ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220000565 APPLICANT REQUESTS: through counsel: * removal of his name from the title block of the DA Form 3975 (Military Police Report (MPR)), 20 January 2011, for the offense of wrongful disposition of government property (EagleCash card (on post)) * amendment of the MPR to reflect the allegation was unfounded * correction of the National Crime Information Center (NCIC) criminal history maintained by the Federal Bureau of Investigation (FBI) to show he is not titled for any offenses related to the subject MPR * in the alternative, rescission of the MPR in its entirety 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) * Memorandum from Major , Legal Assistance Attorney (Memorandum in Support of Application for Correction to Army Review Boards Agency, (Applicant)), undated * MPR, 20 January 2011 * FBI Identification Record, Part 2, 4 June 2019 * U.S. Army Criminal Investigation Command (CID) Letter, 9 July 2019 * CID Letter, 18 August 2021 * DA Form 2823 (Sworn Statement), 27 September 2021 * Memorandum from Command Sergeant Major (Retired) . (Memorandum in Support of Application for Correction to Army Review Boards Agency, (Applicant)), undated FACTS: 1. The applicant defers to counsel. 2. Counsel states that on 20 January 2011, the applicant was deployed to Kosovo and misplaced his EagleCash card. The EagleCash card is a stored-value card that serves as a secure alternative to cash, debit cards, and credit cards for service members serving in deployed the locations. The funds available are the service member's own funds, and the plastic card itself has only nominal, if any, value. The applicant attempted to locate the card by searching his quarters and the gym, but was unable to find it. Because his card could have been used by a nefarious actor to access the funds in his account, and according to unit instructions for reporting a lost or misplaced card, he voluntarily reported the loss to the military police station to obtain a copy of a police report. The MPR documenting the applicant's interactions with the military police reflect only that his report was accepted concerning the lost card. a. The applicant was not taken, seized, or detained by the military police. He was never told he was taken into custody or otherwise subjected to the control or detention of police. He was never read his rights pursuant to United States v. Miranda and/or Article 31 of the Uniform Code of Military Justice, nor was he subjected to any conduct which might suggest or indicate he was being placed under arrest for reporting the loss of his own property. b. Despite the lack of any indicators of arrest or criminal wrongdoing by any party, the MPR was wrongfully filed as an arrest report rather than an incident report. Although this clerical error seems minor, its impact has been far reaching. Because the incident was reported in the system as an arrest, it was flagged by investigators when the applicant's security clearance came up for renewal. Fortunately, this did not adversely impact his ability to maintain his clearance and access eligibility; there have been other adverse impacts of a Constitutional magnitude. c. The applicant recently applied for a weapons carry license in his home state where he works as a full-time federal civilian and continues his service in the U.S. Army Reserve. However, due to the wrongful and erroneous arrest report, the state denied his request for a license. That a clerical error is presently abridging the applicant's Constitutional rights under the Second Amendment is a manifest injustice and highlights the urgency and importance of his petition for correction. d. CID denied the applicant's request to correct their wrongful and erroneous records, and he has exhausted all administrative remedies. Contrary to CID's spurious assertion, no conduct even suggesting the arrest or detention of the applicant ever occurred. CID's own records plainly indicate the applicant reported the loss of his own property – his EagleCash card – to the military police and nothing more occurred. 3. On 4 June 2010, the applicant was serving as a member of the U.S. Army Reserve in the rank/grade of staff sergeant/E-6. 4. Camp Atterbury Orders CA-155-0140, 4 June 2010, deployed the applicant in a temporary change of station status in support of Operation Enduring Freedom (Kosovo) on or about 7 June 2010 for a period not to exceed 360 days. 5. The DA Form 3975, 20 January 2011, shows in: a. Section I (Administration): * item 1 (Report Type) – Information/Military Offense/Complaint * item 3 (Evaluation) – Founded * item 5a (Clearance Reason) – Unfounded b. Section II (Offense): * item 1h (Offense Description) – Wrongful Disposition of Government Property (EagleCash Card) (On Post) * item 4 (Offense Statutory Basis) – Uniform Code of Military Justice c. Section III (Subject): * item 1b (Name) – Applicant * item 1c (Social Security Number) – Applicant's social security number d. Section IV (Victim): * item 1b (Name) – U.S. Government * item 4c (Age) – Under 24 Hours * item 6 (Relationship of Victim to Offender) – Employer e. Section VII (Narrative): On 20 January 2011, at approximately 1325 hours, the applicant notified the military police station in person of the loss of his EagleCash card. He stated the last time he had seen the missing card was on 19 January 2011 at 1920 hours. All efforts to locate the missing EagleCash card had negative results. This is a final report. 