IN THE CASE OF:  BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220009805 


APPLICANT REQUESTS: through counsel: 

•expunction of the U.S. Army Criminal Investigation Command (CID) LawEnforcement Report (LER) – Final, 5 September 2011, and allied documentsfrom CID databases and the National Crime Information Center (NCIC) database

•amendment of the LER, 5 September 2011, to unfound the offenses of sexualassault, abusive sexual contact, aggravated assault, assault, and cruelty andmaltreatment, and removal of her name from the title and/or subject blocks

•a personal appearance hearing before the Board



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

•Counsel's Letter to the Board (Supplemental Statement of (Applicant)), 7 June2022 (9 pages), with tabs –



•Tab A –




•Privacy Act Request, 22 July 2016 with identification documents

•U.S. Army Criminal Investigation Command (CID)/U.S. Army Crime RecordsCenter (CRC) Letter, 19 December 2016

•DA Form 3975 (Military Police Report), 5 September 2011 (14 pages)




•Tab B –



•Counsel's Letter to Director, CRC, 28 January 2017, with DA Form 3975,5 September 2011

•Copy of Title 18, U.S. Code, Section 3509 (Child Victims' and ChildWitnesses' Rights)

•Excerpt from Army Regulation 195-2 (Criminal Investigation Activities), 9 June2014, paragraphs 4-4 and 5-5

•Requests for Amendment of CID Records Information Sheet




•Tab C –



•CID/CRC Letter, 28 February 2017

•CID/CRC Letter, 8 March 2017




•Tab D –




•Counsel's Letter to Director, CID/CRC (Appeal of CID Denial of AmendmentRequest (Applicant)), 21 March 2017

•CID/CRC Letter, 31 March 2017

•Counsel's Letter to Department of the Army (DA) Freedom of Information(FOI) and Privacy Office, Privacy Review Board (PRB) (Status Update –Privacy Act Appeal (Applicant)), 15 November 2017 with auxiliary document

•Counsel's Letter to DA FOI/Privacy Office, PRB (Status of Military PoliceReport), 19 October 2020, with auxiliary document

•Counsel's Letter to DA FOI/Privacy Office, PRB (Status of Military PoliceReport), 24 November 2020, with auxiliary document

•Counsel's Letter to DA FOI/Privacy Office, PRB (Status of Military PoliceReport), 13 October 2021

•U.S. Postal Service Certified Mail Receipt




•Tab E – House of Representatives 6395-226 (also known as the NationalDefense Authorization Act (NDAA) for Fiscal Year 2021 (FY21), Section 545



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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant defers to counsel.

3.Counsel states:

a.The applicant requests:

(1)amendment of Military Police Reports (MPR) and the CID Report ofInvestigation (ROI), and any residual and/or affiliated titling actions for the offenses of sexual assault, abusive sexual contact, aggravated assault, assault, and cruelty and maltreatment were unfounded and noted as unfounded offenses where no probable cause existed to believe these offenses were committed. She should not be titled for these offenses; 
(2)correction of the Defense Central Index of Investigation (DCII) and NCICdatabases to reflect that she is not titled for the above-listed offenses or any other offense related to the subject law enforcement report; 

(3)expedited treatment of this petition for the reasons set forth below; and

(4)any other relief that is equitable and just.

b.This case has a protracted procedural history as noted by:

(1)On or about 19 December 2016, CID responded to the applicant'sFOI/Privacy Act Appeal request with the materials (see tab A). 

(2)On or about 28 January 2017, the applicant, through counsel, submitted atitling removal request to CID (see tab B). 

(3)On 8 March 2017, CID denied the applicant's titling removal request anddirected her to submit any appeal to the Army PRB (see tab C). 

