ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 October 2019 DOCKET NUMBER: AR20170018547 APPLICANT REQUESTS: * remove the Memorandum of Reprimand (MOR), dated 9 October 2008. Alternatively, move the MOR to the restricted portion of his file. * remove the U.S. Army Criminal Investigation Division (USACID) Report of Investigation (ROI) XXXX-XXXX-CIDXXX-XXXXX from his file * remove his name from the titling block of the USACID ROI XXXX-XXXX- CIDXXX-XXXXX APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Supplemental Statement from Legal Representative to the Army Review Boards Agency, dated 29 August 2017 * MOR, dated 9 October 2008 * Rebuttal to MOR, dated 28 October 2008 * MOR Filing Determination, dated 22 December 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), separation date 10 September 2016 * USACID ROI XXXX-XXXX-CIDXXX-XXXXX * Divorce Judgment, dated 11 June 2007 * Memorandum Determining Commission of Offense, dated 13 December 2007 * Memorandum for Record (Attorney Interview), Subject: Interview with Mr. X__, dated 28 April 2008 * Paternity Test, dated 2 July 2008 * Email, Subject: Summary of Opine of USACID Investigation (not dated) * Addendum from Legal Representative to the Army Review Boards Agency, dated 20 August 2018 * Memorandum from Legal Representative to USACID, Subject: Request to Amend USACID ROI, dated 2 December 2017 * Letter from USACID to Legal Representative, dated 1 March 2018 * Memorandum, Subject: Law Enforcement Report, dated 14 February 2018 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. The applicant requests through his legal representative the MOR, dated 9 October 2008, be removed entirely from his record as it is untrue, unjust, and has served its intended purpose. Alternatively, he requests the MOR moved to the restricted portion of his file. He also requests the USACID ROI XXXX-XXXX-CIDXXX- XXXXX be removed entirely from him file as it was inappropriately filed in his record and there is no basis for it to be there. Finally, he requests review of this appeal is in the interest of justice. The applicant requests that this Board waive the three-year appeal window where the MOR and investigation are in his military record improperly. It is furthermore in the interest of justice to do so where the applicant is now honorably retired and the evidence does not support the findings of the investigation or the MOR. The applicant retired after nearly 30 years of service on 30 September 2016. He received an honorable characterization of service. a. On 30 July 2007, USACID initiated an investigation into rape allegations made by Mrs. X__ Mrs. X__ alleged she was raped by the applicant on 21 July 2007. Mrs. X__ was the civilian spouse of Sergeant X__, who was deployed at the time. Mrs. X__ admitted to driving the applicant to her home, in her own car, on the night of the alleged rape. She and the applicant were social acquaintances. Mrs. X__ recalled the applicant fell asleep in her bed and she got in bed with him. She recalled that later that night the applicant was having sex with her. She stated she did not object, refuse, or otherwise convey any lack of consent for the sexual act. She later drove the applicant back to his house. The applicant was later confronted by Mrs. X__ step-father. The applicant admitted to consensual sexual activity with Mrs. X__, but denied having sexual intercourse. b. DNA results showed the applicant’s DNA was on Mrs. X__’s underwear, but none of the applicant’s DNA was found on her body, or in/on her genitals. Additionally, no DNA was discovered on the bed or in the linens. USACID Special Agent (SA) S.M. noted in December 2007, the battalion judge advocate opined probable cause for the “listed offenses.” In a memo dated 13 December 2007, SA S.M. informed the applicant’s commander that the investigation revealed evidence of adultery, not rape. On 29 January 2008, USACID closed the investigation and titled the applicant with the offense of rape. c. On 28 April 2008, Captain (CPT) X__ authored an memorandum for record documenting a conversation he had with Mrs. X__’s step-father. CPT X__ was informed that Mrs. X__ was pregnant, and it was believed to be the applicant’s child. (Mrs. X__’s husband was deployed at the time of the alleged rape.) d. On 9 July 2008, the Armed Forces Institute of Pathology concluded the applicant was ruled out as the father of Mrs. X__’s child based on a DNA paternity test. e. CPT X__ authored a detailed email to Major (MAJ) X__, the brigade judge advocate. In that email, CPT X__ articulates why there is no probable cause to believe a rape occurred. Among his reasons are inconsistent statements, unsupported evidence, and that the applicant was ruled out as the father of Mrs. X__’s child by a DNA test, implying that Mrs. X__ had sexual intercourse with another unidentified male at the time of alleged rape who fathered the child (her husband was deployed). f. Based on this new information, CPT X__ recommended opinion was no probable cause for the rape, and instead only probable cause for adultery. g. On 24 July 2008, CID amended the investigation report to reflect the applicant was issued a General Officer Memorandum of Reprimand (GOMOR). The amendment does not clarify the applicant was issued a reprimand by a colonel (not a general officer), and only for adultery (not rape). The amendment does not change the titling decision despite the opine from CPT X__ h. On 9 October 2008, the applicant was given an MOR for adultery. The reprimand was permanently filed. The USACID ROI, dated 29 January 2008, was concurrently filed in his official file along with the MOR. The 1st Final Supplements to the ROI dated 24 July 2008 was not included with the records filed in the applicant’s official records. i. The applicant bears the burden of proof “to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal…” See AR 600-37 (Unfavorable Information), 7-2(b)(1) (Appeals). j. If not removed entirely from Applicant’s file, the MOR may be transferred to the