IN THE CASE OF: BOARD DATE: 5 September 2023 DOCKET NUMBER: AR20220011400 APPLICANT REQUESTS: removal of his name from the titling block of the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 22 April 2020, and associated indexes. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) • Brief in Support of Application for Correction of Military Records Requesting Removal of Name from Titling Block, undated • Enclosure 1 – • CID U.S. Army Crime Record Center (CRC) Letter, 1 June 2022 • CID Memorandum (Request for Amendment of Record – (Applicant), LER), 16 May 2022 • CID Memorandum (Legal Review of Request for Amendment of Record – (Applicant)), 23 May 2022 • Headquarters and Headquarters Detachment, 3d Military Police Group (CID), Memorandum (Request for Amendment of Record – (Applicant)), 24 May 2022 • CID Memorandum (Review of Request for Amendment of Record), 25 May 2022 • Enclosure 2 – Counsel Memorandum (Privacy Act Request to Change Record – Amendment to Report of Investigation (ROI)/LER Serious Incident Report (SIR) (Category 3)/Final – Removal of Titling – (Applicant)), undated • Enclosure 3 – National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, Section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigative Reports, the Department of Defense Central Index of Investigations (DCII), and Other Records and Databases), 1 January 2021 • Enclosure 4 – • LER – SIR (Category 3)/1st Final Supplemental, 22 April 2020 • LER – SIR (Category 3)/Final, 2 January 2020 • CID Form 94 (Agent's Investigation Report), 12 December 2019 • Enclosure 5 – DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2021 FACTS: 1. The applicant defers to counsel. 2. Counsel states the applicant requests removal of his name from the titling block of the LER, 22 April 2020, and any associated database or index because the titling is unjust and unsupported by the facts of his case and the way the matter was resolved by the Army. He further states: a. On or about November 2019, the alleged victim reported that the applicant, her battalion commander, was inappropriate with her. An Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation was initiated to investigate sexual harassment and violations of Army policy. Simultaneously, the Army CID investigated a related accusation of abusive sexual contact under Article 120 (Abusive Sexual Contact), Uniform Code of Military Justice (UCMJ). The alleged victim was interviewed by CID. According to the special agent's notes, the alleged victim stated words to the effect of "on one occasion when [Applicant] hugged her, she felt his penis." That is the only documentation in support of the charge of abusive sexual contact. The CID investigation did not uncover any other details, witnesses, or evidence about the hug in question. The single line attributed to the alleged victim in the special agent's notes is seemingly the sole basis for the titling. b. The applicant sought correction of his records on the basis that there was no credible information that he committed the offense of abusive sexual contact at the time he was titled. The CID Form 94, 12 December 2019, in the 22 April 2020 LER contains the line "on one occasion when [Applicant] hugged her she felt his penis." Nothing in this statement indicated the applicant took any action to make his penis felt by the alleged victim. The rest of the investigatory file is silent as to this alleged incident. Even if the alleged victim was not inclined to be hugged, there is nothing that indicated the applicant had any intent for his penis to be felt by the alleged victim. All indications are that it was mere happenstance that the alleged victim could feel the applicant's penis during the hug. It was an extraordinary determination by the investigator to label what amounted to an awkward hug by the applicant as a violation of Article 120, UMCJ. c. On appeal with CID, the review by the CID Investigative and Operations Directorate incorrectly cites that the "victim stated she felt [Applicant's] genital area pressed against her body." The act of "pressing" is not mentioned in the CID Form 94 and is not supported by the rest of the investigatory file. d. The agency's attorney-advisor's review incorrectly states that "she felt his genitalia rub against her." Again, the CID Form 94 does not mention the act of rubbing and this assertion is not supported by the remainder of the investigatory file. e. The language is more egregious than what is found in the CID Form 94 and implies that the applicant took an action in addition to the hug, when he "pressed" or "rubbed" his genitalia that made it more likely that the alleged victim would feel his penis. These actions cited by the agency are not consistent with the CID Form 94. The CID Form 94 was presumably made contemporaneously with the alleged victim's statement and is the best record of what the alleged victim told the investigator. f. The insertion of the term "pressed" into the file does not appear until the 1 January 2020 LER memorandum. There is nothing in the CID Form 94 notes or rest of the investigation to support the insertion of the verbs "pressed" or "rub" to describe what the applicant did. Either the CID Form 94 notes were inaccurate or the terms were inappropriately inserted to describe the actions of the applicant. g. The abusive sexual contact allegation lacked corroboration. The sole reason the applicant was titled for abusive sexual contact was due to the single line in the LER stating: "on one occasion when [Applicant] hugged her, she felt his penis." However, there were no follow-up questions from CID about this particular hugging incident. No witnesses or evidence were proffered to support the claim. Even though the alleged victim was interviewed in a subsequent Army Regulation 15-6 investigation pertaining to the applicant's conduct, she did not mention the alleged incident of abusive sexual contact. 