Case 1:23-cv-00440-RP Document 23 Filed 10/26/23 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DENISE A. ROSALES, individually and on Civ. Action No. 1:23-cv-00440-RP

behalf of herself and all others similarly
situated,

Plaintiff,

v.

CHRISTINE WORMUTH, Acting Secretary

of the Army, in her official capacity;
DEPARTMENT OF THE ARMY;
GREGORY D. FORD, Acting Director of the
Department of the Army Criminal
Investigation Division, in his official
capacity; DEPARTMENT OF THE ARMY
CRIMINAL INVESTIGATION DIVISION;
CHRISTOPHER WRAY, Acting Director of
the Federal Bureau of Investigation, in his
official capacity; FEDERAL BUREAU OF
INVESTIGATION; LLOYD J. AUSTIN III,
Acting Secretary of Defense, in his official
capacity; DEPARTMENT OF DEFENSE and
UNKNOWN OFFICERS and EMPLOYEES
OF THE DEPARTMENT OF DEFENSE and
FEDERAL BUREAU OF INVESTIGATION,
in their individual capacities.

Defendants.

THIRD AMENDED CLASS ACTION COMPLAINT

I. NATURE OF THE CASE

1. This lawsuit is about whether the federal government may create false records of

arrest—records used to determine everything from job eligibility to security clearances—and

simply refuse to correct them.

2. Plaintiff Denise A. Rosales is a non-commissioned officer in the Texas Army

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National Guard. After an alleged minor incident prompted an investigation, the Department of the

Army Criminal Investigation Division (“Army CID”) submitted a record to the Federal Bureau of

Investigation indicating that Ms. Rosales had been arrested. Federal criminal history databases

maintained by the FBI now show that Ms. Rosales had been “arrested or received” into custody.

3. The records of arrest are false. Ms. Rosales was never arrested or received into

custody. Defendants do not dispute that fact.

4. Ms. Rosales has spent the better part of two years jumping through administrative

hoops trying to get this false and unlawful record corrected. But Army CID has refused to amend

Ms. Rosales’s records despite her pleas. This refusal is inexplicable since there is no dispute that

Ms. Rosales has never been arrested.

5. Ms. Rosales is not alone in her plight. Defendants have created and maintained false

arrest reports for thousands of service members who were never placed into custody.

Unfortunately, Defendants have shown that they would rather indulge in bureaucratic inertia rather

than fix a problem that has now destroyed the lives, reputations, and careers of numerous service

members.

II. PARTIES

6. Plaintiff Denise A. Rosales (“Ms. Rosales”) is a resident of Hildago County, Texas.

7. Defendant Christine Wormuth is the acting Secretary of the Army. She is sued in

her official capacity. She may be found at 101 Army Pentagon, Washington, DC 20310-0101.

8. Defendant Department of the Army (hereinafter, “DoA,” or “Army”) is an agency

of the United States, headquartered at 101 Army Pentagon, Washington, DC 20310-0101.

9. Gregory D. Ford is the acting Director of the Department of the Army Criminal

Investigation Division. He is sued in his official capacity. He may be found at 27130 Telegraph

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Road, Quantico, VA 22134-2253.

10. Defendant Department of the Army Criminal Investigation Division (hereinafter,

“Army CID”) is an agency of the United States, headquartered at 27130 Telegraph Road, Quantico,

VA 22134-2253.

11. Defendant Christopher Wray is the acting Director of the Federal Bureau of

Investigation. He is sued in his official capacity. He may be found at 935 Pennsylvania Avenue,

NW, Washington, DC 20535-0001.

12. Defendant Federal Bureau of Investigation (hereinafter, “FBI”) is an agency of the

United States, headquartered at 935 Pennsylvania Avenue, NW, Washington, DC 20535-0001.

13. Lloyd J. Austin III is the acting Director of Defense. He is sued in his official

capacity. He may be found at 1000 Defense Pentagon, Washington, DC 20301-1000.

14. The Department of Defense (hereinafter “DoD”) is an agency of the United States,

headquartered at 1000 Defense Pentagon, Washington, DC 20301-1000.

