ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2020 DOCKET NUMBER: AR20180011420 APPLICANT REQUESTS: removal of all derogatory information pertaining to offense code 5C2B (Assault Consummated by Battery) (Article 128, Uniform Code of Military Justice (UCMJ)) on 8 February 2004 found in Military Police Report XXXXX-2004- MPCXXX from his records. 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) * DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action), dated 8 February 2004 * DA Form 3975 (Military Police Report), dated 9 February 2004 * three Letters, U.S. Army Criminal investigation Command (CID), dated 18 August 2017, 24 August 2017, and 3 October 2017 REFERENCES: 1. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the Department of Defense and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. a. Paragraph 3-6a states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that actually occurred. Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report. The burden of proof is on the individual to substantiate the request. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe that the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. In compliance with DOD policy, an individual will still remain entered in the Defense Clearance Investigations Index (DCII) to track all reports of investigation. b. Paragraph 4-3a states an incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on the Law Enforcement Report (LER) when credible information exists that the person or entity has committed a criminal offense. The decision to title a person is an operational, rather than a legal, determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; rather, it ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on the LER. c. Paragraph 4-3d states when investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the "subject" block of the LER, their identity is recorded in Department of the Army automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the LER rather than subsequent investigation determining that the LER is unfounded. This policy is consistent with Department of Defense reporting requirements. The Director, U.S. Army Crime Records Center, enters individuals from the LER into the DCII. 2. 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 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. 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 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 of Investigation 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. FACTS: 1. The applicant states according to his DA Form 3975, section VII (Narrative), after further investigation was conducted by the Military Police Investigator, the Staff Judge Advocate declined to prosecute. Therefore, he was never charged with assault consummated by battery or any offense, which should clear his name and his records should be corrected. 2. He provided a DA Form 3975, dated 9 February 2004, pertaining to Military Police Report XXXXX-2004-MPCXXX. a. Section II (Offense) lists the following offenses committed on 8 February 2004: * assault consummated by battery (Article 128,UCMJ) (On Post) * damage to government property (Article 108,UCMJ) (On Post) * simple battery (Georgia Code 18-5-23) (On Post) b. Section III (Subject) names the applicant as the principle subject. c. Section VII (Narrative) states an unidentified person reported she and the applicant were involved in a verbal altercation which became physical when the applicant threw a white shirt at her. She then pushed the applicant's head with an open hand on the forehead. The applicant then pushed her down on the bed and attempted to restrain her, at which time she scratched the applicant's neck. The applicant suffered a small laceration to the back of the neck and refused medical attention. The applicant then went into the bathroom and punched a hole in the wall. Upon arrival of the Military Police, both parties were transported to the Military Police station where they were advised of their rights, which they both waived, and rendered sworn written statements admitting to the above offenses. The applicant was further processed and released to his unit first sergeant. The other individual was further processed and released on her own recognizance. The investigation continued by the Military Police Investigator. Further investigation by the Military Police Investigator revealed the Staff Judge Advocate opined sufficient evidence existed to title both the applicant and the other individual for the above listed offenses, but declined to prosecute without prejudice. The investigation was completed and closed as a final report. 3. He provided a DA Form 4833, dated 8 February 2004, pertaining to Military Police Report XXXXX-2004-MPCXXX, showing him as the offender. No offenses are listed and no administrative action is recorded. Item 10a (Commander's Remarks) contains the entry: "No report on actions taken. Batch closure per OPMG [Office of the Provost Marshal General] Policy 2013." 4. He retired in the rank/grade of sergeant first class/E-7 on 31 August 2016. 5. On 18 August 2017, the CID responded to the applicant's request to correct information from CID files received on 18 August 2017, informing him that all requests received are processed in chronological order based upon the date it was received. 6. On 24 August 2017, the CID denied his request to amend the report. The Director, U.S. Army Crime Records Center, stated the information he provided did not constitute new or relevant information needed to further amend his report. At the time the Military Police Report was completed, the criteria for reporting an individual in the subject block was based upon credible information to believe he committed the offense. Requests for amendment of such records are processed under the provisions of Army Regulation 190-45, paragraph 3-6a. 7. On 3 October 2017, the CID responded to his appeal regarding the amendment action, informing him that his appeal was forwarded to the Army Board for Correction of Military Records. BOARD DISCUSSION: The Board carefully considered the applicant’s contentions and evidence. Regarding removal of all derogatory information pertaining to offense code 5C2B (Assault Consummated by Battery) (Article 128, Uniform Code of Military Justice (UCMJ)) on 8 February 2004 found in Military Police Report XXXXX-2004-MPCXXX from his records, the Board found insufficient evidence to grant relief. The applicant provided no new evidence for the Board to consider since the CID denied his request. The Board found that credible information did exist to believe the applicant committed the offense for which titled as a subject at the time the investigation was initiated and that the applicant did not provide sufficient evidence of mistaken identity. Therefore, the Board found that the applicant was properly and equitably titled by CID. 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011420 5 1