ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180014912 APPLICANT REQUESTS: through counsel, removal of her name from the title block of Fort Jackson Office of the Provost Marshal Military Police Report such that allegations of communicating a threat no longer appear in U.S. Department of Justice, Criminal Justice Information Service, National Crime Information Center, National Instant Criminal Background Check System, and/or Identity History Summary. 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) * Letter, Counsel, dated 31 October 2018 * Enclosure 1 – Military Police Report, dated 24 July 2014 * Enclosure 2 – Memorandum, Joint Force Headquarters, District of Columbia National Guard (DCNG), dated 14 April 2016, subject: (Applicant) Informal Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) Investigation Results * Enclosure 3 – Prior Arrest Data, U.S. Department of Justice, Federal Bureau of Investigation (FBI), Criminal Justice Information Services Division, dated 3 November 2016 * Enclosure 4 – Fitness for Duty Evaluation, dated 25 July 2014 * Enclosure 5 – Letter, U.S. Army Records Management and Declassification Agency, dated 2 March 2017 * Enclosure 6 – Memorandum, U.S. Army Human Resources Command, dated 21 March 2017, subject: Promotion Review Board Results FACTS: 1. Counsel states the applicant has exhausted all administrative remedies to expunge her military records. Unless relief is granted, this unsubstantiated hearsay allegation will be the subject of discussion and review during the applicant's career when considered for promotion, command, or high-visibility positions. a. Counsel further states: * U.S. Army military police did not have jurisdictional authority because both Soldiers were in a Title 32, U.S. Code, duty status under control of the DCNG * she was subject to the Code of DC, not the Uniform Code of Military Justice (UCMJ) * the DCNG conducted an informal Army Regulation 15-6 investigation and found the reported incident did not occur b. In July 2014, the applicant and Captain (CPT) (then-First Lieutenant (1LT)) A____ were both serving in the same grade and were assigned to the 104th Maintenance Company, DCNG. The applicant served as the executive officer and CPT A____ served as commander. They participated in their 2-week annual training at the South Carolina Army National Guard (ARNG) McCrady Training Center and were assigned to the same officer quarters during their period of annual training. c. On 23 July 2014, the applicant was "racially profiled" by a white male CPT. At the dining facility with others present, his behavior toward her was demeaning, disrespectful, and unbecoming an officer. The public exchange was embarrassing, unruly, and inappropriate. His judgmental attitude led him to assume she was a private, not a commissioned officer. Further, "he disregarded the other black officers at [her] table to approach the first white officer he saw in the DFAC [dining facility], and bullied her causing [her] to feel intimidated and belittled." d. After a conversation between the CPT, other command leaders, and the applicant's commander, CPT A____ approached the applicant privately and advised her that she would recommend the applicant be relieved of her duties as executive officer. CPT A____, a white female, perpetuated the racial stereotyping by discussing how the applicant came from an inferior social and economic background. e. CPT A____ and the applicant were assigned to the same officer quarters. After the altercation, CPT A____ returned to their quarters to retrieve her personal belongings and transfer to another room. The applicant asked why CPT A____ had informed the brigade deputy commander about the dining facility incident. CPT A____ alleged the applicant made threats of, in effect, "blowing up buildings, committing school shootings, and committing suicide." CPT A____ further alleged the applicant stated she would have CPT A____, her fiancé, and her child killed. The applicant denies these allegations. f. CPT A____ reported the alleged threats, heard by no one else, to the Fort Jackson military police. When detained, U.S. Army Criminal Investigation Command assumed the applicant was a violent criminal and treated her as such. 1LT H____ arrived at the military police station shortly after the applicant arrived, but was instructed to return to his unit because she was not ready to be released. g. U.S. Army military police apparently did not investigate the matter. Representatives of the DCNG were informed they must investigate the incident because the local general court-martial convening authority did not have jurisdiction. Despite explicit knowledge that both Soldiers were commissioned officers of the DCNG, billeted on a State-controlled ARNG training facility, the Fort Jackson (Federal) military police proceeded onto a State-owned facility with no jurisdictional authority, took the applicant into