15. Officers and employees of the DoD and FBI, currently unknown, were responsible

for creating a false criminal history record stating that Ms. Rosales was arrested when in fact she

was not. They are sued in their individual capacities. Upon information and belief, they may be

found at the addresses for the DoD and FBI listed above.

III. JURISDICTION & VENUE

16. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1346,

and 1361, 5 U.S.C. § 552a(g)(1), and 5 U.S.C. §§ 702–704.

17. Defendants’ sovereign immunity has been waived pursuant to 5 U.S.C. § 702 and/or

the Privacy Act. 5 U.S.C. § 552a(g).

18. Venue lies in this district pursuant to 28 U.S.C. § 1391 because Ms. Rosales was a

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resident of this judicial district at the original time of filing.

IV. FACTUAL BACKGROUND

A. The Military’s History of Creating False Arrest Records.

19. The military’s long history of falsely reporting that soldiers have been arrested or

received into custody is traceable to the aftermath of the Sutherland Springs mass shooting in 2017.

After an Air Force veteran named Devin Kelley managed to obtain a firearm and killed 26 people,

investigators discovered that the Air Force had failed to “ensure that Kelley’s fingerprints and

criminal history were submitted to the FBI’s Criminal Justice Information Services (‘CJIS’)

Division for inclusion in its databases.” Holcombe v. United States, No. SA-18-CV-555-XR, 2021

WL 2821125, at *1 (W.D. Tex. July 6, 2021).

20. Thereafter, the DoD Inspector General recommended the review of and

implementation of programs to enhance the procedures for collection and submission of fingerprints

and criminal histories to the FBI’s CJIS Division. 1 But in typical military fashion, all the services

overcompensated, especially the Army.

21. Army Regulation (“AR”) 195-2 establishes numerous investigative and

information gathering responsibilities of all personnel assigned to Army CID elements, including

compliance with Department of Defense Instruction (“DoDI”) 5505.11.

22. DoDI 5505.11 prescribes procedures for DoD law enforcement to report criminal

history data. This policy requires that, upon a determination of probable cause, all service members

who are investigated for a range of offenses listed in the Uniform Code of Military Justice

(“UCMJ”) as punishable by imprisonment must have their fingerprints and criminal history record

1
REPORT OF INVESTIGATION INTO THE UNITED STATES AIR FORCE’S FAILURE TO SUBMIT DEVIN KELLEY’S
CRIMINAL HISTORY INFORMATION TO THE FEDERAL BUREAU OF INVESTIGATION,
https://media.defense.gov/2018/Dec/07/2002070069/-1/-1/1/DODIG-2019-030_REDACTED.PDF (last visited Oct.
19, 2023).

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information (“CHRI”) collected.

23. DoDI 5505.11 also instructs that Federal Document (FD)-249 (“Arrest and

Institution Fingerprint Card”) be used to collect this information. 2 A completed FD-249 form must

then be transmitted to the FBI’s CJIS Division, which operates the National Crime Information

Center (“NCIC”), a national criminal justice information system that administers various

databases.

24. Of course, nothing in DoDI 5505.11 directs or authorizes that any branch of the

armed forces report to the FBI that a service member has been arrested if that did not in fact occur.

But that is exactly what happens. Once the FD-249 form is transmitted to the FBI, the service

member—who may have been investigated for virtually any type of UCMJ infraction but never

arrested—is listed in the FBI’s NCIC system as having been arrested.

25. Upon information and belief, the FBI automatically lists service members as having

been “arrested” in NCIC databases upon receipt of the FD-249 form. Of note, the FD-249 is titled

“Arrest and Institution Fingerprint Card” 3 and states that it “is to be used for criminal justice

purposes, such as incident to arrests and incarcerations.” 4

26. Whether a service member was arrested or not, the FBI makes that arrest record

available to various governmental and nongovernmental entities. See 28 C.F.R. § 20.33.

27. The creation of false arrest records in the FBI’s NCIC databases is no secret. In

fact, it is an admitted problem. After years of complaints, Army leaders held a press conference

on November 3, 2022, to acknowledge the problem and admitted that false criminal history reports

had been created for at least 900 people.

