IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220004708 APPLICANT REQUESTS: in effect, removal of his name from the titling block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), 15 February 2008. 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) * Directorate of Human Resources, U.S. Army Garrison-Hawaii, Orders 036-0008, 5 February 2021 * Soldier Deployment History Outprocessing Report, 16 September 2021 * Federal Bureau of Investigation Identification Record, 17 December 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2022 * CID/U.S. Army Crime Records Center Letter, 8 March 2022, with enclosures – * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 14 April 2008 * CID ROI – Final/Serious and Sensitive Incident, 15 February 2008 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 the error that needs to be corrected in his military records is the record of wrongful disposition of Government property resulting in a nonjudicial action that occurred on 18 September 2007. a. He strongly believes his military records are in error or unjust simply because of the passage of time. The incident occurred over 15 years ago. His administrative action consisted of reduction in rank, a $1,227.00 fine, and 45 days of supervised extra duty. After successfully completing and meeting all of the required benchmarks, his punishment was permanently suspended. b. Injustice is defined as the fact of being unfair or the act of unfairness to another person. Rightfully, he was administered field-grade nonjudicial punishment for minor misconduct under Article 15, Uniform Code of Military Justice (UCMJ). The record of punishment states he must successfully serve his time under a probationary period and refrain from getting into any additional trouble. If he complied, then the administrative action would be successfully waived. After serving nearly two decades more, he obtained his Secret clearance, which paved his way to becoming a U.S. Army recruiter. He was able to renew his Secret clearance before retiring from the U.S. Army after 22 years of honorable military service. The larceny charge in his permanent official records has greatly prevented him from obtaining Government employment in the federal sector as a civilian. c. He believes the Board should find it in the interest of justice to consider his application, basically because of overall fairness based upon the facts and the people involved. He fully supports being punished for the situation that occurred, but appropriate to the scale of the action performed. He has shown ultimate grace for his actions. He is requesting expungement of the charge from his permanent record to secure future career opportunities in the federal and civilian sectors upon honorably retiring from the U.S. Army after 22 years of dedicated military service. 3. The CID ROI – Final/Serious and Sensitive Incident, 15 February 2008, shows an investigation was initiated on or between 11 and 12 September 2007 based on notification that a unit commander reported a 9-milimeter pistol was stolen from his unit. The investigation determined an unknown person(s) stole a Government-owned 9-milimeter pistol from a desk drawer in the unit supply office where it was left unsecured and unattended. The investigation determined the applicant committed the offense of willfully suffering military property to be lost when he signed for the pistol and left it unsecured in a desk drawer overnight. 4. The DA Form 4833, 14 April 2008, shows the applicant's commander indicated field- grade nonjudicial punishment was imposed against the applicant. His punishment consisted of reduction in rank/grade from staff sergeant/E-6 to sergeant/E-5 and forfeiture of $1227.00 for 2 months. Item 15 (Remarks) states: a. The applicant was charged with willfully suffering military property to be lost on or between 11 and 12 September 2007. b. His reduction in rank was suspended, to be automatically remitted if not vacated before 20 June 2008. c. It further referenced an attached DA Form 2627 (Record of Proceedings under Article 15, UCMJ); however, the DA Form 2627 was not attached or filed in his service records. 5. The Federal Bureau of Investigation Identification Record, 17 December 2021, shows the applicant has a charge for wrongful disposition of Government property on 18 September 2007. The charge was disposed of by field-grade nonjudicial punishment under Article 15, UCMJ, resulting in reduction in grade and forfeiture of pay. 6. On 31 January 2022, the applicant retired from active duty. 7. The CID/U.S. Army Crime Records Center letter to the applicant, 8 March 2022, denied the applicant's request to amend the CID ROI and stated requests to amend an ROI will only be granted if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. Information about career goals, exemplary changes in life, and similar justifications are not part of the criteria and are not considered. The information he provided did not constitute new or relevant information needed to amend the report. 8. The Army Review Boards Agency Case Management Division letter, 9 November 2022, provided him a copy of the sanitized military police report from CID. He was given 15 days from the date of the letter to submit comments on the report. The applicant did not respond. 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 CID conducted an investigation based on notification that a unit commander reported a 9-milimeter pistol was stolen from his unit. The investigation determined an unknown person(s) stole a government owned 9-milimeter pistol from a desk drawer in the unit supply office where it was left unsecured and unattended. The investigation determined the applicant committed the offense of willfully suffering military property to be lost when he signed for the pistol and left it unsecured in a desk drawer overnight. 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. 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 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 Defense Central Investigations Index (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 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// ABCMR Record of Proceedings (cont) AR20220004708 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1