IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210012089 APPLICANT REQUESTS: through counsel: * expunction of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 6 January 2018, and all associated documents from the Defense Central Investigations Index (DCII), CID databases, and his Army Military Human Resource Record (AMHRR) * a personal appearance hearing before the Board via video/telephone 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, 12 July 2021 (10 pages) * Exhibit A – Affidavit of 1 February 2021 * Exhibit B – Affidavit of 28 February 2021 * Exhibit C – Separation Package Document * Exhibit D – Numerous Character-Reference Letters * Exhibit E – Federal Bureau of Investigation (FBI) History Report, 12 April 2021 * Exhibit F – Applicant's Self-Authored Statement, 12 May 2021 * Exhibit G – Urinalysis Results * Exhibit H – Commander, 47th Heavy Composite Truck Company, Fort Bliss, TX, Memorandum (Support Memorandum for (Applicant) for Removal Titling Information from His Records), 19 April 2021 * Exhibit I – Deputy Director, CID, U.S. Army Crime Records Center (CRC), Letter, 20 October 2020, with auxiliary documents FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel.? 3. Counsel states the applicant requests removal of his name from the CID records as the investigation was inconclusive as to any wrongdoing by the applicant and the information being transmitted to outside law enforcement databases is incorrect and prejudicial to his Constitutional rights and future employment prospects. Following closure of the investigation, no charges were ever filed, and he was never administratively removed from military service despite the report presented in the FBI's National Instant Background Check System. More importantly, upon further investigation, members of his unit familiar with the situation have testified via affidavit that his accuser fabricated the allegations made against him. Documentation of the applicant's name in the report has been distributed to other law enforcement agencies and databases that are mischaracterizing the status of the charges and case outcome, which is negatively affecting his record. Due to the applicant's titling, he has been denied the purchase of a firearm and will likely bar his ability to work in public safety and law enforcement. Therefore, pursuant to Army Regulation 15-185 (Army Board for Correction of Military Records) and the correlating Federal statutes promulgating the ABCMR, the applicant respectfully requests expunction of his name from all CID records associated with this investigation to "remove an injustice." a. Facts: (1) On or about 12 and 13 January 2018, CID agents interviewed multiple Soldiers suspected of wrongful possession of marijuana and cocaine, wrongful use of marijuana and cocaine, and distribution of cocaine. At the time, the applicant was serving in the rank/grade of private (PV2)/E-2. CID questioned him following accusations by a fellow Soldier, PV2 that the applicant provided him with cocaine and used cocaine with him in the barracks in Fort Bliss, TX. The applicant waived his rights, denied any wrongdoing, requested a blood test, and offered to take a polygraph examination. CID agents failed to take any action to corroborate PV2 story. CID never obtained a hair sample, urinalysis, or blood test from the applicant, nor did CID subject him to a polygraph examination. (2) PV2 made two statements on consecutive days, the first on 12 January 2018, wherein PV2 never mentioned or indicated any involvement with the applicant. In fact, PV2 claimed he was at an off-post location called the Black Pearl or at random parties each time he used cocaine. Not once in his 3-page statement did PV2 accuse the applicant or state that his use of cocaine took place on Fort Bliss or in a barracks room. On 13 January 2018, PV2 returned to CID and gave a completely different statement, accusing the applicant of distribution and use. In that brief statement, PV2 alleged the applicant provided cocaine to him and used it in the barracks. Further, PV2 accused the applicant of keeping the cocaine in his wallet. Despite this assertion, the applicant's wallet was never seized or examined. (3) Additional individuals were questioned over a period of days. Based upon the results of the investigation provided to the applicant by CID, none of them provided any corroborating evidence that would suggest any involvement or activity by the applicant. However, what is striking is that PV2 did state that he attended parties with a Mr. . His name is not referenced again in any of the other reports. Upon further investigation, Mr. whose affidavit is attached and incorporated herein, identifies Mr. as a known drug dealer in the unit (see exhibit A). Furthermore, Mr. attested to the fact that PV2 fabricated his story to get the applicant in trouble because the applicant was believed to be a CID informant. Mr. assertion of fabrication is further supported by the affidavit testimony of wherein he stated that attempted to pressure me into fabricating a story that was similar to his, assigning blame to people that [sic] had no involvement" (see exhibit B). (4) Following the investigation on 25 January 2018, the applicant's unit initiated