IN THE CASE OF: BOARD DATE: 8 December 2021 DOCKET NUMBER: AR20210005859 APPLICANT REQUESTS: through counsel: * expunction of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER) (Final), 14 June 2018, and all associated documents from the Defense Clearance and Investigations Index (DCII), CID databases, and his Army records * 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) * Counsel's Letter, undated (17-pages) * CID LER (Final), 14 June 2018, with auxiliary documents * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 16 August 2018 * Headquarters, 1st Armored Division and Fort Bliss, Memorandum (Administrative Memorandum of Reprimand), 14 September 2018 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 2 October 2018 * DD Form 214 (Certificate of Release of Discharge from Active Duty) for the period ending 31 January 2019 * Office of the Under Secretary of Defense Memorandum (Update to Department of Defense Drug Testing Panel), 29 March 2019 * CID Letter, 16 August 2019 * approximately 225 pages of military service documents titled: "I Love Me Book" FACTS: 1. The applicant defers to counsel. 2. Counsel states the applicant requests removal of the titling action in the LER, 14 June 2018. Because there was no credible information for the offense of wrongful use of marijuana, counsel requests removal of the titling action from the DCII and all other LERs, documents, and records in which the applicant's name and identifying information appears. a. The Urinalysis and Investigation. In April 2018, the applicant was assigned to the Fort Bliss Dental Health Activity – Regional Dental Command-Central, Fort Bliss, TX. The applicant submitted a urine sample pursuant to a unit urinalysis inspection on 19 April 2018. (1) On 1 May 2018, the Fort Bliss CID Office was notified that the applicant's urine sample had tested positive for the presence of tetrahydrocannabinol (THC), the active ingredient in marijuana. An employee of the Army Substance Abuse Program (ASAP) provided CID with the results from the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory (TAMC-FTDTL). The results indicated the applicant's sample tested positive with a nanogram level of 18. On 3 May 2018, his commander, Colonel K____ requested a retest of the applicant's urine sample. (2) On 11 May 2018, a CID investigator advised the applicant that he was suspected of wrongful use, possession, distribution, and introduction of a controlled substance and failure to obey a general order. The investigator advised the applicant of his rights pursuant to Article 31(b), UCMJ. The applicant waived his rights and denied knowingly consuming any product containing THC. He gave a sworn statement in which he denied using any illegal narcotics while serving in the Army but acknowledged that the El Paso, TX, Police Department had arrested him for possession of marijuana in 1994. He noted he knew what marijuana looks, smells, and tastes like because of that arrest. He admitted that he smoked cigars and usually bought them from nearby shops. (3) On 5 June 2018, the Fort Bliss Office of the Staff Judge Advocate opined that probable cause existed to believe the applicant committed the offense of wrongful use of marijuana and that no additional investigative efforts were required. The next day, a CID investigator briefed the applicant's commander who informed the CID investigator that she had submitted a request for a retest of his urine sample on 3 May 2018 and that the results were pending. (4) On 12 June 2018, the CID investigator contacted someone at TAMC-FTDTL for an update on the applicant's retest results. The TAMC-FTDTL stated the applicant's urine sample tested positive for the presence of THC. b. Article 15 – Nonjudicial Punishment (NJP). On 16 August 2018, the applicant was notified that the Commanding General, 1st Armored Division and Fort Bliss, intended to impose nonjudicial punishment pursuant to Article 15, UCMJ, for the following misconduct: "In that you, did, at or near Fort Bliss, Texas, between on or about 20 March 2018 and 19 April 2018, wrongfully use marijuana. This is a violation of Article 15, UCMJ."? (1) The applicant submitted his "I Love Me Book" for consideration of leniency in his punishment. He also provided character-reference letters of support, including a letter from his commander, noting his character, professionalism, and her astonishment by the event. The commanding general found him guilty of the misconduct; imposed nonjudicial punishment under Article 15, UCMJ; and issued an administrative reprimand. The commanding general directed filing the written reprimand and DA Form 2627 in the applicant's Official Military Personnel File (OMPF). (2) On 31 January 2019, the applicant retired from the Army. c. Argument. The applicant requests removal of the titling action for the following reasons: (1) credible information did not exist that he wrongfully used marijuana; and (2) when considering the source and nature of the information about the applicant and the totality of the circumstances, including his exemplary duty performance and character, it was not sufficiently believable to lead a criminal investigator to presume that he wrongfully used marijuana. 3. The applicant enlisted in the Regular Army on 27 January 1997. He was promoted to the rank/grade of first sergeant/E-8 effective 1 July 2016. 4. The Fort Bliss CID Office LER, 14 June 2018, shows (see attachment and auxiliary documents): a. On 1 May 2018, the CID office was notified by the ASAP Office that the applicant tested positive for THC, the active ingredient in marijuana, during a unit urinalysis inspection on or about 19 April 2018. On 11 May 2018, the applicant was advised of his rights, which he waived, and denied knowingly consuming any product that contained THC. b. On 5 June 2018, the Office of the Staff Judge Advocate opined probable cause existed to believe the applicant committed the offense of wrongful use of marijuana in violation of Article 112a, UCMJ. No additional investigative efforts were required. There was sufficient evidence to provide to command for consideration of action. 5. The applicant accepted NJP under the provisions of Article 15, UCMJ, on 16 August 2018 for violation of Article 112a, UCMJ, for wrongfully using marijuana at or near Fort Bliss between on or about 20 March 2018 and 19 April 2018. a. His punishment consisted of forfeiture of $2,618.