ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:

		BOARD DATE:  28 February 2019

		DOCKET NUMBER:  AR20180005757


APPLICANT REQUESTS:  through counsel, removal of her name from Fort Bliss Military Police Report Number 02012-XX-MPCXXX, dated 16 September 1996, or, in the alternative, amendment of her titling for domestic aggravated assault from "subject" to "victim."

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* Fort Bliss Military Police Report Number 02012-XX-MPCXXX, dated 16 September 1996 
* U.S. Army Criminal Investigation Command (USACIDC) U.S. Army Crime Records Center letter, dated 15 March 2018
* DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated October 1996
* DA Form 2823 (Sworn Statement), dated 13 September 1996
* two extracts from Department of Defense Instruction (DODI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense (DOD)), dated 7 January 2012
* two extracts from DODI 6400.06 (Domestic Abuse Involving DOD Military and Certain Affiliated Personnel), dated 21 August 2007
* Army Regulation 608-18 (The Army Family Advocacy Program (FAP)) extract, dated 30 October 2007

FACTS:

1.  The applicant enlisted in the Regular Army on 17 November 1994 in the rank/grade of private first class (PFC)/E-3 for a period of 3 years under the name X____ X. X____.

2.  U.S. Army Air Defense Artillery Center and Fort Bliss, Order 86-45, dated 27 March 1995, shows her last name as X____ and she was authorized movement of her dependents and household goods.

3.  The Fort Bliss Military Police Report Number 02012-XX-MPCXXX, dated 16 September 1996, shows her as the subject of aggravated assault (domestic).  Her name is shown as X___ X. X____ and her status is shown as married.

3.  Counsel states:

	a.  In September 1996, the applicant was titled as a subject for domestic aggravated assault under the provisions of the Uniform Code of Military Justice (UCMJ), Article 128.

	b.  On 31 October 1996, the applicant's commander signed a DA Form 4833 stating she was counseled by her commander and enrolled in marriage counseling.  She was neither administratively nor judicially punished as a result of the Military Police Report of investigation.

	c.  There is a lack of credible evidence.  The applicant was a victim, not the perpetrator, of domestic violence.

	d.  Military police questioned the applicant after receiving a report from her husband that she hit him with garden sheers.  Her statement illustrates that she was a victim of spousal abuse.  She told investigators that her husband had previously abused her and that the incident in question began with her asking him to leave the house.  He subsequently pushed her back down on the couch after she tried to get up.  The applicant further explained the marks on her husband's arms were from a "scuffle" between the two that happened after he grabbed her.

	e.  DODI 5505.07 states titling should be removed if "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."  Credible information is "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."

	f.  DODI 6400.06 states "it is DOD policy to...provide for the safety of victims; hold abusers appropriately accountable for their behavior; and coordinate the response to domestic abuse with the local community."  Further, law enforcement officials responding to domestic violence must:

		(1)  inquire about any history of abuse or existing protective orders and

		(2)  inform the victim of the availability of local shelter facilities, services offered through the FAP, victim advocate and other domestic abuse services, and procedures for obtaining a protective order.

	g.  Army Regulation 608-18, paragraph 3-19(a), states "every report of spouse or child abuse will be promptly and fully investigated."

	h.  The unvarnished reality is that a criminal investigator trained in domestic violence would not have listed the applicant as a subject.  He would have seen an abusive spouse attempting to maintain control once again through filing a false police report.

	i.  A trained criminal investigator would have referred the applicant to family advocacy resources and listed her as a victim.

	j.  The applicant faces the unconscionable reality that, as a survivor of domestic violence, she is titled as a subject.  The only rational explanation for this is a lack of training and awareness of domestic violence.

4.  The applicant's Sworn Statement, dated 13 September 1996, shows she was serving in the rank of PFC.  She stated, in part:

	a.  She took the phone away from him, then grabbed him by his shirt, and told him to leave again, after telling him dozens of times already.  She even opened the door for him, but he kept slamming it closed.

	b.  There were some clippers by the door, so she picked them up and threatened him with them, and he left.  After he left, she got on the phone, trying to get a credit card, and a military police officer came to the door.

	c.  She was not trying to make anyone feel sorry for her, but her husband used to abuse her all the time.  She would call the police, but change her mind and tell them everything was okay.  Every time he would hit her.  In the past, she would not ask him to leave.  She would never argue and she would just cry when he would hit her.

	d.  She put her foot down two times and asked him to leave.  One time she called the military police, but she thought she could not ever hit him and get away with it.

	e.  When questioned, she indicated she had not struck her husband with shears, hit, push, or kick him, and her husband pushed her back down as she was getting up from the couch.

	f.  She was asked how her husband got marks on his arms.  She indicated she grabbed him and tried to push him out the door and she must have grabbed him too tightly or pushed him too hard.  She also indicated there was one time when he grabbed her and they scuffled, and it may have happened then, but she was not sure.  She added she did not hit her husband nor did she try to hit him and he knew that.