(4)Through counsel, the applicant appealed and submitted appeals to theaddress provided in the CID denial document. She submitted her appeal on 21 March 2017 and made no less than four follow-up inquiries based on the Government's complete failure to respond. The original appeal and the four follow-ups (15 November 2017, 19 October 2020, 24 November 2020, and 13 October 2021) were mailed to the correct address and received as evidenced by a certified mail receipt (see tab D). 

c.It is their belief that the failure to respond to the applicant's 21 March 2021 appealand follow-ups constitute an exhaustion of other administrative remedies and denial of that appeal. 

d.Background. The applicant was titled for child neglect (Title 18, U.S. Code,section 3509). She requested removal of her name to CID on or about 28 January 2017 and was denied on or about 8 March 2017. As instructed, she appealed to the PRB, but her appeal was never acted upon. Therefore, they request review of the documents by the ABCMR in conjunction with the requested relief. 

e.Discussion.

(1)While the applicant is entitled to the requested relief based on the old titlingstandard, it is important to note that the standards for titling an individual with a crime in the military has recently changed to be more restrictive of when subjects of investigations should be titled. At the time of the titling action, the old standard of "credible information" was the standard to determine whether a titling action was appropriate. That standard has since been increased to a higher standard of "probable cause." 

(2)The Old Standard. It is first helpful to review what the old standard (credibleinformation) so as to better understand how the standard has changed. 

(a)Department of Defense (DOD) Instruction (DODI) 5505.07 (Titling andIndexing of Subjects of Criminal Investigations in the DOD), 28 February 2018, governs appeal and removal of a subject's name from the titling block of an investigation. That instruction has not yet been updated to reflect the new law, but an update is considered to be imminent based on the recent FY21 NDAA. 

(b)That instruction provides that DOD Component law enforcement "will title andindex subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense." 

(c)"Credible information" is defined as information disclosed or obtained by acriminal investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained criminal investigator to presume the fact or facts in question are true. 

(d)Removal of a subject from a titling block or amendment to a titling decisionwas not authorized "unless there is mistaken identity, or it is later determined no credible information existed at the time of titling and indexing." 

(e)Upon appeal, the DODI required the following decision calculous: "Whenreviewing 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." 

(f)Army Regulation 195-2 (Criminal Investigation Activities), paragraph 4-4(b),mirrors the standard articulated in the DODI and provides for the removal of a person's name from the titling block of an LER as follows: 

Requests to amend or unfound offenses in CID LERs 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 subject block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled. 

(g)This regulation has not yet been updated to meet the changed standards ofthe new law. 
(3)The New Standard. FY21 NDAA provides the following:

(a)Basis for Correction or Expungement. That the name, personally identifyinginformation, 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: 

(1)Probable cause did not or does not exist to believe the offense for which theperson'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 such offense occurred. 

(2)Probable cause did not or does not exist to believe the person actuallycommitted 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 the person actually committed such offense. 

(3)Such other circumstances, or on such other bases, as the Secretary mayspecify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs. 

(b)Considerations. While not dispositive as to the existence of a circumstanceor 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 personconcerned with respect to the offense at issue. 

(2)Whether adverse administrative, disciplinary, judicial, or other such actionwas initiated against the covered person for the offense at issue. 

(3)The type, nature, and outcome of any action described in subparagraphagainst the covered person. 

(4)The applicant's name must be removed from the titling block of the subjectMPRs and ROI for the offense of child neglect (Title 18, U.S. Code, section 3509) because probable cause did not and does not exist to conclude she committed that offense for the reasons set forth below. 

(5)The MPR did not contain a legal opinion prior to titling her. In light of the newstandard outlined in FY21 NDAA, and given the lack of a probable cause opinion regarding this offense prior to titling, she should never have been titled for the offenses in the first place. 

(6)There are several critical legal deficiencies on the face of this titling action.

(a)While the statue at issue (Title 18, U.S. Code, section 3509) does appear inthe U.S. Code, it is not a criminal statute. It contains definitions but does not contain punitive language. 

(b)Importantly, "child neglect" is not defined in the statute. Rather, "negligenttreatment" is defined. 

