IN THE CASE OF: BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220004106 APPLICANT REQUESTS: the record for Report of Investigation 124-2016-[Number] be completely expunged or changed to reflect “unfounded” for each of the allegations within. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * memorandum to the Board * memorandum to the U.S. Army Crime Records Center * Response from the U.S. Army Criminal Investigation Command * Law Enforcement Report FACTS: 1. The applicant states on 24 March 2022, he submitted a request to the US Army Crime Records Center (CRC) to either completely expunge or change the titling characterization of Report of Investigation (ROI) [Number]. CRC denied this request. This ROI is currently listed in the CRC database as “founded,” despite the case being dismissed in court and no action taken by his chain of command. he submitted a summary of events, the record of dismissal, the response from CRC confirming that no DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) was filed (confirming no action by the chain of command), and many examples of reasons behind why the case was dismissed, including his state residency in Washington at the time of the arrest, confirmation that the empty magazine he was carrying was not high capacity, confirmation of the remote location where he was arrested (indicating no public disturbance), and photos of the weapon in his possession after the Presidio of Monterey Police returned the rifle to me after the case. In 2020, a change in Army regulations opened all restricted records to Army promotion boards. As a result, he was referred to a Promotion Review Board for my promotion to Lieutenant Colonel in 2021 without knowing that this record would be considered beforehand. Although recently adjudicated favorably, this record will very likely continue to cause either further review boards or other negative repercussions for his Army career if not corrected. 2. In a separate statement, he states that ROI [Number] is a record of arrest from 6 February 2016, not an investigation report. The incident in question was a physical training road march that he was conducting in the former Fort Ord training area in California while wearing military uniform, military issued equipment, and carrying an old rifle that he inherited from his deceased father that closely resembled the "rubber ducks" carried during Army Special Operations selection events. He was arrested for "possession of assault rifle" and two other related charges. This case was resolved with a dismissal of all charges and no other action from his chain of command. He included the record of dismissal in the memorandum to CRC as well as the confirmation from CRC that no DA Form 4833 was filed, signifying that his chain of command did not deem this incident worthy of further investigation due to lack of probable cause. 3. Review of the applicant’s service records shows: a. He was appointed as a commissioned officer and executed an oath of office on 28 May 2005. He served in a variety of stateside or overseas assignments, including Iraq, Afghanistan, and Korea. b. The applicant was promoted to major in August 2015 and lieutenant colonel in March 2022. He is currently on active duty, and was assigned to Fort Benning, GA. 4. The U.S. Army Criminal Investigation Command Law Enforcement Report, dated 7 February 2016 shows: a. On 6 February 2016, at approximately 0728 hours, Police responded to the area of [Place] in reference to a 911 call for a man carrying a rifle. Police conducted a search of the area as well as the Fort Ord National Monument. The subject was later found at the intersection of [Place], carrying a Colt AR-15 rifle, with an unloaded high capacity magazine inserted into the magazine well. The subject was arrested for Possession of an unauthorized assault weapon, High capacity magazine and carrying a firearm not a handgun in an unincorporated area outside his vehicle. The subject was transported the Jail for housing. b. The investigation revealed the rifle was unloaded and the magazine capable of holding 20 rounds was also unloaded. The male was later identified by his State driver license as [Applicant]. He stated he was conducting a ruck march for his physical training. He stated the rifle was bequeathed to him when his father passed away in 2006 and did not know the laws in when he transferred here in July 2015 from State. The Colt AR-15 he was carrying was defined as an assault weapon per Penal Code. He said he did not know the rifle he was carrying was considered an assault rifle. Police also explained to him regarding carrying a firearm outside his vehicle as well as the high capacity magazine inserted in the rifle's magazine well. c. The applicant was arrested approximately 0843 hours for the following violations of Penal Codes: Possession of an unauthorized assault Weapon; the Colt AR-15 series is considered an assault weapon; High capacity magazine; and carrying a firearm not a handgun in an unincorporated area outside his vehicle. 5. He wrote to the CRC to expunge or amend Law Enforcement Report (LER) [Number] to reflect unfounded within the files of the USACID. On 9 December 2020, the Director of CRC wrote to the applicant in response to his request for release of information from the files of USACIDC. The enclosed RPI responded to his request. This letter constitutes a partial denial of his request, made on behalf of the Commanding General, USACIDC, the Initial Denial Authority for USACIDC records. 6. On 4 April 2022, the Director of CRC informed him that his request to expunge or amend LER [Number] to reflect unfounded within the files of the USACID was denied. The information he provided does not constitute as new or relevant information needed to amend the report; therefore, his amendment request is denied. The CRC recommended he reads over the responsive records previously provided to him and review the amendment criteria below to amend the aforementioned LER. He may request an amendment to the LER when such records are established as being inaccurate, as a matter of fact rather than judgment. It is emphasized that the conclusion reflected in the investigative summary is an investigative determination that is independent of whether judicial, non-judicial or administrative action was taken against the subject, or the results of such action. 7. By regulation (AR 190-45), the criteria for reporting an individual in the subject block was based upon credible information to believe the individual committed the offense. Requests for amendment of such records are processed under the provisions of paragraph 3-6a, which provides, in part: An amendment of record 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. For example, a request to remove an individual's name as the subject of an LER would be proper providing credible evidence was presented to substantiate that a criminal offense was not committed or did not occur as reported. Expungement of a subject’s name from a record because the commander took no action, or the prosecutor elected not to prosecute will not be approved. In compliance with DOD policy [DODI 5505.7, paragraph 6], an individual will still remain entered in the Defense Clearance and Investigations Index (DCII) to track all reports of investigations. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows credible information existed to conduct an investigation. The investigation determined the charges of the offenses were founded. The applicant had violated certain laws when he was arrested for possession of an unauthorized assault weapon and carrying a firearm not a handgun in an unincorporated area outside his vehicle. By law and regulation, 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, in order to administratively remove a titling action from CID records, the individual must show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. A review of all the information provided shows that a trained investigator determined there was credible information to conduct an investigation and determined the charges of the offenses were founded. 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. 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. 2. 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. 3. 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. 4. 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) AR20220004106 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1