6. The applicant's records do not include a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) following completion of his deployment. 7. The U.S. Army Human Resources Command memorandum (Appointment as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, Sections 12201 and 12203), 24 March 2015, appointed him as a Reserve commissioned officer in the rank/grade of second lieutenant/O-1 effective 26 March 2015. 8. The FBI Identification record, 4 June 2019, indicates the applicant was arrested or received on 20 January 2011 on the charge of wrongful disposition of government property. 9. The CID letter, 9 July 2019, informed the applicant that the U.S. Army Crime Records Center reviewed the National Crime Information Center (NCIC) and the applicant is listed in the MPR for wrongful disposition of government property (EagleCash card). The disposition has been updated to show "No disposition on file"; however, retention of this criminal history data in the NCIC does conform to Department of Defense (DOD) policy. As a result, his name will remain in the NCIC. He was advised that he may request an amendment to the MPR under the provisions of Army policy when such records are established as being inaccurate by providing new or relevant information to amend the report. 10. U.S. Army Human Resources Command Orders B-11-007043, 2 November 2020, promoted him to the rank/grade of captain/O-3 effective 28 September 2020. 11. The CID letter, 18 August 2021, informed the applicant that the U.S. Army Crime Records Center received his request to remove his criminal history data in the FBI NCIC as it pertains to the MPR; however, the information the applicant provided does not constitute as new or relevant information needed to amend the report. As a result, his request was denied. He was advised that he may appeal to the Army Board for Correction of Military Records (ABCMR) if he disagrees with the amendment denial. 12. The applicant's sworn statement, 27 September 2021, states, in part: a. From August 2010 through April 2011, he was deployed to Kosovo. Upon arriving in theater, he received a series of briefings, to include the EagleCash Card Program. This was a voluntary program that would provide added security to personal financial institution account transactions while deployed. The briefing stated the account holder should file an incident report with the military police station if the EagleCash card were ever lost or missing. b. On approximately 19 January 2011, he could not locate his EagleCash card. He retraced his steps to the post exchange, hospital, living quarters, gym, and dining facility, but could not locate the card. He went to the military police station during his lunch break to file a formal incident report for the missing card. The military policeman attending the front desk, a specialist/E-4, warmly received his complaint, recorded his statement, and confirmed the police report would be filed. He was never read his rights or told he was under arrest or being detained. The officer on duty simply took his report and he was permitted to leave. The entire process took no more than 10 minutes. c. In late 2018, he applied for a job at the Centers for Disease Control and Prevention as a microbiologist. He was tentatively selected for a job pending a suitability check. The suitability officer for the agency reached out to him with questions about "whether [he] had a pending case" and if he were "serving any probation for a charge." When the applicant asked what prompted those questions, he discovered he had a charge on his record with no disposition noted. Upon receipt of the report, he learned the MPR resulted in a charge of wrongful disposition of government property. d. In April 2021, he applied for a pistol permit. Upon receipt of the background check, the probate court representative stated the court would need a disposition statement of the charges being dropped or resolved. Unable to provide a disposition of the charges because no due process ever occurred, his request for a pistol permit was denied. 13. The memorandum from Command Sergeant Major (Retired) , undated, states she has first-hand knowledge of events related to the MPR. When the applicant was deployed to Kosovo, he was serving as both the operations sergeant major for the hospital and the command sergeant major. On 20 January 2011, the applicant misplaced his EagleCash card. As a result, he reported the loss to both his chain of command and the military police. At no time was he arrested. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon the statement of the applicant being corroborated by CSM(R) , the offense being corroborated by the CID response, and the demonstrated harm resulting from the applicant’s name being documented in the criminal databases, the Board concluded there was sufficient evidence of an error or injustice warranting rescission of the DA Form 3975, Military Police Report (MPR) in its entirety. 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 Army records of the individual concerned be corrected by removing the DA Form 3975, Military Police Report (MPR) from all criminal records and databases. 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 members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. 