5.  Counsel provided Fort Bliss Military Police Report, Number 02012-XX-MPCXXX, dated 16 September 1996, showing:

	a.  On 13 September 1996 during the period 1445 to 1500 hours, military police were dispatched to the applicant's on-base quarters.  The applicant, using the name X____ X. X____ at the time, was listed as the subject of aggravated assault (domestic) under the provisions of Article 128, UCMJ.

	b.  Item 17 (Persons Related to the Report) of the Military Police Report listed a dependent family member as the victim.

	c.  The Incident Summary of the Military Police Report shows Mr. [redacted] notified the military police station in person that he and PFC X____ (Applicant) were involved in a verbal altercation that turned physical when PFC X____ (Applicant) inflicted several lacerations on both of Mr. [redacted]'s arms with a pair of garden shears.  Mr. [redacted] refused medical attention.  PFC X____ (Applicant) was apprehended, searched, and transported to the military police station where she was advised of her legal rights, which she waived, rendering a written statement, denying the offense.  PFC X____ (Applicant) was released to her unit (Sergeant First Class [redacted]) on a DD Form 629 (Receipt for Inmate or Detained Person) at 1930 hours, 13 September 1996.

6.  The Commander's Report of Disciplinary or Administrative Action, dated 20 October 1996, shows she was charged with the offense of aggravated assault on 13 September 1996.

	a.  She was advised that although no action was taken, the report would be retained in Army records and that requests for amendments, correction, or expungement could be submitted in accordance with Army Regulation 190-45 (Military Police Reports) or Army Regulation 195-2 (Criminal Investigation Division Reports).

	b.  She was counseled by the first sergeant, platoon leader, and her commander.  She was told to enroll in marriage counseling at the hospital, which she did.  She was working closely with Army Community Services to save her marriage.

7.  Counsel also provided extracts of DODI 5505.07 and DODI 6400.06 which address DOD policy on defense criminal investigative organizations; definition of credible information; victim safety, abuser accountability, and local community coordination; and investigative procedures for law enforcement.

8.  On 16 November 1997, she was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).

9.  A review of her records indicates she divorced her husband and later remarried.  Her DD Form 93 (Record of Emergency Data), dated 25 June 2012, shows she divorced again in May 2008.

10.  Counsel provided a letter from the USACIDC U.S. Army Crime Records Center, dated 15 March 2018, in which counsel was advised his request for correction of information from the files of USACIDC on behalf of the applicant was denied.  He was also advised the information presented did not constitute new or relevant information needed to further amend the report and the applicant had exhausted her remedies to correct information contained in her USACIDC record.  The applicant's alternative was to apply to the ABCMR.

11.  On 12 September 2018 and while in the rank of sergeant first class, she received her Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-Year Letter).

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The Board considered the applicant’s contention and the ROI.  The Board agreed the applicant was appropriately titled for the incident occurring on the date in question.

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.


ADMINISTRATIVE NOTE(S):  not applicable.



REFERENCES:

1.  Title 10, U.S. Code, 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 608-18 provides policies for handling spouse and child abuse within the Army.  The regulation, in effect at the time, stated in:

	a.  paragraph 3-4, the victims in physical assault often suffer multiple injuries.  Spouse abuse may be suspected when an explanation of an accident is inconsistent with the injury sustained or when there are multiple injuries on the face, neck, chest, breasts, or abdomen with no reasonable explanation.  In suspicious cases, appropriate medical and dental protocols require that physicians, dentists, social workers, and nurses begin to actively check for the possibility of abuse;

	b.  paragraph 3-17, the person reporting the abuse should be fully questioned before others are questioned in the case.  When the person making the report of abuse is a Soldier suspected of a criminal offense under the UCMJ, such questioning will be preceded by an advisement of rights under Article 31, UCMJ;

	c.  paragraph 3-18, victims of spouse abuse should be protected from further trauma caused by unnecessary or repeated questioning by the various agencies involved. This regulation mandates, whenever possible, coordinated joint interviews by law enforcement, medical and social work personnel.  Victims should be interviewed separately, outside the presence of the offender;

	d.  paragraph 3-21, the law enforcement agency with jurisdiction in the case has the primary responsibility for the formal or informal questioning of Soldiers and civilians suspected of spouse or child abuse.  The USACIDC should perform the initial questioning if the suspected abuse occurred on an Army installation;

