IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20230000914 APPLICANT REQUESTS: * removal of the titling and conviction of Article 120 (Rape and Sexual Assault), Uniform Code of Military Justice (UCMJ), from the U.S. Army Crime Records Center, U.S. Army records, and Federal Bureau of Investigation records * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * U.S. Army Criminal Investigation Command (CID) Memorandum (CID Report of Investigation (ROI) 2018), 12 March 2008 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ), 5 May 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * CID Letter, 16 August 2018 * Agency for Health Care Administration Letter, 12 July 2019 * CID Letter, 11 September 2019 * Department of the Army Office of the Inspector General Letter, 15 September 2020 * Email Correspondence, U.S. Army Special Operations Command (Freedom of Information Act), 2 October 2020 through 22 October 2020 * Joint Base Garrison Headquarters, Joint Base Lewis-McChord, Letter, 26 October 2020 * U.S. Special Operations Command Pacific Memorandum (Military Justice Background of (Applicant)), 11 November 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) filed in his military records includes false information which causes an erroneous and invalid guilty charge under Article 120 (Rape and Sexual Assault), UCMJ. This fabricated and misleading document not only undermines the important American justice principle of innocent until proven guilty, but also prohibits him from continuing in his desired career field as a practicing medical doctor. b. He was accused of a violation under Article 120, UCMJ, in 2008 from an incident that took place in 2007. The Article 120, UCMJ, charge was dismissed after an Article 32, UCMJ, hearing. Due to dismissal of the charge at the Article 32, UCMJ, proceedings, it was impossible for the charge to progress to a court-martial proceeding. At no point did he plead guilty to the Article 120, UCMJ, charge, nor was he found guilty. c. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violations of Article 92 (Failure to Obey an Order or Regulation), UCMJ, and Article 134 (General Article), UCMJ. Upon appeal to the post commander at Fort Lewis, WA, the Article 134, UCMJ, charge was removed. He completed the assigned NJP, submitted his resignation, and received an honorable discharge from the U.S. Army. d. He joined the U.S. Army Reserve (USAR) with absolutely no issues or questions regarding any of the aforementioned alleged Article 120, UCMJ, charge. He honorably served in the military for over 10 years. He was assigned to multiple positions of leadership, successfully renewed his security clearance, and obtained a Top Secret security clearance. No discrepancies in his criminal record arose at any point during his security clearance investigation. He received a second honorable discharge from the USAR in March 2018. e. He enrolled in medical school in 2015, passed the entrance background check, and completed a level-two background check as part of a medical school rotation. In or about July 2019, he was unable to complete a second emergency medicine rotation due to the background check from the erroneous DA Form 4833 filed in his military records being denied. The NJP under the provisions of Article 15, UCMJ, in violation of Article 92, UCMJ, is the only valid and substantiated record of misconduct in his military records. This is not a reality as the aforementioned DA Form 4833 cites completely inaccurate and false information. f. There are multiple errors on the DA Form 4833, to include: (1) The DA Form 4833 is dated September 2013, the date is more than 5 years after administration of the NJP and dismissal of the Article 120, UCMJ, charge, which indicates the information on the form was "forged" at a much later date.? (2) The charged offense reads: "'Rape'; Plea 'No Contest'; Finding Offense 'Rape'; Trial/NJP Finding 'Guilty.'" He did not plead "no contest," nor did he accept the Article 120, UCMJ, because this the charge was not taken to court-martial, it was dismissed after an Article 32, UCMJ, hearing. g. He has exhausted all other administrative remedies. He was unable to obtain copies of the Article 32, UCMJ, hearing or the DA Form 4833. 3. The applicant was serving in the Regular Army in the rank of first lieutenant when he became the subject of a 2007 CID ROI for violation of Article 120 (Rape), UCMJ. The investigation determined the applicant committed the offense of rape when he engaged in non-consensual sexual intercourse with the victim at an armory on or about 1 July 2007. 4. U.S. Army Human Resources Command (HRC) Order 050-074, 19 February 2008, promoted him to the rank/grade of captain (CPT)/O-3 with a date of rank of 1 March 2008. 5. HRC Order 057-001, 26 February 2008, revoked the applicant's promotion to CPT. 6. He received NJP under the provisions of Article 15, UCMJ, on 5 May 2008 for violation of a lawful general regulation, to wit: Army Regulation 600-20 (Army Command Policy), paragraph 4-14c(2), by wrongfully engaging in sexual activity with an enlisted member at or near Camp Navarro, Zamboanga, Republic of the Philippines, between on or about 3 July 2007 and 10 July 2007. a. His punishment consisted of restriction for 30 days. He elected to appeal and to submit additional matters. (Note: His additional matters are not in evidence for review). b. On 8 May 2008, the Judge Advocate, 1st Special Forces Group, Fort Lewis, WA, opined: "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed." c. After consideration of all matters presented in the applicant's appeal, the Commanding General, I Corps and Fort Lewis, denied the applicant's appeal. d. Allied documents and/or comments are listed as: "Continuation Sheet" and "Art[icle] 32 Investigation." (Note: The Article 32 ROI is not in evidence for review.) 