IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180006579 APPLICANT REQUESTS: amendment of U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER) and all related documents and files pertaining to his participation in the Guard Recruiting Assistance Program (G-RAP) as a recruiting assistant; all documents associated with it; and all databases and records systems populated by data from them, as follows: a. changing the determination of charges of aggravated identify theft, theft of public money, and wire fraud from "founded" to "not founded"; b. changing the determination of charges of aggravated identify theft, theft of public money, and wire fraud to a determination that they were "unsubstantiated"; c. changing the determination that probable cause existed to believe the offenses charged to a determination that probable cause did not so exist; d. deleting his name from the subject block of the report of investigation (ROI); e. deleting all references from elsewhere in the investigation and all associated documents; and f. deleting all indexing with respect to this from the Defense Central Index of Investigations (DCII) and all databases and records systems populated by data from them. 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) * Letter, Counsel, dated 13 April 2018, with 16 exhibits – * Exhibit 1 – Letter, CID, dated 9 November 2017 * Exhibit 2 – Letter, CID, dated 8 February 2018 * Exhibit 3 – Polygraph Examination Report, Polygraph Examiner and Consultant, dated 12 January 2018 * Exhibit 4 – Letter, Polygraph Examiner and Consultant, dated 1 March 2018 * Exhibit 5 – General Affidavit, Counsel's Investigator, dated 16 January 2018 * Exhibit 6 – General Affidavit, Counsel's Investigator, dated 16 January 2018 * Exhibit 7 – General Affidavit, Counsel's Investigator, dated 16 January 2018 * Exhibit 8 – General Affidavit, Counsel's Investigator, dated 16 January 2018 * Exhibit 9 – General Affidavit, Counsel's Investigator, dated 31 January 2018 * Exhibit 10 – Affidavit, C____, dated 21 December 2017 * Exhibit 11 – Letter, Counsel's Investigator, dated 26 March 2018 * Exhibit 12 – Memorandum, 41st Weapons of Mass Destruction Civil Support Team, Louisville, KY, dated 25 February 2018, subject: Letter of Recommendation for (Applicant) * Exhibit 13 – Memorandum, Warrior Transition Battalion, Fort Bragg, NC, dated 26 February 2018, subject: Character Assessment of (Applicant) * Exhibit 14 – Letters of Recommendation * Exhibit 15 – Letter, Enlisted Association of the National Guard of the United States, dated 10 May 2017 * Exhibit 16 – Letter, Congressional Representative, dated 26 August 2016 * Letter, Counsel, dated 16 April 2019, Reference: Supplemental Submission to Case AR20180006579, (Applicant) REFERENCES: 1. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the CID elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. Requests to amend or unfound offenses in CID Reports of Investigation (ROIs) will be granted 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 is determined that credible information did not exist to believe that 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 ROI 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 of the 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, subject: Titling and Indexing of Subjects of Criminal Investigations in the DOD, dated 7 January 2003, states titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling simply states, if there is reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof (mere 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 the evidence), and in searches (probable cause). 3. Army Regulation 195-6 (Department of the Army Polygraph Activities) contains policies and procedures for using the polygraph in the Department of the Army. Paragraph 2-2 (Use of Polygraph Examinations Conducted by Agencies Other than Federal Agencies) provides that only polygraph examinations conducted by Federal agencies or conforming to DOD standard will be used in official DOD proceedings. On occasion, attorneys representing DOD-affiliated personnel contract for private commercial polygraph examinations on behalf of their clients, anticipating that the examinations will be used in official DOD proceedings. Since the DOD cannot attest to the conditions under which the examinations were administered, DOD components will not accept such examinations in lieu of those conducted by Federal agencies, or as a minimum meeting National Center for Creditability Assessment (NCCA) standards. FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The applicant was accused of improperly receiving payment for two referrals of potential Army National Guard (ARNG) recruits whom CID alleges claim not to remember the applicant. This charge was nearly 10 years after the fact. CID fails to address the obvious plausible and reasonable alternative explanation – that these Soldiers' claims not to remember the applicant stemmed, not from fraud on the part of the applicant, but rather from the ordinary, foreseeable, and likely fact that nearly 10 years after their enlistment in the ARNG, these two individuals have simply forgotten the applicant's role in their recruitment. b. Through our own investigation, at least one of the Soldiers has stated he felt pressured or coerced, that he never said anything negative about the applicant to CID, and the applicant might indeed have nominated him for enlistment under the G-RAP, and that he had motive to lie about the applicant. CID failed to account for the fact that recruiters with whom the applicant worked during his G-RAP participation accuse him of no wrongdoing. c. In his report, our investigator stated the G-RAP was poorly conceived from a management perspective with unclear and poorly disseminated rules, poor training for its participants, and poor management controls implemented. This resulted in many errors and, in some cases, fraud. The CID investigation was deeply flawed in innumerable ways, creating great risk that innocent Soldiers would be punished along with the guilty. The applicant is one of those innocent Soldiers being unfairly targeted by CID long after the truly guilty have been charged and punished. d. CID only did a tiny amount of investigatory work in their case against the applicant, consisting of three telephonic interviews and an interview with the applicant. CID did not interview full-time Army recruiters to whom the applicant referred potential recruits. e. Based upon our review of CID's report, our own investigation into the applicant's case, the G-RAP, and activities of CID's task force to investigate G-RAP, we believe it is abundantly clear that CID's findings with respect to the applicant are unjustified and incorrect. 