(c)The MPRs are devoid of any legal analysis or justification for lawenforcement's assertion that she committed the offense of child neglect. No competent authority ever conducted a legal analysis of the statute at issue in connection with the facts of this case. 

(d)The military police titled her without citing a punitive statute and without anyfacts to support the alleged statutory violation. This constitutes both a legal and factual deficiency with this titling action. 

(7)Here, the evidence shows that she did not engage in child neglect.

(a)There was no evidence of inadequate food, inadequate clothing, inadequatemedical care, or inadequate shelter. 

(b)Any nominal deficiency noted by the military police did not rise to the levelrequired to have "so as to seriously engager the physical health of the child" as contemplated by the statute, to the extent the cited statute even applies here. 

(c)The military police specifically noted that the "children appeared to be in goodspirits and not harmed in any way." 

(8)Considering the totality of the circumstances and in light of all availableevidence and considerations available in this case, there is nothing in the LER that makes it reasonable to conclude the applicant committed an act of "child neglect." 

(9)In light of the foregoing facts and law, law enforcement lacked probablecause at the time of titling to believe the applicant committed the offense of "child neglect." Accordingly, she is entitled to the requested relief. 

4.The applicant enlisted in the Regular Army on 8 February 2001.

5.Headquarters, III Corps and Fort Hood, Fort Hood, TX, Orders 099-0204, 9 April2002, reassigned the applicant to the U.S. Army Transition Center, Fort Hood, fortransition processing effective 12 April 2002. The orders noted she would be releasedfrom active duty and assigned to the U.S. Army Reserve Control Group (AnnualTraining) effective 12 April 2002. These orders were amended by Headquarters,III Corps and Fort Hood, TX, Orders 105-0208, 15 April 2002, changing her assignmentto the 94th General Hospital, Seagoville, TX, with the same effective date.

6.The applicant was honorably released from active duty in the rank/grade ofprivate first class/E-3 on 12 April 2002 and transferred to the 94th General Hospital byreason of pregnancy. Her DD Form 214 (Certificate of Release or Discharge from ActiveDuty) shows she completed 1 year, 2 months, and 5 days of net active service duringthis period.

7.U.S. Army Human Resources Command Orders D-01-901790, 27 January 2009,honorably discharged the applicant from the U.S. Army Reserve effective 27 January2009.

8.Section VII (Narrative) of the DA Form 3975, 5 September 2011, with auxiliarydocuments, shows the 502d Security Forces, Fort Sam Houston, TX, was notified andstated:

On 5 September 2011 at approximately 0027 this station was notified of the above offense by an anonymous caller. I was dispatched along with Officer [Redacted] to 5197-B R____ Circle for a possible child neglect call. 

Myself [sic] and [Redacted] responded to the location along with Officers [Redacted] knocked on the front door with negative results. [Redacted] and I conducted an exterior check of the house and a check of the back porch. the back exterior of the house was in disarray, there were several empty plastic containers and broken glass in the back. There were several interior lights on inside of the house, we departed the residence due to negative results at the front door. We were again dispatched to the residence in regard to the call. 

Upon returning to the house, Officer [Redacted] made contact with the neighbors at [redacted] they reported there were 2 children left unattended in the house. [Redacted] knocked on the front door again with negative results. [Redacted] and I checked the rear exterior of the house. I reported to [Redacted] that several of the interior house lights that were on during the initial visit to the residence were now turned off. There was still no answer at the front door or the back door. FM [family member] father of the children arrived on scene and stated that the children were alone in house. 