7. The DA Form 4833, 10 June 2008, lists the applicant's offense of rape with the commander's decision dated 14 March 2008. The action taken consisted of NJP and promotion revocation imposed on 1 April 2008. His NJP consisted of a $3,200 fine, restriction for 14 days, and forfeiture of all pay/allowances for 2 months, adjudged on 1 April 2004, with sanctions suspended for 6 months. (Note: The DA Form 4833, September 2013, is not in evidence for review.) 8. The HRC memorandum (Unqualified Resignation (Applicant)), undated, approved his request for an unqualified resignation effective 27 September 2008. 9. He was honorably discharged from active duty and transferred to the USAR on 27 September 2008. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 8 months, and 7 days of active service. 10. His memorandum (Request Promotion to CPT), 1 July 2008, acknowledged receipt of the memorandum (Promotion Review Board Notification), 26 June 2008, and stated he wished to submit the following matters in mitigation. a. He was involved in a prohibited sexual relationship with an enlisted member of the U.S. Marine Corps while forward deployed to the Philippines between 27 June 2007 and 8 July 2007. On 5 May 2008, he accepted NJP and has since completely served his punishment. b. He now clearly understands that the proper balance between the line of separation between officers and enlisted personnel is essential to good order and discipline in his unit and such incidents will not happen again. c. He has served in the USAR and in the Active Component and has an outstanding record of service. He has been accepted in and is currently enrolled in a master's program in medical science with a goal of becoming an U.S. Army physician. d. He took full responsibility for his actions and adjusted his leadership style. He requests promotion to the rank/grade of CPT/O-3. 11. The HRC memorandum (Promotion Status (Applicant)), 27 January 2009, notified the applicant that the Secretary of the Army removed his name from the promotion list. 12. HRC Orders B-03-001320, 5 March 2010, promoted him to the rank/grade of CPT/O-3 effective 1 February 2010. 13. HRC Orders D-10-724701, 6 October 2017, honorably discharged him from the USAR effective 1 March 2018. 14. On 2 October 2018, the Department of the Army Suitability Evaluation Board granted his request to transfer the DA Form 2627 to the restricted folder of his Army Military Human Resource Record (AMHRR). The DASEB determined the applicant received his NJP over 10 years ago, there is no other derogatory information in his service records, he has received several successful officer evaluation reports, he has earned a Master of Science degree, and he has since been promoted to the rank/grade of CPT/O-3. He provided sufficient evidence to show the NJP has served its intended purpose and that it is in the best interest of the Army to transfer it at this time. 15. The applicant was provided a copy of the DA Form 4833 on 30 September 2021 and given an opportunity to comment and/or submit a response. 16. In response to the DA Form 4833, he stated: a. This report is a falsified and erroneous document placed in his military background and it represents a great injustice to be found "guilty" without a trial. b. The errors on the report are as follows: (1) The DA Form 4833 is dated September 2013. The date of this form is more than 5 years after administration of the NJP and dismissal of the Article 120, UCMJ, charge, which indicates the information on the form was "forged" at a much later date. (2) The Charged Offense reads: "'Rape'; Plea 'No Contest'; Finding Offense 'Rape'; Trial/NJP Finding 'Guilty.'" He did not plead "no contest" or accept an Article 120, UCMJ, because this is only plausible if the charge was taken to court- martial. The charge was dismissed after an Article 32, UCMJ, hearing. No court-martial occurred. This entire section of the DA Form 4833 is fraudulent and fabricated. (3) The Non-Judicial/Judicial Sanctions list: (a) Fine Amount – $3,200. His base salary at the time was $3,843.30. (b) Restriction – 14 days. The NJP administered 30 days of restriction. (c) Total Forfeiture (All Pay/Allowance) – 2 months. There was no forfeiture of pay and allowances as part of the NJP. (4) The Date Adjudged for these entries lists: 1 April 2008. The NJP was adjudged on 5 May 2008. It is factually impossible for there to be an adjudication date as annotated on the DA Form 4833 because he was not court-martialed or prosecuted for the charge listed on the DA Form 4833. (5) The Suspended Actions shows: "Yes; Fine/Date Suspended/Suspension Duration 6 months." No actions were suspended as part of the NJP. (6) The question "Was a DNA [deoxyribonucleic acid] sample collected from the offender?" is marked "No." A sample of his DNA was collected by CID via buccal swab. This DNA sample collection is annotated in the CID ROI. c. In summary, the DA Form 4833 filed in his military records includes false information which causes an erroneous and invalid guilty charge under Article 15, UCMJ. The NJP for violation of Article 92, UCMJ, is the only valid and substantiated record of misconduct in his military records. Previously submitted documents include a notarized memorandum for record from his company commander stating, "it is clear that this erroneous and unsigned DA Form 4833 is not a legitimate report of the administrative action in question." 