IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230000847 APPLICANT REQUESTS: through counsel: * amendment of the U.S. Criminal Investigation Command (CID) Law Enforcement Report (LER) (Final), 1 October 2021, and all associated documents by removing his name from the titling block * amendment of the LER to reflect that probable cause did not exist to submit criminal history data to the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC) under Department of Defense (DOD) Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) * expunction of his name and personally identifiable information (PII) from the Defense Central Investigations Index (DCII), CID databases, and all other federal agency criminal databases * 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 Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Letter, 10 November 2022, with supporting documents organized and labeled as enclosures – * Enclosure 1 – DD Form 149 * Enclosure 2 – Power of Attorney, 4 May 2022 * Enclosure 3 – DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 October 2022 * Enclosure 4 – Applicant's Letter to the Army Board for Correction of Military Records (ABCMR), 16 October 2022 * Enclosure 5 – Applicant's Declaration (Titling Removal Request for LER) to the Director, U.S. Army Crime Records Center (CRC), 28 July 2022 ? * Enclosure 6 – * Headquarters, 25th Infantry Division Sustainment Brigade, and U.S. Army Hawaii, Memorandum (General Officer Memorandum of Reprimand (GOMOR), 28 October 2021 * Headquarters, 25th Infantry Division Sustainment Brigade, Memorandum (GOMOR Request – Applicant), 6 October 2021 * CID Form 94 (Agent's Investigation Report), 15 September 2021 * Urinalysis Documents with associated paperwork, 16 August 2021 * Enclosure 7 – Applicant's Memorandum (Rebuttal Statement for GOMOR – (Applicant)), 5 November 2021, with auxiliary documents * Enclosure 8 – Headquarters, 25th Infantry Division, and U.S. Army Hawaii Memorandum (Filing Determination on Reprimand), 23 November 2021 * Enclosure 9 – CID/CRC Letter, 2 June 2022, with auxiliary documents * Enclosure 10 – CID/CRC Letter, 7 September 2022, with auxiliary documents * Enclosure 11 – Applicant's Clinical Diagnoses, 22 February 2022 * Enclosure 12 – Email (J.P. Morgan Chase: Personal and Confidential – Documents Required), 11 August 2022 FACTS: 1. The applicant states he respectfully seeks the following relief: a. removal of his name from the titling block of the LER; b. amendment of the LER to state that probable cause did not exist to believe he wrongfully used cocaine and marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ); and c. expunction of his name and PII from the DCII, CID databases, and all other federal agency criminal databases. d. An error or injustice occurred when CID titled him and a military justice advisor concluded there was probable cause that he committed the offenses, even after his commanding general withdrew and destroyed the GOMOR for wrongful use of cocaine and marijuana on 23 November 2021. e. Even though the GOMOR was withdrawn and destroyed, he continues to live with the collateral consequences of a false accusation. His name remains in an LER as the subject of a criminal investigation for offenses he did not commit. When security clearance investigators and future federal or private employers conduct background checks, his name will appear in the DCII or other criminal history databases. Titling has jeopardized his security clearance already and could limit his ability to serve in the U.S. Army Reserve (USAR) or as a federal civilian employee. 2. Counsel states: a. A dutiful and promising young Army officer, the applicant had his active-duty career derailed after being accused of wrongfully using cocaine and tetrahydrocannabinol (THC) (commonly known as marijuana). Despite his diligent efforts to prove his innocence, his name remains discoverable in law enforcement systems because he was the subject of a CID investigation. He received a GOMOR for alleged drug use. His compelling rebuttal package swayed his commanding general to withdraw and destroy the GOMOR. Although he was cleared of drug abuse allegations, he continues to suffer the collateral consequences of the false accusations. The allegations damaged his reputation and standing as a military officer and drove him from the Active Army to the USAR. With his name still accessible in the DCII, he is concerned about future employment and military opportunities being out of reach because his name will be flagged during background checks. Furthermore, the ordeal of being accused of offenses he did not commit degraded his mental health to the point that he received a post-traumatic stress disorder (PTSD) diagnosis while he was still serving on active duty, illustrating that the decision to name a Soldier as a subject of a criminal investigation can affect the individual long after he proves his innocence. Here, the CID and reviewing authorities viewed the evidence through a narrow aperture and incorrectly concluded, at the time of the titling decision, that credible information existed that he committed criminal offenses. Had CID broadened its perspective and investigation, they could have developed information that he did not and would not have used cocaine and marijuana. Instead, CID's anemic investigation shifted the burden to the applicant