IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220008012 APPLICANT REQUESTS: a. through counsel via remand by the U.S. Court of Federal Claims, reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20190013257, 27 January 2022, relating to the following: (1) voidance of his involuntary medical retirement, (2) amendment of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) to show the allegation was unfounded, (3) removal of his name from the title block of the Law Enforcement Report (LER) and expunction of the LER from all Army records systems, (3) voidance of his referral to a Promotion Review Board (PRB) as a result of the titling and indexing related to the LER, and (4) consideration for promotion to the rank/grade of colonel (COL)/O-6 by a special selection board (SSB) with retroactive date of rank and military pay and allowances; b. any other relief the ABCMR considers just, fair, and appropriate under the circumstances to make him whole to the fullest extent possible under the law, including back pay, benefits, allowances commensurate with his length of service and rank, and earned attorney’s fees; and c. a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Counsel's Letter to the ABCMR Regarding Board for Correction of Naval (sic) Records Petition, (Applicant), 18 October 2022, with three enclosures: * Enclosure 1 – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section1552) * Enclosure 2 – Counsel's Petition to the ABCMR, with six exhibits – * Exhibit 1 – Previous Petition to ABCMR, 21 October 2019 * Exhibit 2 – Photograph of Soldiers with Cake * Exhibit 3 – Fiscal Year 2016 Reserve Component Colonel (COL), Army Medical Department, Promotion Selection Board Release, 29 June 2016 * Exhibit 4 – ABCMR Decision, 5 May 2022 * Exhibit 5 – Counsel's Letter to the U.S. Army Crime Records Center (Petition to Remove Name from Subject Block ("Titling") (Applicant)), 8 February 2019 * Exhibit 6 – U.S. Army Criminal Investigation Command (CID) Letter, 1 April 2019 * Enclosure 3 – Compact Disc (consisting of the cover letter, DD Form 149, ABCMR petition, and the six exhibits) * U.S. Court of Federal Claims Letter, 2 September 2022, with Court Order, 1 September 2022 * Counsel's Supplemental Submission, 17 December 2022 * Compact Disc, unreadable FACTS: 1. The applicant states: a. He respectfully seeks the following relief: (1) voidance of his medical retirement and consideration for promotion to the rank/grade of COL/O-6, with retroactive date of rank and military pay and allowances; (2) voidance of his PRB referral as a result of the titling and indexing related to the LER; (3) expunction of the CID ROI from his records to allow consideration for promotion by an SSB if he is not selected by his regular promotion consideration board; (4) removal of his titling an indexing concerning the allegation referenced in the CID ROI; (5) amendment of the LER to indicate the allegation was unfounded; and (6) any other relief the ABCMR considers just, fair, and appropriate under the circumstances to make him whole to the fullest extent possible under the law, including back pay, benefits, and allowances commensurate with his length of service and rank, and earned attorney's fees. b. The corrections should be made because there is no credible information to conclude he should have been titled in 2000. In addition, after he was selected for promotion to the rank/grade of COL/O-6, he was erroneously referred to the PRB and flagged. Instead of completing the PRB process, he was wrongfully retired even though he was flagged. 2. Counsel's 31-page petition states: a. The applicant demonstrates that the ABCMR failed to properly consider his evidence and arguments and it failed to address the new legal requirements listed in the National Defense Authorization Act for Fiscal Year 2021. b. The fundamental errors and injustices in this case are that the applicant has been erroneously titled and indexed in the 2000 CID investigation. The titling and indexing was based on a completely unsubstantiated allegation lacking probable cause and credible information. Outside of the allegation, there is no corroborating evidence of any kind. This included witness statements indicating the applicant was participating with his platoon many miles away that needed him to be present and qualified on military tasks to deploy, and that he always wore his battle dress uniform between approximately 0500 hours and 2200 hours between 14 July 2000 and 28 July 2000. c. Following the wrongful and unjust titling, the applicant continued to serve faithfully and honorably in the Army; he deployed, he received excellent evaluations, and he continued to be promoted. He was promoted to the rank/grade of major/O-4 in 2005 and he was promoted to the rank/grade of lieutenant colonel/O-5 in 2011. d. In 2016, he was eligible for consideration for promotion to the rank/grade of COL/O-6 by the Fiscal Year 2016, Army Reserve, COL, Army Medical Department, Promotion Board. Once he was selected for promotion, he was flagged and notified that his promotion would be delayed because of the 2000 CID investigation. As he waited for the outcome of his PRB, the Army medically retired him in 2016. He subsequently learned that his promotion consideration proceedings were closed without deciding to promote him or remove him from the promotion list in 2017. e. Counsel further states: (1) The statement of facts include: * the applicant's Fort Leonard Wood, MO, Pre-Deployment Training * the 6 September 2000 allegation * the applicant's medical issues * the 2016 PRB (2) Legal arguments, to include: (a) the 2000 titling was erroneous because there was no credible information to support the allegation, (b) consistent with the National Defense Authorization Act 2021, the applicant's personally identifiable information must be removed from the CID LER. There is no evidence supporting this allegation; no administrative, disciplinary, or judicial action was taken and no probable cause existed to believe the allegation; (c) the CID and ABCMR improperly ignored the applicant's evidence and arguments and applied incorrect legal standards of review; (d) consistent with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18 (Removal from a Promotion List), the applicant's name should not have been removed from the promotion list; and (e) the applicant should not have been retired while he was flagged. 