RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 May 2020 DOCKET NUMBER: AR20190000735 APPLICANT REQUESTS: in effect, removal of his name as the titling subject for the offenses of Article 133 (Conduct Unbecoming an Officer) and Article 134 (Disorderly Conduct), Uniform Code of Military Justice (UCMJ), from U.S. Army Criminal Investigation Command (USACIDC or CID) files. 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) • Memorandum, Counsel, dated 25 October 2018, subject: Memorandum in Support of (Applicant's) Application for the Correction of an Improper Titling Decision • Judgment of Acquittal on Plea of Not Guilty, State of Texas, dated 23 May 2012 • Charge of the Court, 224th Judicial District, Bexar County, TX, dated 3 April 2013 • Sworn Statement, Applicant's Ex-wife's Best Friend, dated 16 July 2013 • CID Forms 94 (Agent's Investigation Report), dated 27 June 2013, 22 July 2013, 25 July 2013, and 24 September 2013 • Police Report, San Antonio Police, dated 1 January 2014 • DA Form 2823 (Sworn Statement), Major (MAJ) W____, dated 2 September 2015 • Memorandum, Lieutenant Colonel (LTC) C____, dated 8 September 2015, subject: Stay/Feral Dog Procedures 2003-2004 on Forward Operating Base (FOB) Lancer, Bayji, Iraq • Letter, LTC (Retired) P____, undated • Agreed Order of Expunction, District Court, Bexar County, TX, dated 16 October 2015 • Letter, Counsel, dated 23 October 2015, reference: In the Matter of the Marriage of (Applicant), with sampling of photographic evidence • Memorandum, Applicant, dated 29 October 2015, subject: Request for Retention on Promotion List (Applicant) • Memorandum, Secretary of the Army, dated 29 March 2016, subject: Promotion Review Board, Fiscal Year 2015, LTC, Army, Operations Support Promotion Selection Board . Memorandum, U.S. Army Human Resources Command, Fort Knox, KY, dated 13 April 2016, subject: Promotion Review Board Results . Letter, USACIDC, Quantico, VA, dated 25 May 2016 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. The applicant’s application met this requirement. 2. Army Regulation 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to the USACIDC elements. Paragraph 4-4b (Amendment of CID Reports) provides that: a. Requests to amend or unfound offenses in USACIDC Reports of Investigation will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. b. The burden of proof to substantiate the request rest 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 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. d. The decision to list a person's name in the title block of a USACIDC report of investigation is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. e. The decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 3. Department of Defense (DOD) Instruction 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD), dated 7 January 2003, states: a. Titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling simply states, if there is reason to investigate, the subject of the investigation should be titled. This is a very low standard of proof (mere 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 the evidence), and in searches (probable cause). b. Once a person is properly titled and indexed in the Defense Central Index of Investigation, that person's name will only be removed in the case of mistaken identity (i.e., the wrong person's name was placed as a subject or entered into the Defense Central Index of Investigation) or if it is later determined a mistake was made at time the titling and/or indexing occurred in that credible information indicating the subject committed a crime did not exist. c. Judicial or adverse administrative action will not be taken based solely on the existence of a titling or indexing record in a criminal investigation. 4 DOD Instruction 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements), dated 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 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, offender criminal history data for all members of the Military Service investigated for offenses pursuant to Article 134. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 defers to counsel. 3. Counsel states: a. In September 2015, the applicant learned the USACIDC improperly titled him for indecent conduct in violation of UCMJ Article 120 (Rape and Sexual Assault), conduct unbecoming an officer in violation of UCMJ Article 133, and other violations which have since been corrected. His appeal to the USACIDC was denied in part in May 2016. b. In the summer of 2003, he was ordered by his battalion leadership to kill a pack of feral dogs on an unfenced FOB in Iraq. Ten years later, his ex-wife, Major (MAJ) R____, accessed his private tough box after he filed for divorce and found a video of him and two officers killing young members of the dog pack. She caused the video to be sent to a local television station, which led to a USACIDC investigation. He was ultimately titled with violations of UCMJ Article 133 and Article 134 for his part in the dog killing incident. That titling was clearly erroneous, as it misapplies the appropriate legal standards for conduct which violates UCMJ Article 133 and Article 134. c. In July 2015, he was selected for promotion to LTC. Screening of the promotion list discovered three apparently unrelated incidents. The first was a claim of assault against his ex-wife, MAJ R____. The second was a claim of indecent conduct against his ex-wife, MAJ R____, for submitting photographs of her partially undressed as part of court proceedings. The third was claim of disorderly conduct and conduct unbecoming an officer for following an order to kill dogs on an FOB in Iraq a decade earlier. Those titling decisions caused him to be removed from the LTC promotion list. d. The claim that gives rise to this application was also orchestrated by his ex-wife, MAJ R____. A Texas court awarded physical custody of their son to the applicant. After that ruling, MAJ R____ illegally gained access to the applicant's personal belongings to search for any material that might compromise her ex-husband and allow her some measure of vengeance. e. The USACIDC investigated the offense of killing dogs and learned the order originated with the battalion executive officer. USACIDC further learned from an Army veterinarian that dogs do present health risks and that shooting with small arms was an authorized means of euthanizing feral dogs. The USACIDC investigation fully corroborated the facts. f. The order to terminate the dogs was lawful. It was clearly issued by a competent military authority, the battalion executive officer, and the order was given for a legitimate military purpose, the health and welfare of the FOB. g. Initiation of the investigation of the incident did not begin with the applicant's command, but it was initiated by the applicant's ex-wife, who illegally obtained the video. The applicant's videos sat undisturbed in his personal belongings for nearly a decade until his ex-wife, motivated neither by the protection of animals nor by the best interest of the Army, but instead by spite, sought to denigrate her ex-husband. h. The applicant has two improper derogatory records. Both of them stem from the same incident over a decade earlier. The applicant followed a lawful order to terminate dogs. That lawful order to terminate dogs was improperly labeled as disorderly conduct and conduct unbecoming an officer. 