IN THE CASE OF: 

		BOARD DATE: 30 August 2023

		DOCKET NUMBER: AR20230000714


APPLICANT REQUESTS: removal of his name from the titling block of a U.S. Army 
Criminal Investigation Division (CID) Law Enforcement Report (LER), or, in the 
alternative, the complete deletion of the LER

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

*	Online DD Form 149 (Application for Correction of Military Record)
*	Memorandum for Record
*	Prescription Medications Listing


FACTS:

1.  The applicant states, in effect, a CID investigator erroneously titled him for the 
following alleged offense: "Impaired Operation of a Motor Vehicle (Controlled 
Substance) (UCMJ (Uniform Code of Military Justice) – Article 113." In addition, they 
never offered the applicant any due process so that he could submit relevant and valid 
evidence proving the allegation was wrong. 

	a.  In January 2019, the German police stopped the applicant's vehicle during a 
routine check; because the German Police suspected drug use, they administered a 
drug test and found the presence of amphetamines. About 45 days later, the CID made 
the decision to title the applicant for driving on a "controlled substance," even though, as 
verified by the applicant's command, he had a valid prescription for Adderall, and he 
had permission to drive while on that medication. 

	b.  Neither the Provost Marshal's Office nor the CID communicated with the 
applicant's leadership in any effort to correct the LER. The applicant petitioned CID 
twice to remove his name from the title, and CID only partially granted his request by 
changing the offense to "Driving while Impaired." 

	c.  Due to the CID's false reporting, the Army delayed the applicant's promotion to 
Chief Warrant Officer Three (CW3) and directed a review to determine whether the 
applicant should be promoted. A Summary of Adverse Information Report points out 
that the "Substantiated Finding: Impaired Operation of a Motor Vehicle (Controlled 
Substance)" was inaccurate. The applicant argues the CID's correction to the LER is 
easily missed, and he will continue to suffer from CID's lack of investigative due 
diligence until the false titling is removed.

2.  The applicant provides a memorandum for record, dated 16 April 2019 and signed 
by a psychiatrist, which affirmed medical authority had stabilized the applicant on 
Adderall since May 2016, and the use of Adderall does not interfere with the operation 
of a vehicle. The applicant additionally offers a listing of his prescribed medications that 
includes Adderall.

3.  A review of the applicant's service record reveals the following:

	a.  On 31 August 2016, following 9 years and 25 days of Regular Army enlisted 
service, the applicant executed his oath of office as a U.S Army Reserve warrant officer 
one (WO1); effective 31 August 2018, the Army promoted him to Chief Warrant Officer 
Two (CW2) and appointed him to the Regular Army. In July 2017, orders assigned him 
to Germany.

	b.  According to a Final CID LER, dated 19 March 2019, the German Police notified 
the CID that they had stopped a drunken driver (the applicant) during a routine vehicle 
check; after detecting the odor of alcohol, a breathalyzer test revealed the applicant had 
a blood/alcohol content (BAC) of 0.079 grams per 100 milliliters. Because the applicant 
exhibited signs of possible drug impairment, the German Police also administered a 
drug test and found the presence of amphetamines. On 16 March 2019, an Army legal 
officer opined the CID had sufficient probable cause to title the applicant with "Impaired 
Operation of a Motor Vehicle (Controlled Substance) (UCMJ (Uniform Code of Military 
Justice) – Article 113."

	c.  On 28 May 2019, the applicant received a general officer memorandum of 
reprimand (GOMOR), which the imposing official directed for local filing. On 28 May 
2019, the applicant's commander completed a DA Form 4833 (Commander's Report of 
Disciplinary or Administrative Action), reporting that the applicant's GOMOR was the 
command's action in response to the CID LER.

	d.  On 13 November 2019, CID issued a supplemental LER, reflecting a change in 
the titled offense. 

		(1)  The report stated, "After supporting documentation provided by [applicant], it 
was determined by Lieutenant Colonel (name redacted) that he was prescribed, by 
medical authorities, Adderall, and that he was wrongfully titled for Impaired Operation of 
a Motor Vehicle. This supplemental LER has been generated to reflect the change in 
offense charged/titled from offense code 3B2, Impaired Operation of a Motor Vehicle 
(Controlled Substance) (Art 113), and now will read offense code 3C7 Driving While 
Impaired (AER (Army in Europe Regulation) 190-1 (Driver and Vehicle Requirements 
and the Installation Traffic Code for the U.S. Forces in Germany)." 

