IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220005907 APPLICANT REQUESTS: the Commanders Report of Disciplinary or Administrative Action (DA Form 4833) and Law Enforcement Report (LER) 00144-2019 [Number] be removed/expunged from their respective systems. In effect, she requests: * removal of her name from the title and subject blocks of U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) * expungement of the CID ROI, from CID databases, Department of Defense Central Index of Investigation (DCII) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Warrant of Arrest * Expungement Order * State Expungement Order Completion Notice * U.S. Army Criminal Investigation Command (CID) Denial Letter * DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) FACTS: 1. The applicant states the Commanders Report of Disciplinary or Administrative Action (DA Form 4833) and Law Enforcement Report (LER) 00144-2019 [Number] files are hindering her career progression and potential positions of trust. These two files are extremely unfair and biased towards her career progression and positions of trust she is constantly denied military schools due to her background. Even though these two files have been updated to demonstrate her innocence and an Expungement Order granted by Richmond Circuit Court, Commonwealth of Virginia. It is not enough for the USACID Director to remove this record at this time. She has exhausted her remedies to correct information contained in her USACID record through their agency. 2. Review of the applicant’s service records shows: a. The applicant has prior service in the U.S. Navy from July 2001 to September 2004. She enlisted in the Regular Army on 22 March 2005. b. She served through multiple reenlistments, in a variety of stateside and overseas/combat assignments, and she attained the rank of sergeant first class/E-7. c. She is currently continuing her active service. 3. On 31 July 2019, a Warrant for Arrest – Felony was issued by the State Juvenile and Domestic Relations District Court against the applicant for assault and battery. The warrant states that the victim stated that the accused drove her vehicle in reverse and ran over top of him dragging him under the vehicle from the driveway into the roadway. The altercation continued in the residence when the accused attempted to take his phone and tablet and attempted [to] choke him with his neck [worn] key chain. 4. The contested CID Report of Investigation is not available for review or provided by the applicant. Other evidence shows the applicant was titled by the U.S. Army Criminal Investigation Command on 31 July 2019 for Aggravated Assault and Domestic Violence. 5. The DA Form 5433 (Commander's Report of Disciplinary or Administrative Action) lists the Military Police Report Number [Number] and that CID referred the action to the applicant's chain of command on 7 August 2019. The Commander’s Remarks/Case History reads: a. On 24 August 2019, service member was founded not guilty of all charges. I've attached a copy of the official document. Please feel free to contact me if you have any question or concerns. b. On 25 March 2022 [Applicant] provided USACID an Expungement Order from Richmond Circuit Court, Commonwealth of Virginia. The Expungement Order from the State of Virginia orders that the police and court records, including electronic records, relating to Assault and Battery be expunged pursuant to subsection Virginia State law. c. Law Enforcement Reports are a federal investigative document, per Army Regulation 190-45, Law Enforcement Reporting. The LER is compiled and maintained for federal law enforcement purposes. Under these circumstances, the 14th Amendment declares Federal records are not subject to the order of a state court. d. The authenticating commander [Name Redacted] did not indicate if he/she took any action as of 28 October 2019. 6. On 18 November 2021, the State issued an Expungement Order after the charges of assault and battery had been dismissed. Additionally, on 14 September 2022, by letter, the State informed the applicant that pursuant to a properly submitted court order for the expungement of records, all criminal justice agencies identified as having had possession or received dissemination of the identified criminal history record information for the charges and dates identified, have indicated that such records have been expunged in accordance with the requirements of the Code of [State]. 7. She submitted a request to CID requesting the expungement of the Law Enforcement Report [Number] from her records. On 13 April 2022, CID informed the applicant in response to her request to expunge information from the files of the U.S. Army Criminal Investigation Division (USACID) that the DA Form 4833 pertaining to Law Enforcement Report (LER) is responsive to your request. After careful review and consideration by the Directorate of Emergency Services, Provost Marshal Office, Fort Lee, VA, on behalf of Director, USACID, the Access and Amendment Refusal Authority for Law Enforcement Reports (LERs)/Military Police Reports (MPRs), and in accordance with Army Regulation (AR) 190-45, her amendment request is partially granted. The Commanders Report of Disciplinary or Administrative Action (DA Form 4833) has been updated to reflect the Expungement Order from Circuit Court, pertaining to Law Enforcement Report (LER) [Number]. The information she provided does not constitute as new or relevant information needed to further amend the report; therefore, her amendment request is denied. a. This is a Federal investigative document compiled and maintained for law enforcement purposes. The determination to list an individual as a subject is based on investigative findings irrespective of the judicial, non-judicial or administrative action taken. b. USACID has reviewed the Expungement Order from Circuit Court, as provided by her. Pursuant to the Supremacy Clause of the 14th Amendment to the United States Constitution, Federal records are not subject to the order of a state court. c. This partial denial is made on behalf of the Director, USACID, the Initial Denial Authority for USACID records under the FOIA. She has the right to appeal to the Office of the Army General Counsel, the appellate authority. If she decides to appeal at this time, her appeal must be submitted within 90 days of the date of this letter. b. This letter constitutes a partial denial of your request, made on behalf of [Name] Commander, USACIDC, the Initial Denial Authority for USACIDC records. The applicant has the right to appeal to the Office of the Army General Counsel, the Army's appellate authority. His appeal regarding expunging the LAR must be submitted within 90 days of the date of this letter. c. She has exhausted her remedies to correct information contained in her USACIDC records through this agency. To appeal the amendment denial, she may apply to the ABCMR. 8. By regulation (AR 195-2), requests for amendment of a CID ROI 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, non-judicial, 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, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the response the applicant received from CID in which she received partial relief. The Army’s records now reflect the outcome of the case in question, which was expungement. The Board determined CID’s determination to grant partial relief was not in error or unjust and the evidence in this case does not support removal of her name from the title and subject blocks of the relevant CID ROI or any related relief. 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 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. 2. 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. 3. 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. 4. 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. 5. 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) AR20220005907 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1