RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180002380 
APPLICANT REQUESTS: removal of his name from the titling block of a U.S. Army Criminal Investigation Command (USACIDC, commonly known as CID) Report of Investigation (ROI) for an allegation of wrongful sexual contact. 
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) . DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 20 April 2012, with associated documents . Memorandum, CID, dated 15 May 2012, subject: CID ROI – Final (C) – 0098­2012-CID022-XXXXX-XXX/XXX . DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 24 August 2013, with associated documents . Memorandum, Applicant, dated 27 August 2016, subject:  Request to Amend CID Report on (Applicant) . Memorandum, CID, dated 27 October 2016, subject: Request for Amendment of Record – (Applicant) . Letter, CID, dated 17 November 2016, with associated documents 
FACTS: 
1. The applicant states: 
a. 
He did not commit the titled offense and the investigation against him was flawed. A subsequent board of three officers heard the entire testimony, to include that of the alleged victim, and each member found he did not commit the offense. The titling in his criminal history impedes his career. The negative and incorrect information is particularly unjust because he serves as a criminal prosecutor and it implicates his personal integrity and professionalism. The titling is not merely investigative as CID claims, but contrarily prejudices him unfairly in the furtherance of his civilian career.  He was aware that CID investigated him in 2012, but he was unaware of the titling action until 2016 when his employer informed him that an Army action appeared in his criminal history during a routine background check. 

b. 
His appeal to CID for removal of his name as the subject of titling was denied on 17 November 2016. 


2. 
Having prior active and inactive duty service, the applicant was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) in the rank/grade of captain (CPT)/O-3 on 30 September 2011. He accepted an indefinite term appointment and executed his oath of office at that time. 

3. 
On 27 April 2012, the applicant was issued a general officer memorandum of reprimand by the Commanding General, The Judge Advocate General's Legal Center and School, for wrongful sexual contact against 1LT F____ on or about 2 March 2012 and on or about 17 March 2012.  He stated the applicant also used inappropriate language toward 1LT F____ on at least two other occasions. 

4. 
On 15 May 2012, the Fort Lee CID Office, 3d Military Police Group (CID), issued a memorandum, subject: CID ROI – Final (C) – 0098-2012-CID022-XXXXX-XXX/XXX, which states: 


a. 
The Staff Judge Advocate Trial Counsel, The Judge Advocate General's Legal Center and School, reported there was information to suggest First Lieutenant (1LT) F____ was sexually assaulted based upon a legal review of an The Judge Advocate General's Legal Center and School Army Regulation 15-6 investigation. 

b. 
The Army Regulation 15-6 Investigation established probable cause to believe the applicant committed the offense of wrongful sexual contact when he rubbed his clothed genital area against 1LT F____'s clothed buttocks while in the second floor bar area of the Biltmore Grill, Charlottesville, Virginia, on 2 March 2012. 

c. 
The Army Regulation 15-6 Investigation established probable cause to believe the applicant committed the offense of wrongful sexual contact when he reached for and subsequently touched 1LT F____'s clothed breast in the patio/bar area of the Biltmore Grill in Charlottesville, Virginia, on 17 March 2012. 

d. 
CPT H____, Trial Counsel, opined probable cause existed to believe the applicant committed the offense of wrongful sexual contact. 


5. 
On 16 September 2012, the Commanding General, USAR Legal Command, notified the applicant that he initiated action to separate him from the USAR for serious misconduct under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers). The commanding general specifically cited the applicant's wrongful sexual misconduct against a subordinate female on two separate occasions, 2 March 2012 and 17 March 2017, for the basis of the separation action.  He 

also referenced the applicant's dismissal from the Judge Advocate Officer Basic Course for misconduct and his receipt of a general officer memorandum of reprimand. 

