ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20180008713 APPLICANT REQUESTS: removal of his name from titling and the founding conclusion in case number 2016-CIDXXX-XXXXXX-XX and a personal appearance hearing before the Board. 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) * Memorandum, Applicant, dated 18 April 2018, subject: Supporting Memorandum (Continuation of Block 9, DD Form 149), (Applicant) * Enclosure 1 – Letter, U.S. Army Criminal Investigation Command (CID), dated 8 March 2018 * Enclosure 2 – Medical Records, dated 25 May 2016 * Enclosure 3 – * Weather History for Smithfield, NC, on 12 February 2016 * medical records, dated 19 February 2016 * email, dated 8 April 2016, subject: Patient's Stepfather's Request * Enclosure 4 – Memorandum, Military Information Support Task Force- Afghanistan Dissemination Noncommissioned Officer in Charge, dated 28 September 2016, subject: Letter of Character for (Applicant) * Enclosure 5 – * Memorandum for Record, Applicant, dated 1 December 2017, subject: Request for Records Change to Unfounded and Untitled * Memorandum for Record, Applicant's Spouse, dated 6 February 2018, subject: Request for Records Change for (Applicant) to Unfounded and Untitled * Enclosure 6 – Memorandum, Clinical Director, Family Advocacy Program, U.S. Army Medical Command (MEDCOM), dated 30 November 2017, subject: Headquarters, MEDCOM Facility Advocacy Program Case Review Committee Reconsideration – (Applicant) – Incident 2016XXXX * Enclosure 7 – six Character Reference Memorandums, dated 27 September 2018 -15 February 2018 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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. a. Paragraph 4-2c(1) states the Commanding General, CID, will establish policies and procedures for the transmittal and maintenance of CID investigative records and reports; recommend to Department of the Army, Army Records Management and Declassification Agency standards for the retention of this material; direct the conduct of special studies and research utilizing data contained therein; and determine the release ability of information in these files. b. Paragraph 4-4b (Amendment of CID Reports) provides that: (1) Requests to amend or unfound offenses in CID report of investigations will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. (2) The burden of proof to substantiate the request rests with the individual. (3) 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. (4) The decision to list a person's name in the title block of a CID report of investigation is an investigative determination that is independent of judicial, non- judicial, or administrative action taken against the individual or the results of such action. (5) 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he would like his name removed from the subject block of CID report 2016-CIDXXX-XXXXXX-XX because its continued presence amounts to an injustice under the totality of the circumstances. The original investigation reached a conclusion based on inaccurate facts and it hinders his actions as a father and his advancement as a noncommissioned officer. a. The Fort Bragg CID quickly opened and closed his case and reached a conclusion without seeking all available information. The facts contained below cast doubt upon whether credible information existed to list him as the subject of a founded investigation: (1) The behavioral health interview conducted after CID closed its investigation notes his son's school nurse asked him "over and over" if someone had hit him until he said the applicant hit him, when he actually a wind burn rash on his face. In fact, he never told anyone the applicant had hit him and denied being abused at all (see enclosure 2). (2) Three pieces of evidence not collected by CID corroborate these facts. First, Dr. A____, who examined his son immediately after the alleged incident, stated that no bruises were visible on his face (see enclosure 3). Second, his friend, Staff Sergeant (SSG) T____, was present the day of the alleged abuse (see enclosure 4). Third, his wife and son's mother states emphatically that no abuse occurred that weekend or ever in their family (see enclosure 5). (3) CID never interviewed the above individuals and none of this information was present in the case file. Therefore, the attorney who provided CID with evidence to justify the "founding" of the offense lacked the full information on which to base that decision. As a result, he believes it is an injustice for his name to remain in the subject block of the CID report. b. In addition to these reasons to doubt the conclusions of the CID investigation, this situation also amounts to an injustice because it continues to affect his family life and his career. Being listed in the title block for a "founded" child abuse offense in background checks has prevented him from being allowed to serve as a chaperone on field trips for with his 9-year-old son. It also prevents him from seeking and obtaining positions of trust and broadening assignments within the Noncommissioned Officer Corps, such as drill sergeant, recruiter, and Sexual Harassment/Assault Response and Prevention representative. 3. The applicant provided weather report for Smithfield, NC, on 12 February 2016, showing the minimum temperature was 28 degrees and the maximum temperature was 32 degrees. 4. The applicant provided medical records, dated 19 February 2016, and an email from Dr. A____, dated 8 April 2016, providing a copy of his notes from the physical examination, stating "Fading confluent erythematous patches on both cheeks. Oblong scaly patch on right buttock, looks like early ring worm. As you can see, I found erythema (redness) on both cheeks, but I did not observe any bruises." 5. The CID Law Enforcement Report – Final – XXXXX-2016-CIDXXX-XXXXXX-XXX, dated 9 May 2016, shows the applicant was the subject of an investigation for assault upon a child under age 16. The 1st Special Warfare Training Group Staff Judge Advocate opined there was probable cause to believe the applicant committed the offenses of assault upon a child under age 16. 6. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 20 May 2016, shows the applicant was investigated for an offense of assault on a child under age 16 on 12 February 2016 and his commander issued locally filed written counseling. 