BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180011529 APPLICANT REQUESTS: * removal of titling from the U.S. Army Criminal Investigation Command (USACIDC) records * amendment of the Military Police Report (MPR) offense from founded to unfounded * amendment of the offense code from "Assault/Domestic" which is a Type I offense, to a more accurate and lesser titling code * all other relief to which he may be entitled, whether at law or in equity, whether pled or not * update of all U.S. Army records to reflect the Army Board for Correction of Military Records determination 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 26 July 2018, Reference: Titling Appeal; Applicant, MPR XXXXX-, with four enclosures – * Exhibit 1 – * Letter, USACIDC, dated 19 January 2017 * Letter, USACIDC, dated 20 February 2018 * Memorandum for Record, Legal Assistance Division, 1st Armored Division and Fort Bliss, dated 25 July 2018, subject: (Applicant's) Titling Appeal * Exhibit 2 – Article, El Paso Times, dated 31 August 2000, titled: "Major Finds Rings on Couple's Wedding Day" * Exhibit 3 – DA Form 3975 (Military Police Report), dated 22 January 2015, with enclosures * Exhibit 4 – Email, Attorney-Advisor and G____, dated 20 April 2018 through 23 April 2018, subject: Reply: Titling and Founded Dates REFERENCES: 1. Army Regulation 25-22 (The Army Privacy Program) (supersedes Army Regulation 340-21, dated 5 July 1985) sets forth policies and procedures that govern personal information kept by the Department of the Army in Privacy Act systems of records. It also provides general guidance on collecting, safeguarding, and disclosing personal information. Appendix B (Denial Authorities) states the Commander, USACIDC, acts on requests for criminal investigative records of USACIDC headquarters and it subordinate activities, and MPRs. This includes criminal investigation records, investigation-in-progress records, and all military police records and reports that result in criminal investigation reports. 2. Army Regulation 190-30 (Military Police Investigations) prescribes Department of the Army policy for the conduct of military police investigations; establishes policies and procedures for selection, training, and employment of military police investigators and Department of the Army civilian detectives/investigators; and identifies responsibilities for the conduct of the military police investigators program. Paragraph 4-4 (Military Police and the USACIDC) states the military police or the USACIDC are authorized to investigate allegations of criminal activity occurring on the installation. Upon receipt of the complaint or report of offense, the military police desk will dispatch an available patrol to the scene of the incident. 3. Army Regulation 190-45 (Law Enforcement Reporting), in effect at the time, prescribed policies, procedures and responsibilities for the preparation, reporting, use, retention, and disposition of the DA Form 3975 and documents related to law enforcement activities. a. Paragraph 3-6 (Amendment of Records) stated 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. For example, a request to remove an individual's name as the subject of an MPR would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported. Expungement of a subject's name from a record because the commander took no action or the prosecutor elected not to prosecute normally will not be approved. In compliance with Department of Defense (DOD) policy, an individual will still remain entered in the Defense Clearance and Investigations Index (DCII) to track all reports of investigations. b. Paragraph 4-2 (Military Police Report) stated the DA Form 3975 is a multipurpose form used to record all information or complaints received or observed by the military police. The DA Form 3975 will be used to match individual subjects with individual victims or witnesses and founded criminal offenses. This is a Federal statutory requirement. The DA Form 3975 will be prepared in three copies with the original sent to the U.S. Army Criminal Records Center (USACRC). c. Paragraph 4-2d (Changing Reports for Unfounded Offenses) stated if an offense is determined to be unfounded, after the case has been forwarded to the USACRC a supplemental DA Form 3975 using the same MPR number and the USACRC control number will be submitted stating the facts of the subsequent investigation and that the case is unfounded. d. Paragraph 4-3 (Identifying Criminal Incidents and Subjects of Investigation) stated an incident will not be report as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on a DA Form 3975 when credible information exists that the person or entity will have 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; but rather, ensures that information is a report of investigation can be retrieved at some future time for law enforcement and security purposes. e. Table 4-1 (Offense Codes for Army Investigations) states each offense code describes, as nearly as possible, the complaint or offense by using an alphanumeric code. Offense code 5C2B shows a description of "Assault Consummated by a Battery," Article 128, UCMJ. Offense code 9J1 shows a description of "Domestic Violence Evidence." 4. Army Regulation 195-2 (Criminal Investigation Activities) prescribes policies and procedures pertaining to criminal investigation activities within the Department of the Army. Installation Law Enforcement will promptly refer all crimes or incidents falling within USACIDC investigative responsibility to the appropriate USACIDC element for investigation. Initially, notification will normally be accomplished by direct contact between the installation Law Enforcement desk sergeant and the supporting USACIDC unit. Formal referral will be by a DA Form 3975. 5. DOD Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), dated 7 January 2003, 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 DCII, that person's name will only be removed in the case of mistaken identity (i.e., the wrong person's name was placed as a subject or entered into the DCII) or if it is later determined a mistake was made at time the titling and/or indexing occurred in that credible information indicating the subject committed a crime did not exist. c. Judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. 6 DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), dated 21 July 2014, establishes 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 National Crime Information Center (NCIC) criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, as prescribed in this instruction and based on a probable cause standard determined in conjunction with the servicing Staff Judge Advocate or other legal advisor, offender criminal history data for all members of the Military Service investigated for violations of Article 128 (Assault). 