to prove his innocence. The titling action in his case was an error and an injustice that only this Board can now correct. b. Facts: (1) The applicant first enlisted in the Army National Guard and then was commissioned through the Reserve Officers' Training Corps. He entered active duty in 2014 at Fort Irwin, CA, and became a logistics officer. (2) While assigned to Schofield Barracks, HI, the applicant was blindsided by an unexpected and unbelievable accusation of illegal drug use. When he was selected for a random urinalysis on 30 June 2021, he had no idea that a routine drug test would spell the beginning of the end of everything he had worked so hard to build as an active- duty Army officer. One witness observed nothing unusual from him during the urinalysis. In fact, the witness told CID that he acted normal and was joking around. Such breezy behavior by him reflected a carefree conscience – he did not use drugs, had not used drugs, and had no inkling or expectation that his urine specimen would return positive. Almost 2 months later, CID brought him in for questioning. He could not believe that his urinalysis from 30 June 2021 had come back positive for cocaine at 101 nanograms, and THC at 50 nanograms. The DOD cutoff for cocaine is 100 nanograms and 15 nanograms for THC. (3) The applicant spoke to his battalion commander and battalion sergeant major upon learning about the positive urinalysis and told them he did not use drugs. He asked to give a statement to the CID office and suggested they investigate the battalion's urinalysis program because he had concerns about chain of custody and handling of specimens. When CID questioned him, he knowingly and voluntarily waived his right to remain silent and his right to counsel and gave a full and complete oral statement, denying the allegations that he used marijuana and cocaine. (4) After CID questioned the applicant, he met with a Trial Defense Service attorney. He decided to have a private hair follicle test, which has a wider drug detection window than a urinalysis. The result of the hair follicle test was as expected: he tested negative for the presence of cocaine and THC. Had he used illegal drugs at any time in the 90 days prior to the hair follicle test, the result would have come back positive for those substances. The test was negative and should be given substantial deference in this case. (5) The CID agents interviewed the two Soldiers who were involved in processing the applicant's urine specimen at the unit. Both witnesses described performing their duties by the book and discovering zero discrepancies or irregularities with his specimen. He was named as a subject in the LER. A military justice advisor concluded that probable cause existed for the purpose of law enforcement reporting. (6) On 28 October 2021, the applicant received a GOMOR from his commanding general, Major General (MG) . The GOMOR alleged wrongful use of THC between 30 May 2021 and 30 June 2021 and wrongful use of cocaine between 27 June 2021 and 30 June 2021. The applicant responded to the GOMOR with a complete, thorough, and professional rebuttal package. Among the documents he attached to his rebuttal were the results from his hair follicle test, which disclosed no presence of illegal drugs in his body. He also raised concerns about the lack of oversight of the battalion's urinalysis program. After weighing all the evidence, MG withdrew and destroyed the GOMOR. At that point, he thought that the incident was finally in his rearview mirror and he could move on with his life and career. He was mistaken. (7) Even though the applicant had steadfastly asserted and proven his innocence, his name remained in law enforcement systems. He first experienced the titling effect when found out there was an issue with his security clearance. He exhausted his administrative remedies by requesting that CID remove his name from the titling block of the investigative report. On 7 September 2022, the CRC denied his request. (8) As a result of the CID investigation, the applicant decided to voluntarily separate from the Army on 9 October 2022 after almost 9 years with an honorable service characterization. After applying for a job with his current employer, his background check flagged him as a subject in an investigation. Fortunately, he was able to substantiate his innocence and overcome that obstacle. Despite the ordeal he experienced in the Active Army, he decided to continue his service in the USAR. c. Discussion: (1) With his name now imprinted in DCII, he will have to constantly explain his innocence to future employers or security clearance investigators. His only recourse is to have his name removed from the titling block of the LER or, at minimum, have the Board amend the case records to reflect probable cause did not exist for law enforcement reporting purposes. (2) The Board should consider a recent change in the law that makes it easier for service members to expunge their records. The National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, included the following provision in section 545: "Removal of personally identifying and other information of certain persons from investigative reports, the Department of Defense Central Index of investigations, and other records and databases." (3) His records should be corrected or expunged regarding his name and PII either under existing regulations or the new law. Also, consideration should be given concerning his diagnosis of PTSD because of the allegations against him for drug use (see attachment for details). d. Conclusion. Even after proving his innocence, his name still come up during criminal history background checks in databases for drug use. As he navigates his new life as an honorably discharged veteran and Army Reservist, he respectfully asks this Board to finally clear his name and direct CID to expunge his record. 