IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220010328 APPLICANT REQUESTS: removal of his name from the titling block of the Law Enforcement Report (LER) – Final, 25 January 2022, for the offenses of abusive sexual contact (adult) and indecent act by compulsion. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Memorandum (Supplemental Statement in the Case of (Applicant)), 11 July 2022 * U.S. Army Criminal Investigation Division (CID) Memorandum (LER – Final), 25 January 2022, with attachments * CID Letter, 27 June 2022, with attachments FACTS: 1. The applicant is a federal civilian employee. The applicant states: a. No probable cause (or even credible information) exists for CID to title him for the listed offenses. The allegations against him occurred while serving as a civilian in Korea and not on a military installation. Accordingly, CID was not the lead investigating agency. b. The LER notes there was no probable cause for either offense. A "no probable cause" determination was made by both the Army and the Korean National Police. There was likewise no credible information determination made by either investigative agency. Based on that determination, it is unclear why he is still titled for the offense. On that basis, his name should be removed from the titling block. 2. Counsel's memorandum (Supplemental Statement in the Case of (Applicant)), 11 July 2022, states: a. The applicant appealed the titling decision to CID and was denied relief in a memorandum dated 27 June 2022. The memorandum states the applicant can appeal the decision to the Army Board for Correction of Military Records (ABCMR). CID clarified that even though the applicant is a civilian, he is entitled to appeal its decision to the ABCMR. b. On or about 22 June 2021, the applicant was riding the subway in Daegu, South Korea. He was not on a military installation and not within the jurisdiction of the United States. He was messaging a friend on his cellular phone while riding the subway. A local Korean woman alleged that he touched her breast in a sexual manner with both of his hands and ran off while in the subway. Such schemes are well known scams to extort money from foreign nationals through the Korean legal system. c. The allegations were investigated by the Korean National Police. The allegations were unfounded, and the Korean National Police determined no probable cause existed. The Army CID reviewed the investigation and made a separate but concurring legal opinion. d. Inexplicably, the applicant was then titled for the offenses of abusive sexual contact (adult) and indecent act by compulsion. Despite the fact that "credible information" is no longer the legal standard for titling actions, there was likewise no determination of credible information either and no effort in the LER to distinguish between the two standards for the titling decision. e. The standards for titling an individual with a crime in the military has recently changed to be more restrictive regarding 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." Additionally, the law has changed to require amendment of a titling decision retroactively if no probable cause exists. f. There is no dispute or doubt that there is no probable cause. Where there is no probable cause, the applicant cannot be or remain titled for the listed offenses. The LER must therefore be amended. This was an obvious and identified scam by Korean Nationals against a U.S. citizen to extort money. It did not work. The Korean National Police identified the case as having no merit. There is insufficient basis to support even the lower and obsolete standard of credible information. 3. The Metropolitan Police Agency memorandum (Report of Status of Forces Agreement Incident), 30 July 2021, named the applicant, a federal civilian employee from the Signal Unit, as the subject for the offense of indecent act by compulsion.? 4. The Daegu Metropolitan Police Agency memorandum (Determination not to Forward the Case to Prosecutor's Office), 25 October 2021, states: a. Decision: There was no probable cause due to insufficient evidence. b. Allegation Facts and the Reason Why the Case Is Not Forwarded: (a) On 22 June 2021, the subject (applicant) committed the offense of indecent act by compulsion against the victim. The victim stated the subject approached her and grabbed her breast with his both hands in the train of Daegu Subway Line Number 1. The subject denied his offense and stated he never touched the victim, nor did he remember seeing her. (b) The result of forensic examination for the subject's (applicant's) cellular phone shows the subject was communicating with his friend via Kakao Talk at approximately 0904, 0908, and 0909 hours between approximately 0903 and 0910 hours when the incident was believed to have occurred. It is hard to believe the subject grabbed the victim's breast in the subway train where there were crowds. Nobody reported this incident to the 112 Korean National Police emergency call line in the train where there were crowds. (c) There was no probable cause due to insufficient evidence. 5. The two CID Forms 94 (Agent's Investigation Report), 26 August 2021 and 18 January 2022, provide a synopsis of the events surrounding the allegations and the investigation. On 5 November 2021, the Korean National Police final report was obtained that opined there was no probable cause exists to believe the applicant committed to the offense of indecent act by compulsion. On 17 December 2021, (Redacted) further stated the Daegu District Prosecutor's Office closed the case and did not require any investigative activities pertaining to the case anymore. On16 January 2022, (Redacted) opined no probable cause exists to believe the applicant committed the offense of abusive sexual contact. No additional investigative efforts were required. 