3. The U.S. Army Reserve Personnel Command memorandum (Promotion as a Reserve Commissioned Officer of the Army), 25 July 2000, promoted the applicant to the rank/grade of captain/O-3 effective 25 June 2000. 4. The CID memorandum (CID ROI – Final), 26 October 2000, shows the applicant as the named subject in violation of Article 134 (Indecent Assault), Uniform Code of Military Justice (UCMJ). a. The investigative summary states Private First Class (PFC) notified the 6th Military Police Group (CID), Fort Leonard Wood, MO, that she was indecently assaulted by an unknown male inside the Community Service Center at about 0930 hours, 6 September 2000. The investigation established probable cause to believe the applicant committed the offense of indecent assault when he pinned PFC against the wall and rubbed his body against hers without her consent. b. The exhibits/substantiation attached show: (1) The Agent's Investigation Report, 18 October 2000, details receipt of the initial complaint, interview with PFC unit coordination which lead to the applicant being identified as the perpetrator, crime scene examination, and coordination with the Office of the Staff Judge Advocate. (2) PFC sworn statement, 6 September 2000, stated that while walking up the stairwell inside the Community Service Center, an unidentified white male wearing civilian clothes approached her, pinned her arms against the wall, and began rubbing his body against her. (3) PFC used the unit photograph of personnel from the applicant's unit to identify him as the person who assaulted her. 5. On 21 December 2000, the Commanding General, Headquarters, 1st Armored Division, reprimanded the applicant in writing for improper conduct toward a junior enlisted female Soldier at Fort Leonard Wood, MO, wherein he stated: a. On 18 July 2000, the applicant stopped PFC at a unit Soldier Readiness Process (SRP) and asked her about the installation dating policy for officer and enlisted Soldiers. She told him Army policy prohibited dating between officers and enlisted Soldiers. He later called and visited her at her place of duty. On 24 July 2000, he met her in the stairwell at her office building and indecently assaulted her without her consent. Later that day, he stood outside her house for about 10 minutes. Finally, on 23 August 2000, he called her at work and verbally degraded her for not agreeing to date him. b. He is imposing this reprimand as an administrative measure and not as punishment under Article 15, UCMJ. Before he makes a filing decision, he will consider the recommendation of the applicant's chain of command and any matters he wished to submit. 6. The applicant's memorandum (Decision on Memorandum of Reprimand), 10 January 2000, states: a. He is requesting withdrawal of the letter of reprimand. The only evidence to support the assault allegation against him is the accuser, PFC . Attached is additional evidence to show he could not have been at her quarters on 24 July 2000. PFC claims that an unknown officer in civilian clothes assaulted her in her stairwell at Fort Leonard Wood, MO, during the afternoon of 24 July 2000 and that later around 1700 hours through 1730 hours, she saw him pacing around in her front yard. On 24 July 2000, he was at Fort Leonard Wood, but he was attending training from 1300 hours through 1700 hours in his battle dress uniform as the attached training schedule indicates. From 1700 hours to 1800 hours, he was at chow at the dining facility. An hour later, he had section training until 2200 hours. The attached statements from his senior officers show he was, in fact, at his scheduled place of duty in the required uniform at all times throughout their training. Based on this additional evidence, it is clear that he was not the officer who allegedly assaulted PFC . b. PFC claim that he came into her office on 19 July 2021 is similarly disproved. As both the training schedule and the attached statements show, he was in the field all day performing common task training in his battle dress uniform. Besides, he has no idea what building she worked in or where her office is. c. His unit's training schedule shows their SRP was on 18 July 2000. He was at his scheduled place of duty and did meet PFC at the event. She approached him and they discussed Army Physical Fitness Test scores and she offered to show him around the post gymnasium. He never did meet PFC at the gym because of his busy training schedule. He did not call her on 23 August 2000 and verbally degrade her. d. On 18 July 2000, PFC offered to show him around the post gymnasium and he should have declined immediately. Instead, he finds himself falsely accused of assaulting her. The training schedule and the attached affidavits show he was not where PFC says he was. He realizes now that he should never have spoken to PFC . He pleads not to allow this single event to place such a serious letter of reprimand in his Army Military Human Resource Record (AMHRR). 