ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  4 June 2019

	DOCKET NUMBER:  AR20170017908


APPLICANT REQUESTS: 

* removal/deletion of his name from the time block of U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) Case     Number 023-213-CID266-XXXXX, dated 12 December 2013
* removal of the file from the Defense Central Index of Investigations (DCII) pertaining to ROI Number 023-213-CID266-XXXXX
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* five Army Achievement Medal certificates
* two achievement and three training certificates
* Order Number 72-1039
* Guard Recruiting Assistant Program (GRAP) Guidelines for Recruiting and Retention Personnel memorandum
* Letter from Commander, California Army National Guard (CAARNG)
* ROI
* Letter from CID
* Appeal letter to CID
* Provost Marshall Office memorandum
* text message from A.F., affidavit, and memorandum of support submitted with appeal of the ROI
* GRAP Frequently Asked Questions Informational Sheets
* GRAP Basics Information

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  GRAP stands for Guard Recruiting Assistance Program.  It was a program that paid existing Soldiers to recruit in their communities.  Members of the National Guard could sign up to become Recruiting Assistants.  They were offered $2,000 for each recruit (and up to $8500 for those qualified as an officer) who joined the Army National Guard.  G-RAP operated from 2005 to 2012.  In early 2012, Secretary of the Army suspended G-RAP based on alleged reports of fraud.  The Army Criminal Investigative Division (CID) continues to investigate G-RAP. 

3.  The applicant states:

	a.  In accordance with Title 10, U.S. Code (USC), section 1552 (West `1998), probable cause to title him is severely lacking in the ROI and the offenses annotated in the ROI did not occur.  He believes the record is unjust because for the following reasons:

* allegation by the Criminal Investigation Division (CID) CID ROI states that Active Guard Reserve (AGRs') were not allowed to participate in the GRAP lacks corroboration with the GRAP that allows AGRs' Soldiers to participate in the GRAP
* excluding AGR Soldiers did not publish until 4 January 2011
* allegation by CID states that Personally Identifiable Information (PII) was not obtained directly from the nominee by him and the nominee was not informed as to how the information would be used for monetary purposes through      GRAP

	b.  On 8 March 2017, he had the opportunity to review the CID ROI provided to him by his Staff Judge Advocate (SJA), Captain X___ X___, who also provided him the guidance on how to submit a request to the ABCMR pertaining to this matter.  There was no specific requirement for Recruiting Assistants on how to obtain from a nominee PII prior to May of 2010.  There was no requirement to inform a nominee recruit how the information will be used for GRAP monetary purposes until published guidance on 4 May 2010.  GRAP Recruiting Assistant pocket cards were available for GRAP Recruiting Assistants with the guidance on how to obtain PII including social security numbers.  

	c.  He was no longer participating as a Recruiting Assistant with GRAP when the new rules became effective on 4 May 2010, due to his mother being in hospice and passing.  CID mentions that he confessed receiving all PII for his three nominees from his Staff Sergeant (SSG) X____ and entered the PII in the GRAP database in order to receive funds for which he was not entitled to.  If the fact that he confessed was true, then it would unequivocally be contradictory to a signed and dated sworn statement obtained from SSG JX___ X___, an Active Duty Army recruiter who provided information in his affidavit that he was the recruiter who referred to him [applicant] the two nominees namely X____ and X____ through the GRAP "Sphere of lnfluence.”

	d.  The interviews conducted by CID of his three GRAP nominees are vastly different on what the three nominees provided on their sworn signed affidavits.  They did not corroborate with the telephonic statements obtained by CID.  Examples of this would be when reading the CID report that X___ X___. supposedly mentions that "he only met him in passing at the San Jose Armory, but a phone text message exchange with him less than 1 year later tells him [applicant] via text that his memory is a little fuzzy, but he remembers meeting him [applicant] in his office, and that he provided assistance on the enlistment process." 

	e.  There is obviously an issue with two vastly contradictory interviews of the same person with two different versions.  The other CID interview of his nominee X____, included in the Interim Report mentions that Mc_. states he “did not receive any specific enlistment assistance from him."  However, after reviewing X____’s sworn affidavit, dated 22 April 2014, X____ mentioned that he [applicant] did in fact provide him assistance with his enlistment and mentored him through the enlistment process.  Their statements do not corroborate or support the CID telephonic interviews.  Informing his nominees that their information would be used for GRAP purposes was NOT a GRAP rule until it became a rule on 4 May 2010. 

	f.  The CID report mentions that he received a last payment on 4 April 2011, for a GRAP nominee which is clearly a misinterpretation by CID.  He was not participating in GRAP in 2011, but his nominee X___ X___ was finally able to complete basic training and payment only disburses upon a Soldier successfully completing basic training.  The entry in the CID makes it easy to any reader the misinterpretation that he was still participating as an Recruiting Assistant with G-AP long after the new rules were in place.  It also noteworthy to mention that CID may have not had the information at the time of the investigation that he requested in writing to remove X___ X___ from his GRAP account since he was no longer working with him.  GRAP D_. refused to remove X___ X___ and instead informed him that he "will still get paid for him even if l am no longer work with the nominee.”

