ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2019 DOCKET NUMBER: AR20180014561 APPLICANT REQUESTS: through counsel: a. removal of Military Police Report (MPR) and any residual and/or affiliated titling actions from the applicant's Official Military Personnel File (OMPF) and all criminal databases; b. removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 28 February 2014, and all allied documents from the applicant's OMPF; c. any other relief that is equitable and just; and d. a personal appearance hearing before the Board. 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) dated11 November 2018, with attached supplemental statement through counsel * Tab A – Letter, U.S. Army Criminal Investigation Command (USACIDC), U.S. Army Records Center (USACRC), Quantico, VA, dated 17 October 2018 * Tab B – Letter, USACIDC, USACRC, Quantico, VA, dated 18 November 2014, reference request for MPR and attached documents * Tab C – MPR with attached statement from applicant, dated 5 March 2014 * Tab D – Department of Defense Instruction (DODI) 5505.07, dated 27 January 2012, subject: Titling and Indexing Subject of Criminal Investigations in the Department of Defense * Tab E – Page Copy from the Manual for Courts-Martial (MCM) Part IV (Punitive Articles) page 151, paragraph 110 (Article 134 – Threat, communicating) * DD Form 149, dated 26 November 2018, with attached supplemental statement through counsel * Tab A – DA Form 2627, dated 28 February 2014 * Tab B – Applicant's Appeal Statement with Supporting Documents and Defense Attorney's Letter, dated 27 February 2014, subject: Company Grade Article 15 for applicant * Tab C – Text Messages between the Applicant and his Supervisor, dated 1-2 January 2014 * Tab D – Article 15-6 Investigation with Supporting Documents, dated 16 January 2014 * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The applicant submitted a request to USACIDC to remove his name from the titling blocks from the MPR, but USACIDC denied his request (see DD Form 149, dated 11 November 2018, Tab A). b. He requests relief for the following reasons: (1) The error associated with inserting the applicant's name in the title block of the investigation report is that law enforcement lacked the credible information required to title him for the offense of "Communications Incidents-Bomb Threats (All Types) (On Post) (Article 134, UCMJ)" (see DD Form 149, dated 11 November 2018, Tabs B and C). (2) DODI 5505.07 provides for removal of a subject's name from titling and indexing if "[i]t is later determined that a mistake was made at the time of titling and indexing, and no credible information indicating that the subject committed a crime existed" (see DD Form 149, dated 11 November 2018, Tab D). (3) "Credible information" is defined as "[i]nformation disclosed or obtained by a criminal investigator that, considering the source and nature of the information and the totality of the circumstances is sufficiently believable to lead a trained criminal investigator to presume that the fact or facts in question are true" (see DD Form 149, dated 11 November 2018, Tab D – DODI 5505.7, Part II, Glossary). In this case, there was no credible information to title the applicant. (4) In the MPR, it is alleged that a law enforcement agent asked the applicant about the tires in the back of his car (see DD Form 149, dated 11 November 2018, Tab B). According to the MPR, the applicant replied that "he had a bomb." The allegation that the applicant communicated a threat is not sufficiently believable to constitute "credible information" that he committed the offense because: (a) The statement does not provide the entire context of the conversation between the applicant and the agent at the gate. In the applicant's statement, he wrote that the gate guard asked him, "What's in your car, it seems like a tire" (see Tab C). The applicant knew the gate guard "very well" and "always had conversations with him at the gate." This was evidence that the statement made by the applicant was intended to be a joke between acquaintances and was not presented as simply or directly as the implied statement made by the gate guard. (b) Even if the statement attributed to the applicant that he "had a bomb" were true, it does not constitute "credible information" that the applicant communicated a threat. In order to constitute the communication of a threat, the applicant's conduct and/or words must have met the elements outlined in the UCMJ for that offense (see Tab E). (c) There was no evidence that the applicant used or communicated any language "expressing a present determination or intent" to wrongfully injure anyone or anything, or that there was any threat communicated to anyone. Moreover, there was no evidence that the communication he made, even if true, wrongful, or that, even if he said what he is alleged to have said, that it was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. (d) Simply saying "[i]t's a bomb" or words to that effect does not amount to the communication of a threat. Although