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Law Enforcement’s Revenge in Military Justice

Several times per week we get calls from people who want to correct a record that came up as part of a background check. Typically these people have left the military and are applying for jobs that require examination of their criminal history. With an honest belief they have none, they are astonished when their would-be employer informs them they had been “charged.” What can be done, they ask, to remove this “error” from their record? The short and unfortunate answer is there may not be anything that can be done.

Titling is among the most unjust aspects of the military’s criminal justice processes, in part because the stigma is almost always permanent and can affect military assignments, security clearances, and even future civilian employment. Even when the servicemember has been acquitted at trial, the system’s revenge ensures military law enforcement’s title of the crime(s) remains etched unfavorably in the person’s record for forty years. 

Background

So, what is titling? Titling is when the military’s criminal investigation elements (commonly referred to by their acronyms NCIS, OSI, and CID) name an individual as a subject in their criminal investigation reports. 

Titling is not a judicial decision. In fact, being titled as the subject of an investigation does not mean you were charged with a crime at all. Additional confusion enters this process because many people report that the system came back and says they had been “charged.”

Titling, although commonly called getting “charged” is not a decision to put a person into formal charging or the judicial (or even nonjudicial) process. In other words, titling remains on the individual’s record even if the alleged crime never went to trial at all. Perhaps charges were preferred but never referred to Court Martial. Perhaps the government decided it did not have enough evidence to meet the standard for Probable Cause and never took the case to an Article 32 Hearing to determine if Court Martial was appropriate.

Here is how the titling decision almost always plays out: Once a criminal investigative service like CID is aware of a crime, it investigates. In the Army, for example, that investigator is often a junior warrant officer or junior non-commissioned officer lacking significant experience investigating and titling. 

Once the agent has concluded a preliminary investigation, he or she will determine if an offense occurred. To do so, the CID agent will evaluate all credible evidence, which is defined as “Information disclosed or obtained by a criminal investigator that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to lead a trained criminal investigator to presume the fact or facts in question are true.”

The agent will decide whom he or she believes committed that offense. The agent will then call the Trial Counsel or Military Justice Advisor, who is almost always a prosecutor with only a year or two of legal experience (and often even substantially less military justice experience). 

The CID agent will provide the facts over the phone and ask that junior judge advocate whether enough evidence exists to title the subject with a crime. CID is required to do this to confirm whether an individual can be listed as a subject in a report of investigation (ROI) where CID has found that an offense occurred.

If that seems like a lot of systemic trust (mis)placed in the opinions of young investigators and young attorneys, we completely agree. What is even more troubling is that at times more senior judge advocates have little understanding of the significance a titling decision can mean in a person’s life. 

A Recent Example

Years ago, I represented a cadet at a service academy. Reading the tealeaves, the military justice office knew how bad their case was against my client. We conducted a multi-day Article 32 where we highlighted that there had not even been probable cause. The complainant testified for several hours, and I confronted her with instant messages from the night of the alleged sexual assault that the defense had obtained through our own investigation. In the messages she was recounting to a friend that she would never report my client for this supposed assault because she knew he did not hear her say stop, that he was too “into the moment.” She continued and admitted that she was unsure whether she had actually said “no” out loud and that it was more likely she was thinking it in her head but had not verbalized any indication that she was not fully participatory.

When I met with the academy’s SJA, he was stunned when I mentioned the long-lasting impact of the titling decision that had already occurred. He had never heard of titling before. He had a genuine and earnest belief that taking the case to an Article 32 and having it dismissed afterward would not last with my young client. My client was set to graduate and commission as an intelligence officer. I explained the difficulty he would face obtaining his Top Secret security clearance, which would be required for him to report to his basic course. The SJA looked at me with skepticism. I have no way of knowing if he ever came to appreciate what my client was facing.

We spent months navigating the security clearance issue, and ultimately we were successful in this first hurdle.

More will follow on this case later in this post.

What Can Be Done About It?

The titling decision remains in a centralized database (known as DCII) organized in a searchable format of selected unique identifying information and security clearance data. This is utilized by security and investigative agencies in the DoD, as well as selected other federal agencies, to determine security clearance status and the existence and physical location of criminal and personnel security investigative files. The DCII database is physically maintained by the Defense Manpower Data Center; however, the data is the responsibility of the contributing agencies. Titling information is kept on file for up to forty years!

The unfavorable titling information remains on the servicemember’s record unless there is mistaken identity or it is later determined no credible information existed at the time of titling and indexing. This is an extremely difficult standard to overcome.

As Retired Judge Advocate Patricia Hamm eloquently put it, “‘Mistaken identity’ does not mean that someone other than the subject is found to have committed the offense. Rather, it means that someone with the same name as the listed subject should have been entered as the subject instead. For example, SPC Joe Smith, SSN 123-456-7890 was entered as the listed subject of a report of investigation by mistake, instead of SPC Joe Smith, 123-456-7899, the correct subject.” 

Because the definition of “credible information” is incredibly low, this avenue for appeal is staggeringly rare. However, there are occasions when a titling decision arises when the complaint itself does not outline the elements of a crime.

Cadet Case

Even the Article 32 Investigating Officer articulated in his report that the complaint against my academy cadet client did not articulate the elements of any offense. Because she admitted that the “accused” had not heard her say no and that she in fact had not said no, there were no aspects of non-consent. This was more than relying on the defense of mistake of fact as to consent. There was “no credible information” of a lack of consent. 

First Step

The first level of appeal to amend an ROI titling decision is through the investigative services procedures (for the Army, this appeal goes to CID Command). Asking for the head of the agency that committed the error to admit to the error is like appealing to the trial judge for your appeal – it makes no sense and is arbitrary. 

In our experience, that appeal is rarely successful unless mistaken identity can be proved, but to proceed, the servicemember must first exhaust this remedy.

Next Step

For the each of the services, once CID Command or the other branch equivalent turns down the request, an appeal to the branch Board for Correction of Military Records (BCMR) would be the next step prior to suing in federal court. 

Suit in Federal Court

A suit in federal court does not mean that the person thinks the titling decision has not been fair. This is not a court of equity. The suit must allege that the law enforcement body or the board for the corrections of records did not follow their own regulatory requirements. In other words, did they fairly apply their unfair rules? 

While this civil remedy is available, it is extremely unlikely to succeed because federal courts are required to give extreme deference to the military with respect to their administrative processes and particular deference to the BCMRs. In fact, military boards are entitled to even greater deference than civilian administrative agencies. 

Exceedingly Low Chances for Success

In our collective opinion, a servicemember or former servicemember is extremely unlikely to succeed in reversing a criminal investigative service’s titling decision. If there is an area where that appeal might have a chance of being successful, it would be at the Boards for Correction of Military Records (BCMRs). There are a few possibilities where we can envision it is worth it to try, but there are not many. 

Being titled with a crime you did not commit is enormously frustrating. It would be easy for us to encourage you to file an appeal anyway even though the chance of success is minimal. Many firms may give you hope of a successful outcome; in nearly every case it is likely their motivation is to secure your money without any real appreciation for the nearly impossible task of succeeding. That is not how we practice law. In fact, although we respond to hundreds of these requests each year, the only applications our firm has taken on were in two cases where the complaint did not allege a crime.

If after reading about the many difficult barriers to overturning a titling decision you still want to consult with us, we are here to listen and advocate for you should your circumstances fit the narrow criteria outlined above. 

In our minds, the response to this issue is to bring about change through legislation. If you would like to contribute to those efforts, please let us know.

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