IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20210015184 APPLICANT REQUESTS: In effect, to seal or remove a titling action and related documents from his Army record. Additionally, he requests an opportunity to appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 states on his application and in a personal statement that the titling action has prevented him from gaining employment twice over the past 2 months. He is almost out of money and his livelihood is at stake. He received an honorable discharge. The entire incident resulted in nothing more than him receiving extra duty, and a reduction in one rank. First, the charge of larceny of private funds never happened. His Battalion Executive Officer (XO) simply chose not to believe him. The charge of unlawful entry regarding an “unsecured barracks room” is laughable and grossly unfair. They were a cavalry unit, a combat arms unit, and he was a ranking specialist. They were literally indoctrinated and trained to address things like unsecure entry points. If this had been any other situation, he would have been congratulated by his chain of command. His assault charge was literally dropped, because the XO deemed there “wasn't enough evidence to support that claim,” which is something that he claimed during his disciplinary hearing. The XO's response was, ‘Well son, that's the beauty of nonjudicial [punishment] under the uniform code of military justice (UCMJ), the ruling falls to my judgement and I've been doing this a long time.” He pled guilty, but he was manipulated and held as a mental hostage by his battalion XO, who was not even in his chain of command. He was told that if he did not just agree to everything as it was, [the charges] would be elevated to an official court martial, and he would be held long past his expiration term of service (ETS) date, which was a month away at this point. a. His first sergeant told him, “I don't agree with the XO's ruling, and you just got made an example.” It was quite commonplace for Soldiers to be made an example in 2015. It was the beginning of an extremely transitionary period for the Army. Any “slip up” was addressed with the most extreme treatment possible. b. In summary, he did not steal anything, no money or otherwise. No dollar amount was ever produced. He was 22 years old, back from Afghanistan in a combat capacity, and drinking. He had a lapse in judgement, brought on by a mental break. He has been diagnosed with depression, cyclothymia, and he is in the process of getting a post- traumatic stress (PTSD) diagnosis. c. He has a bachelor’s degree, and he plans to apply for graduate school. He has never been in trouble with law enforcement, or otherwise, outside of the military. This entire situation was misrepresented. d. His future should not be limited by one incident that happened over 6 years ago, when he was told directly that it would not affect him as a civilian. His immediate situation has caused him to be denied a job working as a police dispatcher for the. The titling action is also preventing him from securing employment as a dispatcher with the fire rescue department. He was just told he could not work there until his record is sealed. He was informed his initial request to have this record expunged was denied by the United States Army Criminal Investigation Command (USACIDC) also known as the CID. e. He has been operating under the impression that [the titling action] was not going to be an issue gaining employment. The officer who rendered his punishment literally told him so, as he received a simple NJP, a company grade Article 15, that didn't even affect his discharge status or his re-enlistment potential. He needs his record sealed immediately, as his very livelihood is at stake. Please allow him the opportunity to continue to serve his country in a capacity that suits his capabilities and allows him to pursue his career goals. f. He wishes to dispute the resolution decision to deny his request to amend his records in a manner that will “clear them up.” Whether that be via expungement or sealing. This is paramount to his future career goals as he wishes to obtain a security clearance, and this has already prevented him from gaining employment. 3. A review of the applicant’s service record shows: a. On 26 January 2011, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty 11C (Indirect Fire Infantryman). He served in Afghanistan from 21 June 2012 to 11 March 2013. b. A DA Forms 3975 (Military Police Reports), dated 3 March 2014, shows the applicant notified the United States Army Garrison (USAG) Germany, military police (MP) about a domestic disturbance initially investigated by the Vilseck German police. The investigation revealed the applicant, and another individual became involved in a verbal altercation regarding relationship issues and the verbal altercation escalated to pushing and hitting. The applicant tried to quell the situation, but he was unsuccessful. He was pushed and struck to the body and face. Then he contacted MP’s. He was also given a breathalyzer by German police, which resulted in a “BAC” of .107. Initially, he declined medical attention, but was later transported for medical attention. c. A CID Report of Memorandum, subject: Law Enforce Report-Final, dated 5 May 2015, shows the following offenses occurred on 25 January 2015 in the Parking Lot, APO 09114, Germany: * Assault consummated by battery, Article 128, UCMJ, founded * Larceny of private funds, Article 121, UCMJ, founded * Larceny of government property, Article 121, UCMJ, founded * Larceny of private property, Article 121, UCMJ, founded * Unlawful entry, Article 134, UCMJ, founded d. A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 21 May 2015 shows: e. The applicant pled guilty to the following charges and was found guilty of all charges: * Larceny of private property, Article 121, UCMJ * Larceny of private property, Article 121, UCMJ * Larceny of private funds, Article 121, UCMJ * Larceny of government property, Article 121, UCMJ * Unlawful entry, Article 134, UCMJ f. On 14 May 2015, his punishment was adjudicated and consisted of 23 days of extra duty, restriction, and reduction from pay grade E-4 to E-3. g. The nonjudicial punishment record is not available for review with this case. h. On 6 June 2015, he was discharged. His DD Form 214 that was prepared at the time of separation shows he was released and transferred to the United States Army Reserve (USAR). He completed 4 years, 4 months, and 12 days of creditable active service. His awards are listed as the Afghanistan Campaign Medal with Campaign Star, Army Commendation Medal, Army Achievement Medal (2nd Award), Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon (2nd Award), North Atlantic Treaty Organization Medal, Combat Infantryman Badge, and Parachutist Badge. His DD Form 214 also shows: * Character of Service, Honorable * Separation Authority, Army Regulation (AR) 635-200, Chapter 4 * Separation code “LBK” * Reentry Code “3” * Narrative Reason for Separation, Completion of Required Active Service BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board found there was credible information to believe the applicant committed the offenses for which he was titled as a subject at the time the investigation was initiated. The Board further found the fact that he received nonjudicial punishment after the investigation was completed reinforces the conclusion that he was properly titled. Based on a preponderance of the evidence, the Board determined the titling decision was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 2. 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, United States 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. AR 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 a CID Record of Investigation (ROI). It states that requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of a CID ROI 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 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. 3. DOD Instruction (DODI) 5505.07 Titling and Indexing in Criminal Investigations contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 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 or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, “considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred.” 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. c. DODI 5505.7 contains further legal guidance. (1) 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 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. (2) 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. (3) 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: (4) Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI 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. (5) 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. (6) When reviewing the appropriateness of a titling/indexing decision, 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. 4. DODI 5505.7 also provides the following definitions: a. Credible Information: 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 are true. b. Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes, which include the collection of evidence in support of potential criminal prosecution. c. DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DOD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies. d. Indexing: Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII. e. Subject: A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. f. Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015184 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1