ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2020 DOCKET NUMBER: AR20200000306 APPLICANT REQUESTS: * removal of the titling of the Military Police (MP) report * removal of all derogatory information, to include the General Officer Memorandum of Reprimand (GOMOR) from his military file * compensated for all monetary losses via a direct payment from the Defense Finance and Accounting Services (DFAS) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two Phillips Law letters * 101st Airborne Division (Air Assault) Special Assistant U.S. Attorney email * two U.S. District Court Violation Notices * Installation Provost Marshal Office Law Enforcement Report * Implied Consent Warning * State DMV License System printout * DA Form 4162 (Volunteer Service Record) and Volunteer Tools printout * American Institute for Public Safety Certificate of Course Completion * Department of the Army Certificate of Training FACTS: 1. The applicant states: a. He was erroneously "titled" by the U.S. Army and through the Fort Campbell, KY MP, which resulted in him receiving an erroneous GOMOR. He believes his record to be in error or unjust for the following reasons: * the titling is in material, procedural and equitable error * the GOMOR should be removed from the military record because it was unfair at the time, is unfair now, and was procedurally defective * he has lost opportunities for jobs and monetary benefits 2. The applicant provides his: a. Two Phillips Law letters, dated 5 January and 2 February 2017, stating his case was initially scheduled for court on 1 February 2017, then subsequently scheduled for 12 April 2017. b. 101st Airborne Division (Air Assault) Special Assistant U.S. Attorney email, dated 16 March 2017, stating “it was brought to my attention that Mr. M_. contended a test result where a breathalyzer machine returns "mouth alcohol" was an unreliable test. Based on that contention, the Government would ill dismiss this case.” c. U.S. District Court Violation Notice, dated 6 August 2016, showing he was applicant was cited for driving under the influence, with a BAC of .153 and for having a defective headlight. d. Installation Provost Marshal Office Law Enforcement Report, dated 24 August 2016, showing he was the subject of an investigation for operating a vehicle while under the influence. e. Implied Consent Warning, dated 6 August 2016, showing he consented to a test for the purpose of determining the alcoholic or drug content of his blood. f. State DMV License System printout, dated 20 September 2016, showing his driving record history. g. Undated DA Form 4162 and Volunteer Tools printout, showing his volunteer dates and events. h. Department of the Army Certificate of Training, dated 16 November 2016, showing he successfully completed the Alcohol and Drug Abuse Prevention Training (12 hours) Prime for Life. i. American Institute for Public Safety Certificate of Course Completion, dated 18 January 2017, showing he successfully completed the American Institute for Public Safety’s eight-hour “Roadrageous” Aggressive Driver/Driver Behavior Modification Course. j. Six character statements, wherein the individual attested his deep and abiding respect for life, his trustworthiness, being a motivator, his commitment to the military and community, and his loyalty. 3. Review of the applicant’s service records show: a. He enlisted in the Regular Army, in pay grade E-4, on 3 September 2013, for 4 years. b. On 30 August 2016, he received a GOMOR for driving a motor vehicle on 6 August 2016 in the state of Kentucky with a blood alcohol content of .153 percent, in violation of Kentucky law. The Commanding General advised the applicant that driving while intoxicated was not only a dangerously stupid act, but also a crime. He ignored the tragic consequences of drinking and driving, and recklessly endangered his life and the lives of others who shared the road with him. His misconduct reflected a severe lack of judgment and regard for the safety of himself and others. He had brought dishonor on himself, his unit, and the U.S. Army and caused him to question the applicant’s potential for future service in the U.S. Army. He advised that he was considering filing the memorandum in the applicant’s Official Military Personnel File (OMPF) and of his rights. c. He was honorably released from active duty, in pay grade E-4, on 17 February 2018, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service. He was transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 5 months, and 15 days of net active service this period, including 1 year, 11 months, and 26 days of foreign service. 4. By AR 600-37 (Unfavorable Information), procedures ensure in the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual’s OMPF. 5. By AR 190-45 (Law Enforcement Reporting), implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. It also assigns the geographic areas of responsibility to a specific installation Provost Marshal Office (PMO) or Directorate of Emergency Services (DES). 