7. The Headquarters, 1st Armored Division, memorandum from the commanding general (Memorandum of Reprimand), 12 February 2001, states that having reviewed the GOMOR, the chain of command recommendations, and all matters submitted, he directed rescission of the GOMOR and its return to the chain of command. (Note: the GOMOR is not filed in the applicant's AMHRR.) 8. The applicant's records contain his DA Form 199 (Informal Physical Evaluation Board Proceedings), 10 June 2016, showing he was serving in the U.S. Army Reserve on active duty when the physical evaluation board found him physically unfit and recommended his permanent disability retirement and a disability rating of 100 percent. Section IX (Soldier's Election) shows the applicant marked: "I concur and waive a formal hearing of my case." He signed the DA Form 199 on 27 June 2016. 9. The Fiscal Year 2016 Reserve Component, COL, Army Medical Department, Promotion Selection Board Release, 29 June 2016, shows the applicant was selected for promotion to the rank/grade of COL/O-6. 10. The U.S. Army Human Resources Command memorandum (Delay of Promotion and Referral to the PRB) is not in evidence. 11. His memorandum (Rebuttal to Delay of Promotion and Referral to the PRB), 16 September 2016, states: a. He respectfully requests reconsideration to remain on the COL Promotion List. The CID investigation stems from a false allegation made against him 16 years ago while he was attending a pre-deployment training exercise at Fort Leonard Wood, MO, in July 2000. The investigation was initiated by a single complaint, and after months of investigation, the only evidence against him was an uncorroborated accusation. The case was closed without any action being taken. b. It has been16 years and these allegations still have no merit. The accuser claimed that he grabbed her arms in a stairwell sometime on the afternoon of 24 July 2000 at Fort Leonard Wood, MO. This claim is simply not true, as he was attending training from 1300 to 1700, followed by dinner at the dining facility from 1700 to 1800 with section training until 2200, as indicated by his unit's training schedule. c. Several sworn statements from senior officers of his unit attest to him attending the unit's training. d. He wore his battle dress uniform throughout the training as supported by the training schedule. The person who claimed to have been grabbed by him claimed that her assailant was wearing civilian clothes. It would have been impossible for him to leave training, change into civilian clothes, travel several miles to Building 470 (where the grabbing allegedly took place), change back into his battle dress uniform, and return to training, all without being noticed by his Soldiers or other personnel. e. After the allegation was made, CID opened an investigation. As a result of the allegation, he was issued a GOMOR on 21 December 2000. Upon receiving the GOMOR, he submitted the very same rebuttal matter before this PRB. On 24 January 2001, CID closed the investigation without taking action. Finally, after reviewing his rebuttal materials, the issuing authority rescinded the GOMOR on 12 February 2001. Nearly 16 years ago, the issuing authority determined the allegation was false, and he respectfully requests this PRB now do the same and recommend to the Secretary of the Army his retention on the promotion list. f. This allegation completely contradicts his Christian values and Army character. His true character of service is reflected in his nine statement of support. He describes his personal history, military history, and his civilian occupation as a pharmacist. 12. He retired on 28 September 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – Lieutenant Colonel * item 4b (Pay Grade) – O-5 * item 12c (Net Active Service This Period) – 1 year, 11 months, and 13 days * item 12d (Total Prior Active Service) – 4 years, 8 months, and 15 days * item 12e (Total Prior Inactive Service) – 20 years, 8 months, and 15 days * item 23 (Type of Separation) – Retirement * item 28 (Narrative Reason for Separation) – Disability, Permanent 13. On 8 February 2019, the applicant, through counsel, petitioned the CID to remove his name from the subject block of the CID ROI. 14. The 6th Military Police Group (CID) memorandum from a special agent (FA 19-1528 – Request for Amendment of Record – (Applicant)), 28 February 2019, states he completed a review of the associated documents concerning the applicant's request to amend the offense of indecent assault listed within the title/subject block of ROI. The special agent further states: a. There was credible information to list the applicant in the subject block of the initial ROI for the offense of indecent assault based upon the victim interview. The victim felt the applicant called her work telephone on 18 July 2000 after she met him at the SRP. Then he showed up at her work unannounced on 19 July 2000. On 24 July 2000, the victim was indecently assaulted by the applicant. The victim did not know his name during the incident but knew his face from the initial time she met him at the SRP location 6 days earlier and at her work. b. The applicant invoked his legal rights and provided no statement to CID to consider during the conduct of the investigation. The trial counsel opined there was probable cause for the offense of indecent assault. 