(Illustration by Andrea Villari/Stars and Stripes)

Retired Sgt. Major Eriq Brown first learned of his criminal record in 2021 during a screening for veteran disability benefits as part of his retirement from the Army.

He met with a civilian psychologist in South Korea as part of a post-traumatic stress disorder screening. The psychologist asked him whether his pending criminal charge was causing him emotional distress.

Brown, who spent 28 years doing human resources work in the Army, said he looked at the doctor perplexed. Two years prior, a fellow soldier in Korea accused him of assault. She told military police that Brown in a period of three months had hit her on the back of the neck, bumped her in an on-post store at Camp Humphreys and then grabbed her arm after an event.

No charges came of the accusations, according to Brown’s service record and documentation that he would later present to the Army Board for Correction of Military Records.

An officer in Brown’s chain of command with 8th Army conducted an internal investigation and found no evidence it happened — even discovering Brown wasn’t on post the day that he supposedly bumped the woman at a store, according to correction board documents. He was never arrested or detained or read his rights. There was no court-martial or nonjudicial punishment.

Instead, Brown received a reprimand in his personnel file for unprofessional behavior. The letter scolded Brown for touching the woman’s neck and then reaching for her arm after she had told him that she did not want to be touched.

Retired Sgt. Maj. Eriq Brown, 47, was investigated for assault while in the Army, but never arrested or charged with a crime. However, his criminal record shows he was arrested and is awaiting a final outcome for an assault charge and the Army has refused to remove the information. (Provided by Eriq Brown )

“You have exhibited poor judgment,” Brig. Gen. Patrick Donahoe wrote in the reprimand dated Aug. 21, 2019. Nowhere in the letter does he write Brown was arrested or committed a crime.

Sitting in that doctor’s office, Brown realized none of this was behind him. The ordeal had left him with a criminal arrest listed on his background check with no resolution — as if he is still waiting to face judgment for a misdemeanor assault charge.

“Think about the embarrassment of that,” said Brown, now 47. “I definitely wouldn’t let my children go in the military after this.”

Brown is one of thousands of service members who have been investigated by military law enforcement agencies, never charged or convicted of a crime, and yet, their criminal records show otherwise, according to attorneys who work with military clients.

The root of the issue is a Defense Department policy ordering its law enforcement agencies to put a suspect’s name into the FBI’s National Crime Information Center database once agents have “credible information” that a crime occurred. It’s known as titling and indexing.

Credible information could be as simple as someone coming in and making a report. It typically precedes any evidence gathering or real investigative work, said Christopher Nuneviller, a former Army attorney who continues to work on military cases.

Civilian law enforcement agencies do not enter people into the national database until there is an arrest warrant or indictment, he said. He published a paper to his law firm’s website last month on the military’s expansive use of criminal titling. He recommended the military adopt civilian law enforcement standards.

“The DOD transfer of the titling data to [the national database] before the investigation begins is a pervasive, arbitrary and capricious administrative function that serves no legitimate government purpose but to bureaucratically punish individuals,” Nuneviller wrote.

The Defense Department has the power to clear these people’s records, but “they don’t do it and they won’t do it,” he wrote. “The Department of Defense should be held accountable for this improper and likely illegal expansive use of titling.”

Sue Gough, spokeswoman for the Defense Department, said the titling policy into the military’s internal Defense Central Index of Investigations ensures a record is available for law enforcement, security purposes, background investigations and clearance adjudications.

She echoed a sentiment included in the policy that the practice should only confirm a person’s role in an investigation and does not constitute a conviction or imply any guilt.

A question about why it is necessary to report to the FBI’s database so early in an investigation went unanswered.

Lifelong impacts

For those who do seek expungement of their record, they are more than likely going to be denied, according to data from the military services.

Less than 9% of service members and veterans who made requests to the Army and Air Force since 2021 — when a law passed to ease the process — were successful. The Navy did not provide complete data on expungement requests and the Marine Corps did not provide any data.

In practice, the policy could mean honorably discharged veterans are failing criminal background checks because of false reports, Nuneviller said.

The Defense Department put the policy in place in the early 1990s, despite concerns from the Army and the House Armed Services Committee, Nuneviller wrote. He estimated as many as 1 million service members and veterans could be caught in this system based on his estimates of the number of investigations each service has conducted annually since then.

The Army Criminal Investigation Division said it conducts roughly 10,000 investigations each year, while the Air Force Office of Special Investigations said it does about 22,600 each year. Naval Criminal Investigative Service did not respond to the question.