restricted portion of his file upon showing that the “intended purpose has been served and that their transfer would be in the best interest of the Army.” See AR 600-37, 7-2(b)(2). Typically, at least one year must have passed since the MOR was issued for the board to consider transfer. See AR 600-37, 7-2(b)(3). k. Completed investigative reports may be included in a personnel file under limited circumstances. “These include criminal investigation reports (or authenticated extracts) that have resulted in elimination or disciplinary action against the person concerned.” See AR 600-37, 3-3(c) (Unfavorable Information in Army Military Human Resources Record). l. The MOR should be removed entirely where it is untrue and unjust. The facts and circumstances clearly demonstrate what transpired. Mrs. X__ got pregnant from an extra-marital affair while her husband was deployed. She fabricated a rape allegation against the applicant to explain her pregnancy. None of the evidence supported her story, and she was later discovered after a paternity test revealed the applicant was not the father of her child. The paternity test conclusively established that Mrs. X__ was impregnated by another male (not the applicant and not her husband) around the same time as the alleged assault. The command declined to take any action for a rape, instead deciding to issue the reprimand for adultery. m. Where Mrs. X__’s motive to fabricate is so clearly demonstrated by the facts of the case, her statement and recollection of events simply cannot be trusted. The only available evidence of the applicant’s statement as to what sexual acts occurred came from Mrs. X__’s step-father based on a conversation he had with the applicant on the day after the alleged assault. He specifically recalled the applicant apologizing for engaging in consensual sexual activity with Mrs. X__, but recalled the applicant denied intercourse. Accordingly, there is clear and convincing evidence the applicant never had sexual intercourse with Mrs. X__ n. Adultery requires sexual intercourse – any lesser sexual conduct is insufficient for the offense. See 10 U.S.C. 934; U.C.M.J. Article 134, Adultery. Accordingly, where there is no reliable evidence that sexual intercourse occurred, a finding of adultery is arbitrary and unsupportable. The MOR, therefore, must be removed as the evidence clearly and convincingly demonstrates the applicant’s command improperly concluded the applicant committed the offense of adultery. o. If not removed, the MOR should at least be transferred as it clearly served its intended purpose. The applicant is now retired and was issued an honorable characterization of service. Following these allegations and the MOR in 2008, the applicant served an additional eight years in the active component. There were no other instances of misconduct in the applicant’s record. Indisputably, the MOR served the intended purpose of correcting the applicant’s conduct and ensuring no future misconduct would occur. Accordingly, where the intended purpose has been served, the MOR should be transferred to his restricted file. p. While it is permissible to file an investigation report that results in “disciplinary action” against a suspect in the suspect’s official file, it is not permissible to do so when the only “disciplinary action” taken was for conduct that was outside the scope of the investigation. q. In this case, the ROI was filed in the applicant’s official record is a rape investigation. While the investigation resulted in titling the applicant for rape, the available legal opinion opined that there was not probable cause to support the rape allegation. The investigation did not investigate the applicant for adultery, and the USACID SA leading the investigation specifically refused to include adultery as part of the investigation. r. The applicant was never charged with rape, sexual assault, or any other offense at court-martial or through non-judicial punishment. He never received any disciplinary action for rape or sexual assault. Accordingly, it is improper to include this rape investigation in his record, where it did not result in disciplinary action for the investigated offense. For the above stated reasons, the MOR and investigation should be removed from the applicant’s record. 3. The applicant provided: a. An MOR, dated 9 October 2008, issued by COL X__ for engaging in sexual intercourse with Mrs. X__, a married woman not his wife. His subsequent rebuttal to the MOR, dated 29 October 2008, served as a formal apology and requested the MOR be filed in his local personnel file. b. The filing determination, dated 22 December 2008, which directed the MOR be filed in his Official Military Personnel File (OMPF). c. DD Form 214, separation dated 30 September 2016, which shows the applicant served for nearly 30 years and was honorably retired. d. DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) as part of USACID ROI XXXX-XXXX-CIDXXX-XXXXX, which shows no action was taken on the offense of rape. e. Divorce Judgment, dated 11 June 2007 and Memorandum of Modification of Agreement, dated 21 May 2007 which shows the applicant’s legal divorce from his spouse which occurred prior to the alleged incident. f. Memorandum from USACID determining commission of offense, dated 13 December 2007, based on information on CID Form 94 (Agent’s Investigation Report), dated 7 January 2007. The memorandum determined the applicant committed the offense of adultery. Since adultery does not fall into the investigative purview of the USACID office, action was referred to the staff judge advocate (SJA) and command. g. A Memorandum for Record (Attorney Interview), Subject: Interview with Mr. X__, dated 28 April 2008, where CPT X__ interviewed Mrs. X__’s step-father. During the interview, Mrs. X__’s step-father disclosed Mrs. X__ was pregnant. h. Paternity test, dated 2 July 2008, revealed, based upon the DNA results, the applicant could be exclude as being the biological father to the child born to Mrs. X__ i. Email, Subject: Summary of Opine (not dated) from CPT X__ to MAJ X__ in which he recommends opining to USACID that there is insufficient evidence to proceed with prosecution on the charge of rape, but instead investigate the possible violation of adultery. j. An addendum from the applicant’s legal representative to the Army Review Boards Agency, dated 20 August 2018 in which the applicant requests a third issue be added to his pending request for correction. He requests the removal of his name form the titling block of USACID ROI XXXX-XXXX-CIDXXX-XXXXX. (1) On 2 December 2017, the applicant requested that the USACID amend ROI XXXX-XXXX-CIDXXX-XXXXX by removing his name from the titling block entirely noting that the offense of rape was unfounded. (2) In a decision dated 1 March 2018, the USACID acknowledged that the offense of rape should have been “unfounded” where the servicing judge advocate opined no probable cause existed to conclude the applicant committed the offense of Rape. Inexplicably, the USACID concurrently concluded that while there was no probable cause to conclude the applicant committed rape, there was “credible information” to conclude the applicant committed the offense of rape. The USACID concluded that where there remains credible information to conclude the applicant committed the offense, he should remain titled for the offense despite the absence of probable cause. (3) The relevant Department of Defense Instruction is DODI 5505.7 (Titling and Indexing in Criminal Investigations). The pertinent sections of the regulation are as follows. (a) 6.3. The DoD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating that the subject committed a criminal offense. (b) 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 in question are true. (c) 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling/indexing decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. (4) The issue of whether Applicant should have been removed from the titling block therefor rests on whether there is “credible information” to believe that he committed rape. (5) As an additional matter, The USACID’s determination that no probable cause existed but there remains “credible information,” is simply illogical and not supportable. The two standards are identical. (6) Probable cause is based on reasonableness. Generally, probable cause exists when it is reasonable to conclude an offense has been committed, in full consideration of all known circumstances and evidence. See Rule for Court-Martial (RCM) 302, 304, and 305; Military Rule of Evidence 315. (7) The United States Supreme Court has long since defined probable cause as existing “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.” Brinegar v. United States, 69 S.Ct. 1302 (1949). (8) Where both standards, for probable cause and credible information, rely on the premise of a reasonable, objective review of the available evidence, there is no circumstance where credible information (as defined in DODI 5505.7) could exist, but probable cause does not. Such a conclusion is therefore arbitrary, capricious, and contrary to law and regulation. (9) Once the USACID concludes, based on the totality of the evidence, that there is no probable cause, they cannot reasonably conclude that there remains “credible information.” The definition of credible information requires an officer to review the “totality of the circumstances” and conclude that the facts are “sufficiently believable to lead a trained investigator to presume” the facts are true. If the facts of any matter were “sufficiently believable to lead a trained investigator to presume” them to be true, then there would necessarily and concurrently be probable cause. (10) By promoting this dichotomy, the USACID is effectively stating that the “reasonable man” standard of probable cause is a higher standard than that to convince a “trained investigator.” That simply cannot be the case. (11) Accordingly, ROI XXXX-XXXX-CIDXXX-XXXXX must be amended to remove the applicant’s name from the title block. There is no credible information or probable cause to conclude the applicant committed the offense of rape. k. A memorandum from the applicant’s legal representative to USACID, Subject: Request to Amend USACID ROI, dated 2 December 2017, where it is requested the applicant’s name be removed from the titling block since the evidence does not support a finding of rape or adultery as there was no intercourse. l. A letter from USACID to the applicant’s legal representative, dated 1 March 2018 in which USACID approves the applicant’s request to correct information on USACID ROI to XXXX-XXXX-CIDXXX-XXXXX to unfound the offense of rape. Law Enforcement Report (LER) XXXX CIDXXX-XXXXX-XX was prepared. The LER is dated 15 February 2018. 4. A review of the applicant’s service record shows: a. On 25 May 1988, he was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8 (Reduction in Authorized Strength), and issued an honorable discharge. His DD Form 214 reflects he completed 2 years and 9 months of active service. The complete facts and circumstances surrounding his enlistment are not available for the Board to review. b. On 19 September 1990, he enlisted in the Regular Army (RA). On 14 November 1995, 14 November 1996, and 28 August 2000 he reenlisted in the RA. His enlisted record brief, dated 3 October 2016 shows he served in various stateside and overseas assignments which included multiple deployments to Afghanistan, Saudi Arabia, and South West Asia. c. On 11 June 2007, the applicant and his spouse were granted a divorce. d. On 30 July 2007, USACID was notified of an alleged rape which occurred on 22 July 2007. USACID initiated an investigation. The subject of the investigation was the applicant. e. In a memorandum for record, dated 13 December 2007, it was determined the applicant committed the offense of adultery. Adultery does not fall into the investigative purview of the USACID office, therefore, action was referred to the SJA and the command. f. In