IN THE CASE OF: BOARD DATE: 4 January 2021 DOCKET NUMBER: AR20180013357 APPLICANT REQUESTS: The applicant requests, in effect: * deletion of his name from the subject block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) and removal of the investigation from indexing in the Defense Central Index of Investigation and all data bases and records populated by Army data * award of the Army Good Conduct Medal * promotion to the rank/grade of staff sergeant/E-6 * any back pay he may be due as a result being granted relief APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) under provisions of Title 10, U.S. Code, Section 1552) * Letter, Counsel, undated, regarding CID Titling Request * Personal Affidavit, Applicant, undated * Letter, Applicant, redacted date, Request to CID * Letter, CID, dated 28 March 2018 * Letters, CID, redacted dates REFERENCES: 1. 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 will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 3-4 (Filing of Information on Sex-Related Offenses) provides that commanders will ensure that a Soldier's performance-disciplinary folder is annotated when a court-martial conviction, nonjudicial punishment, or punitive administrative action for a sex-related offense is received. Punitive administrative action means any adverse administrative action initiated as a result of the sex-related offenses identified, this includes aggravated sexual contact and includes, but is not limited to, memoranda of reprimand, admonishment, or censure, from all levels of command. If action is taken against a Soldier resulting in an Army Law Enforcement Report in a civilian court, the disposition will be recorded on a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) in accordance with Army Regulation 190-45 (Law Enforcement Reporting). Possible action(s) taken against a Soldier may include military action, civilian action, or both. (1) The appropriate CID office will enter the law enforcement report into CID's reporting system (Army and State requirements to register as a sex offender contribute to this reporting, if applicable). (2) In cases where an Army Law Enforcement Report does not exist for a conviction in civilian court, once the Army is made aware of the incident/conviction (sexual offense), the appropriate CID office will generate a DA Form 4833 and enter the report into CID's reporting system (Army and State requirements to register as a sex offender contribute to this reporting, if applicable). 3. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities on the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents, related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. Paragraph 4-7 (DA Form 4833) states this form is used with the Law Enforcement Report to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 4. 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. 5. Department of Defense (DOD) Instruction 5505.7, subject: Titling and Indexing of Subjects of Criminal Investigations in the DOD, dated 7 January 2003, states 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). 6. DOD Instruction 5505.11, dated 21 July 2014, subject: Fingerprint Card and Final Disposition Report Submission Requirements, 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 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 wrongful use of a controlled substance. FACTS: 1. The applicant states the negative information has served its purpose and is no longer equitable. 2. The applicant's counsel states the appeal is based on three errors: (1) the underlying basis of the titling was procedurally defective at the time of the alleged offenses; (2) the adverse action was unfair at the time; and (3) the titling is inequitable. a. The applicant is a decorated Soldier and has been on active duty for 8 years. While he was stationed at Fort Bragg he went through a nasty divorce. His ex-wife made malicious allegations against him which were reported to the CID. He denied the allegations and has never been charged with any offense related to the allegations. b. He has been greatly damaged by the false allegations. He lost the opportunity to be promoted and has had to fight back to restore his military career. c. He should not have been titled by the CID under the Uniform Code of Military Justice (UCMJ). The Manual for Courts-Martial states there is a requirement of a finding of preponderance of the evidence. There was no evidence to support the allegations his ex-wife made against him. d. There was insufficient proof that the applicant committed any offense, he has never been found guilty of any offense, and the charges remain unsubstantiated. No formal charges were ever brought against him that would have allowed him to opportunity to defend himself. e. The titling of the applicant does not serve a further purpose. The events that took place are no longer relevant and he has lived in an exemplary manner as reflected in his military record. He has maintained a positive attitude despite being involuntarily separated. There is no valid equitable purpose in leaving the negative action in place. 