		(2)  (Paragraph 2-14b (Suspensions – Mandatory Suspension) of AER 190-1, in 
effect at the time, stated a mandatory suspension of 90 calendar days was required for, 
"Operating a motor vehicle with a BAC of 0.05 percent but a blood-alcohol level by 
volume of whole blood of less than 0.08 percent (measured in grams (g) per 
100 milliliters (mL)). This offense will be reported as an alcohol-related traffic offense, 
driving while impaired, in violation of Article 134 (General Article), UCMJ").

	e.  In or around August 2020, permanent change of station orders reassigned the 
applicant to Hawaii, where he is currently assigned; at some point prior January 2023, 
an Army Promotion Selection Board recommended the applicant for promotion to CW3.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition, available military records and 
CID Law Enforcement Report (LER, the Board determined the applicant did not provide 
evidence that clearly exonerates him or shows that there was a clear injustice. The CID 
Report shows there was credible information regarding the applicant's involvement in 
the alleged offense.  As a result, he was properly titled. Based on this the Board 
determined there was insufficient evidence to delete his name from the title block of the 
U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER), 
January 2019, for the offense of Impaired Operation of a Motor Vehicle (Controlled 
Substance). The CID Report and the GOMOR received shows there was credible 
information regarding the applicant's involvement in the alleged offense.  As a result, he 
was properly titled.  The Board found insufficient evidence to remove the applicant from 
the U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER). 
Therefore, they denied relief.  

2.  Titling or indexing on CID reports does not denote any degree of guilt or innocence.  
If there is a reason to investigate, the subject of the investigation should be titled.  This 
is a very low standard of proof, requiring only the merest scintilla of evidence far below 
the burdens of proof normally borne by the government in criminal cases (beyond a 
reasonable doubt), in adverse administrative decisions (preponderance of evidence), 
and in searches (probable cause).

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.  Title 10, United States Code, section 1556 (Ex Parte Communications Prohibited) 
provides the Secretary of the Army shall ensure that an applicant seeking corrective 
action by ARBA is provided a copy of all correspondence and communications, 
including summaries of verbal communications, with any agencies or persons external 
to agency or board, or a member of the staff of the agency or Board, that directly 
pertains to or has material effect on the applicant's case, except as authorized by 
statute.

2.  Department of Defense Instruction (DODI) 5505.07 (Titling and Indexing in Criminal 
Investigations), in effect at the time, prescribed policies for titling individuals in criminal 
investigative reports and outlined procedures for a review of such actions. 

	a.  Paragraph 1.2 (Policy). 

		(1)  Subparagraph 1.2a. 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 

		(2)  The DODI's glossary defines "credible information" as, "Information disclosed 
or obtained by a criminal 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."
		(3)  Subparagraph 1.2d. Once the person is indexed in the Defense Central 
Index of Investigations (DCII), he/she will remain, even if the person is found not guilty 
of the investigated offense, with the following exceptions:

*	Cases of mistaken identity
*	Subsequent determination finds no credible information existed at the time 
of titling and indexing
*	Judicial or adverse administrative actions will not be taken based solely on 
the existence of a titling or indexing record in a criminal investigation

	b.  Paragraph 3.3 (Correction and Expungement Procedures). When reviewing the 
appropriateness of a titling and indexing decision, the reviewing official will only 
consider the investigative information available at the time of the initial titling and 
indexing decision to determine whether the decision to determine if the decision was 
made in accordance with paragraph 1.2a above. 

3.  DODI 5505.07, dated 8 August 2023 and currently in effect, section 3 prescribes 
current correction and expungement procedures for persons titled in a DoD Law 
Enforcement Activity (LEA) report or indexed in the DCII. Per paragraph 1.2a, the initial 
decision to title and index an individual remains based on a credible information 
standard.

	a.  Paragraph 3.1 (Basis for Correction or Expungement). A covered person who 
was titled in a DoD LEA report or indexed in DCII may submit a written request to the 
responsible DoD LEA head or designated expungement officials to review the inclusion 
of their information in the DoD LEA report, DCII, and other related records systems, 
databases, or repositories in accordance with Section 545 of Public Law 116-283.

	b.  Paragraph 3.2 (Considerations). 

		(1)  When reviewing a covered person’s titling and indexing review request, the 
expungement official will consider the investigation information and direct that the 
covered person’s information be corrected, expunged, or otherwise removed from the 
DoD LEA report, DCII, and any other record maintained in connection with the DoD LEA 
report when: 

		(a)  Probable cause did not or does not exist to believe that the offense for which 
the covered person was titled and indexed occurred, or insufficient evidence existed or 
exists to determine whether such offense occurred. 

		(b)  Probable cause did not or does not exist to believe that the covered person 
committed the offense for which they were titled and indexed, or insufficient evidence 
existed or exists to determine whether they committed such offense. 
		(c)  Such other circumstances as the DoD LEA head or expungement official 
determines would be in the interest of justice, which may not be inconsistent with the 
circumstances and basis in Paragraphs 3.2.a.(1) and (2). 

		(2)  In accordance with Section 545 of Public Law 116-283, when determining 
whether such circumstances or basis applies to a covered person when correcting, 
expunging, or removing the information, the DoD LEA head or designated expungement 
official will also consider: 

		(a)  The extent or lack of corroborating evidence against the covered person with 
respect to the offense. 