6. 
On 24 August 2013, a board of officers convened at the USAR Legal Command to determine whether the applicant should be separated from the USAR under the provisions of Army Regulation 135-175, paragraph 2-11f and/or paragraph 2-11o, and recommend the characterization of his service. 


a. The board carefully considered all of the evidence presented and unanimously found, by a greater weight of evidence: 
(1) 
the applicant did not commit the act of wrongful sexual contact against a subordinate female on 2 March 2012 in violation of the provisions of Army Regulation 135-175, paragraph 2-11f and/or paragraph 2-11o; and 

(2) 
the applicant did not commit the act of wrongful sexual contact against a subordinate female on 17 March 2012, in violation of the provisions of Army Regulation 135-175, paragraph 2-11f and/or paragraph 2-11o. 

b. The board recommended the applicant's retention in military service. 

c. 
The Commanding General, USAR Legal Command, approved the findings and recommendation of the board and directed the applicant's retention in the USAR. 


7. 
On 23 June 2014, the Commanding General, USAR Command, recommended the applicant's retention in the USAR based on the findings and recommendation of the USAR Legal Command board of inquiry. 

8. 
On 14 July 2014, the Commanding General, U.S. Army Human Resources Command, approved the findings and recommendation of the field board of inquiry and directed the applicant's retention in the USAR. 

9. 
On 27 August 2016, the applicant appealed to the Director, U.S. Army Crime Records Center, to remove his name from the title block of the subject CID ROI.  He stated a mistake was made and no credible information existed at the time that would lead a trained investigator to presume the allegations against him were true.  He did not commit wrongful sexual contact. 

10. 
On 27 October 2016, CID determined the applicant should be retained in the subject block of CID ROI 0098-2012-CID022-XXXXX-XXX for wrongful sexual contact. 


a. Credible information did exist at the time of the initial ROI to warrant the applicant's titling as a subject in this investigation. There was no error in mistaken identity or error in application of the credible information standard at the time of the initial ROI to support an amendment to this portion of the report. 
b. Further review of the applicant's request for an amendment along with the subsequent investigation/documentation failed to discover any substantive, new information warranting amendment to the probable cause determination reflected in the summary of this ROI regarding the listed founded offenses. 
11. On 17 November 2016, the Director, CID, U.S. Army Crime Records Center, informed the applicant that his amendment request was partially granted. 
a. 
The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was updated to correct the disposition pertaining to CID ROI 0098-2012-CID022-XXXXX-XXX.  A copy of the amended DA Form 4833 was provided to the applicant and added to his file. 

b. 
The information the applicant provided did not constitute new or relevant information needed to further amend the report and this portion of his request was denied. 

c. 
The DA Form 4833 is part of a system of records which is exempt from the mandatory disclosure provisions of the Freedom of Information Act. 


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, the GOMOR 
he received, the AR 15-6 investigation outcomes, the proceeding of the Board of Inquiry that recommended his retention in the USAR and the CID reviews of the applicant’s request to remove him from the CID ROI and the amendment of the disposition on the report.  While the Board noted the recommendation for his retention by the board of inquiry and their rationale for doing so, the Board determined by the preponderance of evidence that credible information did exist at the time of the initial ROI sufficient to warrant the applicant's titling as a subject in this investigation. The Board determined that there was no error or injustice necessitating a correction to the applicant’s records. 
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 :XXX :XXX :XXX 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. 
X 
CHAIRPERSON 
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. 
REFERENCES: 
1. 
Department of Defense Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. Titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Clearance Investigations Index is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 

2. 
Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the Department of Defense and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. Paragraph 3-6a states: 


a. 
An amendment of records 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. 

b. 
Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report.  The burden of proof is on the individual to substantiate the request. 

c. 
Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, non-judicial, or administrative action is taken against the individual. 

d. 
In compliance with Department of Defense policy, an individual will still remain entered in the Defense Clearance Investigations Index to track all ROIs. 


3. Army Regulation 195-2 (Criminal Investigations Activities) prescribes 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 CID.