Titling in the Military (In)Justice System

Titling. Does that word mean anything to you? For me, at first, it didn’t, but it is a big part of the military justice system.

Many in the public arena aren’t aware of titling and have no knowledge of its current meaning or use. Heck, in the four years I served in the Marine Corps I never heard the word used even once. Today, though, titling continues to be a major concern for many current and former servicemembers. Some of them, who, having never been charged — let alone convicted — of a crime suffer life-altering ramifications because of titling. Being titled can (and does) inhibit honorably discharged servicemembers from getting approved for professional licenses, security clearances, gun ownership, concealed carry permits, and even college admission. Those Soldiers, Sailors, Airmen, and Marines whom this policy affects often suffer years — some even a lifetime — of hurt, depression, anger, and anxiety as a result of their “title.”

What is titling? Simply stated, “Titling is the decision to place the name of a person in the ‘subject’ block of a CID report of investigation (ROI).”

This simply means if it is suspected that you committed a criminal offense and you are named the “subject” of an investigation, then you’ll be titled. The following passage describes the use of and proof required for titling someone:

“Unlike a criminal conviction, which requires proof beyond a reasonable doubt, to title someone only requires existence of credible information that a person committed a criminal offense. Legally, this is a very low standard, far below the standard required at trial by a court of law. Titling is not a legal or judicial decision, it is an operation[al] procedure used by CID.”

The DoD Instruction regarding “titling” was amended to its current standard on May 14, 1992. Prior to that, investigators were required to show probable cause before they could title someone. After the 1992 amendment, the proof required to title someone dropped to “credible information,” a far lower standard of proof. Credible information is, “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 that the fact or facts in question are true.”

The Credible Information Standard

Think of the “credible information” standard in this way: 

A fellow servicemember contacts military investigators and accuses you of adultery (a chargeable military offense). During his accusation to investigators, he claims he saw you leaving a hotel room late Saturday night with a female that he knows for a fact wasn’t your spouse. An investigation is initiated and you are titled as the subject in an adultery investigation. The investigation reveals that you were actually out on a date with your spouse at the time of the incident, but your brother, who had come into town to visit for the weekend, had been out with a local girl and the two of them had been spotted leaving a hotel room. You show the investigator the restaurant and movie receipts from your date night with your wife and your wife confirms you were together all night. The investigators then determine it was a case of mistaken identity as it was actually your brother who had been seen at the hotel and you are fully cleared and obviously never charged with a crime. 

In this example, the allegation would likely be deemed both Unfounded and Unsubstantiated by investigators. You are, however, still titled. And this is a “simple” adultery charge. Consider if you’d been incorrectly accused of rape. Or molestation. Or domestic abuse. Or treason. Then consider what it would feel like to be cleared of any wrongdoing, receive an honorable discharge at the end of your enlistment, but then still pop up in every major criminal federal database when trying to land a civilian job. FOR THE NEXT 40 YEARS. 

If this sounds unbelievable to you, I can assure you that you are not alone. Since titling merely requires the possibility that you committed a crime, it is not required that you be “founded” (meaning there was a crime committed), have the case against you “substantiated,” or even that the investigators believe they have probable cause that you committed the offense like was required before 1992. Titling merely requires an accusation accompanied by potential evidence. 

The website Military Justice Attorneys explains the titling DoD Instruction (5505.07) this way:

“This policy requires the titling and indexing of any service member under criminal investigation ‘as soon as the investigation determines there is credible information that the subject committed a criminal offense.'”

“This [Credible Information] is an incredibly low standard. Once the subject of a criminal investigation has been indexed in the federal law enforcement database (DCII), ‘the information will remain in the DCII, even if the subject is found not guilty of the offense under investigation.’ The only exceptions to this policy are where ‘there is a mistaken identity or it is later determined no credible information existed at the time of titling and indexing.’ Once a person is titled and indexed, the record will be on file and accessible for up to 40 years.”

Stated again: “Even if the subject is found not guilty of the offense under investigation” he or she will still be titled “for up to 40 years.“

In an exclusive interview with SOFREP, a former U.S. Marine Judge Advocate who currently defends accused active duty personnel and veterans for a variety of alleged crimes, including titling, stated the following,

“One of the big issues I see coming from the United States military today is the issue of servicemembers being titled; not for being convicted — or even charged — with a crime, but for simply being named the subject in an investigation.”