15. The CID memorandum from the attorney-advisor (Legal Review of Request for Amendment of Record – (Applicant)), 1 March 2019, states that based on the review of the ROI and appeal, he found no basis for granting his request for an amendment. There is credible information to support the titling decision. The attorney-advisor further states: a. In accordance with Department of Defense (DOD) Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), a person is titled as a subject in the ROI when there is credible information to believe that person may have committed the crime. Credible information is defined as "Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true." He found this standard has been met. b. The applicant was titled for violation of Article 34 (Indecent Assault, UCMJ) when he pinned a female Soldier against the wall and rubbed his body against her body. Based on the review of the ROI, he found that credible evidence did exist to title the applicant for the offense and the ROI contains sufficient evidence to support the titling decision. c. Credible information exists to believe the applicant committed the offenses he was titled for, and the wrong person's name was not entered into the title block as a result of mistaken identity. No new, relevant, or material facts were submitted in the appeal to warrant revision of the titling determination. 16. The CID memorandum from the special agent (Request for Amendment of Record – (Applicant)), 18 March 2019, states that based upon a review, the applicant was properly indexed as a subject, utilizing the credible information standard; therefore, the request for removal of his name should be denied. It is also the special agent's belief that the cited offense has an appropriate investigative finding based upon the legal opinions received; therefore, they should not be altered. The fact that the issuing authority of the GOMOR declined to take action against the applicant, citing reasonable doubt, has no bearing on this case. 17. The CID memorandum from the Chief, Polygraph Division (Legal Review of Request for Amendment of Record – (Applicant)), 26 March 2019, states: a. Credible information did exist at the time of this initial report to warrant titling the applicant as a subject in the referenced LER. The applicant has not provided any new, relevant information to support mistaken identity or that an error occurred in applying the credible information standard. b. The victim in the LER identified the applicant as the person who had unsolicited physical contact with her. Subsequent investigative efforts supported this identification. Based on the facts detailed within this investigation, it is the Polygraph Division Chief's opinion that there is sufficient evidence to meet the probable cause standard to support listing the applicant as a subject for the offense of indecent assault, as listed in the reference LER. 18. The CID letter, 1 April 2019, responded to counsel's request to correct information from the files of the CID and supplements their response on 26 February 2019. After a careful review and consideration of the request and the evidence available, CID denied the request to correct the ROI. Counsel was advised that the applicant has exhausted his remedies to correct information contained in his CID record through their agency and he may wish to write the Army Review Boards Agency to appeal this amendment denial. 19. On 11 July 2019, the applicant requested, through counsel: * removal of his name from the subject block of the CID ROI * removal of his name from all databases to which CID reported the tilting action * voidance of his referral to a PRB * placement of his name on a single-officer promotion scroll for Senate confirmation and Presidential appointment * retroactive award of all back pay and allowances from the date on which he otherwise would have been promoted 20. On 27 January 2022, the ABCMR determined relief was not warranted. Based on the available documentation, the CID legal review of credible evidence to support the titling decision, and the guidance found in Army Regulation 190-45 (Law Enforcement Reporting) and DOD Instruction 5505.7, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant's military records. The Board found that all policies and procedures followed were in line with due process and regulatory guidance. Therefore, the Board recommended denying all requested relief. 21. The U.S. Court of Federal Claims letter, 2 September 2022, states, on 1 September 2022, the judge entered an order in the referenced case remanding it to the ABCMR for further proceedings until 1 March 2023. The attached court order, 1 September 2022, ordered the ABCMR to complete its review on or before 1 March 2023. The ABCMR was directed to reconsider applicant's claims related to his retirement and take any administrative actions in furtherance and consistent with that reconsideration. In reconsideration applicant's claims, the Board may consider any additional information that it may gather during the remand in accordance with procedures that it may establish for that purpose, which includes submissions from applicant. BOARD DISCUSSION: 1. The Board finds that the applicant has failed to demonstrate by a preponderance of evidence that relief is warranted. Although applicant’s counsel’s submissions to the Board tend to repeat arguments and requests, the Board discerns that the applicant and his counsel request a) that a CID investigative report be expunged, and that the applicant’s name removed from the report’s titling block; b) that the decision to remove the applicant’s name from the 2018 Reserve Component Colonel Promotion be undone; and c) the applicant’s 2018 disability retirement be voided. For the following reasons, the Board finds that the applicant and his counsel have failed to demonstrate by a preponderance of evidence that any of these requests is meritorious. 