ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20200008822 
APPLICANT REQUESTS: in effect: 
. removal of certain information from a Law Enforcement Report (LER) number XXXX-XX-2015-CID014-XXXXXX . removal of his name from the titling block of the U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI) . removal of unfavorable information from the National Crime Information Center (NCIC) database . a personal appearance hearing 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record), 16 September 2020 
. Self-authored statement, undated 
. letter, U.S. Army Criminal Investigation Command (USACIDC), Quantico, VA, 
20 January 2020 
. letters, USACIDC, 18 March 2020 and 13 July 2020 
. email, USACIDC, 14 July 2020 
. email, Office of the Government Information Services, Freedom of Information 
Act (FOIA) Office, 15 July 2020 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect: 


a. 
The findings of a CID ROI showing the offenses of abusive sexual contact under Article 120 of the Uniform Code of Military Justice (UCMJ) and offenses of assault under Article 128 of the UCMJ were erroneous and unjust. 

b. 
The report shows inconsistent statements, no probable cause, and factual errors. 

c. 
The errors in the report adversely impacted his law enforcement career. 



d. 
He was denied his right to due process under the 5th Amendment of the Constitution and he was denied certain rights under the 6th and 14th Amendment of the Constitution. 

e. 
He provides an eleven page rebuttal of the CID ROI, outlining discrepancies in the report. It reads, in part: 


. he was not permitted to face the prosecution's witnesses . he disputes the witness statements an certain evidence of the ROI . photographs of witnesses' injuries were not provided to him in the response to 
his Freedom of Information Act (FOIA) request 
. witness 1 made inconsistent statements in that she never stated that she did not want his sexual advances, that her arms were pinned during their sexual advances, and that she did not admit she was intimate with the applicant 
. although he failed his polygraph test, he voluntarily gave a detailed account of the facts . witness 1 stated he did not use force during their interaction but was held 
down by force of his body weight . witness 1 allowed him to enter her barracks room . witness 2 never reported the alleged interactions between her and the 
applicant to her chain of command, police, friends, or colleagues 
. throughout the discovery there were three different witness reports that witness 2 assaulted the applicant and she was not charged with assaulting him 
. witness 2 never made a report of any kind against him until she was 
questioned by CID . his cellphone was not returned after the investigation . the trial counsel office opined probable cause existed that he committed 
abusive sexual contact and assault but he was honorably discharged on 20 March 2016 and did not become aware of the findings until 2019 
3. A review of the applicant's service records shows: 
a. 
On 16 March 2016, he enlisted in the Regular Army for a period of 3 years and 18 weeks at grade/pay grade private/E-1. He completed basic combat training and advanced individual training, and was awarded military occupational specialty 19D (Cavalry Scout). 

b. 
He was assigned to C Troop, 2nd Squadron, 13th Cavalry Regiment, Fort Bliss, and he maintained his enlistment rank private/E-1. 

c. 
On 4 October 2015, his superior non-commissioned officer (NCO) counseled him for his attitude towards his peers and seniors. He noted the applicant was under investigation by CID for other allegations but his performance had not been satisfactory as of late. He was counseled for: 


. disrespect towards a non-commissioned officer . insubordinate conduct . malingering 
d. 
On 25 February 2016, his Commanding Officer, C Troop, 2nd Squadron, 13th Cavalry Regiment, counseled him a flag was being imposed against him as the result of a recommendation for separation from the service. 

e. 
On 15 March 2016, his Commanding Officer, C Troop, 2nd Squadron, 13th Cavalry Regiment, notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12c for commission of a serious offense and notified him of his rights. He further stated he was recommending his service be characterized a general under honorable conditions. The reasons for his proposed action were:   


(1) 
He was disrespectful in language to SGT B___, an NCO, then known by him to be in the execution of his office by saying "I am not f__ing staying, mark my words Sergeant, I am not f___ing staying, or words to that affect, then rolling his eyes in a disrespectful manner and saying to SGT B___, "whatever", or words to that effect. 

(2) 
On or about 4 October 2015, he failed to obey a lawful order issued by SGT B___, to get off of his cell phone. 

(3) 
Between on or about 27 July 2015 and on or about 5 October 2015, he assaulted an unknown male by reaching behind him, and putting his forearm around his throat. 

(4) 
Between on or about 27 July 2015 and on or about 5 October 2015, he assaulted an unknown female by throwing a ball at her. 

