This article describes a similar problem we see at King Military Law—A servicemember was investigated by the service’s law enforcement agency (LEA) (NCIS, CID, AFOSI, CGIS, etc.) but was innocent of the accusations. In fact, after the investigation, and because of the lack of probable cause, the military took no disciplinary action against the servicemember and the servicemember thought everything was clear.
Unfortunately, that turns out to not be true. Years later, when trying to renew a security clearance, get a job as a civilian, obtain a license to carry a weapon, etc., that servicemember learns that the investigation went into a federal system accessible by several agencies, and shows what he was investigated for (rape, murder, larceny, etc.). As a result, the servicemember finds himself losing out on opportunities, sometimes never even knowing why.
The LE process that causes this issue is called “titling.” Applicable regulations require that DoD LEAs will “title” the subject of a criminal investigation and by including that information (the subject’s name and personal information and the crime for which he was investigated) into the Defense Clearance and Investigations Index (DCII). That action is then available to the FBI, civilian LE, and several federal, state, and local agencies and may even show up when a potential employer does a “background search” on the servicemember. What the reader then often interprets the information as, is that the subject was “arrested” for that crime and makes decisions accordingly. This has prevented clients from working for police departments, in nursing homes, or even getting real estate licenses. In this article, the Green Beret was denied a concealed carry permit for this reason. It’s scary and it’s unfortunate—the impacts of having someone accuse you of a crime in the military may be horrific years later.
The original “titling” decision is left up to the LE agent assigned to the investigation. As a result, mistakes are made more often than you might think. The applicable regulations state that the LE agent need only have “credible information” that a subject committed a crime in order to “title” someone. What type of information is “credible? Well, that’s up to that LE agent. One thing is clear, “credible information” is a lower standard than “probable cause” which is what civilian LE must have before they are permitted to start a similar process. Fair? No. Very real? Yes.
And once you’re “titled,” the military has made it very difficult to have the record expunged. But it’s not impossible. The military will review requests for expungement and may grant requests if the subject can prove one of several things, many of which now incorporate the standard “probable cause.” For example, expungement requests might be granted if:
(1) Probable cause did not exist to believe that the offense for which the covered person was titled and indexed occurred, or insufficient evidence existed or exists to determine whether such offense occurred.
(2) Probable cause did not or does not exist to believe that the covered person committed
the offense for which they were titled and indexed, or insufficient evidence existed or exists to
determine whether they committed such offense.
The LEA official considering expungement must also consider:
(1) The extent or lack of corroborating evidence against the covered person with respect
to the offense.
(2) Whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense.
(3) The type, nature, and outcome of any adverse administrative, disciplinary, judicial, or
other such action taken against the covered person for the offense.
If the LEA denies a request for expungement, the servicemember may make the same request to that service’s Board of Correction of Military Records.
The military claims that “titling” is not a disciplinary or judicial procedure, and that it will not be used to harm a servicemember or vet. Unfortunately, that statement ignores reality, and servicemembers who were wrongly accused but investigated, face the likelihood that such a false allegation will forever impact their lives. That’s wrong.
If you or a loved one were “titled,” there is hope. Please reach out to an attorney experienced in military law to help you through this complex—but important—area of law.
King Military Law