IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220003232 APPLICANT REQUESTS: * removal of his name from the title and subject blocks of U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) – Final, 31 October 2008 * expungement of the CID ROI, 31 October 2008, from CID databases, Department of Defense Central Index of Investigation (DCII), and all other federal agency criminal databases 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) * Self-authored Memorandum (Removal of CID ROI Due to Lack of Probable Cause and Subsequent Injustice), 9 March 2022, with enclosures – * Enclosure 1 – House of Representatives 6395 – Public Law 116-283 (known and cited as the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021), Section 545 (complete copy) * Enclosure 2 – CID ROI, 31 October 2008 * Enclosure 3 – CID and U.S. Army Crime Records Center Letter, 18 August 2021, with auxiliary documents * Enclosure 4 – Counsel's Memorandum ((Applicant) Response to Statement of Reasons and the Suspension of his Top-Secret Clearance), 1 September 2009 * Enclosure 5 – U.S. Army Human Resources Command (HRC) Memorandum (Delay of Promotion and Referral to a Promotion Review Board (PRB)), 24 October 2018 * Enclosure 6 – DA Form 268 (Report to Suspend Favorable Personnel Action (Flag)), 20 June 2019 * Enclosure 7 – Secretary of the Army Memorandum (PRB RP1902-22, FY18 Lieutenant Colonel (LTC), Army Reserve Non-Active Guard Reserve, Army Promotion List Competitive Category, Promotion Selection Board), 18 June 2019 * Enclosure 8 – HRC Email (Command Review Board (CRB) Notification), 8 November 2021 * Enclosure 9 – HRC Memorandum (CRB Notification), 8 November 2021 * Enclosure 10 – Department of Defense (DOD) 7000.14-R (Financial Management Regulation), Chapter 25 (Claims against the Government (Includes Questionable and Fraudulent Claims)) * Enclosure 11 – Commander, Headquarters, U.S. Army Garrison, Fort Myer, Memorandum (Recommendation on Action for (Applicant)), 9 April 2019 with auxiliary documents * Enclosure 12 – Commander, Headquarters Company, Fort Myer, Email (Uniform Code of Military Justice (UCMJ) Action), 29 April 2009 * Enclosure 13 – DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 23 June 2009 * Enclosure 14 – Army Regulation 11-7 (Internal Review Program), 29 March 2017 (complete copy) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The Army CID opened an erroneous case against him. Although the matter was resolved with a finding of no misconduct, the titling decision declares that CID had probable cause to suspect criminal behavior. They did not. Although he was completely exonerated and it was found that no criminal offense had occurred or that probable cause existed, the mere existence of this titling decision has resulted in negative discrimination for command selection and promotion opportunities, which has negatively impacted his Army career. b. He requested that CID remove the titling decision from his file in accordance with DOD Instruction (DODI) 5505.7, paragraph 4.b(2). CID denied his request. Congress has recognized that this act of titling a person in a criminal database implies criminality even when none exists, and such records are considered derogatory information. In the NDAA for FY21, section 545, Congress mandated that no later than 1 October 2021, DOD would create a policy and process by which a titled person's name or record may be expunged. The conditions for expungement would include whether probable cause existed for the offense to have actually occurred, for the titled person to have committed the offense, and other circumstances as Secretary of Defense may specify. Considerations include extent or lack of corroborating evidence, whether adverse action was taken for the alleged offense, and the type of any such action. Although his case meets the standard and intent of Congress for expungement, DOD has failed to implement the above requirements from the NDAA for FY21, section 545, as of 9 March 2022. As CID has refused his request to remove the record, he has exhausted all other avenues, leaving the ABCMR as the only current remedy to right this injustice (see his self-authored memorandum, 9 March 2022). 3. Following prior enlisted service in the Regular Army, the Hawaii Army National Guard (HIARNG), and graduating from the Officer Candidate School, he was appointed as a Reserve commissioned officer in the HIARNG as a military intelligence officer. He executed an oath of office in the rank/grade of second lieutenant/O-1 on 22 June 1997. 4. He was subsequently separated from the ARNG and transferred to the U.S. Army Reserve Individual Ready Reserve effective 7 December 1999. He was promoted to the rank/grade of captain (CPT)/O-3 effective 24 May 2004. 5. The CID ROI (Final), 31 October 2008, shows the Fort Myer CID Office was notified on 30 September 2008 by the Office of Internal Review, Arlington, VA, that the applicant may have submitted leases and lodging receipts which appeared to be fraudulent. a. The investigation determined the applicant committed the offenses of false official statement, larceny, fraud, and wire fraud when he submitted travel voucher settlement packets claiming he resided in Reno, NV, in order to become eligible for lodging or per diem. The investigation also determined the applicant has resided continuously in Arlington, VA, since March 2005. b. The total loss to the U.S. Government was $37,878.78. 