7. The Fiscal Year 2019 National Defense Authorization Act, section 532 (Punitive Article on Domestic Violence under the UCMJ), adds a punitive offense under Article 128b (Domestic Violence), enumerating the offense of domestic violence, including any person who commits an offense with intent to threaten or intimidate a spouse, an intimate partner, or an immediate family member of that person. FACTS: 1. The applicant states: a. While he was titled in February 2015, the Army failed to advise him of the filing. It wasn't until October of that year that he learned he was titled. The only reason he learned of the titling was because he attempted to purchase a firearm and was denied. b. Near the end of his distinguished military career, while walking through the gym, he patted his social worker on her hair bun and congratulated her on completing what appeared to be a tough workout. He did not pat her on the back because she was sweating profusely. c. Despite later claiming a level 4 pain on a 10-level scale, Mrs. J____ made no sound or move to indicate in any way that he offended her. Instead, she spoke with others, waited a day, and then filed a police report for which he was titled for domestic assault. It should be clear from the onset – he has never had a relationship with the complainant other than that she was his assigned social worker. d. The Army failed to adhere to titling regulations and improperly titled him. He requests amendment of the Army records to reflect that this was not a domestic assault or event that would trigger a Type I titling. e. He submits new, relevant, and material facts that warrant amendment of the Army records. There was no credible information; the stories differed from the beginning. The military police interviewed Mrs. J____ and her co-workers on the same day she filed a complaint. That same day, despite the inconsistent stories and incomplete investigation, the military police titled him and checked the box as founded. f. He was titled for assault under offense code 5C2B; however, local records indicate he was titled for domestic assault despite not having a domestic relationship with Mrs. J____. No opinion was sought until almost a week after he was titled and the case was marked as founded, and no amendment was ever made. All this was done in direct violation of Army regulations. 2. He was serving in the rank/grade of lieutenant colonel/O-5 assigned to the Warrior Transition Unit at Fort Bliss, TX, when he became the subject of an MPR. 3. The DA Form 3975, dated 22 January 2015, shows the applicant was the subject for the founded offense of "Assault Consummated by a Battery (Article 128, UCMJ) (On Post)", offense code 5C2B, that occurred on or about 1220 on 21 January 2015. a. The narrative states the Director of Emergency Services dispatch was telephonically notified of an assault at 1101 on 22 January 2015. The preliminary investigation revealed that person(s) unknown physically assaulted Mrs. J____ by pulling her hair multiple times for no apparent reason while in the gym, Building 807. The applicant was suspected of the offense and was advised of his legal rights, which he invoked. b. At 1300 on 6 February 2015, the Office of the Staff Judge Advocate was briefed on all aspects of the investigation. At 0950 on 10 February 2015, the applicant was escorted to the military police station where he was processed and released to his unit. c. The offense of "Domestic Violence" was not listed on the MPR. 4. On 25 August 2016, he was awarded the Meritorious Service Medal for exceptionally meritorious service while serving in positions of increasing responsibility during the period 1 November 2006 through 31 October 2016, culminating a distinguished 28-year military career. 5. He retired on 28 September 2016 by reason of permanent disability (enhanced). He completed 28 years, 5 months, and 7 days of total active service. 6. His Army Military Human Resource Record revealed no derogatory documents. 7. On 19 January 2017, the USACRC responded to the applicant's request to correct information from the file of the USACIDC and supplemented their response of 5 January 2016. The Director, USACRC, stated: a. The information he provided did not constitute as new or relevant information needed to amend the report; therefore, his amendment request was denied. b. The enclosed MPR -XXXXX-XX, responsive to his request, is part of a system of records exempt from the disclosure provisions of the Freedom of Information Act. The names of law enforcement personnel, as well as names, social security numbers, and other personal items of Information pertaining to third parties were withheld. Removal of that information constitutes a partial denial pursuant to Title 5, U.S. Code, section 552, because release could violate the personal privacy of other individuals mentioned in the report. Title 5, U.S. Code, section 552, allows withholding information under the deliberative process privilege, civil discovery, and attorney-client or attorney work product privileges. c. This partial denial, which is made on behalf of the Commander, USACIDC, the initial denial authority for USACIDC records under the Freedom of Information Act, may be appealed to the Secretary of the Army. d. He was advised that if he decided to appeal at that time, his appeal must be submitted within 90 days of the date of this letter. In his appeal, he must state the basis for his disagreement with the denial and should state the justification for its release. His appeal must be made through the USACRC and should be addressed to the Director, USACRC, 27130 Telegraph Road, Quantico, VA 22134, for forwarding, as appropriate, to the Office of the Secretary of the Army, the appellate authority. His appeal should address information denied in this response and cannot be used to make a new request for additional information. 8. On 20 February 2018, the USACRC responded to the applicant's request to correct information from the file of the USACIDC received on 7 February 2018. A review of their files indicated a similar request was received on 20 December 2016 and a Privacy Act Appeal was submitted on 22 February 2017. The Director, USACRC, stated: a. In regard to his Privacy Act Appeal, he may not request additional information regarding MPR XXXXX-XX while the appellate process is ongoing. He may submit another request for information related to this request upon resolution of his appeal. b. He was advised that 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 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 has 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. c. A check of the NCIC reflects that he is listed as the subject in the aforementioned MPR for assault consummated by a battery. The disposition on file reflects, "No Disposition on File." 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 NCIC. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of the Military Policy Report was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. 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) AR20180011529 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1