He went on to explain one case, in which he worked, where an Honorably Discharged veteran applied for a professional license but was denied based on a background check that showed a “charge” for assault.

“My client had originally been accused of assault, but the ensuing investigation deemed no criminal charges were appropriate. An additional investigation conducted by victim advocacy investigators revealed that my client had actually been the victim, NOT the suspect of the assault. Despite the revelation brought forth through the investigation conducted by victim advocacy, the military refused to remove the assault title, which ultimately prevented my client access to the civilian career [they] desired.”

The Department of Defense Instruction for titling seems to make it clear that being titled isn’t meant to be a punitive action taken, but an evidentiary one for future investigations and security clearances. In DoD Instruction 5505.07 (Titling) under the POLICY heading (4), it states, “The acts of titling and indexing are administrative procedures and shall not connote any degree of guilt or innocence.” Subset 4b goes on to say, “Once the subject of a criminal investigation is indexed, the name shall remain in the DCII, even if the subject is found innocent of the offense under investigation.”

The “DCII” that the above excerpt refers to is:

“A centralized database, organized in a searchable format, of selected unique identifying information and security clearance data utilized by security and investigative agencies in the DoD, as well as selected other Federal agencies, to determine security clearance status and the existence or 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.”

One can conclude that the DoD would argue that (as referenced in the language above) titling was never meant to denote guilt or to be held against someone in a harmful way. However, as can be common with entities that are too big for appropriate oversight, well-informed, accurate understanding of disseminated information about titled veterans is no doubt lacking by some of the dozens of entities who have access to the system. Why do I believe this to be the case? Consider this: 

You are titled during a theft investigation. The charge was later founded but unsubstantiated (meaning it wasn’t you who committed the theft but there was a theft). Your unit obviously doesn’t take any action against you (because it wasn’t you) and you continue with your current enlistment. Five years, one re-enlistment, and two promotions later you decide to apply for a new military MOS that requires a higher security clearance. There is one other candidate who also applies for the position and he has nearly identical credentials as you; except he has never been titled. The new command, not correctly understanding what titling is, how people are titled, or what titling really even means, sees in the background investigation that you were titled for theft, so they choose the other candidate for the position. You were never charged with an offense and certainly never convicted; just titled. You were totally innocent. And in this instance, titling prevented your desired job change.

However, the above example isn’t simply unbased conjecture. Though a fictional example, being “looked down upon” for having been titled is, unfortunately, all too real. In her well-researched discussion on titling in a 1998 edition of The Army Lawyer, U.S. Army Major Patricia Ham said: “That concept [titling only as an administrative function] is acceptable only if the fact of titling is not to be used for any other purpose than as a record of investigative activity and there is no negative connotation associated with being titled. Army experience is that being titled and indexed does carry a very negative connotation.”

Misunderstanding and at least a bit of judgment routinely accompany a background search result that shows titling. And if those within the military are confused about it, how can civilian employers even remotely be expected to comprehend the concept?

Comparing the Military and Civilian Justice Systems

It has been noted above that the only preponderance of evidence required to title someone is “credible information” that the subject committed a crime. How does this compare to the civilian legal world? First, let’s explore the specific legal definition of “credible information.”

According to DoD Instruction 5505.07, on “Titling and Indexing In Criminal Investigations,” credible Information is “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 that the fact or facts in question are true.”

The civilian thresholds are as follows:

[CONVICTION] Proof Beyond a Reasonable Doubt: “No other logical explanation can be derived from the facts except that the defendant committed the crime.” 

[ARREST] Probable Cause: “Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime, thereby warranting his or her prosecution.” 

[QUESTIONING] Reasonable Suspicion: “Based on ‘specific and articulable facts,’ taken together with rational inferences from those facts, and the suspicion must be associated with the specific individual.”

With “proof beyond a reasonable doubt” not terribly relevant in this conversation, since, regardless of the outcome, adjudication was at least achieved for the accused, we’ll focus on the other terms.

From a Law Enforcement standpoint, “probable cause“ is the evidence needed to write someone a speeding ticket or to custodially arrest someone (take them to jail). By arresting someone or by writing them a ticket, the officer is legally claiming that he or she had probable cause-level evidence that the subject committed the offense. Since the amendment to the titling DoD Instruction in 1992, though, “probable cause” requires far more evidence than what is needed for the military to title someone. So let’s consider the threshold of “reasonable suspicion.” 

