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Facts Underlying “Titling” Expungement Request

AT3 John Doe, a sailor stationed at Whidbey Island Naval Air Station, encountered significant challenges during his service. Following an allegation of assault, he was the subject of an in-depth investigation by the Naval Criminal Investigative Service (NCIS). When the investigation was closed, he faced Captain’s Mast (non-judicial punishment – NJP), resulting in a reduction of rank and extra duties. These disciplinary actions marked a potential long-term obstacle in AT3 Doe’s career, emphasizing the serious nature of the allegations. Despite these setbacks, AT3 Doe demonstrated resilience and a commitment to overcoming the difficulties in his path, as he continued to diligently perform his Navy duties.

An Alleged Assault on a Female Co-Worker Led to “Titling”

The alleged assault involving AT3 Doe began as an ordinary workday but quickly escalated into a more dangerous situation. An argument occurred between AT3 Doe and several of his peers, during which tensions rose significantly. Subsequently, a narrative was shaped by those involved, alleging that AT3 Doe had assaulted a female colleague. However, evidence suggested that the reality of the situation was different; the female colleague had initiated the physical confrontation. Despite the lack of direct eyewitnesses to the event, when NCIS arrived to investigate, the sailors on the scene provided consistent statements incriminating AT3 Doe in the alleged assault. The uniformity of these accounts raised concerns about the accuracy and reliability of the statements, suggesting that AT3 Doe may have been wrongfully accused based on a coordinated version of events rather than the actual circumstances.

Exculpatory Evidence Emerged Contradicting NCIS “Titling” Decision

Several months after the purported assault, significant exculpatory evidence emerged, which had the potential to alter the direction of the case substantially. The most critical piece of evidence surfaced when the alleged victim, violating an active Military Protective Order (MPO), sent a text message to AT3 Doe after his NJP. In the text, she not only was threatening but also implied that she had fabricated the assault allegation. Her message explicitly indicated that she had previously lied and could do so again, intending to torpedo AT3 Doe’s naval career. These text messages provided clear evidence of her deception, raising serious concerns about the integrity of the initial NJP proceedings. This new information significantly impacted the case, revealing the probability that the original accusations were unfounded and highlighting the need for a thorough reassessment of the investigation.

Sailor’s NJP Appeal Was Inappropriately Denied

A few months after receiving the NJP, AT3 Doe independently filed an appeal, seeking legal redress and restoration of his reputation. Despite his best efforts, the NJP appeal was denied and subjected to considerable delays, which prolonged the process and furthered his frustration. Although the command “reviewed” the appeal and “claimed” to have considered it on its merits, they ultimately decided to uphold the original NJP, citing the existence of “probable cause” at the time of the initial proceedings (which is the improper standard for an NJP review). However, a blatant bias in this process was the command’s decision to disregard the newly surfaced text messages that directly challenged the credibility of the original allegations. This intentional disregard raised significant concerns about the fairness and thoroughness of the appeal process, as it failed to fully account for all relevant evidence, leaving AT3 Doe with a deserved sense of injustice.

Additional Exculpatory Evidence Surfaced Questioning NCIS “Titling” Decision

Several months later, AT3 Doe joined in a significant text message exchange with two of his peers who had been present at the scene of the alleged assault. During these texts, both individuals revealed that their supervisor had ordered them to change their sworn statements to make sure there was consistency among all accounts. The supervisor explicitly warned them that failure to comply would result in disciplinary action. Under this coercion, they reluctantly revised their statements to falsely assert that they had witnessed AT3 Doe assault the alleged victim despite knowing that no such event had occurred. This severe coercion was further supported by text messages from the same supervisor, sent around the time of the NJP, in which the supervisor threatened to end AT3 Doe’s career if he pursued his right to demand a trial by court-martial. These messages provided compelling evidence of unlawful command influence (UCI). This significant violation would have been promptly addressed in a court-martial proceeding, likely resulting in the dismissal of charges and action against the supervisor. The supervisor’s actions not only compromised the integrity of the investigation but also called into question the fairness of the entire NJP process, presenting AT3 Doe with a strong case of procedural misconduct that warranted immediate redress.

