IN THE CASE OF: BOARD DATE: 29 September 2021 DOCKET NUMBER: AR20200009863 APPLICANT REQUESTS: through counsel: * removal of his name from the June 2017 U.S. Army Criminal Investigation Command (CID) Law Enforcement Report (LER) * removal of his name and all personally identifiable information from the Defense Central Index of Investigations (DCII) and National Crime Investigation Center (NCIC) databases * removal of all such information from all reports pertaining to the investigation 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) * Counsel's Letter, 17 August 2020, with enclosures – * eight Advanced Camp Peer Reports, 1 June 2017 * three Cadet Leadership Assessments, 27 May 2017, 30 May 2017, and 11 June 2017 * 1st Regiment, Task Force Leader, Memorandum (Facts, Findings, and Recommendations for Alleged Sexual Harassment/Assault Response and Prevention (SHARP) Incident), 17 June 2017 * U.S. Army Reserve Officers' Training Corps (ROTC) Cadet Summer Training Detachment Memorandum (Minutes of (Applicant) Leader Development Review Board), 19 June 2017 * five Personal Statements, 24 June 2017 and 25 June 2017 * Counsel's Memorandum (Appeal of Leader Development Review Board Findings Pertaining to (Applicant)), 29 June 2017 * Power of Attorney, 16 January 2018 * U.S. Army Cadet Command Memorandum (Summarized Witness Testimonies (Applicant) Disenrollment Board), 16 May 2018 * DA Form 1594 (Daily Staff Journal or Duty Officer's Log), 16 May 2018 * DA Form 1574-2 (Report of Proceedings by Board of Officers), 16 May 2018 * U.S. Army Cadet Command Memorandum (Findings and Recommendations for (Applicant) Disenrollment Board), 22 May 2018 * Senior ROTC Battalion, U.S. Army Cadet Command, Memorandum (Notification of Personal Service – (Applicant)), 25 May 2018 * U.S. Army Criminal Investigation Laboratory Memorandum (Expungement of (Applicant), 1 July 2019 * Counsel's Letter, 18 March 2020, regarding Request to Remove Name from CID Report of Investigation, DCII, and NCIC Systems * CID Letter, 7 July 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. Counsel states: a. The CID investigation conducted in or around 17 June 2017 was egregiously perverted as a result of the investigating officer's (IO's) failure to interview or identify several material witnesses, delve into the complainant's motives to fabricate, make appropriate credibility determinations, and assign the proper weight to the evidence collected. The IO's clear predisposition toward substantiating the allegations against the applicant are highlighted by a subsequent determination from a neutral review board which concluded that probable cause did not exist. b. In June 2017, the applicant attended ROTC Advanced Camp at Fort Knox, KY. During the course of this training cycle, two female cadets made frivolous accusations against him in which they accused him of making sexually inappropriate comments and kissing one of the alleged victims on the cheek. These accusations were made against him after he informed one of the alleged victims that he was going to report her for violation of a lawful order. Rather than accept responsibility for her own misconduct, she coordinated with her friend, whom the applicant has also caught engaging in misconduct, and they vindictively fabricated a story of alleged inappropriate behavior in order to detract from her own culpability and misconduct that would have warranted her removal from training. c. An IO was immediately appointed to investigate the alleged misconduct. Despite having ample opportunity to conduct a proper investigation, the IO made a hasty determination in less than 48 hours after being appointed without conducting proper witness interviews. Had the IO taken the most basic investigative step to interview all those present during the time of the alleged misconduct, he would have found the accusations against the applicant could not be corroborated by any individuals other than the complainants. The applicant was subsequently recommended for disenrollment as a result of the egregiously perverted and clearly predetermined investigation. d. On 19 June 2017, a Leader Development Review Board recommended the applicant's dismissal from the U.S. Army ROTC Program. The determination was contrary to the evidence of record, including nine peer evaluations of the applicant that were completed just days prior to his alleged misconduct. Those evaluations make no reference of any behavior that would even remotely suggest he was engaged in inappropriate conduct. c. The applicant was never provided with specificity regarding the allegations; he was forced to walk into the Leader Development Review Board blind as to the identity of the alleged victims and the time and place of the alleged offense. Rather than provide the applicant with proper notice, the IO merely told him that "some Soldiers" had made a complaint against him and that he should write down any instances of misconduct that he could have committed during his time at the ROTC Advanced Camp. d. On 9 July 2017, a new board was held. The applicant was provided with material evidence and allowed to present a full defense. This board determined there was insufficient evidence to substantiate the allegations made against the applicant and recommended his retention in the ROTC Program. However, the new board's recommendation was ignored. e. The applicant was able to successfully challenge the egregious and clearly predetermined Leader Development Review Board proceedings and a new board was ordered and convened on 16 April 2018. The new board concluded that it could not be determined by a preponderance of evidence that the applicant did what was alleged. As a result of the findings, he was allowed to return to and graduate from the ROTC Advanced Camp in the summer of 2019. After he was cleared of these baseless accusations, his deoxyribonucleic acid (DNA) was expunged from the National DNA Index System and from the U.S. Army Criminal Investigation Laboratory's offender DNA database on 1 July 2019 due to a lack of probable cause. f. On 18 March 2020, the applicant petitioned the U.S. Army Crime Records Center to remove his name from the CID Report of Investigation, DCII, and NCIC databases. That request was denied. g. The lack of credible evidence to substantiate the allegations against the applicant and a subsequent determination of the same requires his removal from the DCII and NCIC datebases. 3. The 1st Regiment Task Force Leader memorandum from the IO (Facts, Findings, and Recommendations for Alleged SHARP Incident), 17 June 2017, states: a. He was appointed as an IO for an inquiry into alleged sexual harassment, in that Cadet B____ alleged she was approached by the applicant who whispered something to her and kissed her on the cheek on or about 2300 hours on 10 June 2017. The next morning, she informed the applicant that the kiss was unwelcomed and she did not consent or approve of this behavior. She further stated he asked about her sex life and campus activities on several occasions. b. Cadet W____ alleged the applicant made inappropriate statements, comments, and innuendos on several occasions. c. Throughout the course of the applicant's interview and in his written statement, he denied any inappropriate behavior. He countered the accused claims and stated the complaint was a conspiracy to get rid of him so he could not report that the two cadets were in possession of their cellular phones and were using them in the field. d. It is impossible to prove definitively whether the applicant kissed Cadet B____ or made the remarks to Cadet W____ because both occurred at night and out of view or earshot of other cadets. e. He recommended the applicant's referral to a Leadership and Disciplinary Review Board with the recommendation for the applicant's removal from the ROTC Advanced Camp, return to his campus, and dismissal from the ROTC Program. 