IN THE CASE OF: 

		BOARD DATE: 27 September 2023

		DOCKET NUMBER: AR20220011586


APPLICANT REQUESTS:

	a.  amendment of any and all Law Enforcement Reports (LERs) and any associated 
residual and/or affiliated titling actions to show the offenses of wrongful appropriation of 
a Government vehicle, wrongful destruction of Government property, wrongful damage 
of Government property, larceny of Government funds, and failure to obey a general 
order were unfounded and noted as unfound offenses where no probable cause existed 
to believe the applicant committed the offenses;

	b.  correction of the Defense Clearance and Investigations Index (DCII) and National 
Crime Information Center (NCIC) databases to reflect the applicant is not titled for the 
above offenses or any other offense related to the subject LER, 13 December 2016; 
and

	c.  any other relief that is appropriate.

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)
*	Supplemental Statement of (Applicant), 17 November 2022

*	Tab A –

*	U.S. Army Garrison Aberdeen Proving Ground Directorate of Operations 
Police Administration Branch Letter, 16 May 2022
*	LER, 13 December 2016

*	Allied Documents
*	Preliminary Estimate, 10 October 2016
*	Standard Form 91 (Motor Vehicle Accident Report), 8 October 2016
*	DA Form 4833 (Commander's Report of Discipline or Administrative Action), 
5 July 2018

*	Tab B – State of Michigan Traffic Crash Report, 8 October 2016
*	Tab C – National Defense Authorization Act for Fiscal Year 2021, effective 
1 January 2021
*	Tab D – Article 121, Uniform Code of Military Justice (UCMJ)
*	Tab E – Article 108, UCMJ
*	Tab F – Article 92, UCMJ
*	Tab G – Counsel's Memorandum (Request for Removal of Titling Action for 
(Applicant)), 13 October 2022
*	Tab H –

*	U.S. Army Criminal Investigation Command (CID) and U.S. Army Crime 
Records Center (CRC) Letter, 16 November 2022
*	DA Form 4833, 5 July 2018

*	Memorandum (Response to Ex Parte Letter for (Applicant)), 10 May 2023

FACTS:

1.  The applicant defers to counsel.

2.  Counsel states:

	a.  On or about 8 October 2016, the applicant was involved in a traffic accident 
wherein a Government vehicle was damaged. The Government vehicle was allegedly 
"totaled" in the accident.

	b.  Civilian police responded to the accident. The police report indicates the 
applicant fell asleep and ran off the road.

	c.  The applicant was subsequently titled for the following offenses:

*	wrongful appropriation of Government vehicle (Article 121 (Larceny and 
Wrongful Appropriation), UCMJ)
*	wrongful destruction of Government property (Article 108 (Military Property of 
the United States – Sale, Loss, Damage, Destruction, or Wrongful 
Disposition), UCMJ)
*	wrongful damage to Government property (Article 108, UCMJ)
*	larceny of Government funds (Article 121, UCMJ)
*	failure to obey a general order (Article 92 (Failure to Obey Order or 
Regulation), UCMJ)

	d.  The applicant petitioned CID for relief but was denied.

	e.  The applicant's name must be removed from the titling block of the LER, 
13 December 2016, because no probable cause exists to conclude that he committed 
the offenses.

	f.  The applicant was titled for wrongful appropriation of a Government vehicle and 
larceny of Government funds, both under Article 121, UCMJ. The LER is devoid of any 
legal analysis or justification for law enforcement's assertation that the applicant 
wrongfully appropriated the Government vehicle he was driving. The evidence is that he 
was in lawful possession of the vehicle. The LER specifically notes he was "issued" the 
transportation motor pool (TMP) car for an "authorized trip." The facts that he may have 
left earlier than authorized or may not have been approved for travel to Michigan (facts 
the applicant and his counsel do not concede) do not change the fact that he was in 
lawful possession of the vehicle. Moreover, there is no evidence whatsoever that he 
intended to temporarily deprive or defraud another of the use and benefit of the vehicle.

	g.  The LER is devoid of any legal analysis or justification for law enforcement's 
assertation that the applicant wrongfully took the Government vehicle he was driving. 
The evidence is that the was in lawful possession of the vehicle. The LER specifically 
notes he was "issued" the TMP car for an "authorized trip." The facts that he may have 
left earlier than authorized or may not have been approved for travel to Michigan (facts 
the applicant and his counsel do not concede) do not change the fact that he was in 
lawful possession of the vehicle. Moreover, there is no evidence whatsoever that he 
intended to permanently deprive or defraud another of the use and benefit of the 
vehicle.