Warrior Law Team Retained for NJP Set Aside and NCIS “Titling” Expungement

AT3 Doe, seeking to reclaim his reputation, enlisted the Warrior Law Team to assist in filing an NJP set-aside. Although a previous appeal had been denied, we recognized the significance of the new exculpatory evidence that emerged later in the process. This compelling evidence warranted thorough consideration, prompting us to accept the case. Additionally, AT3 Doe sought to pursue an NCIS “titling” expungement to remove the false accusations from his official and criminal record. Given the strength of the newly presented evidence, we supported this effort, confident that a strong case could be made for expungement. Our goal was to ensure that AT3 Doe’s case received the fair and just consideration and resolution it deserved, grounded in the facts that had come to light.

NCIS “Titling” Expungement Request Considered and Approved

The process was extensive, but through E.J. Gladding’s tireless efforts, we successfully located the critical NCIS report that formed the basis of the allegations against AT3 Doe. Once the report was obtained, E.J. carefully drafted the request for expungement, constructing a persuasive and compelling case that addressed all relevant newly discovered evidence. E.J. demonstrated that the newly uncovered exculpatory evidence significantly undermined the initial probable cause, establishing insufficient evidence justifying any adverse action. Additionally, E.J. emphasized the cloud of Unlawful Command Influence (UCI), which contributed to a serious miscarriage of justice. E.J.’s arguments were detailed, fact-based, and compelling. Ultimately, NCIS agreed with our analysis and granted the expungement. This outcome not only cleared AT3 Doe’s record but also reaffirmed the integrity of the NCIS investigative process.

The NJP set-aside is still pending.

Policy Governing “Titling” Expungement of Military Law Enforcement Investigations

DoD Instruction 5505.07 “Titling and Indexing by DoD Law Enforcement Activities”

In August of 2023, the Department of Defense took a significant step forward in addressing the longstanding issue of unfair and unjust “titling” actions by military law enforcement agencies. With the issuance of DoD Instruction 5505.07, service members were finally provided with a much-needed avenue of relief from the potentially damaging actions of entities like the Army’s Criminal Investigation Division (CID), the Navy’s Criminal Investigative Service (NCIS), the Air Force’s Office of Special Investigations (OSI), and the Marine Corps’ Criminal Investigation Division (CID). This new directive represents a crucial development in safeguarding service members’ rights, offering them a means to challenge and rectify the often-irreversible consequences of being unjustly titled by these powerful military law enforcement agencies.

Limited “Titling” Appeal Options Before DoDI 5505.07

Before the issuance of the DoD Instruction 5505.07, service members found themselves at the mercy of military law enforcement agencies that wielded an alarming level of discretion in deciding who would be “titled” as the subject of an investigation. These agencies, including the Army’s CID, NCIS, OSI, and the Marine Corps’ CID, operated with varying standards for “titling,” often without the requirement of probable cause. This lack of uniformity and accountability meant that service members could be subjected to career and life-altering decisions based on the slightest suspicion or the barest hint of involvement in an offense. The power to title an individual rested solely in the hands of these agencies, leaving service members vulnerable to the potentially devastating consequences of being unfairly labeled without a consistent or fair process in place. The absence of a standardized approach to “titling” made it all too easy for a service member’s reputation and future to be compromised, with little recourse available to challenge these decisions.

Army CID “Titling” Based on Merely “Credible Information” at the time of “Titling”

In the Army’s Criminal Investigation Division (CID), “titling” a soldier is alarmingly swift, usually within three days of the initial report. It requires only a minimal threshold—merely “credible information” suggesting a soldier might have committed a criminal offense. This act of “titling” does not equate to a determination of guilt, yet it casts a long, permanent shadow over the soldier’s life. With a single stroke, their name is entered into the Army’s Crime Records Center, which can remain a constant reminder of the investigation for years. The implications of this are profound and far-reaching, extending well beyond the initial investigation. Even in cases where no charges are ever filed or a conviction is never secured, the mere fact of being “titled” can follow an individual like a dark cloud. It can surface in background checks, threatening to derail their career, undermine their security clearance, and close off future opportunities within and beyond their military service. The stain of “titling,” though born of suspicion rather than proof, becomes a permanent mark on a service member’s life, with severe and lasting consequences.