Doug O’Connell, an attorney and retired Army colonel, finds the entire titling process “baffling.”

He wrote last year in a lawsuit on criminal titling that the services do this as an overcorrection to the 2007 mass shooting carried out by an Air Force veteran in Sutherland Springs, Texas. The veteran had a domestic violence conviction from his time in the service but was never entered into the FBI database. This allowed him to purchase a firearm.

O’Connell said he gets calls at his law firm about titling expungement every day primarily from soldiers or Army veterans.

“Army leaders are taking the position that they can create false government records with impunity. This is especially troubling when you consider that they’re branding soldiers and veterans as criminals while granting them an honorable discharge,” he said. “If the flawed logic and false records weren’t bad enough, it gets worse when you consider the impact on recruiting. What parent in their right mind would encourage their child to join the military knowing that their loved one may end up falsely branded as criminal for the rest of their life.”

Failing background checks has caused veterans and troops to miss out on job opportunities, lose security clearances every time they move between units, get rejected from renting a home or securing a concealed carry handgun license, and leaves them unable to volunteer at their kids’ schools or contribute to their communities, said Liz Ullman, a 71-year-old Colorado retiree who has become an informal collector of soldiers’ stories on the subject.

Liz Ullman, a 71-year-old Colorado retiree, has become a collector of stories from soldiers who have received criminal records during Army service for crimes they did not commit. (Provided by Liz Ullman)

Ullman operates a website, Defend Our Protectors, where she provides information on titling and advocates for a change to the DOD policy.

“There are so many people who can’t help themselves because to have been investigated for a crime is damaging,” she said. “And these are people who have sworn on their lives to defend the United States. Then the government turns against them. So you add betrayal on top of humiliation, and you’ve destroyed someone’s entire moral being.”

Army recruiting investigation

Ullman began tracking the issue when a friend’s son got caught up in an Army recruiting investigation that pinned criminal records on hundreds of soldiers without their knowledge.

The National Guard Recruiting Assistance Program, known as G-RAP, brought thousands into the military during its seven-year run. It paid bonuses to soldiers who participated and brought recruits into the Army. However, some soldiers wrongly received bonus payments, which ended the program and triggered a fraud investigation.

From 2012 to 2016, the Army CID put a team of Reserve agents on active duty to investigate fraudulent payments made to troops as part of the recruiting program. In the process, investigators titled and indexed 2,253 soldiers, according to a mandated report CID presented to Congress in April 2023.

However, only 137 people were ever prosecuted in civilian courts, according to the Army.

The internal audit of the investigation found 1,454 names were incorrectly logged with the FBI’s criminal database. Of all the names given to the FBI, only 7% were correct, the report said.

“The purpose of titling is to ensure the accuracy and efficiency of the report and to ensure it is retrievable for future law enforcement or security purposes,” according to the Army’s CID. “Titling does not indicate any degree of guilt or innocence and [DOD policy] specifically precludes the use of titling as a basis for judicial or adverse administrative actions.”

However, Ullman said some of those titled have faced adverse administrative actions.

“In some cases … I think I was the only person in their life who believed that they were innocent,” she said.

One soldier falsely caught in the recruiting investigation told Ullman that he was barred from reenlistment because of the false record. He also told her that his wife left him and took their children and he couldn’t get a civilian job. By the time he received a letter that the Army made a mistake and his record was clear, he was living in his car.

“Now what?” Ullman recalled him asking her.

Lee Hughes was falsely entered into the crime database as part of the recruiting investigation and didn’t even know he was under investigation until his promotion to captain in the Vermont National Guard was stripped from him in 2015. He only learned why he lost his promotion because someone in his unit pulled him aside to tell him.

Retired Lt. Lee Hughes, seen on a 2010 deployment to Afghanistan with the Vermont National Guard, was given a false criminal arrest record by the Army that stopped his promotion to captain. The record was corrected but the Army has denied his request to return his promotion. (Provided by Lee Hughes)

“It’s a complete circumvention of the American system of justice. There’s no due process anywhere in this,” Hughes said. “People shouldn’t have the onus put on them to figure out if they were charged with something or were wronged somehow. And if you can figure it out, then they’ll allow you to take part in the expungement process. That’s not the way we do things here.”

Hughes ultimately had his record cleared and works for the federal government in security, but he never got back the promotion. He retired with 20 years of service in 2019 as a lieutenant and his appeal to the Army Board for Correction of Military Records to regain his promotion failed — costing him thousands in retirement pay.