	g.  If the evidence, references, and signed sworn statements that he has enclosed quite irrefutable prove injustice does exist, why was it easy for individuals to take advantage of such a situation, which many were prosecuted and served prison sentences.  It would be wrong to assume that he was such an individual especially with all the aforementioned information/enclosures that he has provided with this request. Information that may have not been available to CID during their investigation.  He did know that he was titled and his life has been ruined leaving him really depressed.  The CID report references rules in the ROI that were NOT in violation of any GRAP rules in place prior to 4 May 2010 while he participated as an RA.  He abided by the rules and regulations in place during that period.  He was not participating as an RA after the new rules were put in effect on 4 May 2010, but CID based wholly on new GRAP rules.  He was burying my 63 year old mother in Florida during the period the new GRAP rules became effective. 

	h.  The enclosures to the DD Form 149 are documents that were readily available in 2013 during the investigation by CID that would have prevented him from being titled in the ROI.  Relevant documents that would have told CID investigator that PII sharing was not a rule violation since a memorandum was not put out until later on 4 May 2010, the requirement of informing a potential GRAP nominee on how his information "would be used for monetary purposes".  It does appear that CID fast-forwarded him to 2013 to 2013 after the new rules became effective on 4 May 201 and eventually finding sufficient evidence to create an ROI and subsequently including his name on the titling block of the ROI.  This is injustice in inequality.  The allegations lack corroboration on any rules and regulations that were in place at the time.

	i.  There is not a single piece of reference or regulation used in the CID report that corroborates the investigation.  In fact, a request from the California State Headquarters Office Command Sergeant Major to a former California State Provost Marshall Sergeant First Class (SFC) X____ mentions that she could not find within the ROI investigation where wrongdoing "either founded or unfounded" and declined to prosecute.  On 27 November 2017, California State Provost Marshall SFC On_ sent him an email mentioning that per his case notes his [applicant] investigation by CID 14-072-03 was closed back on 20 March 2015 for an alleged violation of GRAP due to all required action have been completed.  The case was closed based on an allegation and corroborates with SFC X____ being unable to locate if the case was ever founded or unfounded. 

	j.  The CID stated in the ROI that on 12 December 2013, CID agents met with the Northern District of California US Attorney X____and Mrs. X____ declined to prosecute due to the dollar amount and nature of offense.  The CID mentions in the ROI that he confessed that "I had been previously been terminated from G-RAP for improper actions.”  “Terminated" and "suspended" was apparently misplaced by the CID Agent. He was employed as AGR Soldier with the CAARNG and unaware how being "terminated" was even a possibility if already employed as an AGR Soldier.  His GRAP account was temporarily suspended during for a brief period for not inputting notes into my account of nominees that he met.  Often times, he input a disconnected phone number which by the way was the phone number provided to him by each nominee. There is no denial of the statement “I conducted GRAP activities during the normal course of my normal duties as an AGR Readiness NCO".  In previous years the San Francisco Armory was a Military Entrance Testing Station for the Northern California region during the period he was a recruiting Assistant.  Once an applicant completed an examination they would often hangout in his office and asks questions about the benefits in the CAARNG.  This would be that instance when he conducted   GRAP RA activities during his normal duties as an AGR Readiness Noncommissioned Officer providing many benefits that the CAARNG has to offer. 

	k.  During the past year or so he made many attempts to meet with the Assistant US Attorney X___ X___ to discuss aspects of his case and learn what led to her decision not to prosecute and if it had anything to do regarding the injustice and possible regulatory errors within the report.  He met with her on 1 December 2017, along with an FBI agent at her office.  He explained in detail version regarding the aspects of the case.  She informed him during the meeting that she had the opportunity to review his case multiple times prior to his arrival and she did not have authority over cases from outside agencies.  The FBI agent did suggest that he should pursue the case in a civil court or an agency that would be willing to review his materials, since there would not be much that could be done at his level. 

	l.  On or about 11 December 2017, he received an email from the CAARNG Provost Marshall's office with an Official Letter as an attachment.  The letter informed him that a subsequent review of the CID investigation was completed by his CAARNG SJA (no date given) and that the SJA's opined to California Military Department Provost Marshalls Office was to close the CID case (14-072-03) regarding him.

	m.  He is hoping that with this latest information on the opine by the SJA and Mrs. X___ decision not to prosecute due to nature of offenses regarding the allegations, including all the relevant information enclosed would further strengthen and support his request to the ABCMR for a favorable response.