3. In the applicant's personal affidavit the applicant defends his character and states his successful performance prior to his enlistment and while serving in the Regular Army. a. Since his ex-wife's false allegations and three years of complete hardship he has again become eligible for promotion, reunited with his daughter and has full custody of her. b. The investigation caused him be titled and continues to cause him hardship when applying for security related positions, registering weapons, and volunteer positions. He is unable to be a drill sergeant, a recruiter, or a Sexual Harassment/Assault Response and Prevention representative; which are all career broadening assignments. c. He continued to serve without fail as a senior ranking member of his unit. He cannot reinforce enough how these false malicious statements has damaged his career, his family, his well-being, and has caused embarrassment. 4. The applicant was serving in the Regular Army in the rank/grade of sergeant/E-5 when he became the subject of a Law Enforcement Report. 5. Memorandum, CID, dated 23 July 2016, subject: Law Enforcement Report – Final – 00463-2015-CID023-000000, shows the applicant as the subject for the offense of Rape of a Child (Article 120, UCMJ). a. Report of Summary: The victim disclosed the applicant made her perform sexual acts upon him and also perform sexual acts upon her. The applicant was interviewed and denied raping the victim; however, he made several criminal admissions of guilt. b. Legal Coordination: On 23 May 2016, the Senior Trial Counsel, Office of the Staff Judge Advocate, Fort Bragg, NC, opined probable cause existed to believe the applicant committed the offense of Rape of a Child. 6. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 5 May 2017, shows in item 10a (Commander's Remarks) the Trial Counsel opined probable cause existed however recommended against prosecution of the case. The Special Court-Martial Convening Authority decided not to pursue prosecution of the case. 7. A letter from the applicant to CID, date redacted, requests his name be deleted from the title block of on CID Report of Investigation because the record is inaccurate, irrelevant, untimely or incomplete. He states: a. The Law Enforcement Record should be amended for three reasons: the matter reported was not related to the enforcement of federal laws or to the maintenance of national security; there was not credible information that he committed a criminal office; and it is not sufficiently accurate or complete so as to ensure its fairness. b. The police investigation was inaccurate and incomplete because a number of facts were omitted. The offense was not adequately substantiated by police investigation, and there was no corroborating evidence and no probable cause. In light of the fact that there was no criminal or UCMJ action taken, his name should be deleted from the title block of the CID file. 8. In a CID letter, date redacted, the CID responded to the applicant's request to correct information from the files of the CID, stating the information provided by the applicant referencing the Report of Investigation did not constitute new or relevant information needed to amend the report. 9. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Orders 360- 0601, dated 26 December 2018, released him from his assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. His effective date of retirement is shown as 27 February 2019. 10. On 27 February 2019 he retired from the Regular Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate or Rank) – Sergeant * item 4b (Pay Grade) – E-5 * item 12c (Net Active Service This Period) – 8 years, 4 months, and 24 days * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - * Army Commendation Medal (4th Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Military Outstanding Volunteer Service Medal * Expert Marksmanship Qualification Badge with Carbine Bar * Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp * item 24 (Character of Service) – Honorable * item 28 (Narrative Reason for Separation) – Disability, Permanent (Enhanced) 11. His DD Form 215 (Correction of DD Form 214), dated 15 January 2019, corrected his rank/grade to staff sergeant/E-6, with a date of rank of 27 February 2019, which is the date he was separated. 12. DODI 5505.7 contains the authority and criteria for titling decisions. It states 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 in evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board noted that titling only requires credible information that an offense may have been committed. The Board also noted that the only way to remove a titling action is to show either mistaken identity or a complete lack of credible evidence. In this case, the Board found neither mistaken identity nor a complete lack of credible evidence. Based on a preponderance of evidence, the Board determined the applicant's name should remain in the title block of the investigative report in question. 3. The Board noted the applicant was promoted to staff sergeant/E-6 in conjunction with his retirement. The Board determined no further action is required on this portion of his request. 4. The Board found insufficient evidence to support awarding the applicant an additional Army Good Conduct Medal. If the applicant is able to provide supporting statements from his chain of command at the time he would have become eligible for a second award of the Army Good Conduct Medal, he may submit those statements with a request for reconsideration. 5. The Board found no evidence indicating the applicant was deprived of any pay he was owed during his military service. As the Board has determined the applicant should not be granted relief in this case, there is no basis for paying him any back pay. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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) AR20180013357 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1