	h.  The applicant was titled for wrongful destruction of Government property and 
wrongful damage to Government property, both under Article 108, UCMJ. The LER is 
devoid of any legal analysis or justification for law enforcement's assertation that the 
applicant committed the offense. The fact that there was an accident does not establish 
negligence. There was no investigation into the question of negligence.

	j.  With respect to the destruction offense, there is no evidence that the vehicle in 
question was "destroyed." In fact, the only evidence in the LER is that the accident 
resulted in $5,848.32 in damages to the Government vehicle. Therefore, there is no 
evidence to support a probable cause determination that the vehicle was "destroyed."

	k.  The applicant was titled for failure to obey a general order under Article 92, 
UCMJ. The LER is devoid of any legal analysis or justification for law enforcement's 
assertation that the applicant committed the offense. There is no mention of the specific 
order or regulation the applicant alleged violated. This means there can be no 
meaningful discussion, analysis, or review of the evidence and elements of this alleged 
offense.

	l.  In addition to the lack of evidence to support the required elements for the 
offenses, the Government failed to obtain a probable cause opinion from a qualified 
judge advocate at any point. There has never been any probable cause determination 
made and one was certainly not provided prior to titling the applicant with the offenses. 
Given the lack of probable cause opinion, the applicant should not have been titled for 
these offenses in the first place.

3.  The State of Michigan Traffic Crash Report, 8 October 2016, shows the applicant 
was involved in a single motor vehicle accident. His condition at the time of the accident 
is shown as fatigue or asleep. The narrative description of the accident states:

	a.  The vehicle was westbound on Michigan when it left the roadway and struck a 
road sign, and came to rest facing east in the westbound shoulder.

	b.  The driver (applicant) stated he fell asleep. The driver (applicant) completed the 
standard field sobriety test as instructed and registered .05 blood alcohol content on the 
preliminary breath test.

	c.  The vehicle was not drivable and was towed by Westland Car Care. The driver 
(applicant) was issued a citation for failure to use due care and caution.

4.  The Standard Form 91, 8 October 2016, shows the applicant stated the purpose of 
the trip was to meet his professor/friend before his temporary duty. His trip began on 
7 October 2016 and the accident occurred on 8 October 2016. The trip was a deviation 
from his direct route. He was only authorized to go to Carlisle, PA, for his temporary 
duty, not to Michigan. The trip was not made within established working hours as he 
was not supposed to drive on 7 October 2016. He was not authorized to drive to 
Michigan.

5.  The preliminary estimate for the damages to the Government vehicle, 10 October 
2016, enumerated the damages and their costs. The preliminary estimate total to repair 
the damages is shown as $5,848.32.

6.  The LER – 2nd Final Supplemental, 13 December 2016, shows the following:

	a.  The applicant, the subject of the LER, committed the following offenses on 
8 October 2016:

*	wrongful appropriation of Government vehicle (Article 121, UCMJ)
*	wrongful destruction of Government property (Article 108, UMCJ)
*	wrongful damage to Government property (Article 108, UCMJ)
*	larceny of Government funds (Article 121, UCMJ)
*	failure to obey a general order (Article 92, UCMJ)?
	b.  On 11 October 2016, the Kirk Army Health Clinic vehicle coordinator entered the 
Aberdeen Proving Ground Police Station, Aberdeen, MD, to report an accident the 
applicant was involved in on 8 October 2016 in Westland, MI. The applicant was issued 
a vehicle with Government registration on 6 October 2016 for official Government travel 
to Carlisle Barracks, PA, occurring on 11 October 2016. The applicant attempted to 
drive the Government vehicle to Milwaukee, WI, to visit a friend, but he had a traffic 
accident on the way on 8 October 2016 at 0524 in Westland, MI, totaling the vehicle. 
The Canton Police Department, Canton, MI, completed a police report stating the 
applicant said he fell asleep and ran off the road. The investigation determined the 
applicant had a blood alcohol content of .05 percent on the preliminary breath test, but 
was not charged for driving under the influence of alcohol. The vehicle was towed to 
Westland Car Care in Westland, MI.

	c.  On 12 October 2016, (Redacted) contacted the Canton Police Department's 
records division which provided the applicant's traffic crash report. Further investigation 
by (Redacted) determined the applicant was issued a TMP vehicle on 6 October 2016 
for an authorized trip on 11 October 2016. This was an early issue due to the holiday. 
During the time the applicant had the TMP vehicle, he used the assigned Government 
credit card to purchase gasoline on 7 October 2016 in Bedford, PA, and in Clyde, OH. 
The applicant admitted he was not authorized to drive the vehicle on 7 October 2016 
and he was not authorized to travel to Michigan. The applicant then consumed an 
alcoholic beverage and tried to drive while extremely tired. The applicant fell asleep 
behind the wheel, causing an accident which result in $5,848.32 in damage to the 
Government vehicle.

