IN THE CASE OF: BOARD DATE: 3 June 2021 DOCKET NUMBER: AR20190014198 APPLICANT REQUESTS: his name be deleted from the Title Block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) 00xxx-18-CID045- 0x0xxx, and from the Defense Clearance and Investigation Index (DCII). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Marc 2019 Applicant's request for amendment of the CID ROI * June 2019 (multiple) response letters from CID * October 2018 CID Report of Investigation * Probable Cause Determination * Law Enforcement Sexual Assault Report FACTS: 1. The applicant states he was titled and indexed in DCII based on a third party's mistaken report that he had committed a sexual assault against his girlfriend. In reality, his then girlfriend did not intend to report an incident, understands that our actions were indeed consensual, and has repeatedly stated that no sexual assault occurred. After a full investigation, the Special Victim Prosecutor, Major G__, made a finding of no probable cause that an offense had occurred, and no disciplinary action or other actions were taken. The entire incident was a misunderstanding by an uninformed third party. If his name continues to be included in the titling records, this is likely to affect his security clearance and his career and may cause others to draw extremely negative conclusions about him, simply because he was included as a subject of an unfounded accusation based on a mistaken 3rd party report. In these circumstances, CID's policy of refusing to amend an unfounded titling decision is unfair and CID should correct this mistake. 2. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 18 February 2014 and holds military occupational specialty 27D (Legal Specialist). b. He reenlisted in January 2017, was promoted to sergeant/E-5 in November 2019, and reenlisted again in January 2021. c. At the time of this incident, he was assigned to Fort Leonard Wood, MO. He is currently assigned to Redstone Arsenal, AL. 3. In October 2014, CID officials at Fort Leonard Wood were notified by then Captain (CPT) G__, Special Victims Prosecutor (SVP), Office of the Staff Judge Advocate (OSJA), Fort Leonard Wood, who reported Private E__ was sexually assaulted. CPT G__ had no further details as to the alleged incident at this time. a. On 23 October 2018, CID Agent(s) interviewed Sergeant (SGT) B__ who provided a sworn statement wherein he stated he returned to duty from convalescent leave 22 October 2018, and proceeded to check in on his soldiers. SGT B__ stated he had noticed PV2 E__ seemed "off' and asked if something had happened during his absence. SGT B__ related when PV2 E___ told him "no" he began to pry and she told him something happened to her which was similar to what had occurred to her during advanced individual training (AIT). SGT B__ stated in the past PV2 E__ had told him she was the victim of an incident during AIT which occurred during physical training (PT) but was restricted. SGT B__ stated he did not know any details, and only knew of the incident at all because PV2 E__ claimed it affected her PT at the unit and work performance. b. SGT B__ stated he continued to pry and began to list names of other paralegals as potential perpetrators, and when he got to [Applicant], PV2 E__ said "yes." SGT B__ stated PV2 E___ told him she said "no" before and during sex, but [Applicant] had sex with her anyway, which occurred in an unspecified barracks room sometime in early October 2018 or late September 2018. PV2 E__ denied any pre-existing relationship, or ever having had sexual intercourse with [Applicant] prior. SGT B__ stated he asked whether PV2 E___ reported the incident, which she said no, and stated [Applicant] was due to ETS and she did not want to get him in trouble. SGT B___ further stated PV2 E__ told him she told her friend PV2 C__, about the incident immediately after it occurred. SGT B__ stated he later approached PFC C__ who stated she didn't tell SGT B___ because "they have been sleeping together for a while" or something similar. SGT B___ further stated he approached PFC F__, who is another paralegal in his office who stated he also had heard about the situation, but did not think anything of it because [Applicant] was seen to be "apologetic" and had bought her flowers, etc. c. CID Agents obtained verbal search and seizure authorization for [Applicant's] cellphone, and all text messages between PV2 E___ and [Applicant]. Data extraction revealed [Applicant] and PV2 E___ were in some type of relationship to include intimate acts prior to the alleged incident. e. On 25 October 2018, CID Agents received a NCIC check return for [Applicant] which reflected the following information: * Arrest Date: 12 Jun 17, Charge: Hindering Prosecution of a Felony, Offense Date: 10 June 2017, Severity: Felony, Agency: Police Department * Arrest Date: 10 June 2017, Charge: Obstructing Justice, Accessory after the Fact, and False Official Statement, Offense Date: 10 June 2017, Agency: U.S. Army 4. On 20 November 2018, CPT G__, Special Victims Prosecutor, issued a memorandum for Record, Subject: Probable Cause Determination in which she stated "the investigation was reviewed and the following opinion provided for the specified possible violation of law: * Victim: PV2 E___ * Offense: Sexual Assault * Remarks: 3rd Party Misinterpretation 5. On 8 March 2019, the applicant wrote to CID, Subject: Request for Amendment of U.S. Army Criminal Investigation Command Report of Investigation. He requested his name be deleted from the title block of the ROI. He contended: * credible information does not exist to believe that he committed the offense for which he was titled as a subject at the time the investigation was initiated * in a memorandum for record dated 20 November 2018, the alleged victim in this case explained that she never intended for an investigation to begin, and did not believe an offense had taken place * the report that led to the investigation was initiated by a third party who did not understand the facts * the requirements of AR 190-30, para 4-13, and AR 190-45 were not followed; prior to titling an individual, or checking a box as "founded," law enforcement must obtain a legal opine from the Office of the Staff Judge Advocate (OSJA) * the legal opine from the OSJA did not support titling me as it clearly noted that probable cause did not exist to believe he committed the offense. * If it is determined that his name will not be deleted from the title block, he requests that the ROI be amended to specify that the determination of the offense was baseless and that no probable cause existed as noted in