At approximately 0120 FMW [family member wife] [Applicant] arrived on scene with two of her children in her custody. We informed [Applicant] that we had received a report that there were 2 more children left unattended in the house. [Applicant] stated when first contacted that her two children where at a friends [sic] residence. [Applicant] refused to give us permission to enter the house to verify if there were more children in the house. [Applicant] again stated there were no other children in the house. [Applicant] began making a phone call, at which time Officer [Redacted] told her she would need to hang up the phone which she refused to comply with at that time. CPL [Corporal] [Redacted] requested that [Applicant] follow her to her patrol unit. [Redacted] spoke with [Applicant] and was able to obtain permission for us to enter the residence. Access was completed thru the garage were [sic] there was broken glass and animal feces on the floor. Upon entering the house there was thrash, spoiled food on the floors and counters. There was also ants crawling on the floor and the floors were sticky. 

The children appeared to be in good spirits and not harmed in any way. A SSG [Staff Sergeant] [Redacted] arrived at the house and stated she was here on behalf of [Applicant] to take care of the children. [Redacted] informed [Applicant] she would be placed under apprehension. [Redacted] placed [Applicant] in handcuffs, placed her in the patrol car and transported [Applicant] to the police station for further processing. SSG [Redacted] stated he would contact his chain of command and make a statement at the police station during the [redacted] then departed the area. The children remained at the house in the care of [Redacted] [Applicant] was advised of her rights which she invoked. [Applicant] was further processed and released on a DD Form 2705 [Notification to Victim/Witness of Prisoner Status] at approximately 0368 hours. Contact was made with child protective services who opined that [Applicant] could return to the quarters and take custody of her children. This is a final report. 

9.Counsel submitted a letter on the applicant's behalf to the Director, CRC, 28 January2017, requesting to amend the CRC document by unfounding the military police titling ofher for child neglect, which was founded on 5 September 2011, and deleting her namefrom the tilting block (see attachment).

10.The CID/CRC letter, 8 March 2017, responded to counsel's request on behalf of theapplicant to delete her name from the tilting block and stated the information theapplicant provided did not constitute as new or relevant information needed to amendthe report; therefore, her amendment request was denied. The letter further stated:

If [Applicant] disagrees with this amendment denial, she may appeal to the Department of the Army, Privacy Review Board. Her appeal must be made within 30 days of the date of this letter and should be forwarded to the Director, U.S. Army Crime Records Center, Attention: Freedom Information/Privacy Act Division, 27130 Telegraph Road, Quantico, Virginia 22134, for forwarding to the Review Board for action. 

11.Counsel submitted a letter on the applicant's behalf to the Director, CID/CRC,21 March 2017, appealing the CID/CRC denial decision stating there was no credibleevidence of a crime to support a tilting action.

12.The CID/CRC letter, 31 March 2017, responded to counsel, noting they receivedthe Privacy Act Appeal letter on 28 March 2017 and forwarded it to the DA FOI andPrivacy Office, PRB, Attention: JDRP-RDF, 7701 Telegraph Road, Suite 144,Alexandria, VA  22315-3915. The letter noted a reply from their office would beforthcoming.

13.Counsel submitted multiple letters on the applicant's behalf to the DA FOI andPrivacy Office, PRB, on 15 November 2017, 19 October 2020, 24 November 2020, and13 October 2021, requesting a response from their office regarding her appeal of theCRC denial.

14.The applicant, through counsel, submitted the following additional evidence:

a.a copy of Title 18, U.S. Code, section 3509 (Child Victims' and Child Witnesses'Rights), describing definitions, the process, of child victims' and child witnesses' rights. The following definition is highlighted by an arrow by counsel: "the term "negligent treatment" means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to seriously endanger the physical health of the child"; 

b.an excerpt from Army Regulation 195-2, 9 June 2014, paragraphs 4-4 and 5-5,describing the process for individuals to request access to or amendment of CID ROIs and CRC files and reports; 

c.an information sheet titled: "Requests for Amendment of CID Records," noting thedifferences in the criteria for reporting a person as the subject of an ROI and MPR from applying the probable cause standard to credible information prior to July 1992 and after July 1992. It notes the probable cause standard is retained to determine whether the offense is founded or unfounded; 

d.the CID/CRC letter, 28 February 2017, noting counsel's request to correctinformation from the files of CID are processed in chronological order based on receipt date; 

e.a U.S. Postal Service certified mail receipt showing an official at the PRB signedfor a package without a date of delivery but showing a delivery stamp of 19 October 2021; and 

f.FY21 NDAA, section 545 (Removal of Personally Identifying and OtherInformation of Certain Persons from Investigation Reports, the DCII, and Other Records and Databases), outlining the policy and process required by the Secretary of Defense in investigations and LERs. It also contains the elements to consider for correction or expungement and applicability. 

