ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20180011441 APPLICANT REQUESTS: through counsel, removal of her name from the title block of Fort Gordon Office of the Provost Marshal, Law Enforcement Report – Final – 000XX-XXX-MPXXXX-XXX, for the offense of theft. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: a.  DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 6 July 2018; b.  Memorandum, Chief, Legal Assistance Division, Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon, Office of the Staff Judge Advocate, dated 21 July 2017, subject: Request to Direct Removal of (Applicant's) Name from the Title Block of the Fort Gordon Military Police Report Number 00089-2017-XXXXXX-XXX Titling Her with the Offense of Theft; c.  Enclosure 1 – Chief, Legal Assistance Division, Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon, Office of the Staff Judge Advocate memorandum, dated 21 July 2017, subject: Request to Delete (Applicant's) Name from the Title Block on the Military Police Titling Her With the Offense of Theft and Freedom of Information Act Request for a Copy of the Military Police Report; d.  Enclosure 2 – Chief, Legal Assistance Division, Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon, Office of the Staff Judge Advocate memorandum, dated 10 May 2018, subject: Request to Delete (Applicant's) Name from the Title Block on the Military Police Titling Her with the Offense of Theft; e.  Enclosure 3 – Deputy Director, U.S. Army Criminal Investigation Command (USACIDC), U.S. Army Crime Records Center, letter, dated 29 May 2018; f.  Enclosure 4 – Fort Gordon Office of the Provost Marshal, Law Enforcement Report – Final – 000XX-XXX-MPXXXX-XXX, dated 1 July 2017; g.  Affidavit from Applicant, dated 6 July 2018; h.  compact disc (CD); and i.  U.S. Army Crime Records Center Privacy Act Information Request, dated 6 July 2018. FACTS: 1. Counsel states: a.  The applicant is the spouse of a U.S. Army commissioned officer. She is also a pharmacist licensed through the States of Georgia and South Carolina, working on Fort Gordon as a pharmacist for a civilian Department of the Army contractor. b.  An original request for removal of the applicant's name from the titling block of the Fort Gordon Military Police Report 000XX-XXX-MPXXXX-XXX for theft was submitted to the Provost Marshal Office of the U.S. Army Cyber Center of Excellence and Fort Gordon in July 2017 per Army Regulation 190-45 (Law Enforcement Reporting). c.  Captain X____ X____ of the Fort Gordon Provost Marshal Office advised that the Fort Gordon Provost Marshal recommended denial of the request and forwarded the case to the U.S. Army Crime Records Center with rationale for its denial as required by Army Regulation 190-45. d.  On 10 May 2018, counsel requested deletion of the applicant's name from the title block of the Fort Gordon Military Police Report. USACIDC denied counsel's request. e.  All administrative remedies have been exhausted and it is an error and an injustice for the applicant's name to remain in the title block as there was no credible information of her specific intent to steal, which is an essential element of the offense of theft. Also, as a matter of equity, it is unjust for the applicant's name to remain in the title block for an offense for which she was never prosecuted, an offense which will unjustly follow her throughout her life when a criminal background check is conducted on her. f.  The applicant was charged under the wrong statute, Title 18, U.S. Code, section 661, for theft of personal property rather than the proper offense under Title 18, U.S. Code, section 641, for theft of public property. Since goods at the commissary are public property rather than personal property, the applicant should have been charged with allegedly violating Title 18, U.S. Code, section 641, rather than section 661. g.  At the heart of the offense of theft lies specific intent, specific intent of the alleged thief to unlawfully take items without permission. The applicant did not have the specific intent to unlawfully take the items from the commissary without paying for them. h.  The Report Summary contained in the Fort Gordon Military Police Report 000XX-XXX-MPXXXX-XXX shows an interview was conducted with the applicant on 8 June 2017, during which she admitted to leaving without paying for the items by accident. The interview of the applicant occurred before she was titled with the offense. As there was no evidence of an essential element of the alleged crime, it is in error and unjust for her name to remain in the title block. i.  No other credible information existed that the applicant had the specific intent to unlawfully take the items from the commissary without paying for them. Never did the applicant tell the military police investigator, Investigator X____, that she intended to take the items from the commissary without paying for them. To the contrary, all evidence proves that even at the baseline level, the applicant did not have the specific intent to take items without paying for them. j.  