Reversal of “Titling” Decisions was Rare

Before the new DoD Instruction 5505.07, the situation for service members caught in the web of a “titling” decision was even more troubling due to the immense difficulty in reversing such a decision. Once titled, the path to removing that mark from one’s record was rare and exceedingly arduous, even in cases where innocence was later established, or charges were dropped. The fundamental issue lay in the nature of the “titling” process itself, which was based not on the eventual outcome of an investigation but on the mere spark of suspicion that initially justified it. This meant that, regardless of the truth or resolution of the case, the burden of proving that the original “titling” lacked credible grounds fell heavily on the service member and was viewed at the time of the “titling” decision without considering subsequently discovered evidence. The appeal process became an uphill battle, fraught with challenges, leaving service members in an incredibly uncertain situation. Their reputations, careers, and futures often hung in the balance, tainted by a decision that was all too difficult to undo, frequently made by junior law enforcement agents with little or no legal training, and with little hope of finding a clear or just path to restoration.

DoDI 5505.07 Requires Agencies to Appoint “Expungement Officials”

Thankfully, the new DoD Instruction brings much-needed relief to service members, offering a clear and tangible path to restoring their names and reputations. DoD Instruction 5505.07 mandates that each military law enforcement agency designate “expungement officials,” vested with the authority to approve removing “titling” information from criminal records databases. No longer are service members left to navigate a muddy and often impossible process; instead, DoD Instruction 5505.07 ensures that each agency must establish and implement “correction and expungement procedures” aligned with the new, standardized guidelines. This change represents a significant shift towards fairness and accountability, providing those unfairly “titled” with a real opportunity to clear their records and reclaim their futures.

Request for “Titling” Expungement Under DoDI 5505.07

Now, service members who have been “titled” by military law enforcement agencies finally have a powerful tool at their disposal: the ability to submit a written request directly to the agency director or designated expungement officials to review the “titling” decision. This crucial change, rooted in the new DoD Instruction, empowers service members to actively challenge an unjust “titling” and seek its removal from their records. For the first time, there is a formal, recognized process that allows those affected to present their case and potentially erase the stain that has unfairly marred their reputation. This opportunity to request a review signifies a major shift towards justice and transparency, providing a lifeline to those who have been wrongly caught in the crosshairs of suspicion, enabling them to fight for the restoration of their good name.

Legal Basis for “Titling Expungement”

The DoD Instruction establishes three criteria justifying expungement and removal of “titling” when:

Lack of Offense-Related Probable Cause

In situations where probable cause either did not exist at the time of “titling” or fails to exist now to substantiate the belief that the offense occurred, DoD Instruction 5505.07 provides a crucial opportunity for the expungement and removal of such unjust “titling.” This lack of probable cause or insufficient evidence underscores the importance of protecting service members from the far-reaching consequences of being wrongfully accused. For example, in cases involving allegations of BAH fraud, if there is no probable cause or insufficient evidence to establish the intent to defraud or permanently deprive the government of money, the “titling” should never have occurred in the first place. In such instances, the absence of offense-related probable cause or insufficient evidence to support the claim demands that the service member’s record be cleared, preserving their reputation and ensuring that justice prevails. This safeguard is essential in preventing the unwarranted destruction of careers and lives based on unsubstantiated or flimsy accusations.

Lack of Subject-Related Probable Cause (Identity)

In instances where probable cause did not or does not exist to believe that the subject committed the offense for which they were “titled” or indexed, or where insufficient evidence was or is available to determine their involvement, the DoD Instruction offers a critical mechanism for expungement. This aspect of the review focuses on the subject’s connection to the alleged crime, recognizing that a failure to establish their identity or involvement accurately can lead to unjust outcomes. For example, consider a case where three service members are “titled” for aggravated assault based on a victim’s report. If it is later revealed that one of the service members was not actually involved or had reduced fault due to a legal defense, this would be a clear basis for expunging the “titling.” This subject-related inquiry ensures that service members are not wrongfully burdened by the actions of others or by a flawed identification process, safeguarding their rights and preventing undeserved harm to their careers and lives.