A police officer who has “reasonable suspicion“ that a crime has been or is being committed cannot immediately arrest or charge a subject, but can hold and question him or her for a brief (reasonable) period. If additional evidence is discovered that rises to the level of probable cause during the encounter, then the person can be arrested and charged. If not, the person is released without concern that their brief contact with an investigator (officer or detective) would show up for years to come in a criminal history search performed by a future potential employer.

For “credible information,“ the government investigators must have reason to believe that there is some evidence that points toward you having done something illegal and they think they should begin an investigation to determine the merit of the allegation. The government doesn’t believe with certainty that you did or did not commit the alleged crime. It’s unsure perhaps whether you are the suspect or the victim. It doesn’t even know for a fact that it was you who has been accused: it simply reasonably believes that it could be. How can we conclude that? If there was articulable or tangible evidence that you committed the offense, you would be charged!

I fail to understand how the meager evidence of a crime that credible information consists of is enough to title someone for an offense they may or may not have committed. Or, how that amount of evidence could cause them to be labeled as having committed that offense for the following 40 years. A civilian investigation that reaches only to the level of reasonable suspicion (which would be a similar comparison standard to credible information), never officially happened from the standpoint of the “subject’s” name being found in a searchable database. And herein lies the difference. 

The civilian who was interviewed regarding an allegation won’t be “titled” or “labeled” anywhere that could affect him or her in the future. The civilian won’t have trouble getting a job due to that singular conversation with law enforcement. The civilian won’t be passed over for a promotion at work solely because of that allegation. The civilian will not be denied a security clearance because of that conversation. The civilian will not live the next 40 years of his or her life under the “scarlet letter” of an accusation. The civilian will be free to simply move on with life. 

So, again, I fail to understand how such a low standard can be the military justice’s gold standard. Other than, of course, the fact that in 1992 the DoD decided to amend the titling instruction away from probable cause, in direct opposition to the House Armed Services Committees’ recommendation.

In fact, the House Armed Services Committee had directed the “services to revise their procedures along the lines used by the Army to ensure that probable cause has been proven before ‘titling’ occurs.” However, against the recommendation of the House Armed Services Committee, the DoD decided to wholly alter the standard for titling and to drop it from probable cause to credible information, thus creating the standard still in use today.

When the 1992 update was made, Judge Advocate General for the Army Major General John L. Fugh, stated, “The military is a unique society for which there is no civilian counterpart. I’m therefore concerned about the ‘Big Brother” aspects of the DCII. Many of us have access to that system, and the information is used for personnel decisions including security clearances, promotions, assignments, schooling, and even off-duty employment.”

Major General Fugh perhaps acutely and uniquely understood the potential pitfalls surrounding such a Big Brother state, as he was the first Chinese-American head of the Army JAG Corps and the first flag-level officer of Chinese descent in the U.S. Army’s history. Fugh lived in Beijing up to his teenage years, before eventually moving to the United States, attending college, and commissioning as an officer in the U.S. Army.

I believe Major General Fugh understood what was happening in 1992 and knew its future implications. The overreach was increasing and he wanted to caution against it.

Additionally, concerns raised at that same time in an official U.S. Army memo were similar to those highlighted by Major General Fugh. In an official memorandum regarding the new titling Instruction, the Army further criticized the DoDs inspector general (IG), stating, “[The analysis was based] almost exclusively on inputs to the DCII and the indices of investigative activity used by Federal agencies, such as the FBI, which have a purely law enforcement or security function. The report does not discuss access to or use of DCII entries within DoD, i.e. outputs from the DCII, for other than investigative or law enforcement purposes.”

The Danger of Titling in the Military Justice System

In other words, the DoD IG put plenty of thought into how they would collect information for the DCII but put little, if any, thought into how or when the information would be distributed back out for purposes other than law enforcement investigations. I believe that remains the biggest issue with titling. Once a name is in the system, civilian employers (as an example) can’t tell whether you were charged with a crime, arrested or convicted for the crime, or simply titled for it. And that’s why titling in its current application is wrong.

Recently, there also appears to have been a noticeable change in the instances of servicemembers being titled. 