6. Counsel's memorandum ((Applicant) Response to Statement of Reasons and the Suspension of his Top-Secret Clearance), 1 September 2009, addressed the allegations of the applicant's submission of a fraudulent travel voucher and opined that the CID allegations rested on the false and poorly researched assumption of the applicant's residence. He noted the Military District of Washington Office of the Staff Judge Advocate reviewed the allegations and found them to be unfounded, and referred it to his chain of command who concluded no misconduct was found and took no adverse action. 7. The Headquarters, U.S. Army Garrison, Fort Myer, memorandum (Recommendation on Action for (Applicant)), 9 April 2019, with auxiliary documents notes that based on the nature of the case and in consultation with the trial counsel assigned to the case, the commander recommended taking no action against the applicant based on the evidence. 8. The email from the Commander, Headquarters Company, Fort Myer (UCMJ Action), 29 April 2009, notes a review of the facts pertaining to the CID investigation determined there was no misconduct on the applicant's part. As a result, the suspension of favorable personnel actions flag initiated on 15 December 2008 would be removed. 9. The DA Form 4833, 23 June 2009, lists the applicant as the subject. a. Item 11a (Offense(s)) lists the applicant for three offenses of the UCMJ. The commander took no action with the explanation entered as: "SM [service member] was cleared." b. Item 15 (Remarks) contains the following entry: "CID reported findings. Through further investigation and recommendations from the Staff Judge Advocate Office, in particular CPT CPT and CPT the command found that 'No Action' would be brought against [Applicant]." 10. He was promoted to the rank/grade of major/O-4 effective 20 August 2011. 11. The HRC memorandum to the applicant (Delay of Promotion and Referral to a PRB), 24 October 2018, noted the FY18 Reserve Component, Army Reserve Non- Active Guard Reserve, LTC, Army Promotion List, Promotion Selection Board, which convened on 30 January 2018, recommended him for promotion to LTC. a. In accordance with applicable regulatory guidance, a post selection screening noted he received a CID ROI, 31 October 2008. As a result, his records would be referred to a PRB which would recommend one or more of the following to the Secretary of the Army: * that he be retained on the promotion list * that his name be removed from the promotion list * that he show cause for retention on active duty b. He was given 30 days to submit a rebuttal, a flag would be imposed, and he had to sign an acknowledgement receipt with the intent to rebut or decline promotion. (Note: An acknowledgement receipt was provided but was not completed.) 12. The Secretary of the Army memorandum (PRB RP1902-22, FY18 LTC, Army Reserve Non-Active Guard Reserve, Army Promotion List Competitive Category, Promotion Selection Board), 18 June 2019, retained him on the recommended promotion list. 13. The DA Form 268, 20 June 2019, shows HRC removed the flagging action against him by reason of erroneous action. 14. HRC Orders B-08-905476, 19 August 2019, promoted him to LTC effective 19 August 2018 by a special board adjourned on 18 June 2019. 15. The CID and U.S. Army Crime Records Center letter, 18 August 2021, with auxiliary documents responded to his request to remove his name from the titling block of the CID ROI, 31 October 2008. After review and consideration of his request and the available evidence, CID denied his request. The auxiliary documents, including a CID legal review of his request, noted that probable cause existed to believe he committed the offenses noted in the ROI (see attachments). 16. The HRC email (CRB Notification), 8 November 2021, notified him that he was selected for command and his selection was referred to a CRB as the result of a CID ROI that was found during the post-board screening process. It noted that before approving all officers selected for command, the Chief of the Army Reserve must certify exemplary conduct for each selection he approves. 17. The HRC memorandum to the applicant (CRB Notification), 8 November 2021, noted the Calendar Year 2021 U.S. Army Reserve, LTC, Troop Program Unit, Command Board, which convened on 2 June 2021, selected him for command; however, he was being referred to a CRB as a result of the post-board screening process. a. This was the result of the CID ROI, 31 October 2008. As a result, his records would be referred to a CRB which will recommend to the Chief, Army Reserve, one or more of the following actions: * that he be retained on the command selection list * that his name be removed from the command selection list * that he show cause for retention on the Reserve Active Status List b. He was given 14 days to submit a rebuttal, a flag would be imposed, and he had to sign an acknowledgement receipt with the intent to rebut or decline command. (Note: An acknowledgement receipt was provided but was not completed.) 18. The Office of the Chief, Army Reserve, memorandum (CRB RC2201-04, Calendar Year 2022, U.S. Army Reserve, LTC, Command Selection List), 28 March 2022, retained him on the command selection list. 19. HRC Orders HR-2116-00027, 26 April 2022, ordered him to active duty for the purpose of contingency operations for active duty operational support in support of Operational Enduring Freedom – Continental United States Support Base with duty at Fort Belvoir, VA, with a reporting date of 13 June 2022 and an ending date of 4 July 2023. 