3. Following prior enlisted service in the Army National Guard, he was appointed as Regular Army commissioned officer in the rank/grade of second lieutenant/O-1 and entered active duty on 3 January 2014. He was promoted to the rank/grade of captain/O-3 on 1 January 2018. 4. The redacted CID LER (Final), 1 October 2021, shows the Schofield Barracks CID Special Agent was notified by the Brigade Judge Advocate, Office of the Staff Judge Advocate, Schofield Barracks, HI, who reported the applicant tested positive for cocaine and delta-9-THC, the primary psychoactive chemical in marijuana, in a unit urinalysis conducted on 30 June 2021. This report summary noted (see CID Form 94 and auxiliary documents for details): a. The applicant was advised of his rights, which he waived, and denied he consumed any controlled substances. He stated he believed there may have been an issue with the chain of custody in regard to his urine specimen while the unit urinalysis was conducted. b. Staff Sergeant (SSG) (Redacted) was advised of his rights, which he waived, and explained his role as the Unit Prevention Leader. SSG (Redacted) stated there was no break in the chain of custody and all collected specimens were taken directly to the Army Substance Abuse Program for same day turn-in. SSG (Redacted) provided a copy of the chain of custody, which confirmed his statement. c. First Sergeant (Redacted) was advised of his rights, which he waived, and stated the specimen the applicant provided was monitored at all times. d. On 28 September 2021, the Military Justice Advisor, Office of the Staff Judge Advocate, Schofield Barracks, HI, opined probable cause existed to believe the applicant committed the offenses of wrongful use of marijuana and wrongful use of cocaine. No additional investigative efforts were required. There is sufficient evidence to provide to command for consideration of action. e. The applicant was listed for the following UCMJ offenses under Article 112a (Wrongful Use, Possession, etc., of Controlled Substances): * wrongful use of cocaine – detected by urinalysis * wrongful use of marijuana – detected by urinalysis 5. The applicant was reprimanded in writing by the Commanding General, Headquarters, 25th Infantry Division and U.S. Army Hawaii, Schofield Barracks, HI, on 28 October 2021, wherein he stated: You are hereby reprimanded for your use of illegal drugs. A random urinalysis inspection administered on 30 June 2021 revealed that you wrongfully used tetrahydrocannabinol (THC) between on or about 30 May 2021 and 30 June 2021. The same urinalysis revealed that you also wrongfully used cocaine between on or about 27 June 2021 and 30 June 2021. Your conduct goes against all of the values the Army expects of a leader and officer. The Army and this command have consistently emphasized the consequences of the use of illegal drugs. As a commissioned officer, you are charged with the responsibility of setting the example for subordinates to emulate. Your actions fell below the standards expected of a commissioned officer in the United States Army. There is no excuse for your irresponsible and improper behavior. I seriously question your judgement and potential for further service. This is an administrative reprimand imposed under the provisions of AR [Army Regulation] 600-37 [Unfavorable Information] and not as punishment under Article 15, Uniform Code of Military Justice. You are advised that in accordance with AR [Army Regulation] 600-37, Paragraph 3-5b, I am considering whether to direct this reprimand be filed permanently in your Army Military Human Resource Record. Prior to making my filing decision, I will consider any matters you submit in extenuation, mitigation, or rebuttal. You will be provided, by separate cover, a copy of the evidence which forms the basis for this reprimand. You will immediately acknowledge receipt of this reprimand in writing. You will forward any matters you wish me to consider through your chain of command within seven calendar days, using the format prescribed in Army Regulation 600-37, Paragraph 3-7. 6. He acknowledged receipt of the GOMOR on 1 November 2021. His memorandum to the Commanding General, Headquarters, 25th Infantry Division and U.S. Army Hawaii (Rebuttal Statement for GOMOR – (Applicant)), 5 November 2021, provided supporting documents, professed his innocence, and requested withdrawal of the GOMOR or alternatively filing the GOMOR locally and not in his Official Military Personal File. a. He conducted a hair follicle drug screening at his own cost with a civilian medical office to prove his innocence. The hair sample detected no drugs were in his body. He further had concerns that his specimen was contaminated due to improper handling and the chain of custody was broken contributing to his specimen testing positive. b. He noted bank statements provided to CID were to show he did not purchase "high-risk activities" and noted his character values and successful service with evaluations and military schooling (see attachment for further details). 