3. Counsel further states in a supplemental submission, dated 16 April 2019: a. the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) prepared in the applicant's case was improperly executed and should be expunged and b. the DA Form 4833 was executed without proper authority; It should have been executed by his commander, instead it was completed by someone from Fort Knox CID. 4. The applicant was serving in the ARNG in the rank/grade of captain/O-3, mobilized, when he became the subject of an LER. 5. The LER, dated 29 November 2016, shows the applicant was the subject of investigation for the offenses of aggravated identity theft, wire fraud, and theft of Government funds between 12 December 2005 and 12 September 2012. a. The applicant was identified to have fraudulently received G-RAP bonus payments. He denied he fraudulently obtained potential Soldiers' personally identifiable information (PII). Three potential Soldiers were interviewed wherein two related they were not aware the applicant was their recruiting assistant, did not receive assistance from him, and did not provide their PII to him for the purpose of G-RAP. The third potential Soldier related he received assistance and he provided PII to the applicant for the purpose of G-RAP. Total loss to the U.S. Government was $8,000.00. b. On 22 November 2016, the Trial Counsel, Office of the Staff Judge Advocate, Fort Bragg, NC, opined that probable cause existed to believe the applicant committed the listed offenses, but declined to pursue prosecution as the statute of limitations had expired. 6. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 19 December 2016, states the first lieutenant colonel (LTC) in the chain of command is responsible and accountable for completing the DA Form 4833 with supporting documentation for a CID investigation. a. Item 10a (Commander's Remarks) contains the statement: "...Trial Counsel, Office of the Staff Judge Advocate, Fort Bragg, NC, opined probable cause existed to believe [Applicant] committed the listed offenses, but declined to pursue prosecution as the Statute of Limitations had expired." b. Item 11 (Commanding Officer or Reporting Officer) shows the form was signed by a chief warrant officer three. 7. Counsel provided an affidavit, dated 21 December 2017, which documented his conversation with Mr. C____, a civilian paralegal employed by the U.S. Army at Fort Bragg, NC; wherein he stated: a. The applicant's battalion commander, LTC B____, reviewed the CID case file, did not find the allegations credible, and declined to take action. b. When the DA Form 4833 came back from the 18th Airborne Corps for review, LTC B____ rejected its findings. c. The person who signed the DA Form 4833 was not LTC B____, but rather a warrant officer not a member of the applicant's command. 8. Counsel provided a polygraph examiner's resume and a polygraph examination report, dated 12 January 2018, which states: a. Based upon this analysis, it is the professional opinion of this examiner that the applicant's responses to the question are "Not Indicative of Deception." b. A second analysis was conducted utilizing a scoring algorithm developed by the Johns Hopkins University Applied Physics Laboratory which concluded "No Deception Indicated – Probability of Deception is Less than .01." c. A third analysis was conducted utilizing a scoring algorithm developed by Objective Scoring System Version 3 which concluded "No Significant Reactions – Probability these results were produced by a deceptive person is .009." 9. Counsel provided five general affidavits from their investigator, dated 16 January 2018 and 31 January 2018. a. The investigator stated the telephonic interview with O____ reported the applicant worked hard at the G-RAP and followed the rules. The applicant put 13 people into the G-RAP over 6 years. He would never think the applicant would do anything suspicious or fraudulent. b. The investigator stated the telephonic interview with H____ reported he told him about a former Soldier, G____, who may have been one of the people who CID had interviewed. At some point G____ stole the applicant's wallet, the applicant got his wallet back and G____ was terminated from orders for active duty for special work. c. The investigator stated the telephonic interview with H____ reported he was the person who provided the statement to CID stating the applicant had done nothing wrong. He said the applicant helped him along the process. d. The investigator stated the telephonic interview with G____ reported he wasn't 100 percent sure, but he believed the applicant used him as a potential Soldier for G- RAP. He did remember speaking with the applicant at a local restaurant and he gave the applicant his information. The CID agent was very aggressive with him, threatening him with prison, and trying to implicate the applicant. He denied he ever would have told CID that the applicant stole his information or that he didn't know the applicant. e. The General Affidavit from counsel's investigator, dated 31 January 2018, provides his investigative experience, military experience, knowledge of G-RAP, role of CID's investigating task force, role of the contract firm who managed G-RAP, the applicant's investigation, and his interviews with witnesses. 