Abstract

Excerpted From: ReAnne R. Wentz, “Equality of Treatment”: How Service Members of Color Are Disproportionately Impacted by the Military Law Enforcement's Titling Process, 230 Military Law Review 307 (2023) (Footnotes) (Full Document)

President Harry S. Truman, grandson of slave owners, Missouri native, and former white supremacist, signed the order ending segregation in the Armed Forces on July 26, 1948. The brief, but significant, executive order declared, “there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion, or national origin.” Despite President Truman's efforts, discrimination based on race has hounded the services in myriad ways. Disparities in the administration of military justice recently came to light in 2017 with a report by the non-profit organization Protect Our Defenders (POD). The report triggered Congressional interest, and in response, Congress sought additional analysis from the Government Accountability Office (GAO) and the Defense Advisory Committee on Investigations, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD). The conclusions were consistent: at various points between investigation and prosecution, Service members of color had a different experience with military justice than their white counterparts.

However, the hearings and reports referenced above are not the first time the military has reckoned with its justice system failing to treat its members equally. The history of military justice is replete with anecdotal, and often tragic, evidence of racially-disparate treatment. Discrimination is evidenced not just in intermittent examples, but is also consistently, empirically proven by data. In 1972, the Task Force on the Administration of Military Justice of the Armed Forces analyzed a variety of metrics to show that the problem was not merely anecdotal. The Task Force concluded “the military system does discriminate against its members on the basis of race and ethnic background. The discrimination is sometimes purposive; more often, it is not.”

In various reports over the last five decades, disparate results based on race appear throughout military justice. Of particular importance to this paper are the disproportionate rates that Soldiers of color face investigation by military law enforcement. In addition to the emotional stress of being investigated, there are collateral consequences on the individual being investigated, starting with being titled and indexed. Although titling and indexing may seem insignificant, there are a number of consequences that can have a lasting impact on a Soldier's life. As the data suggest, law enforcement agencies investigate Service members of color more often, it then logically follows that more Service members of color are titled. Therefore, these Service members will disproportionately suffer the effects of being titled and indexed in various databases--even if the case is not supported by probable cause or the Service member faces no punishment.

When Department of Defense (DoD) law enforcement investigates a Service member, he or she will likely be titled and indexed very early in the investigation, using a standard lower than probable cause. Titling is a process unique to the military, in which the law enforcement agent will place the name of an individual in the subject block of a Law Enforcement Report (LER). Placing a name in the subject block occurs “as soon as the investigation determines there is credible information that the subject committed a criminal offense.” Credible information is defined as “[i]nformation 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 investigator to presume the fact or facts in question are true.” Comparatively, probable cause is defined as “[a] reasonable ground to suspect that a person has committed or is committing a crime ... more than a bare suspicion, but less than evidence that would justify a conviction.” The subject is titled before a determination of probable cause is made by an attorney. Simply put, credible evidence is a much lower standard than probable cause. Further, the current titling and indexing process allows law enforcement to use this incredibly low standard to create, maintain, and use a record on an individual. A subject may be titled for an offense for which they were never prosecuted or otherwise punished. Worse, a subject may be titled for an offense for which there was not even probable cause to believe he or she committed the offense.

Once someone is titled, the information is indexed in the Defense Central Index of Investigations (DCII) “to ensure this information is retrievable for law enforcement or security purposes in the future.” Although the DoD and its law enforcement agencies adamantly maintain that “titling and indexing are administrative procedures and will not imply any degree of guilt or innocence,” there are adverse collateral consequences that may arise merely because someone is titled as the subject of an investigation. These can be informally sorted into tangible and intangible. A tangible consequence may be, for example, revocation, suspension, or denial of a security clearance. An intangible consequence would be that a commander becomes aware that one of his or her Soldiers was investigated and titled, which may cause the commander to form a negative bias about the Soldier or have an already-formed bias confirmed based solely on the titling information. As of 1994, at least twenty-seven federal agencies had access to the DCII and the information contained therein could be “used to determine promotions, to make employment decisions, to assist in assignment decisions, to make security determinations, and to assist criminal investigators in subsequent investigations.” However, at present, it is nearly impossible to ascertain precisely which agencies and entities have access to the DCII and for what purposes.