2. The Board first considered the applicant’s request relative to the CID Report of Investigation and CID’s titling decision. In reviewing the evidence regarding the 2000 incident that occurred at Fort Leonard Wood, MO, the Board applied a probable cause standard. Section 545 of the NDAA for FY 2021 provides that NLT 1 October 2021 the Department of Defense was to have implemented policy and process through which an individual’s name and other information may be corrected, expunged, or removed from DOD (or DOD component) law enforcement or criminal investigative reports. Corrections, expungements, and / or removals are to be made if probable cause does not exist, or did not exist, to believe the individual committed the offense described in those documents and / or reports. Although the Board is unaware whether DOD has actually implemented the required “policy and process,” the Board, exercising its equitable authority, nevertheless applied the probable cause standard (as opposed to the credible information standard) because the probable cause standard is more favorable for the applicant, and because using the probable cause standard is consistent with Congress’s intent. Probable cause in this context may be defined as a reasonable belief that an offense chargeable under the Uniform Code of Military Justice (UCMJ) was committed and that the individual concerned committed it. Probable cause determinations should be made after considering the totality of the circumstances. Applying this standard to the available evidence indicates probable cause existed, and still exists, to believe the applicant applied unlawful force against PFC in a stairwell at Fort Leonard Wood, MO. In her sworn statement to CID, PFC states that a lieutenant being processed for pre-deployment readiness activities (aka Soldier Readiness Program (SRP)) spoke to her in a gym occupied by other deploying Soldiers and by Fort Leonard Wood personnel assisting those Soldiers. PFC claims the lieutenant inquired as to whether dating between officers and enlisted Soldiers was permitted at Fort Leonard Wood. PFC engaged in other small talk with the lieutenant, and the two parted ways. A few days later, PFC claims that the lieutenant visited her at her regular work location. She claims the lieutenant “came into my office in civilian clothes, I recognized him from the SRP and said hello.” Seven days after having first encountered the lieutenant at the gym, PFC again encountered the officer she met at the SRP. This time it was in a stairwell of a Fort Leonard Wood building. PFC claims “he stopped me and pinned my hands against the wall next to my head, and kept asking me why I wouldn’t go out with him.” PFC claims she felt very threatened, and that the assailant “rubbed his lower body against mine.” PFC later identified the assailant from a unit group photograph. Members of the applicant’s unit confirmed that individual she identified was the applicant. Based upon this and other evidence, CID titled the applicant for indecent assault. 3. The Board finds that PFC description of the assault against her satisfies the elements of the offense of indecent assault as that offense was defined by the UCMJ in 2000. More specifically, her account of what happened in the stairwell describes an offensive touching combined with an intent to gratify sexual desire under circumstances that are prejudicial to good order and discipline in the armed forces. Furthermore, the Board finds that sufficient evidence exists in the CID file to cause a reasonable belief that a UCMJ offense occurred, and that the applicant committed it. A non-exhaustive list of reasons why the Board finds probable cause exists in this case includes: a) the applicant’s admission that he inquired among Army attorneys as to whether he could lawfully date PFC) the evidence suggesting there was flirting between PFC and himself at the gym; c) the applicant’s tacit admission that PFC must have gotten a good look at him during their interaction at the gym; d) the seeming absence of any motive for PFC to fabricate the assault or to fabricate the identity of the assailant; and e) the absence of any intoxicants or other environmental factors (poor lighting, physical distance between the assailant and the victim) that might undermine PFC recollection of the facts. Overall, the Board finds that this and other evidence sufficiently satisfy the probable cause standard. 4. The Board makes no finding that the case against the applicant was proven beyond a reasonable doubt or in excess of any legal standard of proof other than probable cause. The Board is aware that the applicant marshalled evidence of an alibi suggesting he lacked opportunity to be physically present at that stairwell on that particular day due to his busy training schedule. But the Board members are cognizant that some Army training schedules are more rigorous than others. For instance, the applicant’s alibi defense would likely be more persuasive if the applicant were participating in Airborne, Air Assault, or Ranger training at the time. But it seems plausible to the Board members that the applicant might have had opportunities to return to the Fort Leonard Wood garrison area during training breaks. This is especially true given the applicant’s status as an officer. As an officer, the applicant probably had greater freedom of movement in this regard than junior enlisted Soldiers. Overall, the applicant’s evidence of alibi does not persuade the Board that probable cause is, or was, lacking in this case. 5. The applicant’s counsel argues that permitting PFC to identify the applicant from a military group photo is not a proper way for an assault victim to identify her assailant. The Board concurs that this method would likely not satisfy judicial criteria for a “photo lineup identification” if the identification were offered as prosecution evidence during a criminal trial. But when PFC identified the applicant from the photo, the investigation was still in its very early stages. The Board is unaware of any CID polices or procedures that prohibit this method