(5) 
Between on or about 27 July 2015 and on or about 5 October 2015, he was disorderly, which conduct was of a nature to bring discredit upon the armed forces. 

(6) 
On or about 5 October 2015, he wrongfully communicate to First Sergeant H___ to wit; "if you hang up I'm gonna f___ing kill you," or words to that effect. 

(7) 
Between on or about 27 July 2015 and on or about 5 October 2015, he assaulted SPC M___ by striking him in the head twice. 

f. On 16 March 2016, he acknowledged and elected his rights. 

g. 
On 16 March 2016, his Squadron Commanding Officer recommended his separation from the Army under the provisions of AR 635-200, chapter 14-12c for commission of a serious office. His intermediate commander recommended his separation with a general, under honorable conditions character of service. 

h. 
On 21 March 2016, the separation authority approved his separation under the provisions of AR 635-200, chapter 14-12c for commission of a serious office with a general, under honorable conditions character of service. 

i. 
On 30 March 2016, he was separated. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635­200, chapter 14-12c for misconduct, commission of a serious office. He completed 1 year and 15 days of net active service this period. 

j. 
A Law Enforcement Report (LER)-Final, U.S. Army Criminal Investigation Command (USACIDC) (Case Number XXXXX-2015-CIDXXX-XXXXXX), 10 April 2016, shows CID-Fort Bliss conducted an investigation following reports of two victims; (1) a black female (redacted name witness 1), C Troop, whom was a victim of sexual assault (unfounded) and abusive sexual contact (founded); and victim (2) a white female (redacted name witness 2), C Troop, whom was a victim of assault (founded). 

(1) 
CID-Bliss was notified by Military Police, Fort Bliss, that (redacted name witness 1) was sexually assaulted in her barracks room on 13 October 2015. On 14 October 2015, (Redacted name witness 1) was video interviewed and gave a recorded statement, detailing the incident. (Applicant) came to (redacted name witness 1) barracks room and she welcomed (Applicant). He proceeded to her bed, they watched a movie, and (Applicant) later kissed, groped, and bit (redacted name witness 1) on her (redacted) without consent. (Redacted name witness 1) stated she did not cooperate physically nor did she say "no" or "yes" towards (Applicant's) advances but pushed (Applicant) off her and (Applicant) left her barracks room. 

(2) (Applicant was interviewed and stated all sexual acts were consensual. 

(3) 
(Redacted name witness 2) stated (Applicant) assaulted her. (Applicant) grabbed her arms on numerous occasions wherein she (redacted) and (Applicant) choked her to the point she nearly lost consciousness. 

(4) 
(Applicant) was interviewed and denied he assaulted (redacted name witness 2). 

(5) 
This is not a prosecutorial decision. For the purposes of DODI 5505.11, DODI 5505.14, and DODI 7730.47, Trial Counsel, Office of the Staff Judge Advocate, United States Army [Major Command] opined on 4 April 2016, probable cause exists to believe (Applicant) committed abusive sexual contact and assault. No additional investigative effort was required. There was sufficient evidence to provide to the commander for consideration for action. The report contains 42 exhibits, including, in part: agents' investigation report; DVDs containing, photos of the crime scene, text messages, recorded interviews of (redacted name witness 1) and of (redacted name witness 2); written statements; requests and authorization and seizure of cellphone of (Applicant); medical records of (redacted name witness 1); polygraph authorization of (Applicant); four polygraphs of (Applicant); polygraph examination report of (Applicant), and forensic laboratory examination request. 


4. The applicant provided copies of: 
a. A letter from CID, 30 January 2020, in response to his 30 December 2019 request to release information from the files of the USACIDC and notifying him of the certain types of exemptions from releasing FOIA information from the LER, Case Number XXXX-2015-CIDXX-XXXXXX. It further reads, in part: 
(1) 
The names of law enforcement personnel, as well as names, social security numbers and other personal items of information of third parties are withheld pursuant to FOIA Exemptions which protect the personal privacy. 

(2) 
These withholdings also comply with the Privacy Act because the responsive records are maintained in a system of records that is exempt, pursuant to Exemption U)(2), from the access provisions of the Privacy Act, 5 U.S.C. § 552a(j)(2). 