his separation from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-2c(2) (see exhibit C). After an outpouring of support from members of his unit, the applicant was retained (see exhibit D). The retention documentation states the applicant was to be rehabilitatively transferred, but the transfer never took place and he has remained in the 47th Heavy Truck Company ever since. The applicant has deployed and recently been promoted to the rank/grade of sergeant (SGT)/E-5 since the alleged incidents. (5) In or about August 2018, the applicant desired to purchase a firearm for sporting and personal use. After a background check, the applicant was denied his right to purchase the firearm. The applicant later learned the denial was based on the titling action taken by CID (see exhibit E). The FBI Criminal History report specifies that charges were "preferred." Contrary to the report, charges were never "preferred" and the applicant was never separated from the Army. The applicant appealed the titling to CID, which was denied (see exhibit I). The applicant then raised the issue with his Congressional representative, only to learn that removal of his name from the titling documentation was next to impossible because there was a statement identifying him as a person of interest. Despite the lack of corroborating evidence and statements contrary to the allegations of the accuser, the applicant continues to be punished for a crime he has not committed. b. Law: (1) Titling is the decision to place the name of a person or other entity in the "subject" block of a CID report of investigation (ROI). A "subject" is "(a) person…or other legal entity…about which credible information exists which would cause a reasonable person to suspect that person...or other legal entity…may have committed a criminal offense, or otherwise cause by such person…or other legal entity…to be the object of a criminal investigation." Titling is not a legal or judicial decision and rests solely on the determination of a CID agent. The basis for a decision to title a person is whether there exists "credible information," which is information obtained by an investigator that is sufficiently believable to indicate criminal activity. (2) Once a person's name is listed in the subject block of an ROI, the person is listed or "indexed" in the DCII. The index is a computerized central registry of investigations for all Department of Defense (DOD) investigative activities. At the same time that a subject is indexed in the DCII, the subject is also indexed in the CRC, a separate repository solely for Army investigative reports. The CRC, on its own, exchanges information with numerous Executive Branch organizations, including, but not limited to, the FBI and Bureau of Alcohol, Tobacco, and Firearms. The FBl's National Instant Background Check System uses that shared information to determine the eligibility of an individual for the purchase of a firearm. Law enforcement and first responder departments also use the information in the CRC when reviewing a prospective candidate for employment. The applicant desires to train to become a first responder following his exit from military service, yet the titling determination and resulting misapplied criminal record can and will impede his ability to seek employment of his choosing (see exhibit F). (3) Once titled, the service member's name is included in the DCII and CRC; the service member's name can only be removed in the case of mistaken identity. Mistaken identity is only found when CID entered the wrong person's name into the DCII and CRC, not if the person is later determined not to have committed the crime, there was insufficient evidence to pursue charges, or the evidence compiled did not support the initial titling determination. Consequently, without an order from the ABCMR removing the titling determination, the applicant will continue to have this erroneous charge on his record. c. Argument: (1) The evidentiary standards for titling and for entering a person's name in the DCII and the CRC violates the due process rights of service members. Without sufficient evidence or actual charges, our service members can be saddled with the notion of a criminal charge without a final judicial determination because of the way the titling action is determined and how it is shared with outside organizations. The action of titling service members at the onset of an investigation without a more stringent beyond- a-reasonable-doubt standard is arbitrary, capricious, and an abuse of discretion by CID agents, as their initial determination will follow Soldiers for the rest of their lives irrespective of the preferral of charges, case outcome, or administrative action. (2) When the information in an investigation is insufficient to charge a service member and the only way to remove their name from the system is to prove mistaken identity, the fairness of the system must be called into question. The applicant was titled by CID for crimes he did not commit due to allegations by a Soldier with a known motive to fabricate a story (see exhibits A and B). When the applicant appealed the CID titling decision, he was denied because he could not prove mistaken identity. Unfortunately, it was not