MILITARY PERSONNEL LAW BLOG
ABCMR Grants Application Challenging Decision by Army CID To Change a ROI From “Unfounded” to “Founded.”
A disgruntled subordinate falsely accused our client of a serious UCMJ offense. CID was notified and the client was promptly “titled” for the allegation after having been lied to by the CID agent. The client’s command investigated and found no evidence to support the allegation. The Army declined to prosecute because of insufficient evidence. The case was closed with no adverse or punitive actions taken.
Well, not exactly. Two years later the officer petitioned CID to remove his name from the subject block of the ROI. CID denied his petition and, without informing him, issued a Supplemental Final ROI changing the allegation from “unfounded” to “founded.” Which is to say, CID concluded there was sufficient evidence to show the client committed the offense. It’s a non-judicial finding of guilt. According to AR 195-2, the “founding” of an allegation is:
"A determination made by law enforcement, in conjunction with the appropriate prosecution or legal representative, that a criminal offense has been committed. The determination that a founded offense exists is a decision independent of any judicial/court finding opinion or disciplinary action taken or not taken."
CID apparently didn’t think it was important enough to tell client, who, four years later, learned about CID’s action only when his well-earned promotion to colonel was delayed and he was referred to a Promotion Review Board. In the process, he learned CID did not even retain or consider several exculpatory witness statements he submitted during the original CID investigation and did not bother to interview those and other reasonably available witnesses.
We raised four claims in the petition to the ABCMR: (1) there was insufficient evidence to support the decision to title; (2) CID engaged in misconduct by using deception to secure the client’s waiver of his rights to silence and legal counsel during interrogation; (3) AR 195-2 did not authorize CID to change the ROI from unfounded to founded; and (4) CID’s decision to do so without notice to the client and an opportunity to respond violated his Fifth Amendment right to due process of law.
The ABCMR denied the petition but failed to address three of the four arguments raised, a very common practice with the ABCMR. We followed up with a memo informing the ABCMR that its conduct was unlawful and ultimately secured partial relief, clearing the client for promotion to colonel.
The level of disrespect toward the client exhibited by CID in this case is appalling and apparently common. If in this case CID believed it had the liberty to respond to a titling amendment request by changing a final ROI to reflect guilt without notice to the affected member, it likely has done so in others.