2. The U.S. Department of the Treasury Bureau of the Fiscal Service website https://www.fiscal.treasury.gov/eaglecash/eaglecash.html states: a. EagleCash is a Stored Value Card, which is a smart card-based alternative to cash. They contain a chip which stores currency and processes transactions. They can verify and perform financial transactions in an offline mode, versus traditional debit/credit cards. They are in use in over 80 military bases and installations in 19 countries. b. Soldiers or civilians working directly for DOD or a federal government agency and deployed are authorized to have an EagleCash card without restriction. An enrolled card is attached to the individuals bank account and allows it to be used at a kiosk to put money on the card. When the card is used to buy something, the cost of purchase is deducted from the card. The EagleCash card can be used at a variety of locations including post or base exchange, base post office, concessionaries, and local vendors. c. The EagleCash card will be issued as part of the deployment process. The card can also be issued in the deployed location by the local Finance office if a replacement is required. 3. Army Regulation 190-30 (Military Police Investigations) prescribes Department of the Army policy for the conduct of military police investigations; establishes policies and procedures for selection, training, and employment of military police investigators and Department of the Army civilian detectives/investigators; and identifies responsibilities for the conduct of the Military Police Investigations Program. Paragraph 4-5 states civilian law enforcement agencies normally investigate incidents occurring off federal property or installations within the continental United States. 4. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to DOD and the Department of Justice, as appropriate; and for participating in the FBI NCIC, Department of Justice Criminal Justice Information System, National Law Enforcement Telecommunications System, and state criminal justice systems. Paragraph 3-6a states: a. 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. b. 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. The burden of proof is on the individual to substantiate the request. c. Requests to delete a person's name from the title block will be granted only if it is determined that there is not probable cause to believe the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether or not subsequent judicial, nonjudicial, or administrative action is taken against the individual. d. In compliance with DOD policy, an individual will still remain entered in the DOD Central Index of Investigations (DCII) to track all reports of investigation. 5. Army Regulation 195-2 (Criminal Investigation Activities), in effect at the time, established policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. Paragraph 4-4 (Individual Requests for Access to or Amendment of CID Reports of Investigations) stated CID reports of investigations are exempt from the amendment provisions of Title 5, U.S. Code, section 552a, and the Army Privacy Program. Requests for amendment will be considered only under the provisions of this regulation. Requests to amend or unfound offenses in CID reports of investigations 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. 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. 6. DOD Instruction 5505.7 (Titling and Indexing in Criminal Investigations) contains the authority and criteria for titling decisions. Titling only requires credible information that an offense may have been committed. 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 is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 7. Public Law 116-283 (The National Defense Authorization Act for Fiscal Year 2021), enacted 1 January 2021, section 545, addresses removal of personally identifying and other information of certain persons from investigative reports, DCII, and other records and databases. a. Policy and Process Required: 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, in accordance with subsection (c), be corrected in or expunged or otherwise removed from the following: (1) a law enforcement or criminal investigative report of the DOD or any component of the Department; (2) an index item or entry in the DCII; or (3) any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Department. b. Covered Persons: For purposes of this section, a covered person is any person whose name was placed or reported, or is maintained revised: (1) in the subject or title block of a law enforcement or criminal investigative report of the DOD (or any component of the Department); (2) as an item or entry in the DCII; or (3) in any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Department. c. Elements: The policy and process required by subsection (a) shall include the following elements: (1) Basis for Correction or Expungement: That 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 described in paragraphs (1) through (3) of subsection (a) in the following circumstances: (a) probable cause did not or does not exist to believe 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; (b) probable cause did not or does not exist to believe 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; or (c) 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 (a) and (b). (2) Consideration: While not dispositive as to the existence of a circumstance or basis set forth in paragraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (a) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (b) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; or (c) the type, nature, and outcome of any action described in paragraph (b) against the covered person. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000565 1 1