ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  10 March 2020

		DOCKET NUMBER:  AR20180013820


APPLICANT REQUESTS:

	a.  amendment of the U.S. Army Crime Records Center (USACRC) probable cause 
finding to reflect that probable cause did not exist at the time of the investigation to 
substantiate the offense;

	b.  removal of his name from the U.S. Army Criminal Investigation Command 
(USACIDC or CID) Military Police Report of Investigation (ROI) and titling block; and

	c.  deletion of his name and associated unfounded investigation information from the 
Defense Clearance and Investigation Index (DCII), as well as any other database under 
the direct control of the CID.

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)
*	Brief in Support of Application for Correction of Record, Counsel, undated
*	Exhibit 1 – Letter, Counsel, dated 20 October 2017, subject:  Request to Amend 
Information and Delete Name from Titling Block of Law Enforcement Reports 
(LERs) 2013-MPCXXX-XXXXX-XX and 2009-MPCXXX-XXXXX-XX
*	Exhibit 2 – Letter, CID, CRC, dated 27 November 2017
*	Exhibit 3 – DA Form 3975 (MP Report), Section VII (Narrative), page 5 of 
13 pages, undated, signed by Master Sergeant (MSG) B____
*	Exhibit 4 – DA Form 3975, Section VII, page 5 of 13 pages, undated, signed by 
Mr. C____
*	Exhibit 5 – Enlisted Record Brief 
*	Medical Record, Applicant, dated 24 June 2017, page 132

FACTS:

1.  The applicant defers to counsel.



2.  Counsel states:

	a.  Maintenance of this post-service unfounded information has caused the applicant 
considerable prejudicial impact and thus its continued existence and dissemination 
constitutes both material injustice and material error.  As the applicant was honorably 
discharged from the U.S. Army, maintaining the information in question serves no 
legitimate purpose.

	b.  The ROIs in question arose from two separate incidents where the applicant was 
investigated for various alleged violations.

		(1)  The first ROI, dated 27 October 2009, was based on telephonic notification 
that the applicant, an MP, was intoxicated and physically aggressive toward other MPs 
after being told to return to his barracks room.  The narrative notes were written by 
MSG B____, a third person not present when the alleged actions took place.

		(2)  The second ROI, dated 17 August 2013, pertains to an incident that allegedly 
occurred on 17 August 2017 while the applicant was still an MP stationed in Germany.  
The applicant was a passenger in a vehicle that was involved in a minor motor vehicle 
accident in Germany.  After the accident occurred, occupants of the vehicles exited, and 
a verbal altercation ensued between the applicant and another military member prior to 
arrival of the German police.  Based on the language barrier, the German authorities 
described applicant as noncompliant.  He was later released to the MPs and returned to 
the Provost Marshal Office where he was processed and released.

	c.  In both investigations, the individuals writing the narrative portion of the reports 
were not present when the alleged events occurred.  Despite the second-hand nature of 
the information supporting the allegations, authorities in both instances made 
determinations of "founded."  The applicant was never criminally charged with any of 
the offenses and finished his required term of service, receiving an honorable/medical 
discharge related to his diagnosis of post-traumatic stress disorder (PTSD).

	d.  The applicant applied for several civilian positions, including one in the law 
enforcement field, and was advised he was not eligible for such employment due to his 
"criminal record."  After losing several opportunities to obtain employment for the same 
reason, the applicant requested a criminal history record check through the Federal 
Bureau of Investigation where he discovered the information showing in his criminal 
history was the titling action and investigation entered by CID into the DCII.

	e.  On 20 October 2017, the applicant, through counsel, filed an appeal with the 
Director, CRC, to amend the information and delete his name from the titling block of 
LERs 2013-MPCXXX-XXXXX-XX and 2009-MPCXXX-XXXXX-XX.

	f.  On 27 November 2017, the request to amend the information and delete his name 
from the titling block of the LERs was denied.  The applicant was within 3 years of 
discovery of the alleged error or injustice when his appeal was denied on 27 November 
2017.

	g.  Failure of the CRC to remove the applicant's name from the title block of the CID 
ROI constitutes both material error and material injustice since, based upon the 
available evidence, credible information clearly did not exist lo believe the applicant 
committed the offense for which titled as a subject at the time the investigation was 
initiated.  At the time these incidents occurred, the applicant was suffering from PTSD 
acquired as a result of several forward deployments associated with Operation Iraqi 
Freedom.  The applicant's condition rendered him incapable of forming the intent 
necessary to support the allegations against him.