7.  The DA Form 4833, 5 July 2018, shows the applicant received nonjudicial 
punishment on 6 March 2017 for the offenses. His punishment included reduction to the 
rank/grade of private first class/E-3, forfeiture of $1,700.00 pay per month for 2 months, 
and extra duty and restriction for 7 days.

8.  On 5 January 2020, the applicant was honorably released from active duty and 
transferred to the Army National Guard.

9.  Counsel's memorandum (Request for Removal of Titling Action in Case of 
(Applicant)), 13 October 2022, requested that CID/CRC take the following actions on 
behalf of the applicant for the aforementioned reasons:

	a.  unfound the offenses of wrongful appropriation of a Government vehicle, wrongful 
destruction of Government property, wrongful damage of Government property, larceny 
of Government funds, and failure to obey a general order and note as unfounded the 
offenses where no probable cause existed to believe the applicant committed the 
offenses;

	b.  correct the DCII and NCIC databases to reflect the applicant is not titled for the 
above offenses or any other offense related to the subject LER, 13 December 2018; 
and

	c.  provide any other relief that is appropriate.

10.  California Army National Guard Army Element Joint Force Headquarters Orders  
0002147442.00, 9 November 2022, voluntarily separated the applicant from the Army 
National Guard effective 26 October 2022 to accept an Army National Guard 
commission.

11.  California Army National Guard Orders 0002147712.00, 10 November 2022, 
appointed the applicant in the California Army National Guard in the rank/grade of 
second lieutenant/O-1 effective 27 October 2022.

12.  The CID/CRC letter, 16 November 2022, informed counsel that the information 
provided did not constitute as new or relevant information needed to amend the LER, 
13 December 2016. Therefore, the applicant's request for amendment was denied.

BOARD DISCUSSION:

1.  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 Board carefully through counsel considered the applicant's record of service, 
documents submitted in support of the petition and executed a comprehensive and 
standard review based on law, policy and regulation. Upon review through counsel of 
the applicant’s petition and available military records the Board determined the 
applicant’s counsel did not provide sufficient evidence that clearly exonerates him or 
shows that there was a clear injustice. The CID Report shows there was credible 
information regarding the applicant's involvement in the alleged offense. The Board 
noted, the standard to determine whether a titling action was appropriate has changed 
under the National Defense Authorization Act, Fiscal Year 2021, section 545, to a 
higher increased standard of "probable cause. 

2.  Evidence in the record show the applicant was issued a vehicle with Government 
registration on 6 October 2016 for official Government travel to Carlisle Barracks, PA, 
occurring on 11 October 2016. The applicant attempted to drive the Government vehicle 
to Milwaukee, WI, to visit a friend, but he had a traffic accident on the way on 8 October 
2016 at 0524 in Westland, MI, totaling the vehicle. The Board noted, by the applicant’s 
own admission he was not authorized to drive the vehicle on 7 October 2016 and he 
was not authorized to travel to Michigan. The applicant then consumed an alcoholic 
beverage and tried to drive while extremely tired. Based on the evidence, the Board 
agreed the applicant’s counsel did not provide evidence that clearly exonerates him or 
shows that there was a clear injustice.  In fact, the record shows the applicant admitted 
to the offense.  The Law Enforcement Reports (LERs) shows there was credible 
information regarding the applicant's involvement in the alleged offense. Furthermore, 
the Board found insufficient evidence to support the applicant’s and his counsel 
contentions for correction of the Defense Clearance and Investigations Index (DCII) and 
National Crime Information Center (NCIC) databases to reflect the applicant is not titled 
for the above offenses or any other offense related to the subject LER, 13 December 
2016.  As a result, he was properly titled.  The Board denied relief.

3.  Titling or indexing on CID reports does not denote any degree of guilt or innocence.  
If there is a reason to investigate, the subject of the investigation should be titled.  This 
is a very low standard of proof, requiring only the merest scintilla of evidence far below 
the burdens of proof normally borne by the government in criminal cases (beyond a 
reasonable doubt), in adverse administrative decisions (preponderance of evidence), 
and in searches (probable cause).


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	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.


	 
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.  Department of Defense (DOD) Instruction 5505.07, 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 DCII 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 
that 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.

2.  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//
ABCMR Record of Proceedings (cont)	AR20220011586


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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