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated on or before 13 November 2018), restriction for 60 days (suspended, to be automatically remitted if not vacated on or before 13 November 2019), and a written reprimand. He elected not to appeal. b. The Commanding General, 1st Armored Division and Fort Bliss, direct filing the DA Form 2627 in the performance folder of the applicant's OMPF. 6. On 14 September 2018, the applicant was reprimanded in writing by the Commanding General, 1st Armored Division and Fort Bliss, for wrongfully using marijuana. The commanding general stated: A drug test revealed between on or about 20 March 2018 and on or about 19 April 2018, you wrongfully used marijuana. As a First Sergeant, you are charged with leading by example and exercising the authority entrusted to you. You knowingly and intentionally violated Army Regulations and Command Policies. You must uphold the Army values and set the example at all times. You failed. Your unprofessional conduct seriously compromises your standing and character as a First Sergeant, and raises serious questions about your leadership, judgement, self-discipline, and fitness for continued progression in the United States Army. This reprimand is imposed as a punishment under Article 15, Uniform Code of Military Justice. A copy of this reprimand will be filed with the DA Form 2627, Record of Proceedings Under Article 15, UCMJ. 7. The DA Form 4833, 2 October 2018, shows in: a. item 3 (Referral Information), the commander's decision on 18 September 2018 12 April 2010 regarding the applicant's charge of wrongful use of marijuana under Article 112a, UCMJ, 19 April 2018; b. item 4 (Action Taken), field grade officer (general officer) imposed NJP (Article 15) was taken; c. item 8 (Non-judicial/Judicial Sanctions), forfeiture of $2,618.00 pay for 2 months and restriction for 60 days; d. item 9 (Suspended Sanctions), a checkmark in the "Yes" block for forfeiture of pay and restriction for 60 days; e. item 10a (Commander's Remarks), "Case History: [LER] Record of Proceedings attached to DA [Form] 4833 and this system"; and f. item 11 (Commanding Officer or Reporting Officer), a redacted signature and the form was dated 2 October 2018. 8. A review of the applicant's records shows the DA Form 2627, 16 August 2018, is filed in the performance folder of his OMPF. The general officer memorandum of reprimand and allied documents associated with his nonjudicial punishment are filed in the restricted folder of his OMPF. 9. The applicant retired on 31 January 2019 in the rank/grade of first sergeant/E-8. His DD Form 214 shows he completed 22 years and 4 days of net active service. 10. He provided the Office of the Under Secretary of Defense memorandum (Update to the Department of Defense Drug Testing Panel), 29 March 2019, which states fentanyl and non-fentanyl will be added to the Drug Demand Reduction Program drug testing panel. It further noted cutoff concentrations for reporting positive results for those new substances, as well as for other substances on the drug testing panel. This policy change occurred after the applicant's retirement from military service. 11. The CID letter, 16 August 2019, responded to the applicant's request received on 13 August 2019 to erase or expunge records from the CID files and stated the information the applicant provided did not constitute as new or relevant information needed to amend the report; therefore, his amendment request was denied. 12. The applicant provided approximately 225 pages of his military records, including character references, awards and certificates, noncommissioned officer evaluation reports, and other leadership awards (e.g., Fort Carson NCO of the Year and Order of Military Medical Merit in 2018). BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the counsel’ statement, supporting documents, evidence in the records and regulatory guidance. The Board considered the counsel’ statement, the applicant’s record of service and documents provided by the applicant’s counsel. The Board determined the applicant’s counsel did not provide evidence that clearly exonerates him or shows that there was a clear injustice. In fact, he accepted the written reprimand and opined not to appeal. The CID Report, Article 15 and the GOMOR received shows there was credible information regarding the applicant's involvement in the alleged offense. As a result, he was properly titled. The Board found insufficient evidence to remove the applicant from the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER). Therefore, they denied relief. 2. Titling or indexing on CID reports 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 only the merest scintilla of 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) 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XX 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. 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 Army Board for Correction of Military Records (ABCMR). 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 evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 (DOD) and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation National Crime Information Center, Department of Justice's Criminal Justice Information System, National Law Enforcement Telecommunications System, and State criminal justice systems. a. 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 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. b. 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 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, Crime Records Center, enters individuals from the LER into the DCII. 3. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of CID ROIs. Requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. 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. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, 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. DOD Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for CID titling decisions. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal decision. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled. b. It also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication, the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. 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 DCII database is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. c. Credible information is defined as information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true. 5. DODI 5505.7 contains further legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in the DCII. (This instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity (i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII). (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. d. Section 6.9. The reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 6. DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, by DOD law enforcement organizations for inclusion in the National Crime Information Center criminal history databases. Paragraph 6 (Procedures) states dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005859 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1