	h.  Maintenance and dissemination of derogatory investigative information where the 
subject was cleared of any criminal culpability and is no longer actively associated with 
the U.S. military constitutes nothing less than a blatant and unsupported infringement of 
a constitutional liberty interest that is improper, particularly and specifically prejudicial to 
former service members, and represents a clear material error and injustice requiring 
correction by a board.

	i.  Based on the totality of the evidence presented in support of the applicant's 
petition, he sufficiently demonstrated through new, relevant, and material evidence that 
the requested amendment relating to changing of the probable cause finding to correctly 
reflect that probable cause did not exist at the time of the investigation was properly 
met.

	j.  Removal of one's name from the title block of an LER or ROI is "an investigative 
determination that is independent of judicial, nonjudicial, or administrative action taken 
against the individual or the results of such action."

	k.  The Department of Defense's (DOD's) use of the DCII database as an 
"information sharing" vehicle for DOD law enforcement agencies, as well as the 
dissemination of non-conviction investigative information, creates a prejudice that is 
unique among service members.  There exists no analogous civilian counterpart.  
Civilians who are charged but not convicted of criminal activity typically enjoy an 
absolute right to expungement of investigative records.  The titling process related to 
civilians is not part of a Federal criminal history database and civilian titling decisions 
made by law enforcement are rarely discoverable by outside employers.

3.  The applicant enlisted in the Regular Army on 5 September 2005.  He completed 
advanced individual training and was awarded military occupational specialty 31B (MP).

4.  The applicant's records contain the MP Report, dated 17 August 2013, with attached 
sworn statements, the investigator's statement, and investigator's activity summary 
show the applicant was a passenger in a traffic accident on 16 August 2013 on the 
autobahn in Schweinfurt, Germany, causing damage to a guard rail.  The applicant was 
intoxicated and he engaged in a physical altercation with the driver of the vehicle while 
waiting for the German police.  When the German police arrived, the applicant was 
handcuffed and detained until the MPs arrived.  The applicant was charged with:

*	simple assault
*	communicating a threat
*	being drunk and disorderly
*	resisting apprehension (MP)

5.  The DA Form 3975 (exhibit 3) signed by MSG B____, Provost Sergeant, shows he 
was telephonically notified by MP K____ who informed him:

*	the applicant was told to return to his barracks due to his high state of 
intoxication
*	the applicant refused and physically pushed MP K____
*	upon apprehension, the applicant physically struck MP Z____ with his head and 
physically elbowed MP K____ at the same time
*	once the applicant reported to the MP station, he was read his rights, which he 
invoked and requested a lawyer
*	he was then further processed and released to his unit
*	the case was closed

6.  The second DA Form 3975 (exhibit 4) signed by Mr. C____, Director of Emergency 
Services (DES), states:

*	he received information on 16 August 2013 of a vehicle that was in an accident 
that was owned by F____, the driver of the vehicle
*	the applicant got into a verbal altercation with the driver, which turned into a 
physical altercation, prior to the MPs arriving to the scene
*	when the MPs arrived, the German police stated the applicant was intoxicated 
and disorderly
*	the applicant directed threats toward the two MPs who arrived at the scene of the 
accident – he was noncompliant and resisted arrest
*	Investigator A____ briefed Captain (CPT) W____, Office of the Staff Judge 
Advocate, on all aspects of the case in October 2013
*	CPT W____ opined that the applicant should be titled for the offenses of assault 
consummated by a battery, assault on a MP officer, communicating a threat, 
being drunk and disorderly, and resisting arrest
*	deoxyribonucleic acid (DNA) and fingerprints were obtained from the applicant on 
19 August 2013

7.  On 11 September 2013, the applicant was counseled in writing by his platoon 
sergeant who informed him that a DA Form 268 (Report to Suspend Favorable 
Personnel Actions (Flag)), dated 13 September 2013, was initiated against him for 
adverse action for an incident that occurred on the morning of 8 June 2013.  The 
applicant initialed the form indicating he agreed with the information.  He did not make 
any remarks.

8.  On 28 October 2013, the applicant received a nonjudicial punishment under the 
provisions of Article 15, Uniform Code of Military Justice, for resisting apprehension, 
being drunk and disorderly, and wrongfully communicating a threat on or about 
16 August 2013 at or near Schweinfurt, Germany.  He did not demand trial by court-
martial and requested a closed hearing.  He was found guilty of some specifications.  
His punishment included reduction in rank/grade to specialist/E-4; extra duty for 
30 days; restriction to the limits of the company area, dining/medical facility, place of 
worship, and gymnasium for 30 days; and an oral reprimand.  He did not appeal the 
nonjudicial punishment.

