IN THE CASE OF: BOARD DATE: 16 May 2023 DOCKET NUMBER: AR20220010637 APPLICANT REQUESTS: * removal of his name from the titling block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), 28 February 2014 * expungement of the CID ROI, 28 February 2014, from all Army records systems 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) * Memorandum (ROI), 10 August 2022 * Letter from CID, 30 November 2021 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) (Redacted), 17 January 2014 * CID ROI (Redacted), 28 February 2014 * Letter from the Army Board for Correction of Military Records (ABCMR), 15 February 2022 FACTS: 1. The applicant states this case resulted in a felony conviction on his record and he has no other vehicle available to him to expunge this from his records and background check except by a Board for Correction of Military Records or a Presidential pardon. It is unjust that he only has these two options available to him. a. This felony conviction is unjust because it was the result of a plea agreement. If he had known at the time or had his legal counsel told him that he would not have a vehicle to remove a felony conviction from his records and background check, he would not have entered into the plea agreement. b. If this case had been tried in a civilian court in the state in which he currently resides and was his home of record at the time of the felony conviction, and a guilty verdict had been rendered, it would have been categorized as a Class E felony, the lowest felony classification identified in that state's statutes. He would have been able to pursue expungement through the civilian court system after 7 years from the conviction date. c. This case originated in Germany and was the result of an investigation into an allegation of travel voucher fraud against him. He was essentially investigated for over 4 months before charges were preferred against him in June 2013. The investigation did not stop at that point. For 6 months after charges were preferred against him, his family, peers, subordinates, neighbors, and friends were "interviewed" by CID. All of which was simple harassment and degrading to his name and character. His son, who was in college at the time, had a "be on the lookout" bulletin issued by the campus police after an on-campus visit by a member of CID. His wife, who was stateside at the time, was harassed to the point of suffering a complete breakdown and hospitalization. The breakdown and hospitalization were the defining moments associated with his decision to enter into the plea agreement. They simply wanted the investigation to end and the plea agreement seemed the best option at the time. d. He feels he should not be penalized for the rest of his life for this issue or the decisions surrounding the issue. He asks the Board to consider his entire military record when making its decision in this matter. 2. The applicant was serving in the rank/grade of lieutenant colonel/O-5 when he became the subject of a CID investigation for wrongful appropriation of Government property, false official statement, obstruction of justice, larceny of Government funds, fraud, and larceny of Government property. 3. The DA Form 4833, 17 January 2014, shows: a. Administrative action was taken against him for the following offenses: * larceny of Government funds * fraud * false official statement * larceny of Government property * wrongful appropriation of Government property * obstruction of justice b. Item 10a (Commander's Remarks) states he received a reprimand and forfeiture of $4,000.000 pay per month for 3 months on 12 December 2013. 4. Seventh Army Joint Multinational Training Command General Court-Martial Order Number 1 (Corrected Copy), 31 January 2014, states:? a. He pled guilty to and was found guilty of the following offenses: (1) Charge I, violating Article 134, by removing the hard drive from a laptop computer on or about 21 May 2013 at or near Rose Barracks, Germany, with intent to prevent its seizure, which he knew persons authorized to make searches and seizures were endeavoring to seize; (2) Charge II, violating Article 133, by wrongfully altering and creating receipts, submitting travel claims without proper documentation, and claiming expenses not actually incurred in order to falsify or exaggerate the value of expenses incurred during temporary duty assignments on divers occasions between on or about 1 March 2011 and on or about 28 February 2013 at or near Fort Knox, KY; at or near Fort Benning, GA; and at or near Rose Barracks, Germany; (3) Charge Ill, violating Article 132 by: (a) preparing a voucher for presentation for approval or payment and making a claim against the United States in the amount of $708 between on or about 1 March 2012 and on or about 31 March 2012 at or near Fort Benning, GA, for temporary duty travel to New Orleans, LA, from 28 February 2012 to 1 March 2012, which claim was fraudulent in that the amount claimed was in excess of the actual expenses incurred and no receipts were uploaded into the Defense Travel System substantiating the expenses; (b) preparing a voucher for presentation and making a claim against the United States in the amount of $255 between on or about 16 November 2012 and on or about 30 November 2012 at or near Rose Barracks, Germany, for temporary duty travel to Warsaw, Poland, from 14 November 2012 to 16 November 2012, which claim was fraudulent in that the amount claimed was in excess of the actual expenses incurred and included receipts for expenses not actually incurred, and was then known to be fraudulent; (c) preparing a voucher for presentation, for approval, or payment, and making a claim against the United States in the amount of $417. 