A voice message Investigator X____ left on the applicant's telephone proves credible information did not exist that the applicant unlawfully took the items from the commissary. In the voice message, Investigator X____ stated that "JAG [Judge Advocate General] said they're not going to pursue this." JAG was not going to "pursue this" because not even baseline evidence existed to prove the applicant had the specific intent to steal the items from the commissary. Investigator X____ also stated that after the applicant returns to the commissary and pays for the items, "This can go away...We can make this...oops, mistake and just make it go away." This voice message proves that credible information did not exit to believe the applicant committed theft. k.  Contrary to Investigator X____'s assurances in the voice message, this issue has not "gone away." The applicant is now titled with the offense of theft, which shows up in any background check that is run against her name. The applicant is a professional in the healthcare industry. She has the means to pay for the items she was alleged to have stolen from the commissary. She has never been charged with a criminal offense in her life. Her previous interactions with law enforcement have only been as a witness, never as a subject. l.  The applicant's husband serves as a commissioned officer in the rank of major and is currently stationed in Norfolk, VA. As a military spouse, the applicant plans to apply for Federal jobs in the Norfolk, VA, area so hopefully she can soon be physically co-located with her husband. When her husband makes a permanent change of station move during his military career, she plans to apply for other Federal jobs on and near those installations so she can thrive as a military family. Having her name improperly remain in the title block of a military police report for committing an offense for which no credible evidence existed prevents her from being competitive for employment that will enable her to be with her husband. m.  Due to the fact that no credible information existed for the applicant to be titled with the offense of theft, the applicant was titled with the wrong offense, i.e., theft of personal property rather than public property. As a matter of equity and considering the applicant's profession and status, counsel requests the Board direct the removal of the applicant's name from the title block of Fort Gordon Military Police Report Number Law Enforcement Report – Final and 1st Corrected Final, 000XX-XXX-MPXXXX-XXX, dated 1 July 2017 and 10 January 2018 2. Counsel provided copies of: a.  a DA Form 2823 (Sworn Statement), dated 16 May 2017, in which a commissary employee described the applicant as being a white female with long brown hair, around 5 feet and 7 inches tall, and with a slender figure. The applicant provided her identification card prior to having her groceries totaled. The applicant dropped a case of sodas on the floor and some of the cans spilled. The applicant asked if she could get another case. As the commissary employee was cleaning up some of the spilled soda, the applicant disappeared with groceries totaling $29.00 and some change; b.  email from a security specialist at Headquarters, Defense Commissary Agency and Fort Gordon military police, dated 16 and 17 May 2017, in which the applicant's identification card information was provided; c.  a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 8 June 2017, in which the applicant was advised by an investigator from the Fort Gordon Provost Marshal Office at she was being questioned about theft of Army and Air Force Exchange Service (AAFES) property; d.  a DD Form 2708 (Receipt of Pre-Trial/Post-Trial Prisoner or Detained Person), dated 8 June 2017, that shows the applicant was taken into custody for theft of AAFES property and she was released in apparent good health; e.  a Military Police Interview Worksheet that shows the applicant was involved in shoplifting in the commissary at Fort Gordon on 16 May 2016; f.  an Investigator's Statement, dated 19 June 2017, that shows a time line of events as follows: (1)  On 23 May 2017, an investigator from the Police Investigations, Fort Gordon Provost Marshal Office, was assigned and this individual attempted to make contact with the applicant. Negative contact as made via telephone due to the number provided by Department of Defense Person Search was no longer a valid number. (2)  On 23 May 2017, an email was sent to the applicant requesting she contact the investigator. (3)  On 6 June 2017, the investigator received a call from the applicant and she set up an interview for