IN THE CASE OF: BOARD DATE: 26 March 2020 DOCKET NUMBER: AR20180006151 APPLICANT REQUESTS: removal of his titling information by the U.S. Army Criminal Investigation Command (CID). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552) .Memorandum, CID, Joint Base Lewis-McChord, WA, dated 1 November 2016,subject: Law Enforcement Report (LER) .Memorandum, Applicant, dated 2 June 2017, subject: Removal of Titling fromArmy Records (Applicant) .Memorandum, CID, dated 5 October 2017, subject: Request for Amendment ofRecord (Applicant) XXXXX-2016-CIDXXX-XXXXXX .Memorandum, 6th Military Police Group, Joint Base Lewis-McChord, WA, dated10 October 2017, subject: Request for Amendment of Record – (Applicant) .Memorandum, CID, dated 13 October 2017, subject: Legal Review of Requestfor Amendment of Record – (Applicant) .Memorandum, Chief, U.S. Army Crime Records Center (CRC), dated15 November 2017, subject: Review of Request for Amendment of Record(2016-CIDXXX-XXXXXX) .Letter, CID, dated 27 November 2017 .Memorandum, Counsel, dated 15 February 2018, subject: Matters in Responseto Denial of Request to Correct Law Enforcement Records, (Applicant) REFERENCES: 1.Army Regulation 195-2 (Criminal Investigation Activities) establishes policies oncriminal investigation activities, including the utilization, control, and investigativeresponsibilities of all personnel assigned to CID elements. Paragraph 4-4b(Amendment of CID Reports) provides that: a.Requests to amend or unfound offenses in CID Report of Investigations will begranted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. b.The burden of proof to substantiate the request rests with the individual. c.Requests to delete a person's name from the title block will be granted if it isdetermined 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. d.The decision to list a person's name in the title block of a CID Report ofInvestigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e.The decision to make any changes in the report rests within the sole discretion ofthe Commanding General, 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.Department of Defense (DOD) Instruction 5505.7, dated 7 January 2003, subject:Titling and Indexing of Subjects of Criminal Investigations in the DOD, states titlingensures investigators can retrieve information in a report of investigation of suspectedcriminal activity at some future time for law enforcement and security purposes. Titlingor indexing alone does not denote any degree of guilt or innocence. The criteria fortitling simply states, if there is reason to investigate, the subject of the investigationshould be titled. This is a very low standard of proof (mere scintilla of evidence), farbelow the burdens of proof normally borne by the Government in criminal cases(beyond a reasonable doubt), in adverse administrative decisions (preponderance of theevidence), and in searches (probable cause). 3.DoD Instruction 5505.11, dated 21 July 2014, subject: Fingerprint Card and FinalDisposition Report Submission Requirements, established policy, assignresponsibilities, and prescribed procedures for defense criminal investigativeorganizations and other DOD law enforcement organizations to report offender criminalhistory data to the Criminal Justice Information Services Division of the Federal Bureauof Investigation for inclusion in the National Crime Information Center criminal historydatabase. Based on a probable cause standard determined in conjunction with theservicing Staff Judge Advocate or other legal advisor, for members of the MilitaryService investigated to include wrongful use of a controlled substance. 4.DoD Directive 5500.07-R (Joint Ethics Regulation), in effect at the time, provided asingle source of standards of ethics conduct and ethics guidance, including direction inthe areas of financial and employment disclosure systems, post-employment rules,enforcement, and training. Paragraph 3-211a stated the head of a DOD Componentcommand or organization may provide DOD employees in their official capacities toexpress DOD policies as speakers, panel members, or other participates, or, on alimited basis, the use of DOD facilities and equipment (and the services of DOD employees necessary to make proper use of the equipment), as logistical support of an event sponsored by a non-Federal entity, except for fundraising and membership drive events. FACTS: 1.The applicant defers to counsel. 2.Counsel requests de novo (anew or from the beginning) review of his originalrequest to the CRC, dated 2 June 2017, for removal of the titling information pertainingto the applicant from CID LER XXXXX-2016-CIDXXX-XXXXXX. The 2 June 2017request was denied by the CRC on 27 November 2017. Included were action officeropinions that varied in substance and conclusions. a.Two of the opinions relied on the "credible information standard," but did notaddress a single point raised in the original request regarding the legal justification and defense for the underlying act. The legal justifications, citations, and underlying decision to title were not referenced. The opinion of the CRC chief was so short and devoid of analysis that it is impossible to even discern what rationale the opinion used in the denial. The only person who appeared to consider and directly address the applicant's matters was the Assistant Chief of Operations, who did not believe the applicant should have been titled in the first place. b.The Assistant Chief of Operations wrote the investigative facts gathered prior toindexing the applicant revealed no credible information that was sufficiently believable to lead a trained criminal investigator to believe the applicant was involved in selling or disposing of Government property (meals ready to eat (MREs)). The investigative facts clearly indicated the applicant's decision to donate the MREs was made in good faith to further good causes. The applicant was essentially a victim of fraud. The applicant should be removed from the titling block. c.None of the opinions addresses the underlying legal authority that the applicanthad as a commander to make distribution in support of Non-Federal entities under the Joint Ethics Regulation. The applicant was a battalion commander in a storied infantry unit at the time of being titled. He will be entering his promotion zone for colonel this year and has been competitive for elite jobs and promotion at every stage of his career. Titling could end his promotion possibility and limit his career potential, despite the fact that he did nothing wrong. As a rising star and stellar officer with no history of any adverse action or criminal misconduct, erroneously titling him after he was the victim of a fraudulent scheme is both legally and morally wrong. 