9.  The applicant's Enlisted Record Brief, dated 16 September 2014, shows he had no 
flagging actions pending.

10.  The applicant was discharged effective 15 September 2014.  He completed 9 years 
and 1 day of active service during this period.  His service was characterized as 
honorable.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he served in Iraq from 18 December 2007 to 5 March 2009.

11.  The applicant's records contain a DA Form 2173 (Statement of Medical 
Examination and Duty Status), dated 9 December 2015, showing he was examined on 
16 June 2015 for PTSD.  The examiner opined that his condition was incurred in the line 
of duty and stated the applicant was serving on active duty and the condition was not 
due to his own negligence or misconduct.  Per a review of the applicant's records, he 
had been evaluated for symptoms of PTSD which were attributed to his service in Iraq 
from 18 December 2007 to 5 March 2009.

12.  The applicant's records contain a DA Form 199 (Informal Physical Evaluation Board 
Proceedings), dated 20 July 2016.  The board found the applicant physically unfit by 
reason of PTSD and recommended a disability rating of 50 percent and permanent 
disability retirement.

13.  On 27 July 2016, the U.S. Army Physical Disability Agency advised the applicant 
that he had been found to have a disability based on their findings and recommendation 
and he would be permanently retired with a disability rating of 50 percent.

14.  The applicant's records contain U.S. Army Physical Disability Agency Order  
D 209-06, dated 27 July 2016, retiring him by reason of physical disability and placing 
him on the Retired List effective 31 August 2016.  He was assigned a disability rating of 
50 percent.

15.  The applicant provided page 132 of his medical record, created 24 June 2017, 
showing a review of systems included PTSD, anxiety, and depression.

16.  On 20 October 2017 in a petition to the CRC, counsel requested amendment of 
information in the CID ROI to reflect that sufficient probable cause did not exist to 
substantiate the offense and deletion of the applicant's name from the titling block of the 
LERs.  Counsel stated the applicant was never criminally charged for the offenses and 
finished his term of service, receiving an honorable/medical discharge for his diagnosis 
of PTSD.

17.  On 27 November 2017, the CRC denied counsel's request, stating the information 
provided did not constitute new or relevant information needed to amend the ROI.  The 
CRC Director stated:

	b.  The MP reports are part of a system of records exempt from the disclosure 
provisions of the Freedom of Information Act.  The names of law enforcement 
personnel, along with names, social security numbers and other personal items of 
information pertaining to third parties were withheld as the release could violate the 
personal privacy of other individuals mentioned in the report.

	c.  The partial denial was made on behalf of the Commander, CID, the initial denial 
authority for CID records under the FOIA.  The applicant may appeal the decision within 
90 days of receipt of the letter.  His appeal must state the basis for his disagreement 
with the denial and he should state the justification for its release.  His appeal should be 
made through the CRC for forwarding, as appropriate, to the Office of the Secretary of 
the Army, the appellate authority.

	d.  The criteria for reporting an individual in the subject block is based upon credible 
information to believe the individual committed the offense.  Requests for amendment of 
such records are processed under the provisions of Army Regulation 190-45 (Law 
Enforcement Reporting), paragraph 3-6a, which provides, in part:

An amendment of record 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 
[MP Report] 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...will not be 
approved.  In compliance with DOD policy [DODI 5505.7, paragraph 6], an 
individual will still remain entered in the Defense Clearance and Investigations 
Index (DCII) to track all reports of investigations.

	e.  An applicant may request amendment to the MP reports under the provisions of 
Army Regulation 25-22 (The Army Privacy Program), paragraph 8-1, when such records 
are established as being inaccurate, as a matter of fact rather than judgment.  The 
conclusion reflected in the investigative summary is an investigative determination that 
is independent of whether judicial, nonjudicial, or administrative action was taken 
against the subject, or the results of such action.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, counsel documents, 
supporting documents and evidence in the records.  The Board considered the 
applicant’s statement, the nature of the misconduct, his separation and his disability 
retirement.  The Board considered the MP report, two DA Forms 3975 and evidence of 
non-judicial punishment.  The Board considered the request to the CRC for amendment 
of the records and the denial of that request.  After a thorough review, the Board found 
sufficient evidence that there was credible information to believe the applicant 
committed the offenses as recorded in the contested reports.  Based on a 
preponderance of evidence, the Board determined that the applicant’s name as subject 
on the reports 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

:	:	:	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.