The former Marine Judge Advocate whom SOFREP interviewed, stated,  “Over the past few years, there seems to have been an uptick in the instances of titling service members. It seems that since the 2017 Texas church shooting, in which a suspect killed multiple churchgoers before being shot and killed himself.”

The church shooting he was referring to took place on Nov. 5, 2017, in Sutherland Springs, Texas. The suspect, Devin Kelley, was an Air Force veteran who had been discharged from the military with a Bad Conduct discharge in 2014. On Nov. 5, 2017, Kelley walked into a small Texas church and opened fire with a rifle killing 26 churchgoers and wounding more than 20 others. He then attempted to flee the scene but was shot and killed by a neighbor before he could make his escape.

According to an NBC news article that was written shortly after the shooting, “[Kelley] was confined for a year, given a bad conduct discharge and reduced in rank to E-1, or airman basic, Stefanek said. The military failed to enter the domestic violence case into a database that would have made it illegal for him to buy a gun, officials said.” 

Because of his criminal actions, while serving in the U.S. Air Force, Kelley should have legitimately been titled, which would have prevented him from legally purchasing a weapon. Criminals like Kelley are what titling is for. Titling is meant to keep servicemembers who were unfit to serve because of their criminal behavior from integrating back into society and wreaking havoc there as well. Titling was never meant to be misused to label and undermine many aspects of the lives of servicemembers who were victims of crimes or who had their charges dropped due to lack of evidence, then went on to serve the remainder of their enlistment, and earned honorable discharges. The emotional and physical toll that “titling” takes on men and women who stood accused is a big one. The cost is hard to quantify, but it has no doubt impacted heavily countless thousands of veterans who have been titled.

SOFREP interviewed United American Patriots’ (UAP) Communications Director Nick Coffman. UAP is a citizen-funded, veteran-run, non-profit 501(c)3 organization that is dedicated to helping wrongfully accused veterans obtain legal assistance. 

We asked Nick what negative effect he saw most when dealing with veterans or active duty personnel who had been wrongfully accused. He replied the following,

“Single guys seem to struggle the most at times because generally they have the least support and that can sometimes lead to alcoholism and substance abuse. Those who are married at least have the option for their wife and children to keep them grounded. Whether single or married, the accused often lose support from their friends in the command because the perception and narrative within the command is generally that they must be guilty or they wouldn’t be going to trial in the first place. Friends might still offer words of support behind the scenes but they are typically under pressure from the command to not get involved with the person who is the subject of the investigation, so they distance themselves and rarely follow through on writing character statements.” Nick went on to say, “Because of the false accusations and/or unjust convictions that some service members have encountered over the past two decades, many of them struggle to find jobs in the civilian world because of the stigma that follows them around if they are fortunate enough to avoid prison time altogether or are granted parole.

In addition to the toll it takes on the service member, it takes perhaps an even greater toll on their spouse and children. The emotional and financial strain that the families face can sometimes lead to divorce, and in some cases the children unfairly face scrutiny from their peers in school and social groups.”

I think most of us would agree that people who commit serious crimes need to face serious consequences. That includes those who serve in the military. However, I think we’d also agree that we need to ensure the integrity of our military justice system and be slow to make decisions or accusations that will affect military members’ spouses, children, future employment opportunities, and freedom.

The titling bill needs to be revisited and revised. It needs to be utilized to better enforce the spirit of the law, rather than simply its letter. The spirit of the law is to prevent men like Kelley from hurting other people, not to prevent an Honorably Discharged veteran, who had been falsely accused, from being hired as a police officer, attorney, or nurse. Until that aspect of titling changes, there will remain a significant imbalance of justice in the military “justice” system.

Print Sources:

1. U.S. Army Major Patricia A. Ham AUGUST 1998 THE ARMY LAWYER • DA PAM 27-50-309 (p.10)
   
2. H.R. REP. NO. 101-665, at 216 (1990)
3. Memorandum from MG John L. Fugh, The Judge Advocate General, U.S. Army, to Derek Vander Schaff, the DOD IG, subject: Comments to Proposed DOD Instruction 5505.7 (23 Mar. 1992)
4. Draft Memorandum from MG John C. Heldstab, Director of Operations, Readiness, and Mobilization, DAMO-ODL, to Assistant Secretary of the Army (Manpower and Reserve Affairs), subject: DOD Instruction 5505XA, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, ACTION MEMORANDUM (undated)