trial counsel's Probable Cause Determination 6. Before responding to the applicant, the Director of U.S. Army Crime Records Center (CRC), consulted with other CID staff/officials (Investigative, Operations, Legal, and Polygraph Division) and received their recommendations as follows: a. Letter, dated 18 June 2019, wherein a CID Operations official advised the Director of CRC, that a review was conducted of Law Enforcement Report (LER) [Number of Report] and that he/she assessed the credible information standard existed at the time of the initial report pertaining to [Applicant]; and [Applicant] should remain in the title block of the LER. The incident was reported via a third party who reported what he was told by the victim. There was no mistaken identity and no reason to believe the complainant was not credible at the time the initial report was dispatched. The LER was closed with no probable cause existing to believe [Applicant] committed the listed offense of Sexual Assault. Based upon the totality of the investigation it was determined to be third party misinterpretation of the incident. The official recommended a corrected final report be prepared to further explain the legal opinion in that the allegation was misinterpreted. b. Letter, dated 19 June 2019, wherein a CID Investigative Division official advised the Director, CRC that a review was conducted of the LER to determine if the credible information standard was correctly applied when [Applicant] was indexed as a subject for the offense of Sexual Assault. The applicant was indexed for the offense of sexual assault, when an Initial Report was dispatched on 24 October 2018, following a CID supervisor's determination that the credible information standard was met. This was supported by the victim's complaint of sexual assault to two separate witnesses (an NCO supervisor and a fellow Soldier). The complaint was unrestricted, clearly depicted that she did not provide her consent to engage in sexual acts with [Applicant] and that [Applicant] continued to engage in sex with the victim despite her indicating she did not consent. The credible complaint was not diminished on 24 October 2018, by the witness references of text messages between the subject and victim, wherein the subject asserted that the victim was a willing participant due to her grabbing his penis. Subsequently, the investigation established the victim's unwillingness to cooperate with the investigation directly, and then a clarification memorandum was provided which related she felt the investigation was based upon a miscommunication and she did not feel she was sexually assaulted by [Applicant]. The investigation established text messages which reflected this communication. On 20 November 2018, the Special Victims Prosecutor opined no probable cause exists to believe [Applicant] committed the offense of sexual assault. Based upon his/her review, [Applicant] was properly indexed as a subject utilizing the credible information standard at the time of the decision; therefore, the request to be removed should be denied. It is also his or her belief that the cited offense has the appropriate investigative finding based upon the legal opinion received; therefore, they should not be altered. c. Letter, dated 21 June 2019, from a CID Legal Advisor to the Director, CRC, Subject: Legal Review of Request for Amendment of Record. The legal advisor stated: (1) Based on the review of the LER and appeal, the legal advisor found there is no basis for granting his request for an amendment. There is credible information to support the titling decision. In accordance with DODI 5505.7, Titling and Indexing Subjects of Criminal Investigations in the DOD, February 28, 2018, a person is titled as a subject in the LER when there is credible information to believe that person may have committed the crime. Credible information is defined as "Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts in question are true." The legal advisor stated that this standard has been met. (2) [Applicant] was titled for violation of Article 120, Sexual Assault, Uniform Code of Military Justice. Based on the legal advisor's review of the LER, "I (the legal advisor) find that the credible evidence did exist to title him for the offense and the LER contains sufficient evidence to support the titling decision. In addition, I concur with the Special Victims Prosecutor's determination that no probable cause existed to believe [Applicant] committed the offense of sexual assault." (3) In accordance with DODI 5505.7 and AR 195-2, Criminal Investigations Activities, 9 June 2014, once a subject is titled, requests to amend or unfound offenses in LER will only 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 was entered as a result of mistaken identity. Neither of these two reasons exists. Credible information exists to believe that [Applicant] committed the offense he was titled for and the wrong person's name was not entered into the title block as a result of mistaken identity. Finally, no new, relevant, or material facts were submitted in the appeal to warrant revision of the titling determination. d. Letter, dated 26 June 2019, from a Quality Control Analyst, Polygraph Division, CID to the Director, CRC, Subject: Request for Amendment of Record. The Quality Control official stated he or she reviewed the applicant's Request for Amendment of Record and attached documentation. He/she opined that the applicant should be retained in the subject block of this LER for the listed offense. Credible information did exist at the time of the initial LER to warrant [Applicant] being titled as a subject in this investigation. There was no error in mistaken identity or error in application of the credible information standard at the time of the initial LER to support an amendment to this portion of the report. A further review of PFC Brown's Request for Amendment failed to discover any substantive, new information warranting amendment to the probable cause determination reflected in the summary of this LER regarding the listed founded offenses. 