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 DOD 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 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 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.

	b.  Paragraph 4-3d states that 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, CRC, enters individuals from the LER into the DCII.

2.  Army Regulation 25-22 (The Army Privacy Program) sets forth policies and 
procedures that govern personal information kept by the Department of the Army in 
Privacy Act systems of records.

	a.  Paragraph 8-1 provides that an individual may request to amend records that are 
retrieved by his or her name or personal identifier from a system of records unless the 
system has been exempted from the amendment provisions of the Act.  The standard 
for amendment is that the records are inaccurate as a matter of fact rather than 
judgment, irrelevant, untimely, or incomplete.  The burden of proof is on the requester.

	b.  Amendment procedures are not intended to permit individuals to challenge 
events in records that have actually occurred.  Amendment procedures only allow 
individuals to amend those items that are factually inaccurate and not matters of official 
judgment (for example, performance ratings, promotion potential, and job performance 
appraisals).  In addition, an individual is not permitted to amend records for events that 
have been the subject of judicial or quasi-judicial actions and/or proceedings.

	c.  CID reports of investigations have been exempted from the amendment 
provisions of the Privacy Act.  Requests to amend these reports will be considered 
under Army Regulation 195-2 (Criminal Investigation Activities) by the Commander, 
CID.  Actions by the Commander, CID, will constitute final action on behalf of the 
Secretary of the Army under that regulation.

3.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes policies and 
procedures pertaining to criminal investigation activities within the Department of the 
Army.

	a.  Paragraph 4-4b (Amendment of CID Reports) provides that CID ROIs are exempt 
from the amendment provisions of the Privacy Act.  Requests for amendment will be 
considered only under the provisions of this regulation.

	b.  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.  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.  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.

	d.  Within these parameters, 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.

4.  DOD Instruction 5505.7 (Titling and Indexing of Individuals in the CDII) provides that 
DOD components authorized to conduct criminal investigations will title and index 
subjects of criminal investigations as soon as the investigation determines there is 
credible information that the subject committed a criminal offense.  Victims and 
incidentals associated with criminal investigations can be titled and indexed.  Titling and 
indexing are administrative procedures and will not imply any degree of guilt or 
innocence.  Once the subject of a criminal investigation is indexed in the DCII, the 
information will remain in the DCII, even if the subject is found not guilty of the offense 
under investigation, unless there is mistaken identity or it is later determined no credible 
information existed at the time of titling and indexing.

5.  The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, 
addresses trauma and stress or related disorders.  The DSM is published by the 
American Psychiatric Association (APA) and provides standard criteria and common 
language for classification of mental disorders.

	a.  In 1980, the APA added PTSD to the third edition of its DSM nosologic 
classification scheme.  Although controversial when first introduced, the PTSD 
diagnosis has filled an important gap in psychiatric theory and practice.  From a 
historical perspective, the significant change ushered in by the PTSD concept was the 
stipulation that the etiological agent was outside the individual (i.e., a traumatic event) 
rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to 
understanding the scientific basis and clinical expression of PTSD is the concept of 
"trauma."

	b.  The fifth edition of the DSM was released in May 2013.  This revision includes 
changes to the diagnostic criteria for PTSD and acute stress disorder.  The PTSD 
diagnostic criteria were revised to take into account things that have been learned from 
scientific research and clinical experience.  The revised diagnostic criteria for PTSD 
include a history of exposure to a traumatic event that meets specific stipulations and 
symptoms from each of four symptom clusters:  intrusion, avoidance, negative 
alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth 
criterion concerns duration of symptoms, the seventh criterion assesses functioning, 
and the eighth criterion clarifies symptoms as not attributable to a substance or co-
occurring medical condition.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the court-martial forum.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to any other corrections, including changes in a discharge, which 
may be warranted on equity or relief from injustice grounds.  This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs in 
application of their equitable relief authority.  In determining whether to grant relief on 
the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the 
prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative 
severity of misconduct, mental and behavioral health conditions, official governmental 
acknowledgement that a relevant error or injustice was committed, and uniformity of 
punishment.  Changes to the narrative reason for discharge and/or an upgraded 
character of service granted solely on equity, injustice, or clemency grounds normally 
should not result in separation pay, retroactive promotions, and payment of past 
medical expenses or similar benefits that might have been received if the original 
discharge had been for the revised reason or had the upgraded service 
characterization.
ABCMR Record of Proceedings (cont)	AR20180013820


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