mistaken identity that created the issue, but affirmative fraudulent statements by a suspect, PV2 which were never verified by the CID investigation. Despite the lack of competent and credible evidence, the applicant has been denied his right to purchase a firearm and will likely be rejected from becoming a first responder because of the titling decision made by a CID agent. (3) What is appalling is that CID recognizes that individuals are in danger of being titled prematurely because CID agents are required to prepare an initial ROI within 3 working days of when they initiate an investigation. Information that a crime has or may have occurred may not be sufficient to believe that a particular individual may have committed that crime. Yet, even if prematurely titled, a subject may not be removed from the title block in the absence of mistaken identity. This result is blatantly unfair to the individual and, as shown by the applicant, will have lasting impacts on his life, both inside and outside of the Army. (4) The lasting implications of a poor investigation must be addressed so as to correct or remove this injustice. The applicant was accused of a crime for which CID failed to verify allegations made in an investigation. The investigation fails to account for the following issues: * no hair, urine, or blood samples were taken from the applicant to show traces of cocaine in his system * the applicant's wallet was never search or seized to verify if there were traces of cocaine in it, despite assertions by his accuser that cocaine was stored in the wallet * PV2 statements were surprisingly contradictory and not supported by any other statement or item of evidence * a polygraph examination was never administered to verify the applicant's statement professing his innocence * all urinalysis examinations taken by the applicant since first enlisting in the Army until now have tested negative for all illegal substances (see exhibit G) * other members of the unit were not interviewed who would have contradicted any statements by PV2 and his baseless allegations against the applicant * the overwhelming support and good Soldier testimony from the applicant's fellow Soldiers and chain of command demonstrating their disbelief in the accusations and desire to retain him in the Army were never taken into account (see exhibit C) (5) The applicant's name should be removed from the titling block of the investigation due to the lack of credible evidence and rush to judgment made by CID agents. CID failed to verify statements, thereby basing their titling determination upon a single fabricated statement resulting in a mischaracterization of the applicant's record and the facts in the case. Therefore, this Board should "remove an injustice" by expunging the applicant's name from the titling report and correlating DCII and CRC records. Without such an action, this injustice will follow the applicant for the rest of his life. (6) The applicant's unit supports removal of his name from the titling documentation. There has been an outpouring of support from his chain of command following the incident, supporting his retention and his current chain of command supporting removal of the titling determination. The applicant's company commander, Captain wrote of her familiarity with the case and how the allegation in the titling action is wholly inconsistent with her experiences with the applicant, who she has come to know and rely upon (see exhibit H). (7) Not only does the applicant have the support of his company, but his platoon sergeant and team leaders also support removal of his name from the titling action. They made claims such as the applicant is "the best Soldier I have seen [in] 14 years of [being] in the U.S. Army" and "I have never questioned [Applicant's] integrity." Further, they repeatedly verified that the applicant has never failed a urinalysis (see exhibit D). (8) The applicant is a good Soldier who was accused of crime that the evidence did not support, yet he was titled for mere accusation and is now suffering the repercussions of a bad investigation. CID has denied his appeal and his only recourse is the benevolence of this Board to right the wrong, for justice requires a correction to his records so as to avoid this unjustified punishment. d. Conclusion: The applicant respectfully requests expunction of his name from the titling block of the ROI and removal of his name from DCII and CRC records; therefore, that he may carry on with his career, participate in all the rights and responsibilities of a citizen of the United States, and seek further employment in a career of his choice without fear of rejection because of the titling determination in this flawed investigation. 3. The applicant enlisted in the Regular Army on 2 May 2017. He was advanced to the rank/grade of PV2/E-2 effective 2 November 2017. 