17. On 16 August 2019, the U.S. Army Crime Records Center, USACID responded to his request to correct records from the files of the U.S Army .Criminal Investigation Command (USACIDC) received August 12, 2019. The Report of Investigation (ROI) [Number] is responsive to his request. The information he provided does not constitute as new or relevant information needed to amend the report; therefore, his amendment request is denied. This letter constitutes a partial denial of his request, made on behalf of Commander. USACIDC. the Initial Denial Authority for USACIDC records. The applicant has the right to appeal to the Office of the Army General Counsel, the Army's appellate authority. If he decides to appeal at this time, his appeal must be submitted within 90 days of the date of this letter. In his appeal, he must state the basis for his disagreement with the partial denial and he should state the justification for its release 18. On 11 September 2019, USACID sent him another letter in response to his request to correct information from the files of the US. Army Criminal Investigation Command (USACIDC) received September 4, 2019. The information he provided does not constitute as new or relevant information needed to amend the report. Therefore, his amendment request is denied. He has now exhausted remedies to correct information contained in his USACIDC record through this agency. To appeal this amendment denial, he may write to: Army Review Board Agency, Army Board for Correction of Military Records (ABCMR). BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 applicant's contentions, his military records, and regulatory guidance were carefully considered. The evidence shows according to the CID ROI, an investigation determined the applicant committed the offense of Rape when he engaged in non-consensual sexual intercourse with SGT at an armory. He was titled. a. Once a person is properly titled and indexed in the DCII, that person's name will only be removed in the case of mistaken identity; i.e., the wrong person's name was placed in the report of investigation as a subject or entered into the DCII or if it is later determined a mistake was made at the time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. b. In order to amend USACIDC ROls, an individual must submit new relevant and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject. c. By law and regulation, titling only requires credible information that an offense may have been committed. A review of all the information provided shows that a trained CID official determined there was credible information to conduct an investigation and determined the charges of the offenses were founded. ? 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 3. Army Regulation 600-20 (Army Command Policy), 7 June 2006, prescribed the policies and responsibilities of command, which include the well-being of the force, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program. Paragraph 4-14 (Relationships Between Soldiers of Different Rank) stated certain types of personal relationships between officers and enlisted personnel are prohibited. Prohibited relationships include dating, shared living accommodations other than those directed by operational requirement, and intimate or sexual relationships between officers and enlisted personnel. 4. Army Regulation 190-45 (Law Enforcement Reporting) prescribes policies, procedures, and responsibilities for the preparation, reporting, use, retention, and disposition of Department of the Army forms and documents related to law enforcement activities. It implements Federal reporting requirements on serious incidents, crimes, and misdemeanor crimes. 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 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. 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. b. Paragraph 4-7 (DA Form 4833) states this form is used with the Law Enforcement Report to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 5. 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 ROIs 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 ROI 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. 6. Department of Defense (DOD) Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD) establishes policy, assigns responsibilities, and provides procedures for a uniform standard for titling and indexing subjects of criminal investigations by the 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. 7. DOD Instruction 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. 8. 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) AR20230000914 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1