04 between on or about 7 December 2012 and 31 December 2012 at or near Rose Barracks, Germany, for temporary duty travel to Warsaw, Poland, from 5 December 2012 to 7 December 2012, which claim was fraudulent in the amount claimed was in the excess in the actual expense incurred and included receipt for expenses not actually incurred and was then known to be fraudulent; and (d) preparing a voucher for presentation for approval or payment and making a claim against the United States in the amount of$ 410.59 between on or about 1 February 2013 and on or about 28 February 2013 at or near Rose Barracks, Germany, for temporary duty travel to Sul?cin, Poland, from 29 January 2013 to 1 February 2013, which claim was fraudulent in that the amount claimed was in excess of the actual expenses incurred and included receipts for expenses not actually incurred, and was then known to be fraudulent; and (4) Charge IV, violating Article 107 by making an official statement with intent to deceive on or about 21 March 2013 at or near Rose Barracks, Germany, to wit: "I put some gas in the vehicle before departing due to it only having about a quarter of a tank of gas at the time of rental (see exhibit 07)," or words to that effect; "I am relatively sure that the distance traveled was more than 1,100k [kilometers]. Based on that, and converting the amount of liters to gallons as well as a reasonable mpg [miles per gallon] for the rental vehicle, the total amount of gas used comes out to 44 gal[lons]. If the vehicle got 24 mpg [miles per gallon], then the total gal[lons] used would be 42 gal[lons] with a difference of 2 gal[lon]s," or words to that effect; and "I can't speak to why CPT [Captain] did not claim any parking, but I had to pay parking in Hof where I had to stop due to weather, and I had to pay parking at the Hotel on the first day because I was not a registered guest until 1500 on 30 Jan[uary]. There was one additional parking on the way back where I stopped to eat, and I do not have the receipt for this parking, but the amount was 12 euro." or words to that effect; which statements were false and were then known to be false. b. His sentence was adjudged on 12 December 2013. His sentence consisted of a reprimand and forfeiture of $4,000 pay per month for 3 months. c. The sentence was approved and ordered executed. The adjudged forfeitures were deferred effective 26 December 2013 and the deferments were terminated on 15 January 2014. He was reprimanded for repeatedly falsifying and exaggerating the value of expenses incurred during his temporary duty assignments, for submitting multiple fraudulent claims against the United States, for making a false official statement to an investigator, and for removing the hard drive from a Government laptop to prevent its seizure. By these acts of greed, dishonesty, and deception, he disgraced himself and violated the trust placed in him by his Soldiers and leaders. 5. The CID ROI – 1st Corrected Final, 28 February 2014, states the CID Office was notified of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation which revealed the applicant submitted numerous travel claims since 28 August 2012, which were suspected to be fraudulent. The ROI further states: a. The investigation established probable cause to believe the applicant committed the offenses of larceny of Government funds, fraud, and making a false statement when he submitted Defense travel voucher claims reflecting an excessive use of authorized benefits over the course of three temporary duty missions to Poland. The investigation established probable cause to believe the applicant provided a false official statement to the investigating officer during the Army Regulation 15-6 investigation wherein the applicant provided false information pertaining to his travel claims. b. The investigation established probable cause to believe the applicant committed the offenses of larceny of Government property, wrongful appropriation of Government property, destruction of Government property, and obstruction of justice when he drove to the headquarters, after knowing his Government laptop computer was going to be seized, retrieved his Government laptop computer from a secured safe, departed the unit area, and destroyed the hard drive. c. The investigation established probable cause to believe the applicant committed the offenses of larceny of Government funds, fraud, and making a false statement when he submitted fraudulent claims for numerous temporary duty missions while in the continental United States; a permanent change of station to Fort Benning, GA; and a fraudulent personally procured move claim for a move from Fort Benning, GA, to Radcliff, KY, by altering or creating false documents and submitting them as official documents through his unit finance officer. d. The estimated loss to the U.S. Government was $14,429.31. e. A staff judge advocate (redacted) concurred that probable cause existed to believe the applicant committed the offenses. 6. On 31 October 2014, he retired from active duty. 7. On 30 November 2021, CID denied his request to amend the ROI. CID determined the information he provided does not constitute as new or relevant information needed to amend the report BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of the Criminal Investigation Command Report of Investigation was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. 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 195-2 (Criminal Investigation Activities), effective 9 July 2014, prescribed policies and procedures pertaining to criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. Chapter 4 provided guidance for investigative records, files, and reports. a. Paragraph 4-4 prescribed guidance for individual requests for access to or amendment of CID ROIs. Requests to amend CID ROIs will be considered only under the provisions of this regulation. b. Paragraph 4-4b stated requests to amend or unfound offenses in CID ROIs will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 2. Department of Defense (DOD) Instruction 5505.07 (Titling and Indexing Subjects of Criminal Investigations in the DOD), 28 February 2018, establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by DOD. a. Paragraph 1.2a states DOD components authorized to conduct criminal investigations, as outlined in DOD Instruction 5505.16 (Investigations by DOD Components), will title and index subjects of criminal investigations as soon as the investigation determines there is credible information that the subject committed a criminal offense. Indexing in the Defense Central Index of Investigations (DCII) may be delayed until the conclusion of the investigation due to operational security. b. Paragraph 1.2b states victims and incidentals