4. The applicant was serving in Regular Army in the rank/grade of captain/O-3 in the summer of 2003, while deployed to Iraq when the incident occurred involving the euthanizing of feral dogs around his FOB. 5. On 10 October 2003, he was awarded the Bronze Star Medal for exceptionally meritorious achievement while assigned as the collection manager during Operation Iraqi Freedom from 19 March 2003 to 1 October 2003. 6. The 224th Judicial District, Bexar County, TX, Final Decree of Divorce, filed 4 June 2013, shows the applicant and his then-wife divorced effective 25 April 2013. 7. The applicant provided excerpts from Law Enforcement Report 2013-CID044­XXXXXX-XX, including a sworn statement from his ex-wife's best friend and four CID Forms 94. The documents describe the events surrounding the applicant's involvement with euthanizing feral dogs while deployed to Iraq in 2003. 8. The applicant provided a memorandum from his former battalion executive officer, dated 8 September 2015, subject: Stray/Feral Dog Procedures 2003-2004 on FOB Lancer, Bayji, Iraq, stating: "the dogs were considered a health risk from fleas, tics and potential rabies threat to Soldiers. Consequently, we eliminated all dogs, regardless of age, on the FOB and continued this policy throughout the deployment." 9. The applicant provided a DA Form 2823 (Sworn Statement), dated 2 September 2003, from MAJ W____, who attests to the condition and circumstances surrounding the hazards of the feral dogs. 10. The applicant provided a letter from the former battalion S-3, LTC (Retired) P____, undated, stating: a. Medical personnel expressed concerns over rabies and other disease vectors spread by stray/feral animals (including dogs) rooting through trash dumps. b. The battalion leadership determined there was no existing policy to deal with feral animals. In the interest of force protection and military necessity, the battalion directed the elimination of the animals. The battalion ensured that there was a leader in charge to supervise and ensure that it was done as humanely and quickly as possible. The applicant was one of the officers asked to supervise. c. The applicant did not act with malicious intent, cruelty toward animals, or any other pejorative description. He was asked to supervise Soldiers acting to protect the health and well-being of the battalion. 11. District Court, Bexar County, TX, Agreed Order of Expunction, dated 16 October 2015, shows the applicant's records were ordered expunged concerning his arrest on or about 15 November 2011 for Assault by Physical Contact, a Class C misdemeanor, which was later amended to the charge to Assault Bodily Injury-Married, a Class A misdemeanor. The applicant was found not guilty by a jury on 23 May 2012. The Order of Expunction is included in the applicant's records with the Federal Bureau of Investigation and the U.S. Army Crime Records Center. 12. The applicant's memorandum, dated 29 October 2015, subject: Request for Retention on Promotion List, states the cited negative information is an incomplete portrayal of the facts. The military police report concerns an off-post arrest based on his ex-wife's false allegation for which a civilian jury found him not guilty. Subsequently, his ex-wife filed the subject CID report. The CID report failed to state the photographs taken of his ex-wife were taken as evidence of her drunkenness, in which a jury awarded him primary custody of their son. The CID report also failed to state the battalion directed the elimination of feral animals, regardless of age, due to disease concerns. 13. The Secretary of the Army memorandum, dated 29 March 2016, subject: Promotion Review Board, Fiscal Year 2015 LTC, Army Operations Support Promotion Selection Board, directed removal of the applicant's name from the promotion list. 14. The USACIDC letter, dated 25 May 2016, responds to the applicant's request to correct information from the files of the USACIDC and supplements their response of 1 February 2016 (not in evidence). The Director, U.S. Army Crime Records Center, states: a. After a careful review and consideration of the applicant's request and the evidence available, his request to remove him as the subject of Law Enforcement Report 2013-CID044-XXXXXX-XX is partially granted. b. Administrative corrections have been made to the Law Enforcement Report to change the offense of "Indecent Conduct" to "Unfounded." The offenses of "Conduct Unbecoming an Officer" and "Disorderly Conduct" remain "Founded." 15. Headquarters, U.S. Army Human Resources Command, Order Number 099-802, dated 9 April 2018, promoted the applicant to the rank/grade of LTC/O-5 effective 1 August 2017. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board considered the applicant’s statement, evidence in the records, the circumstances of the titling decision, the consideration of his request reflected in the USACIDC letter and the CID amendment of the Law Enforcement Report. The Board considered the applicant’s removal from the LTC Promotion list and his subsequent promotion. The Board considered the conditions under which “untitling” individuals is considered. The Board found that all due process protections were afforded the applicant and that the processing of the Law Enforcement Report was done within regulatory guidelines and standards. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence of mistaken identity or lack of credible information that the applicant committed a crime when titled. Based on a preponderance of evidence, the Board determined that the applicant’s titling was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. Expired certificate X CHAIRPERSON 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. //NOTHING FOLLOWS//