In 2021, Congress ordered the Secretary of Defense to reform the process by which someone can request to have their name and identifying information removed from the subject block of an LER and from any databases where law enforcement sent the information. The new law requires that individuals have the ability to expunge or correct law enforcement records if probable cause did not or does not exist to believe that the person committed the offense. In an indirect way, Congress raised the standard for someone to be titled from “credible information” to “probable cause.” This is a good first step in addressing the problems with titling and indexing. However, the change is inadequate because the onus is on the titled Service member to have the record corrected or expunged entirely. The expectation is that a junior-enlisted Service member will know he or she was titled, be aware that it may cause negative ramifications in the future, and understand how to go about correcting it. Further, this process will still likely take a substantial amount of time to complete, during which the Service member will remain titled and may lose career opportunities, pay, or other benefits. Moreover, because the titling determination happens so early in the investigation, it has the potential to taint the rest of the investigation and the disposition of the case. The expungement process outlined by Congress fails to address these issues because it only mandates change well after the Service member has been titled. In order to adequately address the consequences of titling, the DoD must change the process by which someone is titled and indexed.

*314 Titling and indexing can have a significant and lasting effect on the Soldier and on the military justice process as a whole. It is vital to take steps to address the inequities found in the military justice system, at all points--from investigation to disposition of the offense. The military justice system must be seen as fair or it will be entirely ineffectual. Correcting race-based disparities will require rooting out bias and addressing the causes of it. In the meantime, Congress and the DoD must take steps to mitigate the consequences of unequal treatment. This can be accomplished, in part, by changing titling and indexing.

This paper first reviews the history of racial disparities in military justice, specifically in military law enforcement investigations. Next, it explains the titling process and what potential impacts that being titled may have on an individual. Finally, to address these concerns, this paper proposes a three-fold solution. First, there must be more clarity regarding how titling and indexing impacts Service members. Second, an individual should not be titled for an offense until law enforcement agents complete a substantial portion of the investigation and an attorney makes a probable cause determination. Final determination on probable cause and criminal indexing will rest with the Criminal Investigation Division (CID). Third, the Secretary of Defense must actually promulgate the change mandated by Congress to reform the process to amend law enforcement records and remove a subject's information from various databases.

[. . .]

By his own account, Captain Gilberto De Leon was titled, but never charged, for participating in the Guard Recruiting Assistance Program (GRAP). This Army program was the subject of a massive CID investigation that was rife with problems. Captain De Leon, who hails from Puerto Rico, participated in G-RAP in 2007, but in an article penned for the Military Times in 2022, he wrote of his experience after being titled and, presumably, indexed. According to Captain De Leon, the titling action “halts all progress” relating to promotion, advanced security clearance or applying for a civilian job. During his career, Captain De Leon deployed multiple times, completed ranger school, and received the Meritorious Service and Bronze Star Medals. After nearly two decades of service, his promotion to major was delayed and “[his] career is essentially over” as a result of his being titled. Other Soldiers titled as part of the G-RAP investigation experienced problems with promotion, faced separation action, “suspen[ded] security clearances[,] loss of civilian employment[,] debarment from [f]ederal contracts[,] and impediments to securing employment in law enforcement.”

In 2009, a CID LER pertaining to Navy Lieutenant Christopher Code stated there was both “credible information” and “‘probable cause’ to believe that [Lieutenant] Code made a false statement.” Lieutenant Code was never charged, and sought relief from his titling and indexing from the Army, the ABCMR and the District of Columbia Circuit Court. His fight lasted more than seven years. In the meantime, the Army used the titling decision alone to attempt to recoup the value of services, more than $40,000, that he allegedly obtained under false pretenses. In 2020, after reviewing the facts of his case, the District of Columbia Court of Appeals held the ABCMR's decision that there was credible information supporting Code's titling and indexing was “arbitrary and capricious.”

These two stories are illustrative of the deeper problem with titling and indexing. The problem has not gone unnoticed, but has gone unrepaired by the DoD, which is similar to the predicament of racially disparate impacts in the military justice system, broadly. Congress and the DoD are aware of disparities that “persist in the same pattern: Minority [Service members] are more likely to be brought before the military justice system” but are no more likely than their white peers to be convicted or punished more severely.

Racial disparities consistently appear at the investigation stage of the often-lengthy military justice process. Problematically, this is one of the places where it can do the most damage not only to the Soldier, but also to the investigation and disposition of a case. Therefore, titling and indexing must be significantly reevaluated and changed. The causes for bias early in the military justice process are still arguably unknown and, obviously, there is no quick or easy fix for bias or prejudice--implicit or otherwise. However, there is no need to wait, hand-wringing, for new data or a new understanding of the underlying causes of disparities. Congress and the DoD have what they need to take action. Congress and the DoD must look for ways to mitigate the consequences of bias in addition to addressing biases themselves. Fixing the titling process is the just thing to do and, importantly, a step in the right direction toward “equality of treatment.”

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Judge Advocate, United States Army. Presently an LL.M. candidate, University of Virginia School of Law, Charlottesville, Virginia. LL.M., 2022, The Judge Advocate General's Legal Center and School; J.D., 2012, Washburn University School of Law; B.A., 2009, Washburn University.