ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 August 2019

	DOCKET NUMBER:  AR20180001606


APPLICANT REQUESTS:  removal of his name from the title block of U.S. Army Criminal Investigation Command (CID) Military Police Report (MPR) , dated 26 October 2008.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlisted Record Brief
* U.S. Army Criminal Investigation Command (CID) response to his appeal
* DA Form 3975-1 (Military Police Report (MPR))
* DA Form 3975-1, Additional MPR
* Military Police Record Check
* Amended Full Order of protection
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) 
* Letter of employment denial

FACTS:

1.  The applicant states there is an arrest record that appeared on his background check from 2008.  He went to court about this matter and was found no evidence of any wrongdoing.  His chain of command says that they orally reprimanded him but he was stationed at Fort Leonard Wood, MO when the incident took place.  He left Fort Leonard in January 2009 to Fort Stewart, GA.  The action taken block by his chain of command says that he was orally reprimanded in September 2009 which didn't happen.  This is doing an injustice for him because it is keeping him from getting meaningful employment.  He does not know what else to do besides try and fix it with the review board.  He would like to either have it removed from his record or have it state on his background check that there was no evidence of wrongdoing.

2.  Review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army on 16 September 1998.  He served through multiple reenlistments.  
	b.  On 20 October 2008, Military Police, Fort Leonard Wood, MO were notified of a domestic assault incident.  Investigation revealed that the applicant was involved in a verbal altercation which turned physical when the applicant choked [redacted] with the collar of [redacted] shirt.  Upon the MP's arrival, the applicant was not present.  The person whose name is redacted stated that the applicant had been consuming alcoholic beverages all morning and left the quarters in his privately owned vehicle.  MP's made contact with him and subsequently placed him under arrest.  He was advised of his rights and released to his unit.  The redacted person was later re-interviewed and stated she had been physically assaulted several other times.  Probable cause existed to believe the applicant committed the offense of "Domestic Assault Second Degree" and "Domestic Violence." 

	c.  On 25 November 2008, the civilian court issued an Amended Full Order of Protection.  This document ordered the applicant not to communicate with [Name Redacted] in any manner or through any medium and not enter or stay upon the premises of wherever she may reside.  

	d.  The Commander's Report of Disciplinary or Administrative Action (DA Form 4833), dated 21 September 2009 shows the commander orally reprimanded the applicant and:

* gave him a no contact order
* removed him from home
* placed him in other living quarters

	e.  The applicant underwent a physical evaluation board that rated his disability (degenerative disc disease and left and wright sciatic nerve neuropathy) at a combined disability rating of 60% and recommended his permanent retirement. 

	f.  He retired on 4 January 2016 and he was placed on the retired list in his retired grade of staff sergeant on 5 January 2016.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she completed 17 years and 3 months of active service. 

	g.  On 16 June 2017, he received a letter from the Director of Crime Center (CRC), U.S. Army Criminal Investigation Command, Quantico in relation to his request, dated 5 June 2017, to correct information in the CID records.  The Director, CRC, informed him that the information he provided did not constitute as new or relevant information needed to amend the report; therefore; his amendment request was denied.  

	h.  On 19 October 2017, he received a withdrawal of a tentative job offer for Postal Operations Clerk due to a pre-employment background check.  

3.  AR 190-45 and DOD Instruction 5505.7 provides that the criteria for reporting an individual in the subject block was based upon credible information to believe the individual committed the offense.  Request for amendment of such records ate processed under the provisions of paragraph 3-6a, AR 190-45, which provides, in part, that an amendment of record is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete.  Amendment procedures are not intended to permit challenging an event that actually occurred.  For example, a request to remove an individual's name as the subject of an MPR would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported.  Expungement of a subject's name from a record because the commander took no action or the prosecutor elected not to prosecute will not be approved.  In compliance with DOD policy [DODI 5505.7, paragraph 6], an individual will still remain entered in the Defense Clearance and Investigations Index (DCII) to track all reports of investigations.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was not warranted.  The applicant’s contentions were carefully considered.  The DA Form 4833 shows his chain of command removed him from his residence, provided him with a no-contact order, and an oral reprimand.  He contends the oral reprimand did not occur.  Even if no action took place, regulatory guidance provides expungement of a subject's name from a record because the commander took no action will not be approved.  Based upon the preponderance of the evidence, the Board agreed there is no error or injustice in this case as there was probable cause to conduct an investigation into the contested incident.

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 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 ROI's.  It states that requests to amend CID ROI's 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.

2.  DODI 5505.7 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.

3.  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.

4.  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)	 AR20180001606


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