the following day at 1100 hours. However, the interview was rescheduled for 8 June 2017. (4)  On 8 June 2017, the investigator conducted an interview with the applicant. After the completion of a Rights Waiver, which she waived, she admitted to not paying for the items, but stated that she thought she did and it was a mistake. She stated she wanted to talk with a lawyer before writing a statement and to also speak with the general manager of the commissary to try and pay the amount she owed. She was processed for the theft of AAFES property and she was released in apparent good health. (5)  On 14 June 2017, the investigator emailed the applicant inquiring about when she would be in for her statement. (6)  As of 19 June 2017, the applicant had not provided a response to the email. A final review of the case was conducted and the case was filed within the office as founded/solved. g.  a Case Activity Summary showing the case file underwent a quality control review and it was approved as a final report on 1 July 2017; and h.  a CD with the following audio: Hi, this is Investigator Hamilton. Um, I wanted to call you. Ah, I went ahead and contacted JAG (Judge Advocate General) um, because I wanted just to see how that whole process went and they just informed me that when you do your statement of everything um, when you go and do the payment um, for whatever the $29 whatever um, bring in that receipt in as well uh, so I can put that in the file. Um, JAG is saying they're not going to pursue this um, as long as you show that, you know, you did go in and pay it and you do include your statement, you know, an honest mistake all that other good stuff and this can all go away. Um, so I just want to call just to let you know that so you weren't, you know, still stressing over it. Ah, so as soon as you can get me all that stuff, then we can make this, you know, oops mistake and make it just go away. So if you have any other questions, feel free to call me. Ah, and you have a good rest of the day. 3. Fort Gordon Office of the Provost Marshal, Law Enforcement Report – Final – 000XX-XXX-MPXXXX-XXX, dated 1 July 2017, shows the applicant was named as the subject/suspect of theft of U.S. government property from the Defense Commissary Agency, Building 37200, Fort Gordon, GA, on 16 May 2017. An investigation revealed the applicant, a Department of Defense contractor for the Dwight David Eisenhower Army Medical Center, removed groceries from the commissary without rendering due payment in the amount of $29.62. On 8 June 2017, an interview was conducted with the applicant, during which she admitted to leaving without paying for the items by accident. She was further processed and released on her own recognizance. 4. On 21 July 2017, counsel for the applicant submitted a requested to the Provost Marshal, U.S. Army Cyber Center of Excellence and Fort Gordon, wherein he requested the applicant's name be removed from the Fort Gordon Office of the Provost Marshal, Law Enforcement Report – Final – 000XX-XXX-MPXXXX-XXX, dated 1 July 2017. Counsel argued the applicant did not have the specific intent to unlawfully take the items from the commissary without paying for them. Never did she tell the military police investigator that she intended to take the items from the commissary without paying for them. All evidence proved that the applicant unintentionally took the items from the commissary during the chaos that ensued after a 24-pack of water she was also purchasing fell off the self-checkout counter and burst. a.  A voice message from the investigator left on the applicant's telephone proved probable cause did not exist to believe the applicant unlawfully took the items from the commissary. The investigator stated that, "JAG (Judge Advocate General) said they're not going to pursue this." JAG was not going to "pursue this" because not even the baseline probable cause existed to prove that the applicant had the specific intent to steal the items from the commissary. The investigator also stated that after the applicant returns to the commissary and pays for the items, "This can go away...We can make this...oops, mistake and just make it go away." This voice message proves that probable cause did not exist to believe that the applicant committed theft. b.  Contrary to the investigator's assurance in the voice message, this issue has not gone away. The applicant is now titled with the offense of theft, which shows up on any background check that is run on her name. She has the means to pay for the items she was alleged to have stolen from the commissary. She has never been charged with a criminal offense in her life. Her previous interactions with law enforcement have only been as a witness, never as a subject. 