CID Titling Appeal
September 24, 2023CID Titling Appeal
The Army's Criminal Investigative Division (CID) has the power to "title" someone in the National Crime Information Center (NCIC) Database. "Titling" someone in NCIC means that whenever a Federal Background Check is conducted on that person, a report will come back that the person was arrested for whatever crime they were "titled" for. This can come as a surprise to the individual in question, because the Army doesn't actually arrest anyone. Instead, they get "arrested" (or "titled") on paper and are never really told about the consequences.
A common scenario is as follows: someone reports to CID that they were sexually assaulted by a Soldier. The CID agent takes the initial report from the alleged victim and unilaterally determines that the allegation is credible. The agent may, or may not, conduct some more investigation before making the determination to "title" the accused Soldier in NCIC. The accused Soldier will now, forever, come up on federal background checks as having been arrested for sexual assault. This can have far ranging consequences for the Soldier in question, such as future employment, security clearance, higher education, and promotion challenges.
Many Soldiers find out, often years later, that he/she is titled in the NCIC database. If anyone reading this article is at all curious, it is easy to find out by following these instructions. If one is titled in NCIC, the next logical question is how to submit a CID Titling Appeal to expunge the record in question. Up until recently, the standard for a CID Titling Appeal was if the agent did not have credible information to title the individual in question for the listed offense, then the record would get expunged. This was an almost impossible standard to achieve, as the titling agent was given a great deal of deference as to what "credible" information was and the "titling" decision was only judged at the time it was made. Any follow on information or exoneration of the subject was not considered. While Attorney Barry did win some of these CID Titling Appeals, it was incredibly challenging. This standard can be found in AR 195-2, paragraph 4-4b.
Recently, Congress directed that this standard be updated to make it easier for CID Titling Appeals to be approved. The new standard, laid out in DoD Instruction 5505.07, is that a CID law enforcement record will be amended, corrected, expunged, or otherwise removed when it is determined that probable cause did not or does not exist to believe that the individual committed the alleged criminal offense (See Public Law 116-283, section 545). "Probable Cause" is defined by DoDi 5505.11: "Probable cause exists where the facts and circumstances within the officer’s knowledge, and of which he or she has reasonably trustworthy information, are sufficient in themselves to warrant a belief by a person of reasonable caution that a crime is being committed or has been committed."
Additionally, a record can be amended, expunged, or otherwise removed when it would be in the "interest of justice." Specific factors that will be considered are: the extent or lack of corroborating evidence, whether adverse administrative, disciplinary, judicial, or other such action was initiated, and the type, nature, and outcome of any adverse administrative, disciplinary, judicial, or other such action.
This is a favorable change for anyone drafting a CID Titling Appeal, because it elevates the standard from "credible information" to "probable cause." Furthermore, it allows CID Titling Appeals to be approved based on probable cause not existing at the present time. This allows for subsequent information, such as additional evidence (text messages, emails, witness statements, etc.), an exoneration, or subsequent legal decisions, to be considered.
Anyone who is drafting a CID Titling Appeal still needs to submit a thorough and complete application with supporting evidence. Before submitting, the CID investigation should be requested using a specific form. Then an appeal, including supporting documentation and a detailed argument, should be emailed to this email address: usarmy.belvoir.usacidc.mbx.crcfoiapa@army.mil. If CID denies the Titling Appeal, then the subject of the investigation can further appeal the "titling" decision to the ABCMR using a DD Form 149.
Despite the updated standard, a CID Titling Appeal is still very challenging to win. Anyone considering submitting one should consult with an experienced Military Lawyer to assist him/her.
This article was written by Attorney Matthew Barry, an experienced Military Lawyer.