3. The CID Form 94, 12 December 2019, states Special Agent [Redacted] interviewed CPT [Redacted] on or about 22 November 2019 who provided a statement detailing how the applicant began making advances toward her. She was looking for a mentor. The applicant began texting her and telling her to purchase certain professional development books. Initially she felt like he was doing what a mentor was supposed to do. CPT [Redacted] related she then began receiving text message and calls from the applicant telling her she needed to go to his office. When she would arrive, the conversation was not professional, but personal. She also began to notice it appeared that the applicant was interested in her. He began hugging her and asking her if he could stop by her apartment, which made her feel uncomfortable. CPT [Redacted] further related that the applicant would tell her to buy him a bagel and bring it to him. She felt this was also uncalled for. CPT [Redacted] acknowledged she had issues with her unit. On one occasion, when the applicant hugged her, she felt his penis. She came forward because she could not take this type of treatment anymore. 4. The U.S. Army Combined Arms Support Command Office of the Staff Judge Advocate memorandum (Probable Cause and Final Report Legal Opinion), 12 December 2019, states that after a thorough review of the investigative file, the trial counsel determined there was probable cause to believe the applicant committed abusive sexual contact and failure to obey order or regulation. No further investigative leads were required. 5. The 59th Ordnance Brigade memorandum (Appointment as Investigating Officer (IO) – Army Regulation 15-6), 17 December 2019, states an IO was appointed to conduct an investigation into the facts and circumstances surrounding allegations made against the applicant and to make any findings deemed appropriate based upon the facts. At a minimum, the IO will address the following: a. whether the applicant sexually harassed CPT L____ T____ in violation of Army Regulation 600-20 (Army Command Policy), chapter 7 (Sexual Harassment/Assault Response and Prevention Program), and/or Article 93 (Cruelty and Maltreatment), UMCJ; b. whether the applicant attempted to engage in an inappropriate relationship with CPT L____ T____ in violation of Army Regulation 600-20, paragraph 4-14 (Relationships Between Soldiers of Different Grades); c. whether the applicant engaged in flirtatious behavior with personnel other than CPT L____ T____, including junior enlisted Soldiers; d. whether the applicant engaged in discrimination against female Soldiers, such as cutting off female personnel when they were speaking and/or seeking information from male personnel rather than female personnel, in violation of the Army's Equal Opportunity policy in Army Regulation 600-20, chapter 6 (Military Equal Opportunity Policy and Program); and e. whether the applicant pressured the 832d Battalion Unit Victim Advocate to release the name of a victim who filed a restricted report. 6. The Headquarters and Headquarters Company, U.S. Army Combined Arms Support Command, memorandum (Findings and Recommendations for Army Regulation 15-6 Investigation into Allegations Against (Applicant)), 23 January 2020, shows the IO made the following findings and recommendations: a. Findings by a Preponderance of the Evidence. (1) The applicant did sexually harass CPT L____ T____ in violation of Army Regulation 600-20, chapter 7, and Article 93, UCMJ. (2) The applicant did attempt to engage in an inappropriate relationship with CPT L____ T____ in violation of Army Regulation 600-20, paragraph 4-14. (3) The applicant did not engage in flirtatious behavior with personnel other than CPT L____ T____, including junior enlisted Soldiers. (4) The applicant did not engage in discrimination against female Soldiers in violation of the Army's Equal Opportunity policy in Army Regulation 600-20, chapter 6. (5) The applicant did pressure the Unit Victim Advocate to release information about a restricted report. However, it is unclear whether the applicant knew enough about the restricted reporting system to know that he should not pressure the Unit Victim Advocate for details. b. Recommendations. (1) In consultation with the Office of the Staff Judge Advocate, the approval authority should consider adverse administrative and/or UCMJ action at the appropriate level against the applicant for sexually harassing CPT L____ T____ in violation of Army Regulation 600-20, chapter 7, and Article 93, UCMJ; attempting to engage in an inappropriate relationship with CPT L____ T____ in violation of Army Regulation 600-20, paragraph 4-14; and pressuring the Unit Victim Advocate to release information about a restricted report to him. (2) All mention of restricted reports should be confined to the brigade-level reporting to higher levels of the chain of command. Strict adherence to the need-to-know guidance may prevent temptation to ask about restricted reports by commanders at levels below brigade. (3) Information unrelated to the allegations against the applicant was discovered during the investigation. An additional review of that information is required with consideration of an investigation of these incidents of potential misconduct. c. The accompanying DA Form 1574-1 (Report of Proceedings by IO), 23 January 2020, does not reflect any action by the approving authority. 