5. Counsel provided the applicant's DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 19 January 2018, shows the Fort Gordon Provost Marshal forwarded the form to the staff judge advocate on 29 December 2017 for a commander's decision on the applicant's charge of theft on 16 May 2017 under the provisions of Title 18, U.S. Code, section 661. 6. On 10 January 2018, the Fort Gordon Office of the Provost Marshal issued a Law Enforcement Report – 1st Corrected Final – 000XX-XXX-MPXXXX-XXX. 7. On 19 January 2018, the commander determined the case did not involve sexual harassment and no action was taken based on the reason of declined prosecution/ other. 8. On 10 May 2018, counsel for the applicant submitted a request for removal of the applicant's name from the title block of the Fort Gordon Military Police Report 000XX-XXX-MPXXXX-XXX, which titled her with the offense of theft. 9. On 29 May 2018, the Deputy Director, USACIDC, U.S. Army Crime Records Center, advised the applicant's counsel the information that had been provided did not constitute new and relevant information needed to amend Law Enforcement Report 000XX-XXX-MPXXXX-XXX; therefore, her amendment request was denied. Counsel was provided a copy of the report and informed the law enforcement report was part of a system of records exempt from the disclosure provisions of the Freedom of Information Act (FOIA). The names of law enforcement personnel, as well as names, social security numbers, and other personal items of information pertaining to third parties had been withheld. Removal of this information constituted a partial denial pursuant to Title 5, U.S. Code, section 552, exemptions (b)(6) and (b)(7)(C) of FOIA, because release could violate the personal privacy of other individuals mentioned in the report. Counsel was also informed of the following: a.  the partial denial which was made on behalf of Major General X____ X. X____, Commander, USCIDC, the initial denial authority for USCIDC records under FOIA, could be appealed to the Secretary of the Army; and b.  her appeal had to be submitted within 90 days of the date of her notification on 29 May 2018; she had to state the basis of her disagreement with the denial and justification for its release and she was provided information on amendment criteria. 10. On 6 July 2018, the applicant signed an affidavit in which she stated Investigator X____ called her and asked her to come to the Fort Gordon Military Police Office in June 2017. She thought the investigator was requesting that she come to the police station to provide a statement about a Soldier's drug use since she is a pharmacist. When she arrived at the military police station, Investigator XH____ asked her if she had a receipt with her for the groceries. She told the investigator she did not. At that point, Investigator X____ said the applicant had "admitted guilt" and she began to process her for stealing. She found this very alarming and she immediately stopped answering the investigator's questions, told her she was seeking legal advice, and she refused to write a statement on the investigator's computer. She asked the investigator if she could have a copy of the interview. She contends the Report Summary was, respectfully, inaccurate when it provides, "an interview was conducted with [Applicant], during which she admitted to leaving without paying for the items by accident." Investigator X____ only asked her if she had a receipt for the groceries, to which she truthfully answered, "No." 11. On 8 July 2018, counsel for the applicant submitted a U.S. Army Crime Records Center Privacy Act Information Request. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon all the facts and circumstances, the Board found there is no error or injustice which would warrant removing the applicant’s name from the titling of the offense. Because the standard for titling someone for an offense is different than the standard to convict a person for an offense, the Board concluded that there was insufficient evidence presented to show that the titling of the applicant and keeping that titling in place is inappropriate. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Department of Defense Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. It states, in pertinent part, that titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Clearance Investigations Index is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 2. Army Regulation 190-45 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. Paragraph 3-6a states: a.  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. b.  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. c.  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. d.  In compliance with Department of Defense policy, an individual will still remain entered in the Defense Clearance Investigations Index to track all reports of investigation. ABCMR Record of Proceedings (cont) AR20180011441 9 1