4. The Fort Bliss CID Office LER, 6 January 2018, shows (see attachment and auxiliary documents): a. The CID Office was notified by Captain Commander, 47th Heavy Composite Truck Company, on an unspecified date while deployed in Poland of suspected illicit drug use in her unit. She informed CID that PV2 admitted to her that he used controlled substances in prior to deployment to Poland. b. This report was generated to add the applicant and Private First Class (PFC) as subjects of the investigation and to provide an investigative update. The report shows Specialist was interviewed and stated he observed PV2 the applicant, and PFC use cocaine in the barracks while at Fort Bliss. PV2 admitted he used cocaine with the applicant in the barracks while at Fort Bliss. PV2 stated on two occasions that the applicant provided him with the cocaine, which they both consumed. PFC and the applicant were advised of their rights, which they waived, and denied they used cocaine. c. The applicant was listed against the following Uniform Code of Military Justice offenses under Article 112a (Wrongful Use, Possession, etc., of Controlled Substances): * wrongful distribution of cocaine * wrongful possession of cocaine * wrongful use of cocaine – not detected by urinalysis 5. Counsel provided the following documents: a. The 47th Heavy Composite Truck Company, 143d Combat Sustainment Support Battalion, memorandum (Separation under Army Regulation 635-200, Chapter (should read Paragraph) 14-12c(2), Misconduct – Abuse of Illegal Drugs, (Applicant), 19 March 2018, from the commander notified the applicant that she was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct – abuse of illegal drugs. The commander cited the reason as using and distributing cocaine on divers occasions between on or about 1 September 2017 and on or about 6 January 2018. She further noted she was recommending a general discharge under honorable conditions and advised him of his rights. On the same day, he acknowledged receipt of the proposed action. b. The applicant consulted with counsel on 16 May 2018 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He elected to submit a statement in his own behalf. On the same date, he requested retention in the Army. He noted there was insufficient evidence against him and he was not subjected to a urinalysis to validate the accusation. c. On 25 June 2018 after careful consideration of all matters, the separation authority directed the applicant's retention and rehabilitative transfer to another unit. 6. The applicant's AMHRR does not contain any evidence of a separation action.? 7. The applicant was advanced to the rank/grade of PFC/E-3 effective 2 May 2018 and to specialist/E-4 effective 2 May 2019. 8. The applicant's AMHRR does not contain evidence of the CID investigation. His records are also void of a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action). 9. The applicant was promoted to the rank/grade of SGT/E-5 effective 1 March 2021. 10. The applicant was honorably released from active duty in the rank/grade of SGT/ E-5 by reason of completion of required active service on 11 September 2021 and transferred to a Reserve Component troop program unit. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 4 months, and 10 days of net active service. 11. In an undated letter to the CRC, with letters of support, the applicant requested removal of all charges relating to the CID LER from his Army records and FBI criminal history. He stated: a. He was wrongfully accused of distribution, possession, and use of cocaine. He denied any involvement in the drug and professed this throughout the CID investigation. He requested drug testing each time he was questioned by CID to prove his innocence, but he was never tested. b. After several search warrants during the investigation, no evidence was ever found to substantiate the accusations against him. The only information came from a statement provided by PV2 a Soldier who admitted to illegal drug use and violations of multiple regulations. This Soldier later admitted to him that he told investigators he provided him with cocaine and used it because he thought he had turned him in to authorities. He provided character statements attesting to his character, honesty, and dedication to duty. 12. The CID letter, 20 October 2020, denied the applicant's request received on 8 September 2020 to correct information from the CID files. CID determined the information the applicant provided did not constitute as new or relevant information needed to amend the report. 13. The applicant, through counsel, provided the following evidence in addition to those documents discussed above: a. Exhibit A is an affidavit from 1 February 2021, noting he is aware of the investigation that took place in or about January 2018 in his unit's deployment to Poland. He is familiar with the applicant and PV2 . He is aware of PV2 reputation for taking drugs and drinking while under age. He stated PV2 pulled the applicant into the investigation because he thought the applicant had snitched on him and he was trying to frame the applicant in order to get the applicant in trouble. b. Exhibit B is an affidavit from 28 February 2021, noting the investigation. He attended advanced individual training with the applicant and PV2 in 2017 and they were then stationed together at Fort Bliss. He admitted to using marijuana during the CID investigation and knew PV2 regularly used drugs and alcohol. He stated PV2 wanted him to fabricate a story assigning blame to people with no involvement in or experience with illicit drugs and/or alcohol. He is unaware why