“What they’re not being held accountable for is the damage done to people’s careers,” he said.

Pentagon slow to respond

The Army recruiting investigation also led Congress to mandate in 2021 that the military pave an easier path for those looking to remove false arrest records.

Before the law changed, people had to prove the titling was a case of mistaken identity. Now, the law affords expungement for those never charged or convicted, but the onus is on the person to present new evidence to prove their innocence.

“The process went from impossible to nearly impossible,” Ullman said. “It really is a matter of proving your innocence.”

Congress required the Pentagon update its expungement policy by Oct. 1, 2021. It did so in August 2023. Defense officials declined to comment on the nearly two-year delay.

Since Congress acted in 2021, the Army has seen 1,570 people request expungement with 189 succeeding, according to the service. Naval Criminal Investigative Service said it received 28 requests in 2021 from sailors and Marines. Of those, 11 were approved. It did not provide data for other years and officials said the Navy might receive expungement requests through avenues outside of law enforcement. The Marine Corps uses a decentralized system where service members can request expungements through the installation where the charge originated.

Brown hired an attorney to write his expungement request, which was denied in July 2023. The records correction board cited the Defense Department’s old policy — a month before the Pentagon made the update. The Army declined to answer whether there is a path for Brown and others in his position to request a review under the new policy.

The Air Force created a Criminal Justice Information Center in October to incorporate the new guidance and revisited all appeals filed after Oct. 1, 2021, to ensure airmen eligible under the new law receive due process. Of the 1,114 expungement requests received since then, the Air Force cleared 67 records, the service said.

The Air Force also increased oversight of criminal titling and indexing and made titling and indexing specialists available for installations and at the OSI headquarters, said Linda Card, spokeswoman for the service’s Office of Special Investigations.

“The Department of the Air Force is currently evaluating additional measures to improve indexing within the constructs of relevant law, DOD policy, and reporting requirements set by the U.S. Attorney General,” she said.

Taking the Army to court

Citing the new law, O’Connell attempted to clear the record of Denise Rosales, a noncommissioned officer in the Texas National Guard. Officials admitted in an email that she was never arrested but refused to remove information from the national database.

Military police, not the Army CID, investigated Rosales during a 2020-2021 deployment to Kuwait for having alcohol at a birthday party for her husband. She was never arrested or charged. She only received an administrative reprimand.

And yet, the Army CID entered Rosales into the national crime database as arrested.

She spent the 12 years before her false arrest record working mainly as an analyst for civilian law enforcement. Because of the record, she said she lost a job with the Drug Enforcement Agency. It has also blocked her from returning to active duty with the Guard.

After nearly two years of fighting, Rosales filed a federal lawsuit in April against the Army, the Army CID and the FBI, according to court documents.

In a motion calling for the lawsuit’s dismissal, Army lawyers argued they followed procedure when they submitted Rosales’ information to the FBI national database, and they also agreed she was not arrested or prosecuted. The Army further argued the service is not the agency sharing the arrest history and violating her privacy, it is the FBI.

‘I can’t reach my potential’

O’Connell said it’s not just the military that frustrates him with false criminal records. It’s also Congress.

“They’re fully aware of the issue, and they claim to support military personnel but year after year fail to act,” he said. “DOD somehow thinks they have the inherent authority to create false criminal history records with the help of the FBI. Congress could easily pass a law that simply says the military cannot create a record that says someone was arrested without actually having been arrested.”

Ullman said she has also gone to her elected representatives in Congress to raise awareness of the issue with no success. And she gets it. She knows it sounds ridiculous to tell people that the military is creating false criminal records for service members. She once mentioned it during jury duty selection and was immediately excused, she said.

“I hope I live long enough to see some sort of resolution in the way the DOD and the military justice system work,” Ullman said. “There are so many untouchable problems in our society. The fact that I can do something about this is very fulfilling. I can’t do a whole lot about climate change or the upcoming presidential election, but I can stay on top of this, and I can keep putting information out into the universe that proves my point that military justice is a contradiction in terms.”

Brown has exhausted all his options for expungement. He has spent the months since his denial from the Army corrections board coming to terms with a retirement life that he did not envision. He has a master’s degree in business administration and decades in human resources. But the only place he’s found work is in a hardware store starting at $13.45 an hour.

As a father of four, he also planned to work with young men growing up in the same rough neighborhood that he did. His false criminal record blocks him from volunteering or creating a nonprofit.

“I stress about this. I’ve had sleepless nights since I knew this was in my record,” Brown said. “I can’t reach my potential that I have the right to do.”