2
See Exhibit C, FD-249 (providing a blank copy of the form).
3
See ARREST AND INSTITUTION FINGERPRINT CARD, https://www.fbi.gov/file-repository/fd-249.pdf/view
(last visited October 26, 2023).
4
See Ex. C, at 2.

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28. Gregory Ford, Director of Army CID, was one of the Army representatives to

discuss Army CID’s failures. As he stated, “[I]n many instances, those [procedures] were not

followed. So, that is why we’re saying they inaccurately, inappropriately entered into that III

system, which reflects as an arrest.” 5

29. National media outlets have estimated that Army CID has created false criminal

history and arrest record entries on upward of 2,400 Soldiers, veterans, and civilians. 6 Ms. Rosales

is one of those individuals.

B. Army CID and the FBI Created a False and Illegal Arrest Record for Ms. Rosales.

30. In the 12 years before she was falsely listed as having been arrested, Ms. Rosales

worked as an analyst supporting various law enforcement agencies, including the Drug

Enforcement Administration (“DEA”). In 2017, Ms. Rosales attended and graduated from the

DEA’s Basic Intelligence Research Specialist Course. She loved her work and hoped for

permanent employment with a federal law enforcement agency.

5
Exhibit A, Director Ford Transcript, at 15.
6
See Hanna Lambert, Congress is ‘afraid’ to stand up for soldiers slapped with false arrest record, Rep.
Gohmert says, FOX NEWS (Oct. 19, 2022), https://www.foxnews.com/politics/congress-afraid-stand-soldiers-slapped-
false-arrest-record-rep-gohmert; Cory Dickstein, Army CID agents wrongly entered hundreds of soldiers into criminal
database during recruiting scandal investigation, STARS AND STRIPES (Nov. 3, 2022),
https://www.stripes.com/branches/army/2022-11-03/army-soldiers-fbi-recruiting-investigation-7912895.html;
Hannah Lambert, ‘Looking for scalps’: Green Beret never charged with a crime ends up with murder on background
check, FOX NEWS (Sep. 23, 2022), https://www.foxnews.com/us/looking-scalps-green-beret-never-charged-crime-
ends-murder-background-check.

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Wendy Davis (left), a Drug Enforcement Administration intelligence research specialist, stands with
Army National Guard Staff Sgt. Denise Rosales (right).

31. From June 2020 to February 2021, Ms. Rosales deployed to Kuwait as a federalized

member of the Texas Army National Guard.

32. While in Kuwait, Ms. Rosales held a birthday party for her husband. Because the

birthday party involved the alleged presence of alcohol, Ms. Rosales was investigated for

misconduct and received an administrative reprimand.

33. Ms. Rosales was never “informally” or formally arrested, taken into custody, or

received into custody. Absolutely no authority found probable cause to arrest or take Ms. Rosales

into custody, no probable cause affidavit was ever created, and there is no record of Ms. Rosales

being arraigned, “magistrated,” or having an initial appearance in any military or civilian court.

Ms. Rosales was never restricted, confined to quarters, suspended from duties, or disarmed. When

all was said and done, Ms. Rosales received no punishment or sanction other than an administrative

reprimand. 7

34. Despite never being arrested or taken into custody, the FBI’s NCIC records—based

on information transmitted by Army CID—states that she was “ARRESTED OR RECEIVED”

77
Exhibit B, Rosales Affidavit, at 1.

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on “2021/01/05” related to “AGENCY CASE-132-2020-MPI709” and a charge of “FALSE

OFFICIAL STATEMENTS.” 8

C. The Army Refuses to Amend Ms. Rosales’s Records.

35. Although AR 195-2 requires notice to all persons listed in subject and/or suspect

fields that the FD-249 cards collected have been submitted to the FBI CJIS Division “and the fact

that such use may have an impact upon their military or civilian careers,” Ms. Rosales received no

such notice.