the applicant acknowledged the seriousness of the situation in his statement and apologized for his actions, there was no credible information at the time the applicant was titled that he had a present determination or intent to injure anyone or anything. In addition, considering the context provided by the applicant's statement that what he said was intended as a joke, there was even less reason to conclude that the words expressed a present intent to injure anyone or anything. (5) He requests removal of the Article 15 proceedings entirely from the applicant's OMPF because the evidence presented demonstrates the document was unjust for the following reasons: (a) The Article 15 proceeding took place on or about 28 February 2014; however, the applicant did not know he had the right to request removal or correction of this action via request to the Army Board for Correction of Military Records (ABCMR) until approximately September 2018 and therefore he had less than 3 years of knowledge of his right to address that injustice. (b) The company commander, at the time, found the applicant guilty of all four charges, even though the evidence submitted by both the applicant and the military defense counsel showed otherwise. The applicant was charged with: * two violations of Article 86, UCMJ – Failure to Repair * one violation of Article 92, UCMJ – Failure to Obey Order or Regulation * one violation of Article 107, UCMJ – False Official Statement (c) Counsel felt the commander lacked evidence beyond a reasonable doubt to conclude the applicant committed the alleged offenses and his action in finding him guilty was arbitrary and capricious because: * the applicant was found guilty of all four charges that did not meet the elements listed in the MCM * in order to find a Soldier guilty of a violation under the UCMJ, a commander must be convinced beyond a reasonable doubt that the Soldier committed each element of the charged offense * with regard to his violations of Article 86, UCMJ, the evidence indicated the applicant informed his chain of command of his whereabouts when he was unable to make it on time to perform his duties due to circumstances beyond his control * the commander did not have evidence beyond a reasonable doubt that the applicant purposefully failed to go to his appointed place of duty * with regard to his violation of Article 92, UCMJ, in that he was derelict in the performance of his duties in that he willfully failed to obtain an approved leave form before traveling to Kansas, the evidence presented at the hearing showed the applicant called his immediate supervisor to inform him that he crashed his car and was driving to Kansas to obtain another vehicle * the applicant had been in the Army for less than a year at the time of the incident * he never received a formal briefing on the mileage pass process or requirement * there was insufficient evidence to conclude the applicant knew or reasonably should have known he needed a mileage pass to go to Kansas * his supervisor should have brought the mileage pass to his attention when they spoke on the telephone with regard to the applicant's whereabouts and circumstances * with regards to his violation of Article 107, UCMJ, in that he made false official statements, the elements of the offense must show – * the applicant signed or made an official statement * that statement was false * he knew it to be false at the time he signed or made the statement * the commander alleged the applicant lied about being stuck in, when evidence proved the applicant was stuck in (see DD Form 149, dated 26 November 2018, Tabs B, C, and D) * all of the evidence presented to the commander at the time of the Article 15 hearing indicated the applicant was sick and stuck in (d) For all of the reasons discussed, justice, fairness, and equity should grant removal of his Article 15. 3. The applicant enlisted in the Regular Army on 16 April 2013. He was assigned to Fort Carson, CO, effective 12 October 2013. 4. Counsel provided the applicant's DA Form 2627, dated 28 February 2014, showing the commander checked the block "NA as Soldier was an E-4 or below at start of proceedings," indicating the original DA Form 2627 would not be filed in the applicant's OMPF. A review of his records in the Interactive Personnel Electronic Record System revealed no evidence of the DA Form 2627 present. This portion of the request will not be discussed further in this case. 5. The DA Form 3975 (MPR Number) shows the applicant was named as the subject/suspect of communicating a threat of a bomb when stopped by the security personnel guarding the front gate of Fort Carson, CO, on 4 March 2014. An investigation revealed the applicant, a Soldier assigned to a unit on Fort Carson, was stopped by the security personnel to conduct force protection gate operations and, upon contact with the applicant, the security officer asked about the tires in the trunk of the applicant's car, to which the applicant replied that he "had a bomb." The security officer drew his firearm