IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210009562 APPLICANT REQUESTS: * removal of Law Enforcement Report (LER) – 2020 and any residual and/or affiliated titling actions from his Army Military Human Resource Record (AMHRR) and all criminal databases * amendment or removal of his name from the title block of the LER * any other relief that is equitable and just * 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) * Supplemental Statement of (Applicant) from Counsel, 30 April 2021, with two tabs – * Tab A – Original Titling Removal Request with attachments * Tab B – U.S. Army Criminal Investigation Command (CID) Letter, 29 April 2021 FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. On or about 1 March 2021, the applicant, through counsel, petitioned the CID to remove his name from the titling block of the LER. On or about 29 April 2021, the CID denied the applicant's request. The decision was devoid of any legal analysis or discussion of the points of law raised in their request for removal. b. The applicant hereby requests that this Board consider his titling removal request. For all of the reasons outlined in the original titling removal request, credible information did not exist at the time of titling that the applicant committed the offenses for which he was titled. Accordingly, it was improper to title him for those offenses and the interests of justice, fairness, and equity required that he be granted the relief requested. 3. The applicant was serving in the Regular Army in the rank/grade of warrant officer/W-1 when he was named as the subject of a LER. The Office of the Provost Marshal, U.S. Army Garrison Casey, South Korea, memorandum (LER – 1st Corrected Final – 2020), 1 December 2020, listed his offenses as domestic violence (Article 128b, Uniform Code of Military Justice (UCMJ)) and communicating a threat (Article 115, UCMJ) between on or about 1 October 2019 and 24 August 2020. a. The report summary states the Provost Marshal Office was notified after the fact of a domestic violence incident on 25 August 2020 involving the applicant, which occurred multiple times on/in multiple dates and locations. b. The applicant's unit commander issued a military protective order prohibiting the applicant from contacting or communicating with his spouse. The family advocacy on- duty agent was notified of the current situation and had been in touch with the victim. c. The Office of the Staff Judge Advocate, 2d Combat Aviation Brigade, opined probable cause does exist to believe the applicant committed the offense of Article 128b (Domestic Violence), UCMJ, and further opined probable cause does not exist to believe he committed the offense of Article 115 (Communicating a Threat), UCMJ. 4. Counsel's memorandum to the CID (Request for Removal of Titling Action in the Case of (Applicant)), 18 January 2021, states: a. The first offense for which the applicant was titled was assault (Article 128, UCMJ). There was no credible information to believe the applicant committed an assault consummated by a battery. The LER reflects that the applicant's spouse alleged that the applicant assaulted her during an argument. His spouse admits to getting into an argument with him and then slapping him with an open fist. She claims the applicant then slapped her. This is indicative of self-defense, which is expressly reserved as a defense to Article 128 offenses under the UCMJ. If the applicant was acting in self- defense, then he necessarily did not commit the offense of assault. b. The LER is replete with examples of alleged emotional abuse; however, the Family Advocacy Program specifically concluded that her allegations of emotional abuse "did not meet criteria." c. The alleged incident took place sometime in January 2020, but was not reported until 25 August 2020. The lapse in time raises a variety of questions about the legitimacy and accuracy of the claims and motivations behind her untimely complaint. d. The totality of the circumstances tends to indicate that the applicant's spouse's version of events is less than accurate and exaggerated, which renders her allegations not "sufficiently believable." In light of the foregoing law and facts, law enforcement personnel lacked credible information at the time of titling to believe the applicant committed the offense of assault consummated by a battery. e. The second offense for which he was title was communicating a threat. The applicant did not say the words he is accused of saying, those words do not constitute a threat as a matter of law. f. With respect to legal coordination, there is no indication that the LER received a legal opinion stating probable cause existed to believe he committed either of the alleged offenses of assault and communicating a threat. 5. The Headquarters, 2nd Infantry Division, memorandum from the commanding general (Request for Retention (Applicant)), 1 March 2021, states, having reviewed the elimination action and the recommendation of subordinate commanders, he directed the applicant's retention in the U.S. Army. The enclosed documents included the initiation of elimination action, general officer memorandum of reprimand (GOMOR) packet, flag, and officer review brief, and officer elimination rebuttal matters. (Note: The enclosures are not in evidence for review.) 6. Counsel's memorandum for the CID (Request for Removal of Titling Action in the Case of (Applicant)), 1 March 2021, states that on 1 March 2021 the Commanding General, Headquarters, 2nd Infantry Division, directed the applicant's retention in the U.S. Army. Given that this administrative action is now closed, they respectfully request that the CID process the applicant's titling removal request for consideration. 7. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 2 March 2021, shows the applicant as the offender for the offenses of domestic violence (Article 128b, UCMJ), 1 October 2019, and communicating a threat (Article 115, UCJM), 1 October 2019. Action was taken for the offense of domestic violence and no action was taken for the offense of communicating a threat. Item 10a (Commander's Remarks) states: "GOMOR was filed permanently; SM [service member] was retained." 8. A review of the applicant's AMHRR did not reveal a GOMOR. 9. The CID letter to the applicant's counsel, 29 April 2021, responds counsel's request to correct the information from the files of the CID on behalf of the applicant and supplements their previous response dated 23 March 2021. The Deputy Director states the information counsel provided does not constitute as new or relevant information needed to amend the report; therefore, counsel's amendment request is denied. (Note: The CID letter, 23 March 2021, is not in evidence for review.) 