36. Once Ms. Rosales learned about the false arrest record, she first tried to correct the

problem by having her counsel contact an Army JAG officer. In a May 4, 2021 email, Lieutenant

Colonel Dale McFeatters confirmed that Ms. Rosales had not been arrested. 9

37. However, Ms. Rosales’s records were not corrected, so Ms. Rosales sought relief

through the Privacy Act (5 U.S.C. § 552a) and relevant Army regulations. By a letter dated

November 1, 2021, Ms. Rosales, through counsel, wrote to Army CID seeking amendment of her

FBI NCIC arrest record on the grounds that it was not accurate. 10

8
See Exhibit D, FBI Record, p. 4–5 (Ms. Rosales’s FBI Record is a record pursuant to 5 U.S.C. § 552a(a)(4)).
9
See Exhibit E, LTC McFeatters Admission, at 4.
10
Exhibit F, Privacy Act Amendment Request.

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38. Ms. Rosales’s request for amendment fell on deaf ears. By a letter dated November

16, 2021, Army CID denied Ms. Rosales’s request for amendment. The denial letter did not

respond to Ms. Rosales’s grounds for amendment. 11

39. By a letter dated November 22, 2021, Ms. Rosales, through counsel, appealed from

this denial of amendment. 12

40. On or about December 21, 2022, over a year after submitting the appeal, Ms.

Rosales received a letter from the Office of the General Counsel of the DoA denying her appeal.

The denial letter did not respond to Ms. Rosales’s grounds for amendment. 13

41. Further, on a conference call on January 19, 2023, and in an email dated January

20, 2023, counsel for Ms. Rosales brought her false NCIC arrest record to the attention of Colonel

Lance B. Turlington—Command Judge Advocate of U.S. Army Human Resources Command—

and Colonel Robert G. Levy, Jr.—Chief Counsel of Army CID. 14

42. Yet again, Ms. Rosales’s efforts went nowhere. In an email dated February 2, 2023,

Colonel Turlington pointed counsel for Ms. Rosales to the same appeals process through Army

CID that she had already engaged in and exhausted. 15

43. Colonel Turlington’s email also explains the simple solution to correcting this false

and illegal NCIC record. Army CID could simply pull back the FD-249 fingerprint card that it

used to create the entry in the FBI’s NCIC database. 16 However, Army CID has refused to

implement this solution.

11
Exhibit G, Denial of Privacy Act Amendment Request.
12
Exhibit H, Privacy Act Appeal.
13
Exhibit I, Denial of Privacy Act Appeal.
14
See Exhibit J, JAG Officer Email Exchange, at 2.
15
See Ex. J, at 4 (the redacted information pertains to other citizens with false criminal history records
initiated by Army CID).
16
See id.

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D. Ms. Rosales has Suffered Irreparable Harm Because of her False, Illegal Arrest
Record.

44. As a result of the false criminal history record and bureaucratic intransigence, Ms.

Rosales has suffered numerous occupational and personal detriments.

45. First, Ms. Rosales lost her position of employment supporting the DEA. 17

46. Further, Ms. Rosales has not been able to return to her full-time Active Duty

Operational Support (“ADOS”) position in the Texas Army National Guard. Ms. Rosales’s

inability to return to ADOS hinders her ability to obtain an active-duty retirement. 18

47. The false criminal history report hinders and negates Ms. Rosales’s ability to obtain

future employment in the public sector and requisite security clearances. Indeed, Ms. Rosales’s

false arrest record has prevented her from serving as an intelligence analyst and from obtaining

access to at least one Texas Department of Public Safety facility. 19

48. Ms. Rosales has and will continue to suffer other additional adverse effects

stemming from her false, illegal arrest record, including but not limited to extreme mental anxiety,

harm to her reputation, and her inability to act as a chaperone at various functions for her children.

49. To remedy and avoid these and further harms, Ms. Rosales must ask this Court for

relief requiring Defendants to cease the dissemination of and expunge her false, illegal arrest

record. If needed, Defendants are capable of adhering to other existing procedures or the creation

of new, more accurate procedures to ensure that relevant, accurate criminal histories are

appropriately disseminated.

17
See Ex. B, at 1.
18
See Ex. B, at 1–2.
19
See Ex. B, at 2.

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V. CLASS ALLEGATIONS

50. Ms. Rosales brings her Due Process claims individually and on behalf of a class

defined as follows:

All U.S. Army service members who have been reported as having been arrested
or received into custody by any Department of Defense organization to the FBI, but
who were not actually arrested or received into custody from six years prior to the
filing of the complaint through the date of judgment.

