IN THE CASE OF: BOARD DATE: 19 May 2021 DOCKET NUMBER: AR20210005154 APPLICANT REQUESTS: through counsel: * removal of her name from the title block of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 1 April 2019 * alternatively, direction of CID to withdraw reporting of her name and the offense from the National Crime Information Center database 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) * Counsel's Memorandum (Request to Direct Removal of (Applicant's) Name from the Title Block on the Criminal LER), 10 July 2020, with inclusions – * Counsel's Memorandum (Request to Direct Removal of (Applicant's) Name from the Title Block on the Criminal LER), 4 February 2020 * U.S. Army Central (also known as U.S. Army Forces Central Command) Memorandum (General Officer Memorandum of Reprimand (GOMOR)), 21 June 2019 * Applicant's Memorandum (Rebuttal to GOMOR), 16 August 2019, with Letter of Support, Officer Record Brief, and Officer Evaluation Reports * U.S. Army Central Memorandum (Filing Determination on GOMOR), 4 September 2019 * CID Letter, 23 June 2020, with DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), undated, and CID Memorandum (LER), 1 April 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The basis for the petition to the CID was the fact that Army Regulation 190-45 (Law Enforcement Reporting), paragraph 3-6a (Amendment of Records), provides that "amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete." The offense for which the applicant was titled resulted in a withdrawn and destroyed GOMOR. The GOMOR was withdrawn in its entirely and destroyed, actions indicative of the baseless foundation for the investigation itself and the multiple violations of her rights as detailed in her rebuttal to the GOMOR. b. The applicant's use of phentermine prescribed to her by a civilian doctor was not illegal. Phentermine was approved to be on the military treatment facility's formulary. The fact that it was prescribed by a civilian doctor, rather than a military doctor, did not invalidate the prescription or make its use illegal. c. She did not give phentermine to her spouse. d. She recently retired honorably from the U.S. Army. Her service included receipt of many awards and decorations, including the Bronze Star Medal, multiple Army Commendation Medals, and multiple Army Achievement Medals. 3. The applicant was serving in the U.S. Army Reserve in the Active Guard Reserve Program in the rank/grade of major/O-4 when she became the subject of an LER. 4. The CID memorandum (LER – Final), 1 April 2019, shows: a. The applicant as the subject for the offense of wrongful distribution of a controlled substance. b. An investigator was notified by Trial Counsel, Office of the Staff Judge Advocate, Fort Knox, KY, who reported the applicant distributed her prescription medication, phentermine, to her spouse. c. The Physician Assistant, U.S. Army Forces Central Command, Shaw Air Force Base, SC, stated she spoke to the applicant on 13 December 2019 and inquired as to why she continued to use the medication. The applicant stated she no longer consumed the phentermine, but had filled two prescriptions and provided them to her spouse. d. On 29 March 2019, the Office of the Staff Judge Advocate opined there was probable cause to believe the applicant committed the offense of wrongful distribution of a controlled substance and there was sufficient evidence to provide to her command for consideration of action. 5. On 21 June 2019, the Deputy Commanding General, U.S. Army Central, reprimanded the applicant in writing for her poor decision-making, dishonest behavior, and gross negligence in her acquisition and use of the controlled substance, phentermine, from a civilian provider and intentionally concealing the receipt of that prescribed medication from her assigned health provider. Additionally, she was reprimanded for her admitted wrongful distribution of that controlled substance to her spouse. The Deputy Commanding General stated: a. Failing to comply with medical directives, as well as the reckless use and distribution of controlled substances, has the potential to lead to deadly consequences. b. This is an administrative reprimand imposed under the provisions of Army Regulation 6000-37 (Unfavorable Information) and not as punishment under Article 15, Uniform Code of Military Justice. 6. In the applicant's memorandum (Rebuttal to GOMOR), 16 August 2019, she stated: a. The events related to being prescribed phentermine by a civilian doctor. b. When questioned by the physician assistant about taking medication she was told not to take, she was caught off guard. She responded that she had not taken the medication since their last conversation. Then the physician assistant asked her something to the effect of "If you're not taking it [phentermine], why did you get your prescription re-filled?" She was never informed she had a right not to answer the physician assistant's questions or that the answer to any question could be used against her. In response to the physician assistant's question, she answered with a hypothetical question to the effect of "What if I gave it to my wife?" c. The next time she was asked about phentermine was at the Fort Jackson CID station where she was arrested for illegal possession and distribution of a controlled substance in violation of Article 122a of the Uniform Code of Military Justice. This arrest was based on an unsubstantiated misinterpretation of her hypothetical response to a question by the physician assistant eliciting incriminating information from her without being informed she had the right not to answer any questions. d. Her concern regarding this entire process is that the investigation and presentation of information has been tainted by Shaw Air Force Base medical personnel's professional opinion of the prescribing doctor. This entire situation is a misunderstanding of her hypothetical response to the physician assistant's question in an environment in which she did not feel free to leave or was informed of her right not to make incriminating statements against herself. e. She is left having to prove she is a person of integrity. She did not give her wife phentermine or any other prescribed medication. She enclosed letters of support from individuals with whom she has served to attest to her integrity. Her enclosed officer evaluation reports and her Officer Record Brief prove she is a Soldier with utmost adherence to the Army Values. 