20. He provided the following references in support of his application: a. DOD 7000.14-R (Financial Management Regulation), Chapter 25 (Claims against the Government (Includes Questionable and Fraudulent Claims)), which addresses definitions; determinations; and actions of false, fictitious, or fraudulent claims against the Government; b. Army Regulation 11-7 (Internal Review Program), 29 March 2017, which prescribes policies, roles, responsibilities, and standards of the Army Internal Review and Audit Compliance Program within the Department of the Army; and c. NDAA for FY21, section 545, which addresses removal of personally identifying and other information of certain persons from investigative reports, DCII, and other records and databases. This section required DOD to establish and maintain a policy and process pertaining to a covered person in those reports no later than 1 October 2021. 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 contentions, his military records, and regulatory guidance were carefully considered. The Board noted that an investigation determined the applicant committed the offenses of false official statement, larceny, fraud, and wire fraud when he submitted travel voucher settlement packets claiming he resided in Reno, NV, in order to become eligible for lodging or per diem. The investigation also determined the applicant has resided continuously in Arlington, VA, since March 2005. The total loss to the U.S. Government was $37,878.78. In the FY2021 NDAA Congress mandated that DOD would create a policy and process by which a titled person's name or record may be expunged. The conditions for expungement would include whether probable cause existed for the offense to have actually occurred, for the titled person to have committed the offense, and other circumstances as Secretary of Defense may specify. The Board further noted that the chain of command did not take any disciplinary action against him. Nevertheless, according to CID, probable cause did exist to title the applicant. The Board determined the applicant provided insufficient evidence to overcome the probable cause criteria that led CID to title him. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. 3. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. a. Paragraph 3-6a (Amendment of Records) states 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. 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. Requests to delete a person's name from the title block will be granted only if it is determined that there is no 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 subsequent judicial, nonjudicial, or administrative action is taken against the individual. b. Paragraph 4-7 (DA Form 4833) states this form is used with the Law Enforcement Record to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 4. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies for criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. a. Paragraph 4-4b (Amendment of CID Reports) provides that: (1) 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. (2) The burden of proof to substantiate the request rests with the individual. (3) 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. (4) 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. (5) 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. b. The glossary defines creditable information as information disclosed to or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to indicate that criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further the facts of the case to determine whether a criminal act occurred or may have occurred. 5. DOD Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by DOD. a. DOD components authorized to conduct criminal investigations 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. Titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. 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. b. If a subject's information requires expungement from or correction in the DCII, DOD components will remove the information as soon as possible. Judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. c. 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. A subject who believes they were incorrectly indexed may appeal to the DOD component head to obtain a review of the decision. DOD components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 6. Public Law 116-283 (known and cited as the NDAA for FY21), section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the DCII, and other Records and Databases), states 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, be corrected in, or expunged or otherwise removed from a law enforcement or criminal investigative report of the DCII, an index item or entry in the DCII, and any other record maintained in connection with a report of the DCII, in any system of records, records database, record center, or repository maintained by or on behalf of the Department. a. 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 or 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. b. Basis for Correction or Expungement. 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 of the DCII, in the following circumstances: (1) 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; (2) 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; and (3) 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 paragraphs (1) and (2). c. 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: (1) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (2) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (3) the type, nature, and outcome of any action described in paragraph (2) against the covered person. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003232 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1