51. The Class is ascertainable because class members can be easily identified through

records maintained by Defendants. For example, records of all service members who were

reported to the FBI as having been arrested or being received into custody may be easily cross-

referenced with a list of all service members who were actually booked, processed, and arrested

for an alleged offense.

52. The Class is so numerous that joinder of all members is impracticable. On

information and belief, the number of Class Members is over 2,400. The joinder of Class members

is impractical due to the size and relatively modest value of each individual claim.

53. There are questions of law or fact common to the class that predominate over any

questions affecting only individual Class Members. Those common questions of law and fact

include, but are not limited to, the following:

a. Whether Defendants have a policy and practice of falsely reporting to the

FBI that Class Members have been arrested or received into custody when
in fact they have not;
b. Whether Defendants’ policies and procedures for correcting or amending
Class Members’ false arrest records are adequate;
c. Whether Defendants and unknown federal officers arbitrarily failed to
correct Ms. Rosales’s and the Class Members’ records that falsely report
arrests despite knowing they were in fact not placed under arrest or taken
into custody.

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54. The claims or defenses of Ms. Rosales are typical of the claims or defenses of the

class in that they arise out of the same factual and legal theories. Typicality does not require that

the claims of the class members be identical to the claims of a class representative, only that the

disputed issues are as central to a named plaintiff’s claims as they are to the class members she

seeks to represent. Indeed, the relief sought would benefit all class members in an identical manner.

55. Ms. Rosales will fairly and adequately protect the interests of the class. Like other

Class Members, she has suffered from the creation, maintenance, and dissemination of false arrest

records. She has no interests that are antagonistic to any Class Member and retained competent

counsel to advance the interests of both herself and the Class.

56. Defendants have acted on grounds applicable to the Class, thereby making final

injunctive and declaratory relief with respect to the Class as a whole appropriate. Specifically,

Defendants have admittedly failed to correct records falsely stating that thousands of service

members have been arrested or taken into custody when they in fact have not.

CLAIMS FOR RELIEF

COUNT I
Violation of the Fifth Amendment—Procedural & Substantive Due Process
(Against All Defendants)

57. Ms. Rosales and the Class incorporate by reference all preceding paragraphs. Ms.

Rosales brings this claim individually and on behalf of all Class Members.

58. The Due Process Clause of the Fifth Amendment guarantees that “[n]o person shall

be ... deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V.

“The touchstone of due process is protection of the individual against arbitrary action of

government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). This is so “whether the fault lies in

a denial of fundamental procedural fairness ... or in the exercise of power without any reasonable

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justification in the service of a legitimate governmental objective.” Cnty. of Sacramento v. Lewis,

523 U.S. 833, 845-46 (1998).

59. As set forth herein, Defendants’ actions have deprived Ms. Rosales and Class

Members of their liberty and property interests within the meaning of the Due Process Clause of

the Fifth Amendment. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Specifically, and

among other interests, Ms. Rosales and Class Members have a constitutionally protected interest

in “a person’s good name, reputation, honor, or integrity.” Wisconsin v. Constantineau, 400 U.S.

433, 437 (1971). Ms. Rosales and Class Members have lost jobs, job opportunities, security

clearances, had their promotions held up, suffered the stigma of having an arrested record, and

have had a change in legal status from a law-abiding citizens and service members to persons with

a (nonexistent) criminal history.

A. Procedural Due Process

60. “Procedural due process rules are meant to protect persons not from the deprivation,

but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435

U.S. 247, 259 (1978). That is precisely the problem here. Defendants’ constitutionally deficient

procedures have resulted in the creation, maintenance, and distribution of false arrest records that

wrongfully deprive Ms. Rosales and Class Members of their protectible interests.

61. For example, DoDI 5505.11 results in lumping together individuals like Ms.

Rosales, who was not arrested, with individuals who were arrested. That is because the instruction

fails to provide any parameters for distinguishing between persons who were arrested or not

arrested. Rather, for every person for whom a determination of probable cause is made—arrested

or not—Defendants create a fingerprint card indicating an arrest and transmit it to the FBI where

it becomes an arrest record.