and alerted another security officer. The applicant was told not to joke about the incident. Later, one of the security officers notified the Fort Carson police station to report the incident. On 5 March 2014, the military police apprehended the applicant and transferred him to the Fort Carson police station. The applicant waived his rights and rendered a written sworn statement admitting to the offense. He was further processed, issued a post barment notice (exclusion from post/installation), and released to his unit. 6. The DA Form 2823 (Sworn Statement), dated 5 March 2014, provided by the applicant's counsel shows the applicant admitted to making the statement about the bomb, but explained that he was only joking since he knew the security officer at the gate (see Tab C). 7. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 20 March 2014, provided by counsel shows the applicant's commander initiated action to separate the applicant from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations – Rapid Action Revision), chapter 13 (Unsatisfactory Performance), effective 25 March 2014 and recommended characterization of his service as general under honorable conditions. Item 10a (Commander's Remarks) states the applicant was counseled; was serving nonjudicial punishment under Article 15, UCMJ; and was being separated for unsatisfactory performance. 8. The applicant was discharged on 25 March 2014 by reason of unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. He completed 11 months and 10 days of active service. His service was characterized as under honorable conditions (general). 9. On 18 November 2014, the USACIDC and USACRC partially granted the applicant's 29 October 2014 request for release of information, in that the release of the names of law enforcement personnel and other personal items of information pertaining to third parties were withheld in accordance with Title 5, U.S. Code, section 552 (Freedom of Information Act). 10. On 17 October 2018, the USACIDC and USACRC denied the applicant's counsel's 11 October 2018 request to correct information from the files of the USACIDC. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the statement by counsel, the content of the Military Police Report, the associated Sworn Statement and Commander’s Report and the USACIDC and USACRC denial of the applicant’s request to correct information in their files. The Board considered the absence of the DA Form 2627 in the records. Based on a preponderance of evidence, the Board found insufficient evidence to determine that the Military Police Report (MPR) and any residual and/or affiliated titling actions were in error or unjust. The Board further determined there was no other relief to be provided, as requested by the applicant. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :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. 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 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial (MCM), United States, 2008, and the rules for courts-martial (RCM's) contained in the MCM. Paragraph 3-37b(1) (Distribution and Filing of DA Form 2627 and Allied Documents) provides that the original will be filed locally in unit nonjudicial punishment or unit personnel files for Soldiers holding the rank of specialist or corporal and below prior to punishment. Locally filed originals will be destroyed 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first. For these Soldiers, the imposing commander should annotate item 4b of the DA Form 2627 as "not applicable (N/A)." 3. 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. 4. Manual for Courts-Martial, 2012, Article 134 (Threat, Communicating), provides that all disorders and neglects to the prejudice of good order and discipline in the Armed Forces, all conduct of a nature to bring discredit upon the Armed Forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. b. Elements: (1) that the accused communicated certain language expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future; (2) that the communication was made known to that person or to a third person; (3) that the communication was wrongful; and (4) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. c. Explanation. For purposes of this paragraph, to establish that the communication was wrongful it is necessary that the accused transmitted the communication for the purpose of issuing a threat, with the knowledge that the communication would be viewed as a threat, or acted recklessly with regard to whether the communication would be viewed as a threat. However, it is not necessary to establish that the accused actually intended to do the injury threatened. Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to another. See also paragraph 109, threat or hoax designed or intended to cause panic or public fear. 5. Department of Defense Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. It provides 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. ABCMR Record of Proceedings (continued) AR20180014561 8 1