3.Counsel's original request to the CRC, dated 2 June 2017, states the justification forthe removal of the applicant's titling from Army records is based on DOD Instruction 5505.07, as a mistake was made at the time of titling and indexing because no credible information indicated the applicant committed a crime. a. As a commander and an agent of the U.S. Army, the applicant has the authority to provide limited logistical support to nonfederal entities in support of community relations. Paragraph 3-211a of the Joint Ethics Regulation authorizes commanders to provide logistical support to non-Federal entity events, provided the support is a legitimate DOD interest. The applicant had reasonable grounds to find that donation of the military property was authorized and served the interest of the DOD. b. A review of the investigation shows an individual named Specialist (Retired) F____ committed larceny by obtaining Government property by false pretense. Specifically, Specialist (Retired) F____ held himself out to be a representative of multiple non-Federal entities, including Boy Scouts of America, Junior Reserve Officers' Training Corps, and a board member of the 23rd Infantry Regimental Association. Specialist (Retired) F____ also held himself out to be someone creating a charitable event for disabled veterans and their families called "Warrior Week." c. The applicant did not know that Specialist (Retired) F____ was committing fraud. The applicant and every other Soldier involved in the investigation believed that Specialist (Retired) F____ was looking for limited logistical support for a non-Federal entity that assisted children, Boy Scouts, or disabled veterans. 4.The applicant was serving in the Regular Army in the rank/grade oflieutenant colonel/O-5 at the time he became the subject of a CID LER.5.CID LER XXXXX-2016-CIDXXX-XXXXXX, dated 1 November 2016, shows the applicant was one of six subjects/suspects for the offense of "Wrongful Disposition or Sale of Government Property."a.The Report Summary states that surveillance of Mr. F____'s off-post residence revealed 72 cases of MREs on his property. Mr. F____ stated he approached the five subjects/suspects, wherein he requested a donation of MREs for charity events and received multiple donations of MRE cases from several different units. He denied he obtained MREs by false pretense and denied he sold donated MRE cases. Information was provided in which Mr. F____ advertised the sale of MREs on a closed Facebook page. Coordination with the alleged charity events revealed no charity events existed as described by Mr. F____. The applicant authorized a small quantity of MREs to be given to Mr. F____. Other subjects/ suspects donated cases of MREs to Mr. F____. The estimated loss to the U.S. Government was $15,757.50. b. The Legal Coordination states the Chief, Military Justice, Joint Base Lewis-McChord, opined probable cause existed to believe the subject/suspects committed the offense of wrongful disposition of Government property. The Special Assistant U.S. Attorney, Joint Base Lewis-McChord, opined probable cause existed to believe Mr. F____ committed the offense of criminal trespassing. 6.On 27 November 2017, CID responded to the applicant's request to correctinformation from the file of the CID and supplemented their response of 15 September2017 (not in evidence). After a careful review and consideration of the applicant'srequest and the evidence available, the applicant's request was denied. CID providedthe action officers opinions responsive to his request. a.In his memorandum, dated 5 October 2017, the Chief, Investigative Operations, CID, determined numerous individuals unlawfully released MREs to Mr. F____. The applicant was approached by Mr. F____ for MREs and then the applicant instructed a subordinate to release MREs to Mr. F____, which he later sold. The Chief, Investigative Operations, stated that based on his review of all the information available it is his opinion the threshold for credible information was met and the applicant was properly titled. b. In his memorandum, dated 10 October 2017, the Assistant Operations Officer, 6th Military Police Group, Joint Base Lewis-McChord, opined that the credible information standard was inappropriately applied for the offense of wrongful disposition or sale of Government property for which the applicant was indexed as a subject. Investigative facts gathered prior to indexing the applicant revealed no credible information that was sufficiently believable to lead a trained criminal investigator to presume the applicant was involved in wrongfully disposing or selling Government property in any way, shape, or form, but clearly indicated his decision to donate MREs was made in good faith in hopes of promoting good causes. The applicant had the authority to provide logistical support to non-Federal entities in support of community relations, and he thereby exercised the authority within the bounds of the Joint Ethics Regulation. The totality of investigative facts revealed the applicant did not attempt to gain any personal or professional advantage by providing the MRE; his good faith was egregiously taken advantage of by Mr. F____. He recommended removal of the applicant's name from the title block of the LER. c. In his memorandum, dated 13 October 2017, the Attorney-Advisor, CID, stated based on the review of the LER and the applicant's appeal, he determined there was no basis for granting the applicant's request for an amendment.. There is credible information to support the titling decision and probable cause to believe the applicant committed the offense for which he was titled. There were no new, relevant, or material facts submitted in the appeal to warrant revision of the titling determination. d.In his memorandum, dated 15 November 2017, the Chief, CRC, opined thatcredible information existed to title the applicant as a subject of the investigation in the LER. The offense of wrongful disposition or sale of Government property reported in the LER is a founded offense based on the probable cause standard and that the applicant committed the offense. He recommended the Report of Investigation remain unchanged. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant’s counsel and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of titling information by the U.S. Army Criminal Investigation Command (CID) was done within regulatory guidelines and standards. The Board noted that, during the 2017 CID review of the titling determination, one reviewer recommended the applicant be removed from the titling block. However, considering the totality of the circumstances, the Board determined credible evidence existed at the time the titling decision was made that was sufficiently believable to lead a trained criminal investigator to believe the applicant may have committed a criminal offense. For that reason, and based on a preponderance of evidence, the Board determined that denying the requested relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XX 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. //NOTHING FOLLOWS//