custody, fingerprinted her, completed a military police report, and detained her until the next morning. * there was no authority for Federal military police to arrest or title * CPT A____'s oral statement was the only evidence obtained * no corroborating evidence was obtained, despite having at least 10 individuals who witnessed the altercation and alleged threat at the dining facility * as a result of this inappropriate, extra-jurisdictional military police incident, the applicant was improperly titled, causing her harm h. As the alleged victim, CPT A____ should have recused herself and allowed the battalion commander to act. Instead, she abused her position of authority and ordered the applicant to undergo a command-directed behavioral health evaluation. As company commander and victim of the alleged threat, she was legally, ethically, and morally prohibited from acting against the purported attacker. Not only did she order the evaluation, she failed to state she was the alleged victim. In effect, CPT A____ was victim and prosecutor. She used her position to bolster her own version of the events. i. The Fort Jackson Office of the Provost Marshal committed a legal error when they submitted information to the National Instant Criminal Background Check System. Based on unsubstantiated allegations of an incident over which they had no jurisdiction, there was no credible information indicating the subject committed a crime. j. Titling is to be done as soon as the investigation determines credible information (e.g., a probable cause determination) that the subject committed a criminal offense. However, it is an administrative procedure and the name should be removed from the index when no credible information exists indicating the subject committed a crime. k. Transfer of the administrative annotation of the applicant's "arrest" from the Defense Central Investigation Index to the National Instant Criminal Background Check System is an inappropriate expansion of the use of the titling information. The DCNG completed an investigation of the allegations and found the incident was unfounded and unsubstantiated. l. In November 2015, the applicant was referred to a promotion review board. After consideration of all the available facts, including the lack of a completed Army Regulation 15-6 investigation, the Acting Secretary of the Army retained her on the promotion list. On 19 May 2017, she was retroactively promoted to CPT effective 1 April 2016. m. In April 2016, 18 months after the incident, the DCNG confirmed an Army Regulation 15-6 investigation was completed and determined the allegations were unsubstantiated. 2. The applicant is currently serving in the DCNG on full-time National Guard duty in an Active Guard Reserve status in the grade of CPT. 3. Counsel provided Military Police Report Number , dated 2014, which shows: * Offense Description(s) – Communicating a Threat (punitive Article 134, UCMJ) (on post) * Offense Location Address – SC * Offense Statutory Basis – UCMJ * FBI Form 249 (Arrest and Institution Fingerprint Form) Submitted – Yes * FBI Form R-84 (Arrest Disposition Report) Submitted – Yes * Subject Component – DCNG * Victim Component – DCNG * Narrative – * on 23 July 2014 at 2100 hours, 1LT A____ reported a verbal altercation with (Applicant) who stated she would have her, her fiancé, and her child killed * (Applicant) was apprehended and transported to the Fort Jackson MP station where she invoked her legal rights * (Applicant) was further processed and released to her unit 4. There are no available records showing whether local law enforcement with criminal jurisdictional authority at Camp McCrady declined to respond to the incident, located approximately 14 miles from Fort Jackson, SC. 5. The memorandum from 1LT L____ K. A____, Commander, 104th Maintenance Company, DCNG, dated 24 July 2014, subject: Fit for Duty for (Applicant), with attached DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement) shows: * the applicant was charged or under investigation for an offense under the UCMJ, which could result in dismissal or discharge * she did not recommend retaining the applicant * the applicant had a history of being disrespectful and hostile 6. Her DA Form 3349 (Physical Profile), dated 24 July 2014, shows she was assigned a temporary physical profile rating of "3" under the psychiatric factor. She was expected to be fully mission capable by 23 September 2014. She was scheduled to depart South Carolina the following day. The justification comments included follow-up with behavioral health services after her unit returns to home station. 7. On 30 July 2014, she followed-up with a provider who spoke with her command and was advised the applicant was an excellent performer and there had been no behavioral problems outside those mentioned, when other parties were initially at fault. She was found "fit for duty" and "a strong asset to the service." 