ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20180014904 APPLICANT REQUESTS: * removal of his name from the title block of Law Enforcement Report (LER) * removal of the LER from the National Crime Information Center index * 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) * Memorandum, Applicant, dated 31 October 2018 * Enclosure 1 – Letter, U.S. Army Criminal Investigation Command (CID), dated 28 September 2018 * Enclosures 2-3 – not included * Enclosure 4 – Enlisted Affiliation Bonus Addendum, page 3 of 5, Staff Sergeant (SSG) * Enclosure 5 – 380th Military Police (MP) Detachment (CID), Unit Manning Report, dated 5 November 2015 * Enclosure 6 – Memorandum, 380th MP Detachment (CID), dated 20 August 2015, subject: Unit's Battle Assembly Dates for Training Year 2016 * Enclosure 7 – Newsletter, 380th MP Detachment (CID), dated October 2015 * Enclosure 8 – CID Form 94 (Agent's Investigation Report), page 6 of 6, dated 26 October 2016 * Enclosure 9 – CID Form 94, dated 14 November 2016 * Enclosure 10 – DA Form 4137 (Evidence/Property Custody Document), dated 9 November 2016 * Enclosure 11 – DA Form 2062 (Hand Receipt/Annex Number), dated 1 November 2014 * Enclosure 12 – CID Form 87 (Consent to Search), dated 6 November 2016 * Enclosure 13 – CID Form 94, dated 18 July 2016 * Enclosures 14-19 – not included * Enclosure 20 – interview extract, page 2, undated * Enclosure 21 – CID Form 94, page 1 of 2, dated 30 June 2017 * Enclosure 22 – CID Form 94, page 2 of 2, dated 30 June 2017 * Enclosure 23 – not included * Enclosure 24 – Memorandum, 393rd MP Detachment (CID), , dated 9 November 2015, subject: Verification of Security Clearance, * Enclosure 25 – U.S. Army Reserve (USAR) Form 75-R (Army Reserve Acceptable Use Policy for Access for Classified/Unclassified Systems), page 4, dated 9 November 2015, SSG * Enclosure 26 – DA Form 1380 (Army Reserve Record of Individual Performance of Reserve Duty Training), dated 9 November 2015, * Enclosures 27-30 – not included * Enclosure 31 – CID Form 94, page 1 of 2, dated 14 July 2017 * Enclosures 32-40 – not included * Enclosure 41 – DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 18 April 2013, SSG * Enclosure 42 – DA Form 5500 (Body Fat Content Worksheet – (Male)), dated 18 April 2013, SSG * Enclosure 43 – DA Form 705, dated 10 September 2017, SSG * Enclosure 44 – DA Form 5500, dated 10 September 2017, SSG * Enclosures 45-49 – not included * Enclosure 50 – Memorandum, 200th MP Command, Fort George G. Meade, MD, dated 9 March 2018, subject: Filing Determination on Reprimand, (Applicant) * Enclosure 51 – DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 9 March 2018, (Applicant) * Enclosure 52 – Electronic Mail, 200th MP Command, Captain , dated 8 May 2018, subject: (Applicant) Expunge Memorandum FACTS: 1. The applicant states: a. False accusations were made against him. After receiving a general officer memorandum of reprimand (GOMOR), he submitted a written rebuttal with new and relevant evidence to prove his innocence. As a result, the information in CID Crime Records Center file numbers, , and Law Enforcement Report (LER) was shown to be false and the 200th MP Command court-martial convening authority directed withdrawal and destruction of the GOMOR. b. His name should be removed from the title block and the record should be corrected because there was not probable cause, as required by regulatory guidance, to believe he committed the offenses for which he was listed as a subject. c. CID denied his request to remove his name and correct the LER. d. His appeal should be granted for the following reasons: * credible information did not exist to believe he committed the offense for which he was a subject * new and relevant evidence presented was available, but it was not presented to the staff judge advocate for consideration in his opinion for titling decisions due to negligence on the part of the investigators * his rebuttal to the GOMOR proved the allegations were false and all charges against him were dismissed * SSG enlisted affiliation bonus did not require a passing APFT and was not affected by warrant officer selection or CID reinstatement * he did not meet SSG until after 7 October 2015, so it was incorrect that he interviewed SSG for a warrant officer application package in September 2015 * SSG ongoing efforts to take the APFT, even after obtaining a minimal passing score, demonstrated his efforts for improvement * he could not be guilty of a violation of Article 80 (Attempt to Commit an Offense) of the Uniform Code of Military Justice because SSG very low APFT scores would not support a recommendation to attend warrant officer candidate school * several witnesses falsely claimed they saw SSG fail the APFT on back-to- back days on 10-11 October 2015, but records show he was not assigned to the unit until 19 October 2015 * SSG contract and bonus addendum show the USAR affiliation bonus was not related to his CID reinstatement packet or warrant officer accession packet and excluded language regarding the APFT or body composition requirements * after his assigned government laptop computer was seized and sent to the CID Computer Crimes Investigative Unit for examination, they found no evidence of conspiracy or any falsified documents * all allegations which led to the LER titling were proven false or baseless 2. At the time of his application, he was serving on active duty in the USAR Active Guard Reserve in the rank of chief warrant officer three. His officer evaluation report for this period shows he began his assignment as the 380th MP Detachment (CID) Operations Officer, Camp Parks, CA, on 12 January 2015. 3. He provided a memorandum, dated 20 August 2015, listing the 380th MP Detachment (CID)'s battle assembly dates for Training Year 2016 that shows: * mandatory attendance was required on 10-11 October 2015 for the APFT * the next scheduled training assembly was on 7-8 November 2015 * his signature block as the point of contact and commander 4. He provided a copy of the 380th MP Detachment (CID) unit manning report, dated 5 November 2015, showing SSG was assigned to the 380th MP Detachment (CID) effective 19 October 2015. 5. He provided the following documents for newly assigned personnel to show SSG could not have been present before his assignment to the unit on 19 October 2015: a. an extract of the acceptable use policy form digitally signed by SSG on 9 November 2015; b. a memorandum from the 393rd MP Detachment (CID), Bell, CA, dated 9 November 2015, subject: Verification of Security Clearance, that shows: * was granted an interim clearance on 9 November 2015 * his signature block as the Battalion Security Manager c. a record of individual performance of training for SSG , dated 9 November 2015, that shows SSG performed 8 hours of additional duty to complete his CID reinstatement packet, reenlistment paperwork, and in-processing paperwork. 