7. The U.S. Army Ordnance School memorandum from the Commandant (Direction to Relieve for Cause – (Applicant)), 29 January 2020, states she lost faith and confidence in the applicant's ability to perform his duties as a battalion commander. She directed the applicant's relief for cause from his position as a battalion commander effective 29 January 2020. She will formally counsel the applicant and memorialize this relief for cause in an OER. 8. Counsel's memorandum to the approving authority (Response to Army Regulation 15-6 Investigating Findings and Recommendations), 7 February 2020, states the memorandum is in response to the maliciously false allegations made against the applicant by CPT L____ T____ in retaliation for notifying her of her gross ineptness and inability to faithfully execute the duties of a company commander. The findings of the investigation effectively concluded that a superior officer is guilty of sexual harassment if he takes appropriate measures to address the deficient behavior of a subordinate who is the opposite sex, and that subordinate feels intimidated as a result of those corrective measures. Such determinations will have a detrimental effect upon the abilities of superior officers to command their subordinates and will degrade the capabilities of our Nation's Armed Forces. 9. The applicant's DA Form 67-10-2 (Field Grade Plate (O4-O5; CW2-CW5) Officer Evaluation Report (OER)) covering the period 18 May 2019 through 10 February 2020, shows the applicant received a referred "Relief for Cause" OER. His OER shows in: a. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), section d1 (Character), his rater commented: "[Applicant] failed to abide by Army SHARP [Sexual Harassment/Assault Response and Prevention] and EO [Equal Opportunity] policies in his personal conduct, as evidence by the substantiated allegation of sexual harassment made against him by one of his subordinate officers. [Applicant] did support the Army's EO and EEO [Equal Employment Opportunity] programs by ensuring that mandatory training was conducted"; b. Part IV, block e (This Officer's Overall Performance is Rated as), his rater rated his overall performance as "UNSATISFACTORY" and commented: "[Applicant] was relieved from Command by Commandant, United States Army Ordnance School. [Applicant] had the mental ability for [a] long and highly successful career, but his personal conduct fell short of what is required by AR [Army Regulation] 600-20"; and c. Part VI (Senior Rater), block a (Potential Compared with Officers Senior Rated in Same Grade), his senior rater rated his potential as "NOT QUALIFIED" and commented: "I relieved [Applicant] from command due to personal conduct that was contrary to AR [Army Regulation] 600-20. Specifically, an investigation under the provisions of AR [Army Regulation] 15-6 substantiated a sexual harassment complaint made against him by one of his subordinate company commanders. His potential is limited as a result of his actions." 10. The U.S. Army Combined Arms Support Command memorandum from the Commanding General (Reprimand), 26 March 2020, reprimanded the applicant for sexually harassing and attempting to engage in a prohibited relationship with a subordinate company commander in violation of Army Regulation 600-20. This reprimand is based upon the findings and evidence of an administrative investigation conducted in accordance with Army Regulation 15-6. He further states: a. Between on or about 1 August 2019 and on or about 22 November 2019, while serving as a battalion commander, the applicant sexually harassed his subordinate officer by making unwanted sexual advances and engaging in conduct of a sexual nature toward her. He used her reaction to such conduct as a basis for his decisions that could have significant impacts upon her career, and thereby used his rank and position to coerce this officer to consent to his advances. This conduct clearly created an offensive working environment for this officer. b. The applicant also attempted to engage in an inappropriate relationship with this officer. His interactions with her, as evidenced in part by the voluminous number of personal text messages that he shared with her at all times of the day or night, reflect that he became overly familiar with this officer in that way that clearly compromised the integrity of his authority as her commander. His conduct with regard to this officer was clearly inappropriate and unprofessional, and completely unacceptable for an officer who was entrusted with the authority of command. 