10. On 8 February 2018, CID denied counsel's request to correct information from the files of the CID on behalf of the applicant and supplemented CID's response of 25 January 2018 (not in evidence). CID enclosed four action officer opinions responsive to the request. a. The CID memorandum, dated 1 February 2018, subject: Legal Review of Request for Amendment of Record (Applicant), states that based on the review of the LER and appeal, there is no basis for granting his request for an amendment. There is credible information to support the titling decision. b. The CID memorandum from the Assistant Operations Officer, dated 30 January 2018, states he assessed there was credible information to support the titling decision and probable cause to believe the applicant committed the listed offenses. The alleged offenses were corroborated by two potential Soldiers, which led to establish probable cause to believe the applicant committed the listed offenses. The applicant was given an opportunity to undergo a polygraph examination, which he declined. c. The CID memorandum from the Chief, Investigative Operations, dated 26 January 2018 states three potential Soldiers were interviewed; two stated they had no knowledge the applicant was their recruiter assistant, they did not provide their PII or the purpose of G-RAP, nor did they receive assistance from the applicant. The facts were corroborated by the re-interview of one potential Soldier who confirmed he did not receive assistance from, nor provide PII to the applicant. The applicant denied the offenses and subsequently declined to take a polygraph examination to verify his truthfulness. Based on review of all the information, the threshold for credible information was met, the applicant was properly titled, and probable cause existed to believe he committed the cited offenses. d. The CID memorandum from the Quality Control Polygraph Division, dated 25 January 2018, states the applicant should be retained in the subject block of the LER for the listed offenses. Credible information did exist at the time of the initial LER to warrant the applicant being titled 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 LER to support an amendment to this portion of the report. DOD cannot attest to conditions under which private commercial polygraph examinations are administered. DOD will not accept such examinations. The applicant was offered the opportunity to undergo a polygraph examination by CID; however, he declined. The applicant failed to provide any substantive, new information warranting amendments to the probable cause determination reflected in the summary of his LER regarding the listed founded offenses. 11. The letter from the polygraph examiner and consultant, dated 1 March 2018, states the polygraph examination conducted on the applicant meets all National Center for Creditability Assessment standards. 12. The letter from counsel's investigator, dated 26 March 2018, responds to CID's denial to correct information from the files of the CID. The investigator states it appears that CID's rational is flawed for the following reasons: a. The CID task force was created to investigate "high risk" cases as defined by the Army Audit Agency that were associated with G-RAP. The applicant did not meet this criteria. b. The investigating CID agent used substandard investigative methods, not following up on logical leads or taking the necessary next step to conduct a complete, thorough, and objective investigation. c. CID made the assumption that the lack of cooperation on the part of the applicant equaled guilt. 13. Counsel provided 11 letters/memorandums of recommendation attesting to the applicant's character, professional work ethic, integrity, and moral courage. 14. Counsel provided a letter from the Enlisted Association of the National Guard of the United States, dated 10 May 2016, calling upon the Congress of the United States and the Secretary and Chief of Staff of the Army in the strongest possible way to stop the investigation of National Guard members by Army CID agents relative to the G-RAP. 15. The applicant provided a letter from House of Representatives, Representative 6th District, Colorado, dated 26 August 2016, for CID to draw attention to recent criticisms regarding the investigations and adjudications related to the National Guard's troubled G-RAP. There was no evidence of CID's response to the representative's questions. 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 through counsel, his record of service, the nature of the misconduct, the results of the Army investigation and the resultant entries in the CID Law Enforcement Report. The Board considered the actions of the applicant’s chain of command. The Board considered the investigation provided by counsel on behalf of the applicant to include the results of a polygraph test and statements of support/letters of recommendation for the applicant. The Board considered the letter from the Enlisted Association of the National Guard of the United States and a letter from a U.S Representative regarding the investigation og G-RAP. The Board considered the CID review of his request to remove his name from law enforcement documents and to reverse the conclusions of the investigation. The Board considered the opinions of the four action officers who reviewed his request and the response from counsel’s investigator. The Board found insufficient evidence to overcome the determination of probable cause that the applicant committed an offense that required investigation and that the offenses were founded/substantiated. Based on a preponderance of evidence, the Board determined that the CID Reports and associated documents pertaining to the applicant were not in error or unjust. 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 :XX :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. 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// ABCMR Record of Proceedings (cont) AR20180006579 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1