of preliminary identification. Additionally, the Board finds it more than merely coincidental that the individual PFC identified in the photo also happened to be the individual who admits to inquiring among Army lawyers as to whether it was lawful for him to date her. 6. The applicant’s counsel frequently asserts that the Army “involuntarily” retired the applicant, and implies that this “involuntary retirement” action was part of a nefarious plot to discharge the applicant from the Army prior to the Army finalizing its decision about removing the applicant from the Colonel promotion list. The Board finds that the applicant and his counsel have not demonstrated by a preponderance of evidence that the applicant was separated from the Army “involuntarily.” Retiring an officer for disability with a 100% rating is a lengthy process that requires the officer’s cooperation throughout. The Board found no evidence that the applicant disputed or resisted the disability evaluation process. Indeed, the applicant’s DA 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows that the applicant concurred with the PEB’s assessment of 100% disability and waived a formal hearing of his case. Consequently, the Board finds no error or injustice regarding the applicant’s disability retirement. Moreover, the Board finds that the Army’s decision to pull the applicant’s name from the Colonel promotion list and its action to retire the applicant were, and remain, two distinct and independent events. Thus, even if the Board had decided to undo the CID titling decision and to expunge the documents related to the incident at Fort Leonard Wood, it would not have overturned the applicant’s disability retirement. Overall, the Board finds that the applicant has not demonstrated by a preponderance of evidence that error or injustice existed relative to his disability retirement, and the Board’s finding in this regard would not change even if the Board had determined a records correction was warranted relative to the CID investigation, the CID titling, and / or the Army’s decision to pull the applicant’s name from the Colonel promotion list. 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 may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of military human resources support operations. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support Active Component officer promotions. Chapter 7 (Promotion Review Boards) states a report of a selection board exists after a promotion board issues a signed board report. Paragraph 7-2 (Basis for Referral) states Headquarters Department of the Army will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. An officer may be referred to a PRB for the following reasons to include, other adverse information received by Headquarters, Department of the Army but not filed in the AMHRR, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 20 March 2012, established the Army Physical Disability Evaluation System. It set forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 6 September 2011, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 1-33 (Disposition through Medical Channels) stated disposition through medical channels takes precedence over administrative separation processing. When the medical treatment facility commander or attending medical officer determines that a Soldier being processed for administrative separation does not meet the medical fitness standards for retention, he/she will refer the Soldier to a medical evaluation board. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the result of the medical evaluation board. b. Paragraph 5-17 (Other Designated Physical or Mental Conditions) stated commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation. 5. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for 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 LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 6. 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 reports of investigation 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. 7. 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 the 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 Defense Central Index of Investigations (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. 8. DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), 21 July 2014, establishes policy, assigns responsibilities, and prescribes procedures for defense criminal investigative organizations and other DOD law enforcement organizations to report offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation for inclusion in the National Crime Information Center criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit the offender criminal history data for all members of the military service investigated for offenses, to include wrongful use of a controlled substance, to the Criminal Justice Information Services Division of the Federal Bureau of Investigation, as prescribed in this instruction and based on a probable cause standard determined in conjunction with the servicing staff judge advocate or other legal advisor. 9. The National Defense Authorization Act, Fiscal Year 2021, section 545 (Removal of Personally Identifying and Other Information of Certain Persons from Investigation Reports, the DCII of Investigations, 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. 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 subparagraphs (1) and (2). b. Considerations. While not dispositive as to the existence of a circumstance or basis set forth in subparagraph (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 subparagraph (2) against the covered person. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008012 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1