3.  Review of the applicant's military record shows: 

	a.  He initially enlisted in the Guam ARNG on 14 December 1997.  

	b.  He provides five AAM certificates (1991 to 2006) and two achievement and one training completion certificates.

	c.  He served on active duty in support of Operation Enduring Freedom from 7 November 2004 to 14 January 2006.  He extended his enlistment in the CAARNG on 2 January 2006 and entered on active duty in an AGR status on 15 January 2006.

	d.  Orders Number 72-1039, issued by the CAARNG on 13 March 2006, announced his entry on active duty in an AGR status, with a reporting date of 15 January 2006.

	f.  He again extended his enlistment in the ARNG on 19 June 2006 and 9 September 2012.

	g.  He further provides a GRAP Guidelines for Recruiting and Retention Personnel memorandum, dated 4 May 2010.

	h.  On 4 January 2016, he was issued a 20-Year Letter.

	i.  He also provides a memorandum for the Commander, CAARNG, dated 12 April 2017, wherein he stated a CID investigation substantiated that the applicant misappropriated U.S. Army funds by improperly claiming incentives for enlisting Soldiers in the CAARNG.  The investigation concluded that the applicant did not actually assist these Soldiers with their enlistments and was ineligible to receive those incentives.  The applicant accepted responsibility for his actions and made restitution to the U.S. governments for the full amount of ineligible funds.  Based on the applicant’s performance and recommendations from his chain of commander, he was retained as a member of the CAARNG.  

	j.  On 3 April 2017, a legal review for amendment of the Law Enforcement Report (LOR) determined credible evidence did exist to title the applicant for the offenses and the LOR contained sufficient evidence to support the titling decision.

	k.  On 12 April 2017, the Commanding General, CAARNG, rendered a letter that stated: 

	(1)  This letter is to address an adverse action taken against [Applicant] in 2014 as a result of a U.S. CID investigation.  A CID investigation substantiated that [Applicant] misappropriated US Army funds by improperly claiming incentives for enlisting Soldiers in the CAARNG.  The investigation concluded that he did not actually assist these Soldiers with their enlistments and was ineligible to receive those incentives.  

	(2)  He accepted responsibility for his actions, made restitution to the U.S. government for the full amount of the funds that we determined he was not entitled to. Based on his performance and the recommendations from his chain of command, he was retained as a member of the CAARNG and continues to be a full-time Soldier in the AGR Program.

	(3)  The applicant has confronted his short comings, accepted responsibility for his action and made restitution.  He (the author) was satisfied that [Applicant] has recovered from this incident.  He continues to be a valuable asset to this organization and this action which took place over 3 years ago should not diminish his future opportunities either within or outside of this organization.

	l.  On 19 April 2017, CID advised him of the denial to correct the LOR.

	m.  He was honorably retired from active duty on 30 June 2018 and was transferred to the U.S. Army Reserve Control Group (Retired).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed over 20 years of active service.

	n.  On 1 August 2018, CID provided the Army Review Boards Agency an authorized release of a sanitized report pertaining to the applicant.

4.  By Department of Defense Instruction 5505.7 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense (DOD)) establishes policy and assigns responsibilities providing a uniform standard for titling and indexing subjects of criminal investigations in the DOD.  It states that titling only requires credible information that an offense may have been committed.  The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time, for law enforcement and security purposes.  This is strictly an administrative function.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure 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.

5.  By regulation (AR 15-185) – an applicant does not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  The Board found that based upon the facts and circumstances, the Board found that titling was just, probable cause was there and there was no mistaken identity.  For that reason, the Board recommended denying the applicant’s request.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

REFERENCES:

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

2.  Department of Defense Instruction (DODI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) (27 January 2012) defines “titling” as placing the name(s) of a person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report.  “Titling” occurs when an “investigation determines that credible information exists that the subject committed a criminal offense.”  “Credible Information” is defined as “information 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.”

3.  DODI 5505.07 (27 January 2012) also states that “titling” is an administrative procedure and the fact that an individual is titled does not “connote any degree of guilt or innocence.”  Moreover, “… 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.”  Furthermore, 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.

4.  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 “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.”  See DOI 5505.07, paragraph 4.b. (27 January 2012).  “When 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.

5.  DODI 5505.7 also provides the following definitions:

	a.  E1.1.1 – Credible Information:  Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true.
	b.  E1.1.2 – Criminal Investigation:  Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution.

	c.  E1.1.3 – DCII:  A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DOD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files.  The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies.

	d.  E1.1.4 – Incidental:  Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes.

	e.  E1.1.5 – Indexing:  Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII.

	f.  E1.1.6 – Subject:  A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense.

	g.  E1.1.7 – Title Block:  Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses.

	h.  E1.1.8 – Titling:  Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report.

6.  Army Regulation (AR) 195-2 (Criminal Investigation Activities) (9 June 2014), paragraph 4-4, explains the process for seeking amendment to a CID ROI, to include the process for seeking the removal of person’s name from the title block.  The paragraph states that requests for amendment, to include the removal of a person’s name from the title block, require the requester to submit new, relevant and material facts that would warrant revision to the ROI.  With respect to requests to delete a person’s name from the title block of an ROI, the requester must demonstrate that credible information did not exist to believe that the individual committed the offense for which they were titled, or that the wrong person’s name was entered in the title block due to mistaken identity.  The burden of proof rests with the requester.  The paragraph provides that the decision to make any changes to a ROI rests within the sole discretion of the Commanding General, USACIDC, and that his/her decision will constitute final action on behalf of the Secretary of the Army.

7.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	 AR20170017908


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