7. After carefully considering the matters submitted in rebuttal, the Commanding General, Headquarters, 25th Infantry Division and U.S. Army Hawaii, directed withdrawal and destruction of the GOMOR on 23 November 2021. 8. U.S. Army Garrison-Hawaii Orders 041-0001, 10 February 2022, reassigned him to the Schofield Barracks Transition Point on 9 August 2022 and released him from active- duty effective 9 October 2022 with assignment to the USAR Control Group (Reinforcement). 9. The CID letter, 2 June 2022, responded to his request for a copy of his LER and provided a redacted copy.? 10. The DA Form 5691 (Request for Reserve Component Assignment Orders), 13 July 2022, shows he requested appointment in the USAR effective 9 October 2022 upon completion of his active service. 11. He submitted a Declaration Letter (Titling Removal Request for LER) to the Director, CRC, 28 July 2022, to remove his name from CID titling based upon the evidence of his negative hair follicle drug test (see attachment). 12. U.S. Army Garrison-Hawaii Orders 213-0001, 1 August 2022, amended U.S. Army Garrison-Hawaii Orders 041-0001, 10 February 2022, by correcting his assignment to read Headquarters and Headquarters Detachment, 633rd Quartermaster Battalion, USAR, Sharonville, OH. 13. The CID/CRC letter, 7 September 2022, with auxiliary documents, responded to his request to remove his name from the titling block of the LER, 1 October 2021. After review and consideration of his request and the available evidence, CID denied his request. The auxiliary documents, including a CID legal review of his request, noted that probable cause existed to believe he committed the offenses noted in the LER (see attachments). 14. He was honorably released from active duty by reason of completion of required active service on 9 October 2022 and transferred to a Reserve Component troop program unit. His DD Form 214 shows he completed 8 years, 9 months, and 7 days of net active service. 15. The U.S. Army Human Resources Command memorandum (Appointment as a Reserve Officer of the Army), 10 October 2022, appointed him as a Reserve officer of the Army for an indefinite term in the rank of captain effective 10 October 2022. 16. On 27 March 2023, the Army Review Boards Agency Case Management Division provided him with a copy of the CID LER and offered him the opportunity to comment. 17. Counsel responded in writing on 9 May 2023, wherein he noted (see attachment): a. The applicant has not imagined this nightmare; he has lived it. As a quick recap, the applicant tested positive in a random urinalysis for marijuana and cocaine use in 2021. He waived his right to remain silent when questioned. He denied the accusation, explained past problems with the unit's urinalysis program, and then set out to prove his innocence by obtaining a hair follicle test. This test showed he had not used marijuana or cocaine – two completely different drugs that induce completely different responses in users – during the alleged dates. His response to a GOMOR was so compelling and persuasive that his commanding general withdrew and destroyed the adverse action. b. The Government failed to clear the probable cause threshold. Under Article 112a, UCMJ, drug use is wrongful only when a service member has knowledge of the presence of the controlled substance. Here, the Government assumed wrongfulness and stubbornly persisted in this assumption even after he proved his innocence to his commanding general. The commanding general considered the totality of circumstances and cleared him of illegal drug use. The ABCMR should likewise consider all the evidence and not rely on a suspect drug testing report that the investigators and the legal office accepted at face value. The applicant has so far had to live with the enduring collateral consequence of their blind faith in a random urinalysis. 18. The applicant, through counsel, provided the following evidence in addition to those documents discussed above: a. Enclosure 11 contains a medical document, 22 February 2022, showing his medical diagnoses that include chronic PTSD effective 4 February 2022. b. Enclosure 12 contains an 11 August 2022 email from his civilian employer requesting that he justify/explain his background check regarding the drug charge. 19. The applicant is currently assigned to the 3rd Battalion (Observer Controllers/ Trainers), 397th Regiment, 86th Training Division, USAR, in Whitehall, OH, as the S-4. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board carefully through counsel 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 through counsel of the applicant’s petition and available military records the Board considered the facts and circumstances surrounding the applicant’s allegations. The Board found it unclear as to why the applicant’s GOMOR was removed by his commanding general, we the Board are not an investigative body, nor can the Board speculate the rational of his senior leadership. The Board determined the applicant, and his counsel did not provide evidence that clearly exonerates him or shows that there was a clear injustice. The CID Report shows at the time, there was credible information regarding the applicant's involvement in the alleged offense. 