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62. DoDI 5505.11 also states that “when required, a Privacy Act statement will be

provided to each individual whose personal data is collected….” However, when that is “required”

is a mystery. Ms. Rosales received no such Privacy Act statement, or any other notice that she

would be falsely reported in official government documents as having been arrested.

63. Defendants do not provide (or do not follow) adequate procedures to oppose,

correct, or challenge the creation, maintenance, and dissemination of false arrest records once

created. Indeed, despite Ms. Rosales’s repeated formal and informal requests that the Defendants

correct, withdraw, or otherwise stop disseminating false arrest records, her requests have fallen on

deaf ears. Defendants continue to report, maintain, and distribute her false arrest record to current

and prospective employers, among other persons and entities.

64. As a result of Defendants’ failures to implement any adequate procedures, Ms.

Rosales and the Class have lost employment opportunities, suffered the stigma of having an

arrested record, have had a change in legal status from law-abiding citizens and service members

to persons with inaccurate or nonexistent arrest records and criminal history, and they will continue

to be harmed unless they are afforded prompt remedy.

65. Ms. Rosales and the Class are entitled to declaratory and injunctive relief under this

claim pursuant to 28 U.S.C. §§ 2201–2202.

B. Substantive Due Process

66. By creating, maintaining, and disseminating false records of arrest, and refusing to

correct those records, Defendants’ actions are arbitrary, unreasonable, or have no relationship to a

legitimate government interest.

67. Clearly, Defendants have no legitimate governmental interest in falsely reporting

in national databases that service members have been arrested or received into custody. On the

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contrary, Defendants have an interest in maintaining complete, accurate, and current records as

required under various federal laws, rules and regulations. See, e.g., 28 C.F.R. § 20.37; 18 U.S.C.

§ 1001 (making it a crime to enter a materially false statement into a government record).

68. Given the fact that Defendants are well aware of this pervasive problem, their

refusal to stop, remedy, or correct this practice is arbitrary, unreasonable, and shocks the

conscience .

69. Indeed, Defendants’ refusal to indulge Ms. Rosales’s requests to correct, amend, or

expunge her arrest records is especially shocking because Defendants know that she was not

arrested. An Army JAG Officer admitted as much as to counsel for Ms. Rosales, and Army CID

admitted that these errors occurred Army-wide. Despite Ms. Rosales’s repeated requests that the

Army correct the record and that the FBI stop disseminating it, Defendants continue to report and

distribute the false arrest record to current and prospective employers, among other persons and

entities.

70. Yet, despite having actual knowledge of the falsity of Ms. Rosales’s records and

the records of Class Members, Defendants persist in their refusal to do anything about the problem.

This head-in-the-sand approach can only be described as arbitrary and unreasonable at best, or

bureaucratic bad faith or ill-will at worst.

71. Ms. Rosales and the Class are entitled to declaratory and injunctive relief under this

claim pursuant to 28 U.S.C. §§ 2201–2202.

COUNT II
Violation of the Privacy Act, 5 U.S.C. § 552a
(Against the Department of the Army, Christine Wormuth, the Department of the Army
Criminal Investigation Division, and Gregory Ford)

72. Ms. Rosales incorporates by reference all preceding paragraphs.

73. The Privacy Act, 5 U.S.C. § 552a, “‘safeguards the public from unwarranted

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collection, maintenance, use and dissemination of personal information contained in agency

records ... by allowing an individual to participate in ensuring that his records are accurate and

properly used.’” Jacobs v. National Drug Intelligence Center, 423 F.3d 512, 515 (5th Cir.2005)

(quoting Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C.Cir.1996)). The Privacy Act

encompasses causes of action for (1) an agency’s failure to amend an individual's records pursuant

to his request; (2) an agency’s failure to maintain an individual's records with accuracy, relevance,

timeliness, and completeness; and (3) an agency’s failure to comply with other Privacy Act

provisions, which has “an adverse effect on the individual. See id; 5 U.S.C. § 552a(g)(1)(A)-(D).

