ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180014637 APPLICANT REQUESTS: a. amendment of the Law Enforcement Report (LER) – 1st Corrected Final/Collateral – XXXXX-xxxxx-XXXXXX-XXXXXX, dated September 2016, from "founded" to "unfounded" due to new and relevant information that developed after the LER was closed and approved as founded; and b. removal of his name from the title block of the Fort Shafter, Hawaii Police Station, LER – 1st Corrected Final/Collateral – XXXXX-xxxxxXXX-XXXXXX, for the offense of abuse of family or household member. 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), with self-authored letter, dated 5 October 2018 * Memorandum, Fort Shafter Police Station, dated 27 September 2016, subject: LER – First Corrected Final/Collateral – XXXXX-xxxxxxXXX-XXXXX-XXX * Order of Dismissal, State Family Court First Circuit, dated 19 April 2017, Case Number xxxxxXXXXXXX * Memorandum, Headquarters, 2d Infantry Brigade Combat Team, 25th Infantry Division, dated 23 May 2018, subject: Memorandum Supporting Law Enforcement Record Amendment/Removal, (Applicant) * Letter, U.S. Army Criminal Investigation Command (USACIDC), U.S. Army Crime Records Center (USACRC), dated 13 June 2018 * Enlisted Record Brief * Photographic Identification FACTS: 1. The applicant states: a. The Honolulu Police Department was called to an off-post residence to investigate a disturbance in which he was taken into custody on 24 September 2016 based on suspicion and a written statement. The Honolulu Police Department and the State of Hawaii sought prosecution against him (on behalf of the victim). b. A Military Police Report was opened on or about 26 September 2016 and closed on or about 27 September 2016 without conducting an investigation or questioning either party involved in the incident. c. The State of Hawaii conducted a thorough investigation over a period of 7 months. After appearing in court in front of a State Judge several times, the judge dismissed the case on 19 April 2017 with no adverse action. d. The report is inaccurate, irrelevant, untimely, and incomplete. (1) Amendment of the report is appropriate under the provisions of Army Regulation 190-45 (Law Enforcement Reporting), paragraph 3-6, when such records are established as being inaccurate, irrelevant, untimely, or incomplete. (2) Amendment of the report is also appropriate 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. e. Army Regulation 190-45, paragraph 4-1(2), states "the need for accuracy in reporting incidents...is critical." Accuracy would be the result of a Military Police investigation. Section 4-1(2)d states "in the event the installation PMO [Provost Marshal's Office] determines that his/her office does not have investigative responsibility, the LER will be terminated and the case cleared by exceptional clearance. A case cleared by exceptional clearance is closed by the installation PMO when no additional investigative activity will be performed or when the case is referred to another agency." Section 4-3a states "an incident will not be reported as a founded offense unless adequately substantiated by police investigation." Section 4-7i states "If a Soldier is tried in a civilian court, the installation will be notified of charges....and will initiate a LER...." The civilian court proceedings resulted in a dismissal of the case with no adverse action. Army Regulation 190-45 also defines a founded offense as "an offense adequately substantiated by police investigation...." There was no Military Police investigation and the Honolulu Police Department/State of Hawaii investigation resulted in dismissal. 2. On 24 September 2016, he was arrested for abuse of a family or household member, processed, and released on $1,000.00 bail. 3. He was discharged in the rank/grade of master sergeant/E-8 for misconduct (serious offense) on 7 April 2017 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c. He completed 15 years and 26 days of active service. His service was characterized as under honorable conditions (general). 4. He provided the State Family Court, First Circuit, Order of Dismissal for Case Number xxxxXXXXXXX, dated 19 April 2017, showing the court granted the applicant's motion for early termination of deferral of Hawaii's Revised Statutes, section(s) 707-0712 (Assault in the Third Degree) and section(s) 711-1106 (Harassment) resulted in dismissal of charges. The applicant was acquitted and found not guilty after trial. 5. He provided a memorandum from the Commander, Headquarters, 2d Infantry Brigade Combat Team, 25th Infantry Division, dated 23 May 2018, supporting amendment or removal of the LER wherein he stated: a. The applicant experienced several lapses in judgment in late 2016 while serving in the rank/grade of master sergeant/E-8, which reflected poorly on his performance, including the incident contained in the Fort Shafter Police Report. b. The applicant was notified on 7 November 2016 of his unit's intent to separate him from the Army based on multiple instances of misconduct. After appearing before an Army Separation Board on 31 January 2017, the commanding general directed his separation from the service on 16 February 2017 with characterization of his service as general under honorable conditions. c. The applicant was discharged on 7 April 2017. Since then he