commander, battalion S1 and finance. a. He was never court martialed as stated on his ROI, DA Form 4833, page 000002, section 5. DA Form 4833, page 000002 states that he was found guilty of larceny of government funds [7F2]. b. On the memorandum from the CID, subject: Law Enforcement Report – Final - 00019-2015-CID338-0XXXX-7F2/8F under report summary states that he failed to inform the U.S. Army of his divorce. c. He reported his divorce to the proper channels multiple times. He has some email traffic that will prove that he sent his basic allowance for housing (BAH) stop request, dated March 2014, due to his divorce to his commander at that time (Captain X___) for his signature and also to his operations NCO Staff Sergeant X___. His divorce was in February 2014. d. The Headquarters and Headquarters Company, 23rd Chemical Biological Radiological and Nuclear and Explosives (CBRNE) Battalion Orderly room, 23rd CBRNE Battalion S1 and finance failed to keep proper records of all transactions such as a DA Form 200 (Transmittal Record) that clearly would have proven that he submitted all his paperwork in a timely manner. e. As a responsible NCO he paid back the Department of Defense Finance all the money within 30 days of notification because he did not spend it. His command sergeant major (CSM) at the time refused to look at the evidence when he gave everything to him. His CSM said "I don't need to see this" and slid the folder back to him. 2. The applicant provides: a. Applicant letter to the ARBA states his request and evidence provided. b. DA Form 5960, Authorization to Start, Stop or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA) dated 31 March 2014, requests to stop his BAQ. c. Email correspondence between March and April 2014 and June 2015 to unit members requesting to stop his BAQ. d. CID Form 94, Agent's Investigation Report dated 12 June 2015, documents information pertaining to the applicant having an adulterous affair and receiving BAH. An investigation was coordinated with the Indianapolis Fraud Resident Agency. e. The CID response letter to the applicant, dated 25 July 2016 provided the applicant with a redacted law enforcement report. f. The CID response letter to the applicant, dated 26 October 2016 informs the applicant that his request to correct information is being processed. g. The CID response letter to the applicant, dated 10 November 2016 informs the applicant that his request to correct information did not constitute as new or relevant information needed to amend his report and was denied. 3. His Army Military Human Resource Record (AMHRR) in the Interactive Personnel Electronic Records Management System does not contain the CID findings. 4. A review of the applicant’s service record shows: a. He enlisted into the U.S. Army Reserves on 1 August 2007 and entered the Regular Army on 30 August 2007. He reenlisted on 23 March 2010 for 5 years, and 21 January 2014 for 3 years. b. U.S. CID Memorandum, Subject: Law Enforcement Report – Final dated 11 September 2015, states on 8 June 2015 CID was notified by DFAS that the applicant received unauthorized BAH and family separation housing (FSH) from the U.S. Army since February 2014. Investigation established probable cause to believe the applicant committed the offense of larceny of government funds when he failed to inform the U.S. Army of his divorce on 12 February 2014, but continued to receive BAH and FSH, valued at approximately $14,242.20 until 28 August 2014. The investigation determined that the applicant did not commit the offense of fraud because the elements of proof for the offense were not met. c. DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) dated 25 March 2016, states information provided by the CID and advice from the 23rd CBRNE Battalion Trial Counsel. The commander decided that there was insufficient evidence to take further adverse action against the applicant at that time. Due to mitigating evidence, including a lack of intent to defraud the government, the commander issued the applicant a letter of reprimand. d. DA Form 2627, (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) dated 22 July 2016 is filed in the restricted area of his official record. He accepted nonjudicial punishment under the provisions of Article 15, UCMJ, in that, for the purpose of obtaining the approval, allowance, and payment of a claim against the United States, did, at or near Camp Casey, North Korea, on or about 30 July 2014, use the signature of X___ on a certain paper, to wit: renter's lease, then knowing such signature to be forged. His punishment consisted of reduction to specialist/E-4 and 30 days of extra duty. He elected not to appeal the punishment. e. He retired from active duty on 18 April 2017. He was discharged under the provisions of Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) for permanent disability. He completed 9 year, 7 months, and 19 days of active service. 5. By DOD Directive, titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination 6. By regulation, AR 195-2 (Criminal Investigation Activities) a. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the CG, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. b. Requests for amendment of a CID ROI will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there was insufficient evidence to grant relief. There was not a mistaken identity and the ROI shows not founded. For that reason, the Board determined there is a lack of evidence to show an error or injustice which would warrant changing the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), paragraph 1-9c states when adverse administrative action is contemplated against an individual (no need to refer the investigation if the adverse action contemplated is prescribed in regulations or other directives), including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual: a. Notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based. b. Give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material. c. Review and evaluate the person’s response. 2. Army Regulation 195-2 (Criminal Investigation Activities) prescribes the policies and procedures pertaining to criminal investigation activities within the Department of the Army. It prescribes the authority for conducting criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. It delineates responsibility and authority between installation law enforcement activities and the U.S. Army Criminal Investigation Command. a. Paragraph 3-1a, Investigative authority refers to matters for which the Army has the legal authority and jurisdiction to conduct a criminal investigation. Investigative responsibility refers to those matters within the Army’s overall investigative authority which the USACIDC has responsibility to ensure are properly investigated. b. Paragraph 3-1b, the Army has investigative authority whenever an Army interest exists and investigative authority has not been specifically reserved to another agency in accordance with AR 27–10; and the MOU between the DOD and the DOJ relating to the investigation and prosecution of certain crimes (DODI 5525.07). Generally, an Army interest exists when one or more of the following apply: (1) The crime is committed on a military installation or facility, or in an area under Army control. (2) There is a reasonable basis to believe that a suspect may be subject to the UCMJ. (3) There is a reasonable basis to believe that a suspect may be a DOD civilian employee or a DOD contractor who has committed an offense in connection with his or her assigned contractual duties which adversely affects the Army. (4) The Army is the victim of the crime; for example, the offense involves the loss or destruction of government property or allegations of fraud (in accordance with DOD/DOJ instructions concerning the criminal investigation of fraud offenses) relating to Army programs or personnel. (5) There is a need to protect personnel, property, or activities on Army installations from criminal conduct on, or directed against, military installations that has a direct adverse effect on the Army’s ability to accomplish its mission; for example, the introduction of controlled substances onto Army installations, acts of terrorism, and logistical security. (6) In contingency operations there is a need to investigate crimes to establish law and order as identified by senior commander. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. a. Paragraph 3-4 states a commander will personally exercise discretion in the NJP process by: (1) Evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Paragraph 3-20 describes setting side of punishment and restoration of rights, privileges, or property. This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. (1) NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. (2) "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. c. Table 3-1 (Maximum Punishments for Enlisted Members and Commissioned Officers) states the following authorized maximum punishments may be imposed by field grade and general officers as NJP on enlisted members in the rank of sergeant: * extra duty for 45 days * restriction for 60 days * reduction of one grade in peacetime * forfeiture of 1/2 of 1 month's pay for 2 months 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. The ABCMR is not an investigative agency. Likewise, the ABCMR does not normally reexamine issues of guilt or innocence under UCMJ or issues whether an investigation was substantiated or unsubstantiated by an investigator, such as an IG. This is the commander’s or directing authority's function and it will not be upset by the ABCMR unless the determination is clearly unsupported by the evidence. 6. For historical purposes, the Army has an interest in maintaining the integrity of its records. The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created. AR 20-1 states that requests for amendments concerning opinion, judgment, or conclusion may be granted upon a showing of fraud, mistake of law, mathematical miscalculation, or newly discovered evidence. ABCMR Record of Proceedings (cont) AR20170015945 5 1