In the Interest of Justice

DoD Instruction 5505.07 includes a crucial provision allowing for expungement under circumstances that the agency director or expungement official deems “in the interest of justice.” This decisive, broad criterion is a vital “catch-all,” enabling service members to present carefully crafted arguments rooted in fairness and equity. It grants the deciding official the discretion to consider unique or extraordinary situations that may not fit neatly into other categories. Nonetheless, it warrants a review and potential removal of the “titling.” This flexibility acknowledges that justice is not always served by rigid rules alone and that each case may present its own complexities deserving of a fair and nuanced examination. By allowing such considerations, the DoD Instruction ensures that the process remains adaptable and responsive to the diverse realities faced by service members, offering them a real opportunity to seek and achieve justice when it might otherwise have been out of reach.

Factors that Must be Considered: Corroboration, Initiation of Adverse Actions, and Final Outcomes

Additionally, the DoD Instruction mandates that when making an expungement decision, the agency director or expungement official must carefully weigh specific factors crucial to ensuring a just outcome. Among these factors is the extent—or lack—of corroborating evidence against the subject concerning the alleged offense. This consideration is vital in assessing whether the “titling” was based on solid grounds or relied solely on flimsy or insufficient evidence. DoD Instruction 5505.07 also requires consideration of whether any adverse administrative, disciplinary, judicial, or other actions were initiated against the individual for the offense. This factor acknowledges the seriousness of formal actions taken against a service member and how they reflect on the legitimacy of the “titling.” Furthermore, the type, nature, and outcome of such adverse actions must be examined, providing a comprehensive view of how the case unfolded and whether the “titling” remains justified in light of the final resolution. By directing officials to consider these factors, the DoD Instruction ensures that each expungement decision is grounded in a thorough and balanced evaluation, prioritizing fairness and protecting service members’ rights.

In-Depth Examination of Facts and Consideration of Exonerations

These factors underscore the critical importance of considering cases where uncorroborated allegations led to severe actions, such as a General Officer Memorandum of Reprimand (GOMOR), Board proceedings, or a Court-Martial, only for the subject to later be exonerated. Such scenarios highlight the potential for significant injustice if these unsubstantiated accusations are allowed to tarnish a service member’s record indefinitely. The DoD Instruction makes it clear that these situations should be carefully evaluated for expungement, recognizing that an exoneration following a formal proceeding is a powerful indicator that the initial “titling” may have been unwarranted. At the very least, this must be a substantial factor in the overall expungement decision, ensuring that a lingering mark does not unjustly burden individuals vindicated through due process on their record. This approach reinforces the commitment to fairness and the protection of service members’ rights, ensuring that justice is not only done but also seen to be done.

Clear Your Criminal Record – Call the Warrior Law Team Today

With these new guidelines in place, service members who have been unfairly “titled” now have a definitive path to seek reversal of that decision and the removal of their names from criminal databases. This crucial development offers a lifeline to those wronged by military law enforcement agencies such as CID, NCIS, OSI, MCCID, or any other agency. If you find yourself unjustly “titled,” the Warrior Law Team at the Law Office of Will M. Helixon is here to help. Our experienced team has a proven track record of successfully assisting service members in expunging their “titling” decisions and clearing their names from criminal records. Don’t let an unjust “titling” decision continue to impact your career and future. Call us today, and let us fight to restore your reputation and protect your rights.

Will M. Helixon

Will M. Helixon is a seasoned military attorney and founder of The Law Office of Will M. Helixon. With over three decades of experience advocating for service members, he is dedicated to defending the rights of military personnel worldwide. Will’s expertise spans court-martials, administrative actions, and military justice, providing trusted support to those who serve.

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