8. The memorandum from Joint Force Headquarters, DCNG, dated 14 April 2016, subject: (Applicant) Informal Army Regulation 15-6 Investigation Results, shows: * an Army Regulation 15-6 investigation concluded on 5 October 2014 and found the alleged event was unsubstantiated * the DCNG Commanding General took no adverse action * the results of the Army Regulation 15-6 investigation were considered final 9. On 3 November 2016, the FBI Criminal Justice Information Services Division completed a fingerprint submission for the applicant, which shows the applicant was arrested on 24 July 2014 and charged with communicating a threat on post. 10. On 2 March 2017, the U.S. Army Records Management and Declassification Agency stated her appeal to correct information contained in MP Report Number , U.S. Army Crime Records Center Control Number , was referred to their office by the U.S. Army Criminal Records Center for review by the Department of the Army Privacy Review Board. It was not appropriate for the Department of the Army Privacy Act Review Board to consider any record which is exempt from the Privacy Act and she should consider directing her appeal to the Army Review Boards Agency. 11. The memorandum from U.S. Army Human Resources Command, dated 21 March 2017, subject: Promotion Review Board Results (PRB1608-07), stated the Secretary of the Army retained the applicant on the promotion list. 12. National Guard Bureau Special Orders Number 99, dated 19 May 2017, promoted her to the grade of CPT effective 1 April 2016. 13. On 3 July 2017, the applicant submitted application through counsel to the Army Review Boards Agency, requesting removal of her name from the title block of Fort Jackson Office of the Provost Marshal Military Police Report Number . Her application was administratively closed without Board action on 23 October 2017 due to her failure to exhaust administrative remedies to obtain relief. She was advised to submit her request to the U.S. Army Criminal Investigation Command. 14. Joint Force Headquarters, DCNG, Orders 124-005, dated 4 May 2018, ordered the applicant to full-time National Guard duty in an Active Guard Reserve, Title 32, U.S. Code, status in the grade of CPT for the period 15 May 2018 to 14 May 2021. 15. On 8 October 2019, counsel provided a denial letter from the U.S. Army Criminal Investigation Command, dated 28 July 2016, (enclosure 5) to show the applicant has exhausted all administrative remedies to obtain relief. 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, her record of service, the circumstances leading to the Fort Jackson Office of the Provost Marshal Military Police Report and the location of the event, the applicant’s status at the time and the question of jurisdiction and her fit for duty determination. The Board considered the results of the District of Columbia National Guard AR 15-6 investigation that concluded a final result of unsubstantiated findings for the alleged event taking place during annual training in July 2014 and the CG DCNG taking no action specific to the Military Police Report. The Board considered the CID partial denial of the applicant’s request to amend the contested Military Police Report. The Board considered the application’s retention on the 2015 Captain ARNG Promotion List by the Acting Secretary of the Army. Based on a preponderance of evidence, the Board determined that the continuation of her name in the title block of Fort Jackson Office of the Provost Marshal Military Police Report Number is unjust and should be removed. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - removing the applicant’s name from the title block of Fort Jackson Office of the Provost Marshal Military Police Report Number , and; - updating all associated law enforcement data bases to reflect this correction. 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. 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. 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 FBI'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. 3. Army Regulation 190-30 (Military Police Investigations) establishes policies and procedures for operational procedures and types of offenses investigated by Federal military police investigators. It grants detectives and investigators the authority to apprehend or detain personnel subject to the UCMJ. Within the continental United States, civilian law enforcement agencies normally investigate incidents occurring off Federal property or installations. 4. Army Regulation 27-10 (Military Justice) establishes policies and procedures pertaining to the administration of military justice in the reserve components. All ARNG Soldiers will be subject to the UCMJ when in Federal service as ARNG of the United States under Title 10, U.S. Code. However, ARNG Soldiers are not subject to the UCMJ while in State service under Title 32, U.S. Code. ABCMR Record of Proceedings (cont) AR20180014912 9 1