7. On 27 June 2019, the Director of the U.S. Army Criminal Records Center responded to the applicant's request to correct information from the files of CID. After careful review and consideration of his request and the evidence available, on behalf of Major General [Name], Commander USACIDC, the Access and Amendment Refusal Authority for USACIDC records, and in accordance with Army Regulation 195-2, his request to have his name be deleted from the title block of Law Enforcement Report [LER Number] is denied. This denial constitutes final action on behalf of the Secretary of the Army with respect to Army Regulation 195-2. a. The enclosed Action Officers Opinions, responsive to your request, are part of a system of records exempt from the disclosure provisions of the Freedom of Information Act (FOIA). The names of law enforcement personnel, as well as names, social security numbers and other personal items of information pertaining to third parties have been withheld. The removal of this information constitutes a partial denial pursuant to Title 5, USC, Section 552, Exemptions (b)(6), and (b)(7)(C) of the FOIA, because release could violate the personal privacy of other individuals mentioned in the report. b. This letter constitutes a partial denial of his request, made on behalf of Major General [Name], Commander, USACIDC, the Initial Denial Authority for USACIDC records. He (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. His appeal is made through this Center and should be addressed to the Director, U.S. Army Crime Records Center, for forwarding to the Office of the Army General Counsel. His appeal should address information denied in this response and cannot be used to make a new request for additional or new information. c. He was advised that he had exhausted your remedies to correct information contained in his USACIDC record through our agency. To appeal this amendment denial, he may wish to write to the ABCMR. 8. By regulation (AR 195-2), chapter 4 contains guidance for individual requests for access to or amendment of CID ROI's. Requests for amendment of a CID ROI will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a CID ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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 and available military records 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) Report of Investigation (ROI) and from the Defense Clearance and Investigation Index (DCII). Relief was denied. 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 XXX XXX XX 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. ADMINISTRATIVE NOTES: N/A REFERENCES: 1. DODI 5505.7 contains the authority and criteria for titling decisions and states that titling only requires credible information that an offense may have been committed. It states that regardless of the characterization of the offense as founded, unfounded, or insufficient in evidence, the only way to administratively remove a titling action from the Defense Central Index of Investigations (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether or not to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." The criteria for titling are a determination that credible information exists that a person: may have committed a criminal offense or is otherwise made the object of a criminal investigation. 2. DODI 5505.7 contains further legal guidance. a. Section 6.1. Organizations engaged in the conduct of criminal investigations shall place the names and identifying information pertaining to subjects of criminal investigations in title blocks of investigative reports. All names of individual subjects of criminal investigations by DOD organizations shall be listed in DCII. (This Instruction does not preclude the titling and indexing of victims or "incidentals" associated with criminal investigations.) Titling and indexing in the DCII shall be done as early in the investigation as it is determined that credible information exists that the subject committed a criminal offense. b. Section 6.3. The DOD standard that shall be applied when titling and indexing subjects of criminal investigations is a determination that credible information exists indicating the subject committed a criminal offense. c. Section 6.6. Once the subject of a criminal investigation is indexed, the name shall remain in the DCII even if a later finding is made that the subject did not commit the offense under investigation, subject to the following exceptions: (1) Section 6.6.1. Identifying information about the subject of a criminal investigation shall be removed from the title block of a report of investigation and DCII in the case of mistaken identity; i.e., the wrong person's name was placed in the ROI as a subject or entered into the DCII. (2) Section 6.6.2. Identifying information about the subject of a criminal investigation shall be removed from the title block of an ROI and the DCII 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. d. Section 6.9. When reviewing the appropriateness of a titling/indexing decision, the reviewing official shall consider the investigative information available at the time the initial titling decision was made to determine whether the decision was made in accordance with the standard stated in paragraph 6.3. 3. DODI 5505.7 also provides the following definitions: a. E1.1.1 – Credible Information: Information disclosed or obtained by an investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained investigator to presume that the fact or facts are true. b. E1.1.2 – Criminal Investigation: Investigation into alleged or apparent violations of law undertaken for purposes which include the collection of evidence in support of potential criminal prosecution. c. E1.1.3 – DCII: A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DOD, as well as selected other Federal agencies, to determine security clearance status and the existence/physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Security Service; however, the data it contains is the responsibility of the contributing agencies. d. E1.1.4 – Incidental: Any person or entity associated with a matter under investigation whose identity may be of subsequent value for law enforcement or security purposes. e. E1.1.5 – Indexing: Refers to the procedure whereby an organization responsible for conducting criminal investigations submits identifying information concerning subjects, victims, or incidentals of investigations for addition to the DCII. f. E1.1.6 – Subject: A person, corporation, or other legal entity about which credible information exists that would cause a trained investigator to presume that the person, corporation, or other legal entity committed a criminal offense. g. E1.1.7 – Title Block: Portion of an investigative report used to identify the persons, entities, or activities on which the investigation focuses. h. E1.1.8 – Titling: Placing the name(s) of person(s), corporation(s), other legal entity, organization(s), or occurrence(s) in the title block of a criminal investigative report. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014198 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1