6. The CID Memorandum (LER – Final), 25 January 2022, shows the applicant, a federal civilian information technology specialist with the U.S. Army Regional Cyber Center, 1st Signal Brigade, Camp Walker, Korea, was named as the subject for the offenses of abusive sexual contact (adult) and indecent act by compulsion. The Report Summary states: a. This office was notified by (Redacted) that a Korean National female (Redacted) reported she was touched in a sexual manner by the applicant during a subway ride. b. (Redacted) related that the female was interviewed and stated the applicant approached her while on the subway train, touched her breasts with both hands, and disappeared in the crowd. (Redacted) related that there was no closed-circuit television inside the subway train; however, the applicant was seen being in proximity of the female while waiting at the subway platform. (Redacted) related that canvass interviews were conducted and no witnesses were identified from the crowd. c. The applicant was interviewed by Metropolitan Police Agency and denied touching any Korean National female's breasts in the subway. He stated he was messaging with friends during the subway ride. He consented to a digital forensic examination of his cellular phone which revealed he was communicating with his friend when the incident was believed to have occurred. d. Legal coordination shows (Redacted) opined no probable cause existed to believe the applicant committed the offense of indecent act by compulsion. Further, on 16 January 2022, (Redacted) opined no probable cause existed to believe the applicant committed the offense of abusive sexual contact. 7. The applicant's and/or his attorney's requests to CID to remove his name from the title block of the LER – Final, 25 January 2022, are not in evidence for review. 8. The CID letter, 27 June 2022, further responds to the applicant's request to remove his name from the title block of the LER – Final, 25 January 2022, within the files of CID. After careful review and consideration of his request and the evidence available, his request to amend the LER was denied. CID enclosed the following: a. The 6th Military Police Group, Joint Base Lewis-McChord, WA, memorandum (Request for Amendment of Record), 1 June 2022, stating: (1) The undersigned completed a review of the amendment request, associated documents, and Army Law Enforcement Reporting Tracking System concerning the CID LER wherein the applicant was listed as a subject for the offense of abusive sexual contact and indecent acts by compulsion. (2) In accordance with Department of Defense (DOD) Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in DOD), there was credible information to list him for the offenses at the time of the dispatch of the initial LER. Further, the undersigned concurred with the "no probable cause" opinion rendered by the supported trial counsel and Korean prosecutor as reflected in the final LER. b. The CID memorandum from the Investigative and Operations Directorate (Request for Amendment of Report (Applicant)), 2 June 2022, states: (1) The victim stated there were about 40 passengers in the subway when the incident occurred. There were no witnesses and no additional reports about the incident. The closed-circuit television footage inside the subway was not available. The Metropolitan Police Agency further explained the victim was diagnosed as an intellectually handicapped person, which limited her ability to communicate with them. (2) On 17 December 2021, a legal opinion was obtained from the Status of Forces Agreement Prosecutor's Office, who opined probable cause did not exit to believe the applicant committed the offense of indecent act by compulsion. On 16 January 2022, the Office of the Staff Judge Advocate opined probable cause did not exist to believe the applicant committed the offense of abusive sexual contact. (3) Based upon the undersigned's review of the information available, there was an error in applying the credible information standard at the time of the initial report. Therefore, the request for removal should be approved. It is also the undersigned's belief that cited offenses have the appropriate investigative finding of unfounded based upon the legal opinion received; therefore, the LER should not be altered. c. The CID memorandum from the attorney-advisor (Legal Review of Request for Amendment of Record – (Applicant)), 8 June 2022, states: (1) Based upon the review of the LER and amendment packet, the undersigned found there was no basis for amending the LER. There was credible information to support the titling decision. (2) The undersigned found that credible evidence existed to title the applicant for the offense and the LER contained sufficient evidence to support the titling decision. In addition, the undersigned concurred that there was no probable cause to believe the applicant violated Article 120 (Abusive Sexual Contact). (3) Credible information existed to believe the applicant committed the offense he was titled for, and the wrong person's name was not entered into the title block as a result of mistaken identity. Finally, no new, relevant, or material facts were submitted in the appeal to warrant revision of the titling determination. d. The CID memorandum (Review of Request for Amendment of Record), 11 June 2022, states: (1) The applicant was properly titled as a subject in the initial