11. Counsel's memorandum in response to the applicant's general officer memorandum (GOMOR) (Matters in Extenuation, Mitigation and Rebuttal Concerning Reprimand Issued 26 March 2020), 3 April 2020, states: a. The source of the information of the reprimand is entirely based on information provided by CPT L____ T____. The maliciously false allegations made by CPT L____ T____ only arose after she was issued a letter of concern by the applicant and informed that she would be subject to relief from command should her deficiencies go uncorrected. b. Upon arriving to at the battalion, the applicant was informed of CPT L___ T____'s gross deficiencies and inability to effectively carry out her duties a company commander. It was the clear inability of CPT L___ T___ to lead her troops which led the applicant to issue a letter of concern less than 2 months after assuming command. Furthermore, it was the inability or unwillingness of CPT L___ T___ to take appropriate actions to address her own deficiencies which led to an unflattering quarterly counseling in October 2019. Any conclusion that suggests anything other than the alleged deficiencies of CPT L___ T___ served as the basis for the aforementioned actions of the applicant is completely illogical as it fails to acknowledge that a strong basis existed for issuing the letter of concern and quarterly counseling prior to the maliciously false allegations made against the applicant by CPT L___ T___. c. The investigation into the purported acts of the applicant was incomplete and unreliable. The investigation was perverted from the very beginning for the simple fact that it was perpetuated by the false accusations of CPT L___ T___. 12. The U.S. Army Ordnance School memorandum from the Brigade Commander (Commander Recommendation on Filing Determination), 6 April 2020, recommended permanently filing the GOMOR in the applicant's AMHRR. After carefully reviewing the IO's investigation, he found it to be of a high quality and the judge advocate who prepared the legal review found it to be legally sufficient. On CPT L____ T____'s credibility, even if all of CPT L____ T____'s sworn statements were to be eliminated, the weight of the text messages along with the supporting statements by other company commanders within the battalion provide enough evidence to substantiate the charges in the Army Regulation 15-6 investigation by a preponderance of the evidence. 13. The U.S. Army Ordnance School memorandum from the Commandant (Commandant Recommendation on Filing Determination), undated, recommended permanently filing the GOMOR in the applicant's AMHRR. She stated the sheer volume, timing, and frequency of the text messages demonstrates a relationship prohibited by Army Regulation 600-20. 14. The LER – SIR (Category 3)/1st Final Supplemental, 22 April 2020, shows the applicant is listed as the subject for the offense of Abusive Sexual Contact (Adult) and states: a. "CPT [Redacted] was interviewed and disclosed [Applicant] made several advances towards her since August 2019. CPT [Redacted] related it began with looks, text messages, and escalated to unwanted hugs. CPT [Redacted] related [Applicant] would call her to his office up to 3-5 times per day for personal reasons. CPT [Redacted] related on one occasion when [Applicant] hugged her, she could feel his genital area pressed against her body. CPT [Redacted] related she reported this incident because she could not take it anymore." b. Witnesses were interviewed, but did not observe any physical contact between the alleged victim and the applicant. c. On 25 February 2020, the Fort Lee CID Office received guidance from CID to reopen the investigation and obtain copies of the Army Regulation 15-6 investigation completed by the unit. d. A copy of the entire Army Regulation 15-6 investigation involving the applicant which included copies of the alleged victim's quarterly reviews and a letter of concern were obtained. The Army Regulation 15-6 investigation concluded the applicant sexually harassed and attempted to pursue an inappropriate relationship with the alleged victim. The investigation further discovered there were no other female subordinates that the applicant attempted to engage in flirtatious behavior, only the alleged victim. The investigation also addressed an issue involving the applicant potentially pressuring a Victim Advocate to release information on a restricted sexual assault report. e. On 12 December 2019, trial counsel opined probable cause existed to believe the applicant committed the offenses of Abusive Sexual Contact and Failure to Obey Order or Regulation. 15. The U.S. Army Combined Arms Support Command memorandum from the Commanding General (Filing Determination on Reprimand – (Applicant)), 24 April 2020, directed permanently filing the GOMOR in the applicant's AMHRR. He found the applicant's rebuttal matters to be unconvincing. Even discounting the credibility of the accuser, the evidence of the applicant's misconduct was overwhelming and mostly unrefuted. There were literally hundreds of personal text messages sent by the applicant to the subordinate officer at all hours of the day and night, which clearly established his misconduct. Further, he found the applicant's attacks upon the quality of the investigation to be unwarranted and unsupportable. 