	e.  paragraph 3-22, every report of spouse or child abuse will be promptly and fully investigated.  The Case Review Committee (CRC), after considering each report of abuse, will make and enter findings on the DD Form 2486 (Child Abuse/Spouse Abuse Incident Report) that the abuse is either substantiated or unsubstantiated.  If further information is required before such findings can be made, the CRC may reschedule the case to a later CRC meeting until sufficient information is available to make such a finding, but in no case should a determination be delayed more than 60 calendar days; and

	f.  CRC findings are clinical decisions, not criminal determinations.  The CRC is an advisory team which can make recommendations to commanders, supervisors and courts regarding administrative and disciplinary actions for perpetrators of child/spouse abuse.  The purposes of the CRC are to identify whether someone has been the victim of abuse, to determine if the victim is at immediate risk of further trauma, coordinate the necessary support services to protect the victim and ameliorate the situation.  A CRC finding identifying an alleged offender may cause a commander or supervisor to pursue administrative or disciplinary measures against that individual, who is then entitled to the full range of due process rights afforded in those proceedings.  Because CRC findings are used within the FAP for the purpose of providing services and developing treatment plans for families, there is no right for Soldiers or family members to be present at CRC meetings while their cases are being discussed.  CRC findings may not be used outside the FAP as the sole basis for denying a person an opportunity for employment or for taking adverse actions.  However, the information upon which such findings are based, together with information gathered from other sources (e.g., military police reports, statements by the alleged abuser or witnesses) may provide the basis for taking such actions.

3.  Army Regulation 608-18, paragraph 3-19, now in effect, states every report of spouse or child abuse will be promptly and fully investigated.  The CRC, after considering each report of abuse, will make and enter findings on a DA Form 7517 (Department of the Army Child/Spouse Abuse Incident Report) that the abuse is either substantiated or unsubstantiated.  The previous regulation and the current regulation contain the same pertinent language under different paragraph numbers.

4.  DODI 5505.07 establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by DOD.

	a.  Paragraph 1.2a states DOD Components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the Defense Central Index of Investigations (DCII) as soon as possible.

	b.  Paragraph 1.2b states victims and incidentals associated with criminal investigations can be titled and indexed.

	c.  Paragraph 1.2c states titling and indexing are administrative procedures and will not imply any degree of guilt or innocence.

	d.  Paragraph 1.2d states that once the subject of a criminal investigation is indexed in the DCII, the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless there is mistaken identity or it is later determined no credible information existed at the time of titling and indexing.

	e.  Paragraph 1.2e states if a subject's information requires expungement from or correction in the DCII, DoD Components will remove the information as soon as possible.

	f.  Section 3 states, in part, a subject who believes he or she was incorrectly indexed may appeal to the DOD Component head to obtain a review of the decision.  When reviewing the appropriateness of a titling or indexing decision, the reviewing official will only consider the investigative information at the time of the decision to determine if the decision was made in accordance with paragraph 1.2.a.  DOD Components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible.

5.  DODI 6400.06 establishes, implements, and updates domestic abuse policies; identifies and assigns responsibilities for preventing and responding to domestic abuse; and provides guidance for implementing those policies in accordance with Title 10, U.S. Code, section 1562, and Public Law 103-337, section 534, through a coordinated community response involving multiple offices and agencies at military installations working in coordination with the surrounding civilian community.  Chapter 6 provides instructions on procedures and states:

	a.  Commanders will refer any incident of domestic abuse reported or discovered independent of law enforcement to military law enforcement or appropriate criminal investigative organization for possible investigation in accordance with DODI 5505.03 (Initiation of Investigations by Military Criminal Investigative Organizations).  Commanders will counsel a military suspect about his/her alleged misconduct, but only after referring the incident of domestic abuse to law enforcement for investigation and consulting with the judge advocate general about providing the military suspect his/her Article 31 rights under the UCMJ.

	b.  Commanders will refer the alleged abuser to the appropriate criminal investigative organization for possible investigation.

	c.  Commanders will review each law enforcement investigative report with the servicing legal office to determine appropriate disposition.  The commander shall make this determination independent of any clinical determination by the FAP committee as to whether this incident shall be entered into the DOD Component FAP registry of substantiated domestic abuse incidents.

	d.  Law enforcement personnel shall promptly complete a detailed written report of the investigation and forward a copy to the alleged suspect's commander or when the alleged suspect is a civilian, to the local law enforcement authorities in accordance with local law enforcement requirements and procedures.

	e.  As part of the coordinated community response to domestic abuse, judge advocates have an integral role in ensuring that victims are protected from further harm and advising commanders concerning the appropriate disposition of domestic violence offenses.


ABCMR Record of Proceedings (cont)	 AR20180005757
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