10. On 8 February 2022, the Army Review Boards Agency Case Management Division provided the applicant with a copy his CID file to allow him the opportunity to submit comments. 11. Counsel's memorandum (Response to Advisory Opinion in Case of (Applicant)), 22 February 2022, states its intention to provide additional argument in light of the new material from the CID. a. Since the applicant submitted his request for relief, the law regarding "titling" has changed. At the time of the titling action, the old standard of "credible information" was the standard to determine whether a titling action was appropriate. That standard, National Defense Authorization Act, Fiscal Year 2021, section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the Department of Defense Central Index of Investigations, and other Records and Databases) has since been increased to a higher standard of "probable cause." b. The applicant's name must be removed from the titling block of the subject LER for all of the above-listed offenses where no probable causes exists to conclude that the applicant committed those offenses for the reasons set forth below. (1) Prior to the applicant's titling, the unit's legal office specifically opined that there was NOT probable cause to believe that he committed the offense of communicating a threat. (2) There is no probable cause to believe the applicant committed an act of domestic violence. In light of the totality of the circumstances and in light of all available evidence and considerations available in this case, there is nothing in the LER that makes it reasonable to conclude that the applicant's actions constituted an act of assault/domestic violence on the complainant. c. The applicant has met his burden in demonstrating that the referenced offenses should be unfounded and he should not be titled for any offense where no probable cause exists. The interests of justice, fairness, and equity require that he be granted relief. BOARD DISCUSSION: 1. After reviewing through counsel the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The Board carefully considered through counsel the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined the applicant’s counsel provided evidence that clearly exonerates him or shows that there was a clear injustice. The CID Report shows at the time, there was credible information regarding the applicant's involvement in the alleged offense. However, the Board determined the standard to determine whether a titling action was appropriate has changed under the National Defense Authorization Act, Fiscal Year 2021, section 545, to a higher increased standard of "probable cause. Based on this, the Board agreed there was sufficient evidence the applicant was improperly titled and should be removed from the law enforcement report (LER), 2020, and any residual and/or affiliated titling actions from his Army Military Human Resource Record (AMHRR) and all criminal databases to include his 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. 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). 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 to show removal from the law enforcement report (LER), 2020, and any residual and/or affiliated titling actions from his Army Military Human Resource Record (AMHRR) and all criminal databases to include his 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. 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) 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 no probable cause to believe 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 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 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 offender criminal history data for all members of the military service investigated for offenses, to include wrongful use of a controlled substance, to 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. 6. The National Defense Authorization Act, Fiscal Year 2021, section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the Department of Defense Central Index of Investigations, and other Records and Databases), states not later than 1 October 2021, the Secretary of Defense shall establish and maintain a policy and process through which any covered person may request that the person's name, personally identifying information, and other information pertaining to the person shall, be corrected in, or expunged or otherwise removed from a law enforcement or criminal investigative report of the Department of Defense Central Index of Investigations (DCII), an index item or entry in the DCII, and any other record maintained in connection with a report of the DCII, in any system of records, records database, record center, or repository maintained by or on behalf of the Department. a. Basis for Correction or Expungement. The name, personally identifying information, and other information of a covered person shall be corrected in, or expunged or otherwise removed from, a report, item or entry, or record of the DCII, in the following circumstances: (1) probable cause did not or does not exist to believe that the offense for which the person's name was placed or reported, or is maintained, in such report, item or entry, or record occurred, or insufficient evidence existed or exists to determine whether or not such offense occurred; (2) probable cause did not or does not exist to believe that the person actually committed the offense for which the person's name was so placed or reported, or is so maintained, or insufficient evidence existed or exists to determine whether or not the person actually committed such offense; and (3) such other circumstances, or on such other bases, as the Secretary may specify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs (1) and (2). b. Considerations. While not dispositive as to the existence of a circumstance or basis set forth in subparagraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (1) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (2) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (3) the type, nature, and outcome of any action described in subparagraph (2) against the covered person. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009562 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1