BOARD DISCUSSION: 

1.The applicant's request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

2.After reviewing the application, all supporting documents, and the evidence foundwithin the applicant's military records, the Board found that relief was not warranted.Counsel's and the applicant's contentions, the applicant's military records, andregulatory guidance were carefully considered.

a.The MP Report (DA Form 3975), dated 15 September 2011 shows the “offensedescription” as “child neglect.” The applicant was investigated for the charge of child neglect under Title 18, U.S. Code, section 3509. Counsel’s references to the offenses of sexual assault, abusive sexual contact, aggravated assault, assault, and cruelty and maltreatment appears to be in error. There is no evidence indicating she was titled for those offenses. Counsel appears to be extrapolating those offenses from the greater definitions of Title 18, U.S. Code, section 3509. The MPR narrative describes child neglect in the form of unsupervised children and unsanitary living conditions. The Board found no additional evidence to consider. 

b.It is unclear from the available record if the MPs consulted with the servicing SJAor if there was a legal opinion before the information was entered into the database; nevertheless, the MPs determined there was credible evidence that an offense may have been committed. Likewise, it is unclear if a determination was made whether the offense was founded or unfounded. 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, to administratively remove a titling action from the records, a member 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 MP official determined there was credible information to conduct an investigation. The Board determined there is insufficient evidence to grant the requested relief.  

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XX XX XX 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.2.   


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REFERENCES: 
 
1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 
 
2.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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 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. 
 
3.  Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to DOD and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigations NCIC, Department of Justice Criminal Justice Information System, National Law Enforcement Telecommunications System, and State criminal justice systems. 
 
 a.  Paragraph 4-3a states an incident will not be reported as a founded offense unless adequately substantiated by police investigation. A person or entity will be reported as the subject of an offense on the LER when credible information exists that the person or entity has committed a criminal offense. The decision to title a person is an operational, rather than a legal, determination. The act of titling and indexing does not, in and of itself, connote any degree of guilt or innocence; rather, it ensures that information in a report of investigation can be retrieved at some future time for law enforcement and security purposes. Judicial or adverse administrative actions will not be based solely on the listing of an individual or legal entity as a subject on the LER. 
 
 b.  Paragraph 4-3d states that when investigative activity identifies a subject, all facts of the case must be considered. When a person, corporation, or other legal entity is entered in the "subject" block of the LER, their identity is recorded in Department of the Army automated systems and the DCII. Once entered into the DCII, the record can only be removed in cases of mistaken identity or if an error was made in applying the credible information standard at the time of listing the entity as a subject of the report. It is emphasized that the credible information error must occur at the time of listing the entity as the subject of the LER rather than subsequent investigation determining that the LER is unfounded. This policy is consistent with DOD reporting requirements. The Director, CRC, enters individuals from the LER into the DCII. 
 
4.  Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. 
 
 a.  Paragraph 4-4 contains 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 states requests for amendment of 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 that 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. 
 
5.  DODI 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) serves as the authority and criteria for CID titling decisions. 
 
 a.  Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal decision. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled. 
 
 b.  It also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication, the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII database is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. 
 
 c.  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. 
 
6.  DODI 5505.7 contains further legal guidance. 
 
 a.  Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in the DCII. (This instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. 
 
 b.  Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. 
 
 c.  Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: 
 
  (1)  Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity (i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII). 
 
  (2)  Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. 
 
 d.  Section 6.9. The reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 
 
7.  FY21 NDAA, 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.  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. 
 
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