6. He provided an investigation report, dated 18 July 2016 that shows Special Agent interviewed Sergeant First Class (SFC), 380th MP Detachment (CID), who stated: * he asked SSG to send him a copy of his APFT Scorecard because there was some confusion in the unit as to whether or not he passed * he received a copy by electronic mail, to include the body fat worksheet, but noticed it was digitally signed by him and he did not remember conducting the tape test * he notified Mr. that the digital signature did not look correct or complete 7. He provided an interview extract, identified as page 2 and undated. It does not show all allegations. On the copy provided, he highlighted the full name and contact information for SFC . In his response and explanation regarding the allegation that he had falsified the digital signature of SFC on a DA Form 5500 for SSG , he stated: * it was a ridiculous allegation * SFC signature was affixed to the form prior to reaching his desk * the false allegation appears to be tied directly to SFC attempt to avoid dismissal as the detachment sergeant and/or his racist views of SSG * SSG worked directly with SFC , not him, to show he could meet the body composition standards * he never had access to SFC computer access code that could have enabled him to digitally sign a document for him and he never altered a digital signature 8. He provided the CID Consent to Search his government laptop computer, dated 6 November 2016. It authorized search of any document files, images, electronic mail messages, chat logs, software, videos, computer logs, account names, passwords, encryption codes, algorithms and formulae, personal notes, diaries, or other data including deleted files and folders, and any other evidence to the listed offenses. It shows an inquiry, LER, was being conducted in connection with the following possible violation(s) of law: * fraud * forgery * conspiracy 9. He provided an Evidence/Property Custody Document, dated 9 November 2016, showing his government laptop computer was transferred to Special Agent as evidence in the investigation. 10. He provided a CID Agent's Investigation Report, dated 30 June 2017, showing he was advised of his rights as a suspect on 22 June 2017. He waived his rights and stated: * he never falsified any APFT Scorecard or body fat worksheet * he never conspired to falsify any documents * SFC administered an APFT for SSG and he generated the DA Form 705 based on those results 11. He provided an extract from a CID Agent's Investigation Report, dated 14 July 2017, showing: a. Special Agent interviewed Mr. (former SFC), who stated: * he had uploaded an APFT Scorecard and body composition worksheet for SSG that was given to him by the applicant * he would not have administered a record APFT for SSG because it would have been a conflict of his duties * the applicant lied when he stated SFC administered the record APFT b. Special Agent advised that the applicant initialed as both the grader and officer in charge of the APFT. The continuation page of the investigation report was not provided. A copy of the record APFT was not provided. 12. He provided a copy of his DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 9 March 2018, showing: a. On 6 September 2017, the following offenses under the Uniform Code of Military Justice were referred to the court-martial convening authority: * Article 81 (Conspiracy) on 9 November 2015 * Article 123 (Forgery) on 9 November 2015 * Article 132 (Fraud) on 9 November 2015 b. On 9 March 2018, all charges were dismissed and the GOMOR was ordered withdrawn and destroyed. 13. He provided a memorandum from the Commanding General, 200th MP Command, dated 9 March 2018, subject: Filing Determination on Reprimand, (Applicant), directing withdrawal and destruction of the GOMOR. 14. He provided electronic mail from Captain ., Chief, Military Justice, 200th MP Command, dated 8 May 2018, stating he concurs with request for expungement and his electronic mail should be used as concurrence documentation. 15. His records do not contain a copy of the GOMOR. 16. He provided a letter from CID, dated 28 September 2018, stating his request to correct information from LER was denied and he had exhausted his remedies to correct information through their agency. A copy of his request to CID or the LER was not provided. 17. U.S. Army Human Resources Command Orders C-11-813334, dated 8 November 2018, reassigned him to the Retired Reserve effective 31 July 2019. 18. On 30 June 2019, he was honorably released from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 9 months, and 29 days of net active service. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board agreed that, although the investigation was ultimately resolved in the applicant's favor, there was, in fact, a legitimate basis for conducting the investigation and, thereby, naming the applicant as the subject of the investigation. The Board found no basis upon which to recommend removing his name from the LER or any related actions. The Board also agreed that the evidence provided by the applicant and the evidence available in his service record were sufficient to fully and fairly consider this case without a personal appearance before the Board. 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. REFERENCES: 1. Department of Defense 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 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 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. a. Paragraph 3-6a states 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. 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 Department of Defense policy, an individual will still remain entered in the Defense Clearance Investigations Index to track all reports of investigation. b. 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 Law Enforcement Report (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. c. 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 Defense Central Investigations Index (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, U.S. Army Crime Records Center, enters individuals from the LER into the DCII. ABCMR Record of Proceedings (cont) AR20180014904 8 1