a memorandum for record, dated 28 April 2008, CPT X__, battalion judge advocate, scribed an interview he had with Mrs. X__’s step-father. In the interview, Mrs. X__’s step-father revealed Mrs. X__ was pregnant and it was very possible the applicant was the father. g. On 9 October 2008, the applicant was issued a MOR for engaging in sexual intercourse with Mrs. X__, a married woman not his wife. His conduct was in violation of Article 134 (Adultery) of the Uniform Code of Military Justice. He acknowledged receipt of the reprimand on 15 October 2008 and elected to submit statements on his own behalf. h. On 28 October 2008, the applicant submitted his rebuttal to the MOR in which he formally apologized and requested the MOR be filed to his local personnel file. i. On 22 December 2008, consistent with the majority of the chain of command recommendations, the commander directed the MOR be filed in his OMPF. j. On 30 September 2016, he was discharged from active duty under the provisions of AR 635-200, paragraph 12 (Retirement for Length of Service), and issued an honorable discharge. His DD Form 214 reflects he completed 26 years and 12 days of active service. 5. By regulation (AR 600-37), once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. 6. By regulation (AR 195-2) 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. 7. By directive/guidance (DODI 5505.7) titling only requires credible information that an offense may have been committed. It states that 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. The applicant’s legal representative contentions were carefully considered. The governing regulation authorizes transfer of a GOMOR to the restricted folder of the OMPF when it can be determined that it has served its intended purpose. The evidence of record in this case shows the applicant received a GOMOR, apologized for his misconduct within his rebuttal, and the GOMOR was placed in the performance folder of his OMPF. Removal of a GOMOR is generally not warranted unless it is factually incorrect. It appears the GOMOR has served its intended purpose, which would be a basis for transferring it and all allied documents to the restricted folder of his OMPF. Titling or indexing on CID reports does not denote any degree of guilt or innocence. If there is a reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof, requiring only the merest scintilla of evidence far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of evidence), and in searches (probable cause). The CID ROI shows there was credible information regarding the applicant's involvement in the alleged offense. As a result, he was properly titled, and CID listed the most sever of the allegations as unfounded. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the contested GOMOR to the restricted folder of his OMPF. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the titling decision. 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. Army Regulation (AR) 600-37 (Unfavorable Information), currently in effect, sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interest of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 3 (Unfavorable Information in Army Military Human Resources Record (AMHRR)) states a memorandum, regardless of the issuing authority, may be filed in the AMHRR, and managed by Human Resource Command. The General Officer directing filing must exercise General Court-Martial Convening Authority (GCMCA) over the recipient, be the designee or delegate of the individual exercising GCMCA over the recipient, been a filing authority from the recipient’s losing command, or be the chief of any designated special branch acting pursuant to their statutory authority. Memoranda filed in the AMHRR will be filed in the performance folder. b. Chapter 7 (Appeals) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct, and to have been filed pursuant to an objective decision by a competent authority. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include, but is not limited to: an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. The Deputy Assistant Secretary of the Army (Review Boards) is the final decision authority for removal of unfavorable information from the AMHRR. This authority will not be further delegated. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) states that the OMPF is defined as permanent documentation within the AMHRR that documents facts related to a Soldier during the course of his or her entire Army career, from time of accession into the Army until final separation, discharge, or retirement. The purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, and any other personnel actions. Once properly filed in the AMHRR the document will not be removed from the record unless directed by selected authorities such as the ABCMR, Army Discharge Review Board, Department of the Army Suitability Evaluation Board, and Army Special Review Board. 4. AR 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of CID ROIs. It states that requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b states 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. 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. 5. DODI 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that 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. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." The criteria for titling are a determination that credible information exists that a person: may have committed a criminal offense or is otherwise made the object of a criminal investigation. 6. DODI 5505.7 contains further legal guidance. a. Section 6.1. 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 DCII. (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) 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. Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII. (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII 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. d. Section 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018547 10 1