(3) 
The Department of Defense (DOD) Instruction 5505.11 establishes policies and procedures for reporting criminal history data to the Federal Bureau of Investigation (FBI) National Crime Information Center (NCIC) for all military service members and civilians investigated by DOD criminal investigative organizations for commission of certain offenses. Those subjects who have resultant judicial, non-judicial military proceedings, or where a servicing Staff Judge Advocate or legal advisor found probable cause existed to believe the subject has committed the offense in which they were titled, 

will remain in NCIC. Reporting information to the NCIC depends on the offense committed. 

(4) 
A check of NCIC reflects that he is listed as the subject for Abusive Sexual Contact and Assault. Retention of this criminal history data in the NCIC does conform to DOD policy and your name will remain in NCIC. 

b. 
A letter from CID, 13 July 2020, in response to his request to correct information from the files of USACIDC and supplement to their response of 15 June 2020. It reads, in part: 

(1) 
The information he provided does not constitute as new or relevant information needed to amend the report; therefore, his amendment request is denied. 

(2) 
He may request amendment of the LER; however, it is emphasized that the conclusion reflected in the investigative summary is an investigative determination that is independent of whether judicial, non-judicial or administrative action was taken against the subject, or the results of such action. Please be aware that "new and relevant" information we need to bring your request for a formal review must meet the attached criteria. Information about career goals, exemplary changes in life, and similar justifications are not part of the criteria and these are not considered." He has the right to seek dispute resolution concerning this release. If he intends to do so, you may contact the U.S. Army Criminal Investigation Command, Crime Record Center FOIA Public Liaison. 

c. 
An email, 14 July 2020, informing him of its decision in releasing FOIA information he requested. 


5. 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, nonjudcial, 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: 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted that in accordance with DOD guidance, 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, nonjudcial, or administrative action taken against the individual or the results of such action. In that regard, amendment of a CID ROI may 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. Such burden was not satisfied in this case. Based on a preponderance of evidence the Board found no error or injustice. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
XX: XX: 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. 
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. 
REFERENCES: 
1. 
Title 10, United States 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. 


a. 
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. 

b. 
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 195-2 (Criminal Investigation Activities) establishes policies on criminal investigation activities, including the utilization, control, and investigative responsibilities of all personnel assigned to CID elements. 
a. Paragraph 3-1a, Investigative authority refers to matters for which the Army has the legal authority and jurisdiction to conduct a criminal investigation. Investigative 
responsibility refers to those matters within the Army’s overall investigative authority 
which the USACIDC has responsibility to ensure are properly investigated. 
b. Paragraph 3-1b, the Army has investigative authority whenever an Army interest exists and investigative authority has not been specifically reserved to another agency in accordance with AR 27–10; and the MOU between the DOD and the DOJ relating to the investigation and prosecution of certain crimes (DODI 5525.07). Generally, an Army interest exists when one or more of the following apply: 
(1) 
The crime is committed on a military installation or facility, or in an area under Army control. 

(2) 
There is a reasonable basis to believe that a suspect may be subject to the UCMJ. 

(3)  
There is a reasonable basis to believe that a suspect may be a DOD civilian employee or a DOD contractor who has committed an offense in connection with his or her assigned contractual duties which adversely affects the Army. 

(4)  
The Army is the victim of the crime; for example, the offense involves the loss or destruction of government property or allegations of fraud (in accordance with DOD/DOJ instructions concerning the criminal investigation of fraud offenses) relating to Army programs or personnel. 

(5)  There is a need to protect personnel, property, or activities on Army installations from criminal conduct on, or directed against, military installations that has a direct adverse effect on the Army’s ability to accomplish its mission; for example, the introduction of controlled substances onto Army installations, acts of terrorism, and logistical security. 

(6)  
In contingency operations there is a need to investigate crimes to establish law and order as identified by senior commander. 

c.  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 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. 

(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. 


4.  Department of Defense (DOD) Instruction 5505.7, 7 January 2003, subject:  Titling and Indexing of Subjects of Criminal Investigations in the DOD, 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 Clearance and Investigations Index, 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 ROI as a subject or entered into the Defense Clearance and Investigations Index or if it is later determined a mistake was made at time the titling and/or indexing occurred in that credible information indicating that the subject committed a crime did not exist. 


6. 
 DOD Instruction 5505.11, 21 July 2014, subject: Fingerprint Card and Final Disposition Report Submission Requirements, established 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 NCIC criminal history database. Based on a probable cause standard determined in conjunction with the servicing Staff Judge Advocate or other legal advisor, for members of the Military Service investigated to include Article 120 (Rape and Carnal Knowledge). 

7. 
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. 


8.  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. 


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