7. On 4 September 2019, the Deputy Commanding General, having carefully considered the GOMOR; the circumstances of the misconduct; and all matters submitted by the applicant in defense, extenuation or mitigation; directed withdrawal and destruction of the GOMOR. 8. The CID letter, dated 23 June 2020, denied the applicant's request to correct information within the CID files, stating the information provided does not constitute new or relevant information needed to amend the report. 9. The applicant retired on 30 June 2020. She completed 20 years, 2 months, and 6 days of total active service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the counsel’ statement, supporting documents, evidence in the records, DoD Instructions and regulatory guidance. The Board considered the counsel’ statement, the applicant’s record of service and documents provided by the applicant’s counsel. One potential outcome was to deny relief based the CID LER that probable cause existed to believe the applicant committed the offenses of distribution of her prescription medication to her spouse, based on her own comments made during a visit with a physician. However, Board majority determined the applicant’s counsel provided evidence that demonstrated the GOMOR issued by the applicant’s chain of command was dismissed 90 days after her rebuttal to the commanding general. The Board agreed the applicant was improperly titled and should be removed from the law enforcement report (LER), dated 1 April 2019, and any residual and/or affiliated titling actions from her records and all criminal databases to include her name from the title and/or subject block of the LER and any residual and/or affiliated titling actions. Therefore, the Board granted full relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX : XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX : 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 to show removal from the law enforcement report (LER), dated 1 April 2019, and any residual and/or affiliated titling actions from her records and all criminal databases to include her name from the title and/or subject block of the LER and any residual and/or affiliated titling actions. 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 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 considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 2. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) 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. 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. b. Paragraph 4-7 (DA Form 4833) states this form is used with the LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 3. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies for criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. Requests to amend or unfound offenses in CID reports of investigation will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. b. The burden of proof to substantiate the request rests with the individual. c. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. d. The decision to list a person's name in the title block of a CID report of investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e. The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 4. Department of Defense (DOD) Instruction 5505.7, (Titling and Indexing of Subjects of Criminal Investigations in the DOD), establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by the DOD. a. DOD Components authorized to conduct criminal investigations will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense. Titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. Once the subject of a criminal investigation is indexed in the Defense Central Index of Investigations (DCII), the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless there is mistaken identity or it is later determined no credible information existed at the time of titling and indexing. b. If a subject's information requires expungement from or correction in the DCII, DOD Components will remove the information as soon as possible. Judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. c. A subject is titled in a criminal investigative report to ensure accuracy and efficiency of the report. A subject's information is indexed in the DCII to ensure this information is retrievable for law enforcement or security purposes in the future. A subject who believes they were incorrectly indexed may appeal to the DOD Component head to obtain a review of the decision. DOD Components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 5. DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), 21 July 2014, establishes policy, assigns responsibilities, and prescribes procedures for defense criminal investigative organizations and other DOD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation for inclusion in the National Crime Information Center criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit the Criminal Justice Information Services Division of the Federal Bureau of Investigation, as prescribed in this instruction and based on a probable cause standard determined in conjunction with the servicing Staff Judge Advocate or other legal advisor, offender criminal history data for all members of the military service investigated for offenses, to include wrongful use of a controlled substance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005154 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1