PV2 decided to blame the applicant for providing him with cocaine. To the best of his knowledge, he doesn't believe the applicant used drugs or provided anyone with them. c. Exhibit D contains nine letters attesting to the applicant's character, work ethic, and dedication to service. d. Exhibit E is an FBI History Report, 12 April 2021, showing a report of the applicant's fingerprints revealed prior arrest data at the FBI. The report shows the applicant was arrested or received on 12 January 2018 for charges of drug use and possession, and wrongful distribution, possession, and use of cocaine. e. Exhibit F is the applicant's self-authored statement, 12 May 2021, noting he was stationed at Fort Bliss after initial entry training and was deployed to Poland with his unit within 2 months. (1) He was questioned by the first sergeant and company commander the day prior to deploying regarding an allegation of being involved with a small group of people who were suspected of using drugs. He volunteered to submit to a drug test to prove his innocence, but he was never afforded that opportunity. After several months in Poland, he was questioned by CID on multiple occasions. He was again not afforded to take a drug test to prove his innocence. His belongings were not searched or seized. He was released without any explanation or action being taken against him. (2) Several months later, he was sent to Germany where his chain of command instructed him that he was being administratively separated from of the Army for drug use based on the CID investigation. After several more months, he was sent back to Fort Bliss. Subsequently, the administrative separation packet was thrown out and he was retained in the unit. (3) He attempted to purchase a firearm while on leave and was denied. He learned the denial was based on the CID investigation noting two felony drug charges. He has attempted to have the charges removed by CID to no avail. He sought assistance from his Congressman. He has also deployed to Kuwait and has been promoted to the rank/grade of SGT/E-5. He plans to leave the service upon completion of his current term of enlistment and obtain his paramedic license and attend the fire academy. However, his criminal record based on the CID investigation, will withhold his dreams of becoming a firefighter and likely hold him back in other professions as well. f. Exhibit G is a document showing the "biochemical" history of a DOD identification number and indicating five collection dates wherein the findings are all negative. (Note: The document does not show the applicant's name.) g. Exhibit H is a 47th Heavy Composite Truck Company, Fort Bliss, memorandum (Support Memorandum for (Applicant) for Removal Titling Information from His Records), 19 April 2021, from the commander recommending removal of the titling action against the applicant. She notes she was not the applicant's commander during the time of the incident; however, she reviewed his records and is familiar with the situation. Since she has been the commander, the applicant has been nothing but a Soldier who identifies with the Army values and demonstrates them in his daily activities. 14. The applicant is currently assigned to the 1486th Transportation Company in the Ohio Army National Guard in an SGT/E-5 position. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, military records, and regulatory guidance were carefully considered. One possible outcome was to deny relief based upon the absence of administrative error in the investigation. However, two Board members noted that while titling itself does not imply any degree of guilt or innocence, the applicant has neither been convicted nor charged, which in itself is unjust. Based on the preponderance of the documentation available for review, the Board determined that relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : 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 Army records of the individual concerned by corrected by removing the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 6 January 2018, and all associated documents from the Defense Central Investigations Index (DCII), CID databases from his Army Military Human Record (AMHRR). 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 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. 3. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the DOD and the Department of Justice, as appropriate; and for participating in the FBI 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 a police investigation. A person or entity will be reported as the subject of an offense in 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 an ROI 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 in 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 DOD reporting requirements. The Director, Crime Records Center, enters individuals from the LER into the DCII. 4. 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. 5. 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. 6. 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. 7. 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 FBI, 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) AR20210012089 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1