Titling Expungement is ALMOST (but not really) a Reality

Philadelphia, Pennsylvania, November 15, 2023 – With no fanfare the Department of Defense reissued DoD Instruction 5505.07 (Titling and Indexing by DoD Law Enforcement Activities) (dated 23 Aug 23) directing the Military Services to create and publish expungement policies and procedures required by FY21 NDAA Section 545, e.g., unless there was probable cause to believe an individual committed misconduct DoD must de-title that individual on request.

DoD IG also did not, however, give a deadline for implementation. They also did not provide a maximum time to process requests, AND there is no provision for appeals. Given the Military Services’ distain for expungement, combined with the year-plus long back log at the records corrections boards, it could still take years for the titling to be removed from NCIC. While waiting, titled former Service members will have an “arrest” in NCIC, and may be unable to find suitable employment that require background checks: education, law, finance, medicine, national security, etc.

We also note with disappointment that DoD reaffirmed the current titling timing and standard: “DoD LEAs will title subjects of criminal investigations in DoD LEA reports and index them in DCII as soon as there is credible information that they committed a criminal offense.” Given the Section 545 probable cause expungement requirement, it would have seemed logical to return to the pre-1991 standard of only titling individuals when probable cause existed in the first place.

DoD chose the “credible information” standard in the early 1990’s to be like all of the other federal law enforcement agencies. The difference between DoD and the FBI is that the FBI names their targets in their reports as a way to internally track the investigation. They do not enter a suspect’s name in NCIC while the suspect is under investigation. DoD enters a titled individual’s information in NCIC as soon as (or even before) the investigation begins. Why?

The administrative act of titling is yet another arrow in the Military Services’ quiver to support a commander’s ability to administratively punish and separate Service members at a lower standard of proof (“I think you did it”), more quickly, more easily, more harshly, and for longer periods of time than the lengthy, time-consuming, beyond a reasonable doubt-required standard at court-martial.

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With more than 100 years of combined experience, the attorneys of MNB Meridian Law, Ltd. are the Nation’s foremost experts on military administrative law and the effects of administrative punishment (and titling) on current Service members, as well as the life-long 2nd and 3rd order effects these issues will have on their post service lives. There is no reason to face an investigation, reprimand, relief from duty, administrative separation, ADSEP board, or other adverse action alone. MNB Meridian Law was purpose built to stand with you as you navigate the issues and defend your career, pay, benefits, entitlements, and reputation.