		(b)  Whether adverse administrative, disciplinary, judicial, or other such action 
was initiated against the covered person for the offense. 
         
		(c)  The type, nature, and outcome of any adverse administrative, disciplinary, 
judicial, or other such action taken against the covered person for the offense.

4.  DODI 5505.11 (Fingerprint Reporting Requirements), currently in effect, states 
probable cause exists where the facts and circumstances within the officer’s knowledge, 
and of which he or she has reasonably trustworthy information, are sufficient in 
themselves to warrant a belief by a person of reasonable caution that a crime is being 
committed or has been committed.

5.  Army Regulation (AR) 195-2 (Criminal Investigation Activies), in effect at the time, 
established policies and procedures for criminal investigative activities within the 
Department of the Army. The CG, U.S. Army Criminal Investigation Command 
(USACIDC) was responsible for prescribing policies and procedures for the release of 
information from, and the amendment of, criminal investigation records and reports of 
investigations. 

	a.  Paragraph 4-4 (Individual Requests for Access to, or Amendment of, USACIDC 
Reports). 

		(1)  "Requests for amendment will be considered only under the provisions of this 
regulation. Requests to amend or unfound offenses in USACIDC ROIs (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. The burden of proof to 
substantiate the request rests with the individual."

		(2)  "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."

	b.  The regulation's glossary:

		(1)  Credible Information – "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."

		(2)  Founded Offense – "An offense adequately substantiated by police 
investigation as a violation of the UCMJ, the USC, state and local codes, foreign law, 
international law or treaty, regulation, or other competent policy. Determination that an 
offense is founded is a law enforcement decision based on probable cause supported 
by corroborating evidence and is not dependent on final adjudication."

6.  AR 190-45 (Law Enforcement Reporting), currently in effect, prescribes policies and 
procedures for the preparation, reporting, use, retention, and disposition of Department 
of the Army (DA) forms and documents related to law enforcement (LE) activities.

	a.  Paragraph 3-2 (Guidelines for Disclosure within the Department of Defense).

		(1) "Criminal record information contained in MP documents will not be 
disseminated unless there is a clearly demonstrated, official, need to know. 
A demonstrated, official, need to know exists when the record is necessary to 
accomplish a function that is within the responsibility of the requesting activity or 
individual, is prescribed by statute, DOD directive, regulation, or instruction, or by Army 
regulation."

		(2)  "Criminal record information related to subjects of criminal justice disposition 
will be released when required for security clearance procedures."

	b.  Paragraph 3-6 (Amendment of Records). 

		(1)  Subparagraph 3-6a (Policy). 

		(a)  "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. The 
burden of proof is on the individual to substantiate the request."

		(b)  "Requests to delete a person’s name from the title block will be granted only 
if it is determined that there is not probable cause to believe that 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 or not subsequent judicial, nonjudicial or 
administrative action is taken against the individual. In compliance with DOD policy, an 
individual will still remain entered in the Defense Clearance Investigations Index (DCII) 
to track all reports of investigation."

		(2)  Subparagraph 3-6b (Procedures). Individual Provost Marshals (PM) will 
review amendment requests for records that are 5 or fewer years old; the installation 
PM either approves the request or forwards the request to the CG, USACIDC with 
his/her rationale for disapproval. The CG, USACIDC is the sole access and amendment 
authority for criminal investigation reports and LERs. 

	c.  Paragraph 4-3 (Identifying Criminal Incidents and Subjects of Investigation). 

		(1)  Subparagraph 4-3a. "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 in the LER."

		(2)  Subparagraph 4-3d. "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 DA 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, USACRC 
enters individuals from the LER into the DCII."

	d.  The regulation's glossary defines an unfounded offense as, "A criminal complaint 
in which a determination is made that a criminal offense was not committed or did not 
occur. This determination is based on police investigation and not on court-martial 
findings, civil court verdicts, or command determinations."

7.  Manual for Courts-Martial, in effect at the time, showed the elements of proof for 
Article 113 (Drunken or Reckless Operation of a Vehicle) included the following:

*	The person operated or was in actual physical control of a vehicle while impaired 
by a controlled substance
*	The person operated or was in actual physical control of a vehicle while drunk, or 
when the alcohol concentration in the person's blood was equal to or exceeded 
the applicable limit
*	The applicable limit is defined by State law, or as 0.08 grams of alcohol per 
100 milliliters of blood; military Secretaries can, by regulation, prescribe lower 
limits

8.  AR 600-85 (The Army Substance Abuse Program), currently in effect, defines 
impairment as a result of alcohol consumption as, "a blood alcohol content equal to or 
greater than 0.05 grams of alcohol per 100 milliliters of blood." 

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230000714


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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