LER, 5 August 2021, based on the credible information standard. (2) The undersigned opined that there was no probable cause to believe the applicant violated the two offenses. These offenses are properly categorized as unfounded in the Army Law Enforcement Reporting and Tracking System. (3) In his request for amendment of record, the applicant did not provide new, relevant material facts to warrant revision of the LER. Insofar as the credible information standard was met to title the applicant as a subject of the investigation and the offenses are correctly categorized as unfounded, the undersigned recommended the report remain unchanged. e. The 6th Military Police Group, Joint Base Lewis-McChord, WA, memorandum from the Supervisory Special Agent (Second Re-look Concerning Request for Amendment of Record), 14 June 2022, states: (1) The undersigned completed a second review of the amendment request, associated documents, and Army Law Enforcement Reporting Tracking System concerning the CID LER wherein the applicant was listed as a subject for the offense of abusive sexual contact and indecent acts by compulsion. The undersigned's opinion has not changed. (2) In accordance with DODI 5505.7, there was credible information to list the applicant for the offenses at the time of the dispatch of the initial LER. Further, the undersigned concurred with the "no probable cause" opinion rendered by the supported trial counsel and Korean prosecutor as reflected in the final LER. f. The CID memorandum from the Federal Bureau of Investigation Criminal Justice Information System Systems Officer (Re-evaluation of Request for Amendment of Record), 14 June 2022, states that reference the previous memorandum, 11 June 2022, his comments and recommendation expressed remain unchanged. g. The CID memorandum from the undersigned (Legal Review of Re-Evaluation of Amendment Request – (Applicant)), 14 June 2022, states: "I reviewed the record and other action officer's review of the LER and adhere to my original opinion dated 8 June 2022." h. The CID memorandum from the Investigative and Operations Directorate (Request for Amendment of Record – (Applicant)), 22 June 2022, states "I reviewed the record and other action officer's reviews of the LER. Based on further review of the LER and appeal, I find there is no basis for granting his request for an amendment. The wrong person's name was not entered into the title block as a result of mistaken identity." ? BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant’s and counsel's contentions, the applicant's military records, and regulatory guidance were carefully considered. a. The evidence of record shows a Korean National female reported she was touched in a sexual manner by the applicant during a subway ride. She alleged that the applicant approached her while on the subway train, touched her breasts with both hands, and disappeared in the crowd. Although the applicant was seen being in proximity to the female, he was on his phone messaging with friends during the subway ride. There was no closed-circuit TV inside the subway train and no witnesses were identified from the crowd. Legal coordination shows no probable cause existed to believe the applicant committed the offense of indecent act by compulsion and no probable cause existed to believe he committed the offense of abusive sexual contact. b. The standards for titling an individual with a crime in the military has recently changed to be more restrictive regarding 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." Additionally, the law has changed to require amendment of a titling decision retroactively if no probable cause exists. Based on the totality of the situation, the Board determined that there is no “probable cause” and when there is no probable cause, the applicant should not remain titled for the listed offenses. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing his name from the titling block of the Law Enforcement Report (LER) – Final, 25 January 2022, for the offenses of abusive sexual contact (adult) and indecent act by compulsion. 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. Paragraph 2-3 (Who May Apply) states the ABCMR's jurisdiction under Title 10, U.S. Code, section 1552, extends to any military record of the Department of the Army. It is the nature of the record and the status of the applicant that define the ABCMR's jurisdiction. Usually, applicants are Soldiers or former Soldiers of the Active Army, the U.S. Army Reserve, and in certain cases, the Army National Guard of the United States and other military and civilian individuals affected by the Army military record. 2. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies for criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. 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. b. The burden of proof to substantiate the request rests with the individual. c. 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. d. The decision to list a person's name in the title block of a CID report of investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e. The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 3. DODI 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in 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 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. 4. DODI 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. 5. 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, and Other Records and Databases), stated that 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) AR20220010328 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1