16. The applicant's memorandum (Comments on Referred OER Issued 30 April 2020), 6 May 2020, states he does not agree with the referred OER covering the period 18 May 2019 through 10 February 2020. He was falsely accused by an officer who has questionable character and integrity. This officer's judgment led to enduring challenges that led to removal of leaders in her command. He is innocent of the purported allegations and wholly and forcefully denies any alleged sexual harassing behavior and attempts to engage in a prohibited relationship with a subordinate. The referred OER does not represent his 24 years of honorable service to his country and the U.S. Army. 17. Counsel's memorandum for CRC (Privacy Act Request to Change Record – Amendment to ROI/LER SIR (Category 3) – Removal of Titling – (Applicant)), undated, requests amendment of the 22 April 2020 LER on the basis that a mistake was made at the time the titling and/or indexing occurred in that credible information indicating the applicant committed a crime did not exist. He further states: a. The CID investigation did not uncover any other details, witnesses, or evidence about the hug in question. The statement made by the alleged victim appears to be the sole basis for titling the applicant and the statement lacked any context concerning the elements for the charge of abusive of sexual contact. b. After considering the elements of the crime of abusive sexual contact and the information presented to the investigator, it is clear that there was no credible evidence to support the titling. Specifically, in this case there is no sexual contact. c. The applicant was never charged for the offense of Abusive Sexual Contact. There was no preferral or referral of charges. There was no court-martial, no conviction, and no Board of Inquiry hearing. 18. The CID memorandum from the Investigative and Operations Directorate (Request for Amendment of Record – (Applicant), LER), 16 May 2022, states a review of the 22 April 2020 LER was conducted to determine if the credible information standard was correctly applied when the applicant was indexed as a subject for the offense of Abusive Sexual Contact on 23 November 2019. This determination was made based on what the supervisor determined to be a credible complaint during the early stages of the investigation to believe the offense of Abusive Sexual Contact was committed by the applicant when he made several advances toward the victim since August 2019, including looks, text messages, and unwanted hugs. The victim stated the applicant would call her into his office three to five times per day for personal reasons. During one of those unwanted hugs the victim stated she felt the applicant's genital area pressed against her body. The Investigative and Operations Directorate determined the applicant was properly indexed and his request for amendment should be denied. 19. The CID memorandum from the Attorney-Advisor (Legal Review of Request for Amendment of Record – (Applicant)), 23 May 2020, found no basis for amending the LER. The applicant was titled for violations of Article 120 and Article 92 (Failure to Obey Order or Regulation), UCMJ, when he hugged a subordinate female Soldier and she felt his genitalia rub against her, and made other unwanted advancements toward her. Based on his review, he found that credible evidence did exist to title the applicant for the offenses and the LER contains sufficient evidence to support the titling decision. In addition, he concurs there was probable cause to believe the applicant violated Article 120 and Article 92, UCMJ. 20. The Headquarters and Headquarters Detachment, 3d Military Police Group (CID), memorandum from the Assistant Operations Officer (Request for Amendment of Record – (Applicant)), 24 May 2022, states he reviewed the LER and assessed that credible information did exist to title the applicant for the offense of Abusive Sexual Contact. There is no reason to believe the information supplied to CID was not credible and a probable cause legal opinion was given by the supporting trial counsel. There was no mistaken identity. 21. The CID memorandum from the Federal Bureau of Investigation Criminal Justice Information Services Systems Officer (Review of Request for Amendment of Record), 25 May 2022, states he reviewed the LER. The investigation disclosed that the applicant made several advances toward a subordinate female Soldier consisting of visual looks, text messages, and unwanted/uninvited hugs. On one occasion when the applicant hugged the female officer, she could feel his genital area pressed against her body. There was probable cause to believe the applicant violated Article 120, UCMJ, and the offense was properly categorized as a founded offense. The applicant was properly titled. 22. The CID CRC letter from the Freedom of Information Act/Public Affairs Division Chief, 1 June 2022, denied the applicant's request to amend the LER after careful consideration of the applicant's request and the available evidence. This denial constitutes final action of behalf of the Secretary of the Army with respect to Army Regulation 195-2 (Criminal Investigation Activities). 23. On 31 July 2021, the applicant retired from active duty. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The applicant’s and counsel's contentions, the applicant's military records, and regulatory guidance were carefully considered. An investigation disclosed that the applicant made several advances toward a subordinate female Soldier consisting of visual looks, text messages, and unwanted/uninvited hugs, and on one occasion when the applicant hugged the female officer, she could feel his genital area pressed against her body. The Board was not persuaded by counsel’s argument that the titling is unjust and unsupported by the facts of his case and the way the matter was resolved by the Army. The investigation clearly determined there was probable cause to believe the applicant committed Abusive Sexual Contact and the offense was properly categorized as a founded offense. The applicant was properly titled. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 9/5/2023 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR 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. Army Regulation 195-2 (Criminal Investigation Activities), effective 9 July 2014, prescribed policies and procedures pertaining to criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. Chapter 4 provided guidance for investigative records, files, and reports. a. Paragraph 4-4 prescribed 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 stated requests to amend or unfound offenses in 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 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. Department of Defense (DOD) Instruction 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the DOD), 28 February 2018, establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by the DOD. a. Paragraph 1.2a states DOD components authorized to conduct criminal investigations, as outlined in DOD Instruction 5505.16 (Investigations by DOD Components), 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. Indexing in the DCI) may be delayed until the conclusion of the investigation due to operational security. b. Paragraph 1.2b states victims and incidentals associated with criminal investigations can be titled and indexed. c. Paragraph 1.2c states titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. d. Paragraph 1.2d states once the subject of a criminal investigation is indexed in the 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. e. Paragraph 1.2e states if a subject's information requires expungement from or correction in the DCII, DOD components will remove the information as soon as possible. f. Paragraph 1.2f states judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. g. Paragraph 3.1 states 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. h. Paragraph 3.2 states a subject who believes he/she was incorrectly indexed, as outlined in paragraph 1.2.d., may appeal to the DOD component head to obtain a review of the decision. i. Paragraph 3.3 states when reviewing the appropriateness of a titling or indexing decision, the reviewing official will only consider the investigative information at the time of the decision to determine if the decision was made in accordance with paragraph 1.2.a. j. Paragraph 3.4 states DOD components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 4. The National Defense Authorization Act for Fiscal Year 2021, effective 1 January 2021, authorized appropriations for Fiscal Year 2021 for military activities of the DOD, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes. Section 545 stated: a. Policy and Process Required. 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, 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 military department; (2) an index item or entry in the DCII; and (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 military department. b. Covered Persons. For purposes of this section, a covered person is any person whose name was placed or reported, or is maintained: (1) in the subject or title block of a law enforcement or criminal investigative report of the DOD (or any component of the military 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 military 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 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; (b) 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; 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) Considerations. 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; and (c) the type, nature, and outcome of any action described in subparagraph (b) against the covered person. (3) Procedures. The policy and process required by subsection (a) shall include procedures as follows: (a) procedures under which a covered person may appeal a determination of the applicable component of the DOD denying, whether in whole or in part, a request for purposes of subsection (a); (b) procedures under which the applicable component of the military department will correct, expunge, or remove; take other appropriate action on, or assist a covered person in so doing, any record maintained by a person, organization, or entity outside of the military department to which such component provided, submitted, or transmitted information about the covered person, which information has or will be corrected in, or expunged or removed from, military department records pursuant to this section; (c) the timeline pursuant to which the military department, or a component of the military department, as applicable, will respond to each of the following: • a request pursuant to subsection (a) • an appeal under the procedures required by subparagraph (a) • request for assistance under the procedures required by subparagraph (b) (d) mechanisms through which the military department will keep a covered person apprised of the progress of the military department on a covered person's request or appeal as described in subparagraph (c). //NOTHING FOLLOWS//