entered civilian employment as a project manager for a civilian contractor where he continued to support Soldiers. d. The Fort Shafter police report which ''founded" the offense was itself based on a Honolulu Police Department report. The Honolulu Police Department conducted a thorough investigation and the applicant appeared before a judge several times. Ultimately, the State of Hawaii dismissed the case on 19 April 2017. e. The applicant freely admitted he made a series of errors that ended his once- promising military career. He was remorseful, accepted his punishment, and attempted to move on with his life. However, the "founded" military police report continues to appear in background checks and places his current employment in jeopardy. f. The command fully supports amending the report from "founded" to "unfounded" or completely removing the report from the applicant's AMHRR. The applicant has been cleared of this offense in a court of law and he received adverse administrative action for the events surrounding the incident. The negative consequences of a "founded" report in the applicant's records are fundamentally unfair and contravene the intent of the corrective and rehabilitative administrative action he already received. The LER should be amended in a way that provides the applicant with a fresh start in his civilian career. 6. On 13 June 2018, USACIDC denied his request for amendment of LER XXXXXXXXX-XXXXX-XX. a. He was advised the LERs responsive to his request were completed after July 1992. At the time the LERs were completed, the criteria for reporting an individual in the subject block was based upon credible information to believe the individual committed the offense. b. 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 LER 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. c. In compliance with Department of Defense (DOD) Instruction 5 05.7, paragraph 6, an individual will still remain entered in the Defense Clearance and Investigations Index to track all reports of investigations. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the law enforcement reports, the applicant’s arrest, the reason for his separation and the final decision by the civilian court to dismiss charges. The Board considered the denial by CID to change LERs associated with the applicant’s arrest and subsequent adjudication by the civilian courts, as well as the recommendation of the 2d BCT Commander for removal. While the charges were dismissed in the civilian court, the Board found insufficient evidence to amend the associated MP Report from founded to unfounded, to remove his name from the title block, or to remove the documentation from his AMHRR. The Board determined that there was no mistaken identity or complete lack of credible evidence to title him. The Board determined that the documents the applicant requests be removed or amended are 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 :x :x :CMMx 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. DOD Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. 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 (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 2. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to 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 3-6 (Amendment of Records) states 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. 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. 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. In compliance with DOD policy, an individual will still remain entered in the DCII to track all reports of investigation. 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 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 subsequent judicial, nonjudicial, or administrative action is taken against the individual. d. Paragraph 4-1d (General) states in the event the installation PMO or Director of Emergency Services (DES) determines that his or her office does not have investigative responsibility or authority, the LER will be terminated and the case cleared by exceptional clearance. A case cleared by exceptional clearance is closed by the installation PMO or DES when no additional investigative activity will be performed, or when the case is referred to another agency. If a case is transferred to the installation PMO or DES from another LER investigation agency, the gaining installation PMO or DES will have all reporting responsibility using the DA Form 190-45-SG (Army Law Enforcement Reporting and Tracking System (ALERTS)). e. Paragraph 4-3 (Identifying Criminal Incidents and Subjects of Investigation) states: (1) 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 LE 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. (2) A military police LER is reportable to the USACRC when a subject of an included offense is identified, the offense is founded, and the offense is punishable by confinement of 6 months or more. Not all suspects for a particular offense need to be identified for that offense to be categorized as a founded offense. A subject can be a person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. (3) 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 DOD reporting requirements. The Director, USACRC, enters individuals from the LER into the DCII. ABCMR Record of Proceedings (continued) AR20180014637 6 1