4. The eight peer evaluations, 27 May 2017 through 11 June 2017, described observations of fellow ROTC Advanced Camp cadets and the sustained attributes and competencies of the applicant, and discussed areas for improvement of the applicant's attributes and competencies. 5. The U.S. Army ROTC Cadet Summer Training Detachment memorandum (Minutes of (Applicant) Leader Development Review Board), 19 June 2017, summarized the board proceedings and the board's recommendation for the applicant's dismissal from the Advanced Camp without credit, return to his university, and disenrollment from the Army ROTC Program. The applicant was given a statement of counseling and chose not to appeal the board's recommendation. 6. The applicant's personal statement, 24 June 2017, described his interaction with fellow cadets, countered the allegations made against him, and described the behavior and misconduct of his two accusers. 7. The four personal statements from fellow cadets, 25 June 2017, described their interaction with the applicant and stated they did not witness any behavior that would have been considered sexual harassment. 8. The CID memorandum (Law Enforcement Report 2017), 29 June 2017, named the applicant as the subject of an investigation in violation of abusive sexual contact (adult) on or about 10 June 2017. a. The report summary shows the victim stated the applicant kissed her on the cheek without her consent and also made sexual comments to her and to other female cadets. Peripheral interviews confirmed the applicant made sexual comments. The applicant invoked his rights and requested not to be questioned or to say anything. b. The Trial Counsel, Office of the Staff Judge Advocate, Fort Knox, KY, opined probable cause existed to believe the applicant committed the offense of abusive sexual contact. 9. The U.S. Army Cadet Command memorandum (Findings and Recommendations for (Applicant) Disenrollment Board), 22 May 2018, states: a. Based upon the evidence in the file and witness testimony at the board, it cannot be determined by a preponderance of evidence that the applicant did what was alleged at the advanced camp and, as a result, undesirable character cannot be established by a preponderance of evidence. b. The board found the applicant's testimony credible and questioned the motives of the female cadets based upon their testimony at the board. It is more likely than not that this allegation was only brought forward because the applicant raised the cellular phone use issue at camp by the two cadets. c. The board recommended the applicant should not be disenrolled from the ROTC Program and should be converted to a non-scholarship cadet. 10. The U.S. Criminal Investigation Laboratory memorandum (Expungement of (Applicant)), 1 July 2019, notified the applicant of expungement of his record from the National DNA Index System and from the U.S. Army Criminal Investigation Laboratory's offender DNA database. His DNA sample was destroyed. 11. Counsel's letter to the U.S. Army Crime Records Center regarding removal of the applicant's name from the CID Report of Investigation, DCII, and NCIC systems, 18 March 2020, states: a. Counsel respectfully contends that titling by the CID was in error. The evidence of record lacked sufficient credibility to establish such titling and indexing was proper. A review of the applicant's file would indicate probable cause did not exist to support the allegations against him for several reasons, including the alleged victims' motive to fabricate claims and the inadequacy of the investigation itself. b. It is unequivocally clear that no justifiable reason existed to believe the applicant committed the offenses for which he was titled and indexed. Rather, all the evidence suggests the applicant, himself, was the victim of maliciously false accusations made by the purported victims in order to deflect from their own misconduct that would have resulted in dismissal from the course. c. The only logical conclusion left after engaging in a thorough review of the evidence, is that probable cause did not exist to justify the titling and indexing of the applicant. As such, counsel respectfully requests removal of the applicant's name and all identifying information from the DCII and NCIC databases. 12. The CID's initial response of 4 May 2020 is not in evidence for review. 13. The CID IO's memorandum (Legal Review of Request for Amendment of Record – (Applicant)), 17 June 2020, states: a. Based on the review of the LER and appeal, he found there was no basis for granting the applicant's request for an amendment. There was credible evidence to title the applicant for the offense and the LER contains sufficient evidence to support the titling decision. b. Credible information existed to believe the 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. No new, relevant, or material facts were submitted in the appeal to warrant revision of the titling determination. 14. The CID letter, 7 July 2020, responded to the counsel's request to correct information from the files of the CID and supplemented CID's response of 4 May 2020. The initial request was received on 29 April 2020. After careful review and consideration of the request and the evidence available, the CID denied the applicant's request to correct the LER. 15. On 7 August 2021, the applicant executed the oath of office as a Reserve commissioned officer in the rank of second lieutenant. 16. On 8 September 2021, the Army Review Boards Agency Case Management Division provided the applicant and his counsel with a copy of the LER for review and an opportunity to submit comments. The applicant and/or his counsel did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 determined there was credible information to conduct an investigation and determined the charges of the offenses were founded. For that reason, the Board voted to deny relief. 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. 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. 3. 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. 4. 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. 5. 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 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. 6. 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 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, to include wrongful use of a controlled substance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009863 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1