IN THE CASE OF: BOARD DATE: 21 September 2021 DOCKET NUMBER: AR20200008873 APPLICANT REQUESTS: through counsel: * removal of his name from the 2018 Military Police Report * in the alternative, withdrawal of the transmission of the offense to the National Crime Information Center (NCIC) 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) * six Officer Evaluation Reports, covering the periods 19 January 2013 through 8 June 2018 * DA Form 4037 (Officer Record Brief), 13 June 2019 * DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 30 September 2019 * U.S. Army Crime Records Center (CRC) Privacy Act Information Request, 17 December 2019 * U.S. Army Criminal Investigation Command (CID) Letter, 11 February 2020 * Counsel Memorandum (Request to Delete (Applicant's) Name from the Title Block on the Military Police Report Number 2018), 31 March 2020 FACTS: 1. The applicant defers to counsel. 2. His counsel states: a. The applicant's offense is now irrelevant due to his command's disposition. A request to delete the applicant's name from the title block of the Military Police Report was submitted to the CID CRC in December 2019 and the petition was denied. b. The offense for which the applicant was titled resulted in a locally filed general officer memorandum of reprimand (GOMOR). Such disposition proves his chain of command did not want this incident to negatively affect his future. c. Despite his chain of command's intention, he is being titled with an offense for the incident and it will negatively affect him. Every time a background check is run on him, the offense will appear. Such information in the background check will negatively impact his future military service and civilian employment. Such protracted negative impact is not warranted due to the command's decision for a local administrative disposition (GOMOR) rather than a criminal proceeding or an administrative measure filed in his Official Military Personnel File. d. The applicant has served his country honorably for more than 13 years as evidenced by his Officer Record Brief and his recent officer evaluation reports covering the periods 19 January 2013 through 8 June 2018. e. If the request to delete the applicant's name from the title block of the Military Police Report is not granted, we respectfully request withdrawal of transmission of the offense to the NCIC so the offense will not appear in the applicant's civilian records. 3. The applicant was serving on active duty in the rank/grade of captain/O-3 at the time he became the subject of a Law Enforcement Report (LER), 31 May 2019, for the offenses of forced sodomy and sexual assault (Articles 120 and 120b, Uniform Code of Military Justice). a. The report summary states the victim was sexually assaulted by the applicant. The victim stated the applicant sexually assaulted her in his vehicle when he engaged in sexual acts with her without her consent. The applicant stated all sexual acts with the victim were consensual in nature. b. Legal coordination states the Office of the Staff Judge Advocate Trial Counsel, Fort Gordon, GA, opined probable cause existed to believe the applicant committed the offense of sexual assault. Trial counsel also stated probable cause did not exist to believe the applicant committed the offense of forced sodomy. c. The investigation was initially a joint investigation with the Richmond County Sheriff's Office. The investigation was closed without action after a declination to prosecute from the District Attorney, Augusta, GA. 4. The DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), 30 September 2019, lists the applicant's offenses of forced sodomy and sexual assault. The commander's decision, 5 June 2019, shows he marked "No" for sexual harassment for both offenses and marked "No" for action taken on both offenses. The remarks state "GOMOR filed local [sic] for 18 months." 5. The applicant's Official Military Personnel File does not contain the aforementioned GOMOR. 6. The applicant's initial request to the CID, 27 January 2020, and the CID's initial response, 30 January 2020, is not available for review. 7. The CID letter, 11 February 2020, responded to counsel's request to correct information in the CID files on behalf of the applicant and supplements CID's response of 30 January 2020, stating the information provided does not constitute as new or relevant information needed to amend the reports; therefore, the amendment request was denied. 8. The U.S. Army Human Resources Command memorandum (Involuntary Discharge or Involuntary Transfer), 26 January 2021, states the applicant is involuntary separated as the result of the Fiscal Year 2017 Major Army Promotion Selection Board and in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-6 (Separation of Commissioned Officers and Chief Warrant Officers Who Are Twice Nonselected for Active Duty List Promotion by a Headquarters, Department of the Army Centralized Board). 9. The applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) effective 1 July 2021. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12c (Net Active Service This Period) – 14 years, 5 months, and 7 days * item 28 (Narrative Reason for Separation) – Non-Selection, Permanent Promotion 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 Counsel contentions, the military record, and regulatory guidance were carefully considered. By law and regulation, titling only requires credible information that an offense may have been committed. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from CID records is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. A review of all the information provided shows that a trained CID official, and military legal officials determined there was credible information to conduct an investigation. Based upon 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 :XX :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. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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. 2. 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 LER to record actions taken against identified offenders and to report the disposition of offenses investigated by civilian law enforcement agencies. 3. Army Regulation 195-2 (Criminal Investigation Activities) 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 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 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 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, 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 (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. 5. 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 NCIC criminal history database. It is DOD policy that the defense criminal investigative organizations and other DOD law enforcement organizations submit the offender criminal history data for all members of the military service investigated for offenses, to include wrongful use of a controlled substance, to the Criminal Justice Information Services Division of the 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008873 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1