BOARD DATE:  13 March 2020

		DOCKET NUMBER:  AR20180009958


APPLICANT REQUESTS:

*	removal of his name from the titling block of the U.S. Army Criminal Investigation 
Command (CID) Report of Investigation (ROI) 
XXXXX
*	removal of unfavorable information from the National Crime Information Center 
(NCIC) database

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 17 April 2018, subject:  Request for 
Expungement from NCIC Database, (Applicant), CID -XXXXX-XXXXX
*	Memorandum, CID, Fort Lewis CID Office, Joint Base Lewis-McChord, WA, 
dated 9 June 2014, subject:  CID ROI – Final –-ClD-XXXXX-XXXXX
*	Page 4 of Memorandum, Headquarters and Headquarters Company, 84th Civil 
Affairs Battalion, 201st Battlefield Surveillance Brigade, dated 6 January 2014, 
subject:  Non-Prosecution, (Applicant)
*	Memorandum, Madigan Army Medical Center, dated 18 March 2014, subject:  
Family Advocacy Case Review Committee (CRC) Incident Determination
*	Letter, CID, dated 5 March 2018

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 CID elements.  Paragraph 4-4b 
(Amendment of CID Reports) provides that:

	a.  Requests to amend or unfound offenses in CID 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.

3.  Department of Defense (DOD) Instruction 5505.7, dated 7 January 2003, subject:  
Titling and Indexing of Subjects of Criminal Investigations in the DOD, states:

	a.  Titling ensures investigators can retrieve information in a report of investigation 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).

	b.  Once a person is properly titled and indexed in the Defense Clearance and 
Investigations Index, that person's name will only be removed in the case of mistaken 
identity; i.e., the wrong person's name was placed in the ROI as a subject or entered 
into the Defense Clearance and Investigations Index or if it is later determined a mistake 
was made at time the titling and/or indexing occurred in that credible information 
indicating that the subject committed a crime did not exist.

4.  DOD Instruction 5505.11, dated 21 July 2014, subject:  Fingerprint Card and Final 
Disposition Report Submission Requirements, established policy, assigns 
responsibilities, and prescribes procedures for defense criminal investigative 
organizations and other DOD law enforcement organizations to report offender criminal 
history data to the Criminal Justice Information Services Division of the Federal Bureau 
of Investigation for inclusion in the NCIC criminal history database.  Based on a 
probable cause standard determined in conjunction with the servicing Staff Judge 
Advocate or other legal advisor, for members of the Military Service investigated to 
include Article 120 (Rape and Carnal Knowledge).

FACTS:

1.  The applicant states:

	a.  His information was entered into the NCIC database based upon a CID 
investigation; therefore, he has been "titled."  He sent a request to the CID and, while 
acknowledging that no charges were brought or actions taken against him, the NCIC 
acts as a reporter of the accusation and will not aid in "un-titling" except in cases of 
mistaken identity.

	b.  At the time of the incident investigated by the CID, his marriage was undergoing 
difficulties related to his military service.  His wife called law enforcement and made 
allegations that he had attacked her and abused her.  After a cooling off period, she was 
unwilling to aid law enforcement in furthering the case against him and she did not 
repeat the allegations when asked.  He and his wife have worked hard on their 
marriage, realized they both have said and done things that were counter-productive, 
and have been able to place the entire episode behind them.  A lingering consequence 
of the allegations, however, has been the entering of negative information about him 
into the NCIC database.  He is fearful that being "titled" will prevent him from finding 
civilian employment.

	c.  He believes sufficient grounds exist to remove the negative information, as no 
charges were filed against him, no adverse action was taken by his command, and the 
staff judge advocate declined to prosecute without cooperation from his wife

	d.  The Family Services Review Committee stated the incident did not meet the 
criteria for sexual or physical abuse.

	e.  His temporary marital discord escalated and found its way into official channels, 
but with no evidence of wrongdoing having been documented, it would be appropriate to 
expunge the negative information from Army records.

2.  He was serving in the rank/grade of captain/O-3 at the time his wife reported he 
sexually assaulted her.

3.  The memorandum from the battalion commander, dated 6 January 2014, subject:  
Non-Prosecution, (Applicant), shows he recommended no Uniform Code of Military 
Justice or adverse administrative action.  He stated the applicant should be counseled 
by his supervisor about the significance of the allegations; even those unprosecuted are 
very harmful to the alleged victim and could be prosecutable if additional evidence 
comes forward.

4.  The memorandum from the Chief, Child and Family Services, Family Advocacy 
Program, Madigan Army Medical Center, dated 18 March 2014, subject:  Family 
Advocacy CRC Incident Determination, states the CRC determined the incident did not 
meet the criteria for sexual or physical abuse.

5.  The CID ROI –ClD-XXXXX-XXXXX, dated 9 June 2014, states:

	a.  The applicant was the subject of investigation for violation of Article 120 (Rape), 
Uniform Code of Military Justice, reported on 15 October 2013.

	b.  The investigation determined probable cause existed to believe the applicant 
committed the offense of rape when he sexually assaulted his wife without her consent.

	c.  The Office of the Staff Judge Advocate, Joint Base Lewis-McChord, opined 
probable cause existed to believe the applicant committed the offense of rape.

	d.  Status:  This is a Final Report.  The prosecution declined to prosecute at this time 
due to the lack of cooperation from the applicant's wife.

6.  On 5 March 2018, the Director, U.S. Army Crime Records Center, CID, denied the 
applicant's request to correct information in the files of the CID received on 27 February 
2018.

	a.  The information he provided does not constitute new or relevant information 
needed to amend the report; therefore, his amendment request is denied.

	b.  DOD Instruction 5505.11 establishes policies and procedures for reporting 
criminal history data to the Federal Bureau of Investigation NCIC for all military service 
members investigated by DOD criminal investigative organizations for commission of 
certain offenses.  Those subjects who have resultant judicial, nonjudicial military 
proceedings, or where a serving 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 database depends on the offense 
committed and the final result of the report.

	c.  A check of the NCIC database reflects the applicant is listed as the subject in the 
ROI -ClD-XXXXX-XXXXX for rape of an adult by force.  The disposition reflects "No 
Action Taken."  Consistent with DOD Instruction 5505.11, retention of this criminal 
history data in the NCIC does conform to DOD policy.  His name will remain in the NCIC 
database.

7.  A review of the applicant's Army Military Human Resource Record in the interactive 
Personnel Electronic Records Management System does not show any adverse or 
derogatory information.

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 allegation of misconduct, the investigation and conclusions in the CID ROI 
and the SJA review.  The Board considered the conclusion of the Case Review 
Committee, the declination of prosecution, the absence of adverse or derogatory 
information in the applicant’s records and the CID denial of the applicant’s requested 
relief.  The Board found there was sufficient evidence at the time of the report to identify 
the applicant as a Subject in an investigation.  Based on a preponderance of evidence, 
the Board determined that the applicant’s name as shown in the CID ROI was 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

: 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20180009958


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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