2. The Board, however determined the standard to determine whether a titling action was appropriate has changed under the National Defense Authorization Act, Fiscal Year 2021, section 545, to a higher increased standard of "probable cause. Based on this, the Board found there was insufficient evidence to support the applicant was improperly titled and should be removed from the law enforcement report (LER), 1 October 2021, and expunction of his name and personally identifiable information (PII) from the Defense Central Investigations Index (DCII), CID databases, and all other federal agency criminal databases and amendment of the LER to reflect that probable cause did not exist to submit criminal history data to the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC) under Department of Defense (DOD). Based on the facts and circumstances provided, the Board denied relief. 3. 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). 4. 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 equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (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 the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 190-45 (Law Enforcement Reporting) establishes policies and procedures for offense and serious-incident reporting within the Army; for reporting to the DOD and the Department of Justice, as appropriate; and for participating in the FBI NCIC, Department of Justice's Criminal Justice Information System, National Law Enforcement Telecommunications System, and State criminal justice systems. a. Paragraph 3-6a (Amendment of Records) states an amendment of records is appropriate when such records are established as being inaccurate, irrelevant, untimely, or incomplete. Amendment procedures are not intended to permit challenging an event that occurred. Requests to amend reports will be granted only if the individual submits new, relevant, and material facts that are determined to warrant their inclusion in or revision of the police report. Requests to delete a person's name from the title block will be granted only if it is determined that there is no probable cause to believe the individual committed the offense for which he or she is listed as a subject. It is emphasized that the decision to list a person's name in the title block of a police report is an investigative determination that is independent of whether subsequent judicial, nonjudicial, or administrative action is taken against the individual. b. Paragraph 4-3a states an incident will not be reported as a founded offense unless adequately substantiated by a police investigation. A person or entity will be reported as the subject of an offense in 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 (ROI) 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. c. 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. d. Paragraph 4-7 (DA Form 4833) states the DA Form 4833 is used with the LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 3. Army Regulation 195-2 (Criminal Investigation Activities), 9 June 2014, prescribes policies and procedures pertaining to criminal investigation activities within the Department of the Army. It prescribes the authority for conducting criminal investigations, crime prevention surveys, protective service missions, force protection and antiterrorism efforts and the collection, retention, and dissemination of criminal information. It delineates responsibility and authority between installation law enforcement activities and CID. 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 (Amendment of CID Reports) provides that: (1) 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. (2) The burden of proof to substantiate the request rests with the individual. (3) Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated, or the wrong person's name has been entered as a result of mistaken identity. (4) The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. (5) The decision to make any changes in the report rests within the sole discretion of the Commanding General, CID. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. c. The Glossary defines creditable information as information disclosed to or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to indicate that criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further the facts of the case to determine whether a criminal act occurred or may have occurred. 4. DOD Instruction 5505.7 (Titling and Indexing in Criminal Investigations) 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 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. 5. DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) 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 FBI for inclusion in the NCIC 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 FBI, 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. 6. Public Law 116-283 (known and cited as 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)), 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, PII, 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, PII, 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 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 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) AR20230000847 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1