While we are very early in the FY21 National Defense Authorization Act (NDAA) drafting and negotiation process, the fact that the US Senate has taken up the issue is extraordinary. As those affected know, DoD regulations now only permit expungement of Titling information contained in the Defense Central Index of Investigations (DCII) or the Services’ criminal databases when either (1) the underlying incident did not occur, or (2) the wrong person was titled.

The new NDAA (Section 586) will, if passed and signed, require DoD to establish a process through which anyone can request to have their name, Personally Identifiable Information (PII) or other information corrected, expunged or removed from DoD law enforcement or criminal investigative databases and reports. DoD will have to expunge the records of a “covered person” when (from the section 586):

“(A) Probable cause did not or does not exist to believe that the offense for which the person’s name was placed or reported, or is maintained, in such report, item or entry, or record occurred, or insufficient evidence existed or exists to determine whether or not such of offense occurred; (B) Probable cause did not or does not exist to believe that the person actually committed the offense for which the person’s name was so placed or reported, or is so maintained, or insufficient evidence existed or exists to determine whether or not the person actually committed such offense; or, (C) Such other circumstances, or on such other bases, as the Secretary may specify in establishing the policy and process, which circumstances and bases may not be inconsistent with the circumstances and bases provided by subparagraphs (A) and (B).” (emphasis added)

DoD will also have to consider whether: (A) The extent or lack of corroborating evidence against the covered person concerned with respect to the offense at issue; (B) Whether adverse administrative, disciplinary, judicial, or other such action was initiated against the covered person for the offense at issue; and, (C) the type, nature, and outcome of any action described in subparagraph (B) against the covered person.”

Importantly, this is the first draft of the US Senate’s version of the FY21 NDAA, and the House did not have a similar provision in their draft. Things can and do change in the legislative process, and this section could be a negotiating target.

The attorneys at MNB Meridian Law will be contacting our Senators and Representatives to encourage their support for this long overdue fair process that civilians have long enjoyed. We encourage everyone to contact their Senators and Representatives, as well, and urge them to support this very important provision of the FY21 NDAA.

For more information about how MNB Meridian Law can assist with titling removal and other adverse military personnel law matters, contact us by email at info@mnbmeridian.com, or by telephone at (215) 268-3003.