associated with criminal investigations can be titled and indexed. c. Paragraph 1.2c states titling and indexing are administrative procedures and will not imply any degree of guilt or innocence. d. Paragraph 1.2d states once the subject of a criminal investigation is indexed in the DCII, the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation, unless there is mistaken identity, or it is later determined no credible information existed at the time of titling and indexing. e. Paragraph 1.2e states if a subject's information requires expungement from or correction in the DCII, DOD components will remove the information as soon as possible. f. Paragraph 1.2f states judicial or adverse administrative actions will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. g. Paragraph 3.1 states a subject is titled in a criminal investigative report to ensure accuracy and efficiency of the report. A subject's information is indexed in the DCII to ensure this information is retrievable for law enforcement or security purposes in the future. h. Paragraph 3.2 states a subject who believes he/she was incorrectly indexed, as outlined in paragraph 1.2.d., may appeal to the DOD component head to obtain a review of the decision. i. Paragraph 3.3 states when reviewing the appropriateness of a titling or indexing decision, the reviewing official will only consider the investigative information at the time of the decision to determine if the decision was made in accordance with paragraph 1.2.a. j. Paragraph 3.4 states DOD components that conduct criminal investigations will make appropriate corrections or expungements to criminal investigative reports or the DCII as soon as possible. 3. The National Defense Authorization Act for Fiscal Year 2021, effective 1 January 2021, authorized appropriations for Fiscal Year 2021 for military activities of DOD, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes. Section 545 stated: a. Policy and Process Required. Not later than 1 October 2021, the Secretary of Defense shall establish and maintain a policy and process through which any covered person may request that the person's name, personally identifying information, and other information pertaining to the person shall, in accordance with subsection c, be corrected in, or expunged or otherwise removed from, the following: (1) a law enforcement or criminal investigative report of DOD or any component of the Military Department; (2) an index item or entry in the DCII; and (3) any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Military Department. b. Covered Persons. For purposes of this section, a covered person is any person whose name was placed or reported, or is maintained: (1) in the subject or title block of a law enforcement or criminal investigative report of DOD (or any component of the Military Department); (2) as an item or entry in the DCII; or (3) in any other record maintained in connection with a report described in paragraph (1), or an index item or entry described in paragraph (2), in any system of records, records database, records center, or repository maintained by or on behalf of the Military Department. c. Elements. The policy and process required by subsection (a) shall include the following elements: (1) Basis for Correction or Expungement. That the name, personally identifying information, and other information of a covered person shall be corrected in, or expunged or otherwise removed from, a report, item or entry, or record described in paragraphs (1) through (3) of subsection (a) in the following circumstances: (a) probable cause did not or does not exist to believe that the offense for which the person's name was placed or reported, or is maintained, in such report, item or entry, or record occurred, or insufficient evidence existed or exists to determine whether or not such offense occurred; (b) probable cause did not or does not exist to believe that the person actually committed the offense for which the person's name was so placed or reported, or is so maintained, or insufficient evidence existed or exists to determine whether or not the person actually committed such offense; or? (c) such other circumstances, or on such other bases, as the Secretary may specify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs (a) and (b). (2) Considerations. While not dispositive as to the existence of a circumstance or basis set forth in paragraph (1), the following shall be considered in the determination whether such circumstance or basis applies to a covered person for purposes of this section: (a) the extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (b) whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and (c) the type, nature, and outcome of any action described in subparagraph (b) against the covered person. (3) Procedures. The policy and process required by subsection (a) shall include procedures as follows: (a) procedures under which a covered person may appeal a determination of the applicable component of DOD denying, whether in whole or in part, a request for purposes of subsection (a); (b) procedures under which the applicable component of the Military Department will correct, expunge, or remove; take other appropriate action on, or assist a covered person in so doing, any record maintained by a person, organization, or entity outside of the Military Department to which such component provided, submitted, or transmitted information about the covered person, which information has or will be corrected in, or expunged or removed from, Military Department records pursuant to this section; (c) the timeline pursuant to which the Military Department, or a component of the Military Department, as applicable, will respond to each of the following: * a request pursuant to subsection (a) * an appeal under the procedures required by subparagraph (a) * request for assistance under the procedures required by subparagraph (b) ? (d) mechanisms through which the Military Department will keep a covered person apprised of the progress of the Military Department on a covered person's request or appeal as described in subparagraph (c). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010637 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1