7. The applicant provided his stepson's medical records (enclosure 2), dated 27 May 2016, wherein the provider noted: This is a reconsideration case, initially presented to the CRC [Case Review Committee] on 31 MAR 16 [31 March 2016]... Client [the applicant's stepson] denied anyone has ever "abused him." Without prompting, FM/S [family member/son – the applicant's stepson] stated, "One day we went to Smithfield Commons and it was 40 or 20 degrees and I was outside with short sleeves on....My face got wind burned and my mother asked if it hurt and I said, no." FM/S [family member/son – the applicant's stepson] explained when he went to school [name redacted] sent him to the nurse "because she thought I had a rash on my face." Client [he applicant's stepson] stated, "The nurse looked at my face and kept asking me over and over if someone hit me. I got tired so I just told her, yes." The nurse called the counselor and after they talked, they sent me back to class. FM/S [family member/son – the applicant's stepson] denied he told the nurse, or anyone that SM/SF [service member/stepfather – the applicant] hit him in his face with a gray spatula....When asked, client [the applicant's stepson] stated he loves his family and feels loved by both of his parents. Client [the applicant's stepson] stated he also likes his school and feels safe at home. FM/S [family member/son – the applicant's stepson] stated he would tell his mother if someone did something to him that he didn't like "or if they tried to abuse me." 8. The memorandum for record from SSG T____ (enclosure 4), dated 28 September 2016, states he has worked with the applicant and known his family since August 2013. The applicant would be the last person to lose control and attack a child. He has stood in the face of adversity for what's right many times for his Soldiers and would definitely do it for his family. He was at the applicant's house on 12 February 2016 from about 5 p.m. and left the following morning around 10 a.m. The kids mostly played video games, ate dinner, and spent time drawing. When he saw the applicant's stepson, he had no marks on him nor did he see any of the kids get into trouble. They seemed very well behaved as usual. When he left to go home the following morning, the applicant's family left about the same time to go the mall. Later the applicant told him how cold and windy it was that day and they didn't realize how much outside walking they needed to do. The applicant has been an amazing father to his kids. 9. The applicant provided six character references (enclosure 7), dated from 20 September 2016 to 15 February 2018. Five of the references (first sergeant, company commander, and previous leaders and co-workers) did not agree with the Case Review Committee's initial decision to determine the incident met the criteria in the report of investigation. They requested removal of the applicant's name from the subject line (title) of the CID report, destruction of the Combined DNA Index System Kit Number 016XXXX, removal of the applicant from the Defense Central Index of Investigations, and destruction of any other associated records. In addition, they requested removal of the MEDCOM Family Advocacy Program finding of "met criteria" from their records/database and allowing the applicant to progress in his career. Chaplain L____ stated she has known the applicant to be a positive motivator and a fair and respectful leader to all the Soldiers in his unit. The applicant provided sound wisdom and guidance when he counseled Soldiers. 10. The memorandum from the Clinical Director, MEDCOM Family Advocacy Program (enclosure 6), dated 30 November 2017, subject: Headquarters, MEDCOM Family Advocacy Program Case Review Committee Reconsideration (Applicant) – Incident 2016XXXX, states the Case Review Committee membership thoroughly reviewed all documentation presented and determined the incident did not meet the criteria for child physical abuse. The MEDCOM Family Advocacy Office considered the matter closed. 11. The applicant's memorandum for record (enclosure 5), dated 1 December 2017, states he was falsely accused of assaulting his stepson in the face. 12. The applicant's wife's memorandum for record (enclosure 5), dated 6 February 2018, states her husband was falsely accused of assaulting their son in the face. She was present with her family the entire 4-day weekend from 12 through 15 February 2016 when the event was alleged to have happened. Her husband has never abused their son. 13. On 8 March 2018, CID denied the applicant's request for correction of Law Enforcement Report 2016-CIDXXX-XXXXXX-XX (enclosure 1). He was advised that Department of Defense (DOD) Instruction 5505.11 establishes policies and procedures for reporting criminal history data to the Federal Bureau of Investigation National Crime Information Center (NCIC), Identification Division of the Federal Bureau of Investigation, for all military service members and civilians investigated by DOD criminal investigative organizations for commission of certain offenses. Those subjects who have resultant judicial, nonjudicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject committed the offense in which they were titled, will remain in NCIC. Reporting information to the NCIC depends on the offense committed and the final result of the report. A check of the NCIC reflects that he is listed as the subject in the aforementioned report for assault on a child under the age of 16. Retention of this criminal history data in the NCIC does conform to DOD policy and his name will remain in the NCIC. 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, his record of service, the CID report, the CID Law Enforcement Report – Final and the Commander's Report of Disciplinary or Administrative Action. The Board considered the medical records that included a reference to Case Review Committee proceedings, a fellow Soldier’s memorandum for record, six character references, the applicant and his spouse’s memoranda for record and the MEDCOM Family Advocacy Program Case Review Committee Reconsideration (Applicant). The Board considered the CID denial of the applicant’s request for correction of the Law Enforcement Report and the policies and procedures for reporting criminal history data. The Board found insufficient evidence to show that there was not credible evidence to title the applicant as a subject in the CID investigative report. Based on a preponderance of evidence, the Board determined that the applicant’s name as recorded in the subject block of CID report 2016-CIDXXX-XXXXXX-XX was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 : : : 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) AR20180008713 8 1