6. Department of Defense Instruction (DoDI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) prescribes procedures to create a uniform process that allows people named in criminal investigative reports or indexed in the Defense Central Index of Investigations (DCII) a chance to obtain a review of such actions, as required by Reference (c). BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board agreed the administrative GOMOR had served its purpose and could be removed; however, the GOMOR was factual and monetary compensation was not warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted for removal of the titling from the MP Report. Notwithstanding, the absence of that report, the Installation Provost Marshal Office Law Enforcement Report, dated 24 August 2016, shows he was the subject of an investigation for operating a vehicle while under the influence and the GOMOR shows he was for reprimanded for driving a motor vehicle on 6 August 2016 in the state of Kentucky with a blood alcohol content of .153 percent. The investigative review, however, did not change the fact that the investigation established that probable cause existed to believe the applicant committed the offense in question. 3. Titling or indexing does not denote any degree of guilt or innocence. If there is a reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof, requiring evidence far below the burdens of proof normally borne by the government in criminal cases (beyond a reasonable doubt), in adverse administrative decisions (preponderance of evidence), and in searches (probable cause). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the General Officer Memorandum of Reprimand, dated 30 August 2016, and allied documents (if applicable) from his OMPF. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removal of titling of the MP report from his OMPF and compensated for all monetary losses via a direct payment from the Defense Finance and Accounting Services. X CHAIRPERSON 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 (AR) 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities on the preparation, reporting, use, retention, and disposition of Department of the Army (DA) forms and documents, listed in sections III and IV of appendix A, related to law enforcement (LE) activities. The regulation states in: a. Paragraph 3-6b (2) – requests to amend MP documents that are older than 5 years will be coordinated through the Director, United States Army Crime Records Center (USACRC). The installation PM or DES will provide the Director, USACRC a copy of an individual’s request to amend a MP record on file at the USACRC. If the Director, USACRC receives an amendment request, the correspondence with any documentation on file at the USACRC will be sent to the originating installation PMO or DES. The installation PM or DES will review the request and either approve the request or forward it to the Director, USACRC for denial. A copy of the installation PM or DES’s decision must be sent to the Director, USACRC to be filed in the USACRC record. b. Paragraph 4–7a – the DA Form 4833 is used with the Law Enforcement Report (LER) to (1) Record actions taken against identified offenders and, (2) report the disposition of offenses investigated by civilian LE agencies. 2. Department of Defense Instruction (DoDI) 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the Department of Defense) states, titling is the term used to describe the process that occurs when the name and identifying information of a person is placed the title of block of an investigative report. It occurs when an investigation determines that creditable information exists that the subject committed a criminal offense. Paragraph 4 states, DoD policy states: a. Titling is an administrative procedure and the fact that an individual is titled does not connote any degree of guilt or innocence. Adverse administrative actions shall not be taken against individuals or entities based solely on the fact that they have been titled due to a criminal investigation. b. Two exceptions which would allow an individual to later have their name removed from the title block of a Criminal Investigation Department (CID) Report of Investigation (ROI) are (1) mistaken identity and (2) when it 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. 3. AR 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual’s Official Military Personnel File (OMPF). The regulation states in: a. Paragraph 6-2e – the Department of the Army Suitability Evaluation Board (DASEB) makes determinations upon appeal of unfavorable information filed in a Soldier’s OMPF. The DASEB may determine to revise, alter, or remove such unfavorable information if it is determined to be untrue or unjust, in whole or in part (see chapter 7). b. Paragraph 6-2f – the DASEB makes determinations, upon appeal, on requests to transfer unfavorable information from the performance to the restricted portion of the AMHRR (see chap 7). The DASEB may recommend the transfer of those administrative memoranda of reprimand when such transfer would be in the best interest of the Army. Transfer of such memoranda is further subject to the stipulations stated in paragraph 6–1d, paragraph 6–1e, and chapter 7. c. Paragraph 7 – the DASEB is the initial appeal authority and makes recommendations for removal, alteration, or transfer of unfavorable information entered in the AMHRR. This chapter sets forth the policies and procedures whereby a person may seek removal of unfavorable information from his/her OMPF, or transfer of unfavorable information from the performance file to the restricted file of his/her OMPF. //NOTHING FOLLOWS//