The idea that anyone can unknowingly have a criminal record probably strikes most readers as ludicrous. Unless you have a case of amnesia, you know if you’ve been previously arrested.
Yet an increasing number of U.S. military veterans are discovering quite the opposite courtesy of the military’s criminal investigative branches and a shockingly un-American practice called “titling.”
Titling, or entering unproven criminal suspect information into a central DoD investigations repository called the Defense Clearance and Investigations Index (DCII), has apparently been happening since the DCII was created in 1966. Initially, the data appears to have been confined solely within the DCII, where it was utilized at DoD as part of security clearance background investigations, among other administrative purposes. At some point, however, that same administrative information began finding its way onto FBI RAP sheets due to a policy of duplicative reporting to the respective service branch’s Crime Records Center and, ultimately, the FBI’s National Crime Information Center.
In other words, the military began reporting entirely unproven (and in some cases, unpursued) allegations of criminal conduct – identified by whatever crime(s) the investigating law enforcement agent thought applicable – to the FBI. The suspect may not have even known they were ever under investigation. No investigation may ever have commenced following an initial complaint. Or, a different suspect could have emerged who was ultimately arrested, charged, and convicted; yet the titling of the original suspect remains.
I’ve personally seen the results, and they are bewildering. An FBI RAP sheet of someone “titled” is indistinguishable from someone arrested on probable cause for the identified offense(s). As one can imagine, the consequences are devastating for subsequent licensure in various civilian occupations (teacher, lawyer, doctor, etc.), for pre-employment background investigations, or for other matters like obtaining a permit to lawfully carry a concealed firearm. The worst part about it is that the impacted individuals often have no idea why they are being denied the job, license, or permit until after the fact – if at all. That’s tough to square with DoD policy that titling is an administrative action that does not imply guilt.
Incredibly, these problems of subjectivity and due process were identified as early as 1991 by the House Armed Services Committee, which ordered the DoD Inspector General to undertake a study on establishing a uniform standard for titling across the military criminal investigative branches. However, the DoD IG reached the opposite conclusion from what Congress likely expected: all branches should make titling determinations based on the lowest common denominator approach of whether there was sufficient adverse information to warrant opening an investigation – not whether there was probable cause to determine the titled individual committed a crime, as the Army then required. Thus, the standard for titling was lowered across the board to far less than is required in the civilian world for an arrest record.
What is unclear from the 1991 DoD IG report – and what strikes me as doubtful given the recency of attention on this issue – is whether the military criminal investigative branches were then also engaged in duplicative reporting to their Crime Records Centers (and ultimately to the FBI) or whether that came later.
What is clear is that no recourse existed for wrongly titled individuals until Congress forced DoD to establish an appeals process in 2021 that took the Department two years to implement. That convoluted and highly subjective process has a disheartening 9% success rate in the Army and the Air Force, the two service branches that provided complete data in response to a records request from military publication Stars and Stripes. So, as one veteran wryly observed to the same publication, “[t]he process went from impossible to nearly impossible.”
Like the titling itself, DoD deems the appeals process “administrative,” meaning no recourse to the courts and dubious due process at best. But veterans who are worried they may have been titled still shouldn’t take this lying down. If you’re one of them, start by filing a Privacy Act request with the FBI for a copy of your RAP sheet then seek out experienced legal counsel for assistance.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