74. Ms. Rosales is authorized to bring claims pursuant to the Privacy Act because she

has exhausted her administrative remedies. 5 U.S.C. § 552a (g)(1)(A). Defendants have made a

final determination not to amend her records and/or failed to make such a review in conformity

with the Privacy Act’s requirements. 5 U.S.C. § 552a(d)(2)-(3).

A. Failure to Amend

75. In her record amendment request and subsequent appeals, Ms. Rosales offered

Lieutenant Colonel Dale McFeatters’s admission that she was never arrested. Indeed, there is no

evidence she was ever arrested because it never happened.

76. Despite clear evidence that Ms. Rosales was never arrested, Defendants failed to

make a review in accordance with Ms. Rosales’s request, yet still managed to make a final

determination not to amend her false arrest record in accordance with her request.

77. As a result of Defendants’ determination not to amend Ms. Rosales’s false arrest

record or to even make a review in accordance with her request, Ms. Rosales has suffered the

harms alleged herein.

78. Thus, Ms. Rosales is entitled to have this Court order Defendants to amend her false

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arrest record in accordance with her request or in such other way as the Court may direct. See 5

U.S.C. § 552a(g)(2)(A).

79. Ms. Rosales is further entitled to attorney’s fees and other litigation costs for this

claim pursuant to U.S.C. § 552a(g)(2)(B).

B. Failure to Maintain Records with Accuracy.

80. Ms. Rosales’s arrest record is inaccurate—it says she was arrested when she was

not.

81. Defendants intentionally and willfully refused and failed to correct Ms. Rosales’s

arrest record despite knowing that it was false.

82. The accuracy of Ms. Rosales’s arrest record is necessary to assure fairness in

decisions relating to her ability to access certain data or physical locations in relation to her

employment, or even to be employed at all.

83. Ms. Rosales has already suffered harm as result of her employer’s reliance the

inaccurate arrest record: she was unable to work as an intelligence analyst because she could not

access certain information, she was unable to gain access to at least one Texas Department of

Public Safety facility, she lost employment supporting the Drug Enforcement Administration, and

she has been denied any opportunity to return to ADOS status.

84. Accordingly, under this claim, Ms. Rosales is entitled to monetary relief for actual

damages—but no less than $1,000—sustained as a result of Defendants’ refusal and failure to

amend her inaccurate arrest record. See 5 U.S.C. § 552a(g)(4)(A).

85. In addition, Ms. Rosales is entitled to the costs of the action and reasonable

attorney’s fees as determined by this Court. See 5 U.S.C. § 552a(g)(4)(B).

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COUNT III
Violations of the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
(Against All Defendants)

86. Ms. Rosales incorporates by reference all preceding paragraphs.

87. The APA provides that “[a] person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702. Judicial review is appropriate because

Defendants’ actions constitute “final agency action for which there is no other adequate remedy.”

5 U.S.C. § 704.

88. The APA prohibits agency actions that are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). In addition, the

APA prohibits agency actions that are “contrary to constitutional right, power, privilege, or

immunity” or are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(C) & (D).

89. First, whether motivated by bureaucratic expediency or recklessness, Defendants’

actions in creating records that falsely report a servicemember as having been arrested are

arbitrary, capricious, an abuse of discretion, and are otherwise not in accordance with the law.

90. Second, Defendants’ failure and refusal to amend or correct Ms. Rosales’s records

is arbitrary, capricious, and an abuse of discretion. Defendants have absolutely no basis in fact or

law for such refusal. Since at least May 2021, Defendants have had actual knowledge that Ms.

Rosales was never arrested and have been asked to correct the inaccuracy. Correcting or expunging

Ms. Rosales’s false arrest record requires little effort on the part of Defendants. But by simply

refusing to do anything about Ms. Rosales’s false records, Defendants apparently insist on

maintaining a course of action that violates Ms. Rosales’s rights and federal laws.

91. Statutes and regulations that contain duties and procedures meant to protect Ms.

18
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Rosales, and which Defendants violated, include but are not limited to:

a. The FBI’s duty to ensure the accuracy of the criminal records it maintains

under 28 U.S.C. § 534 and regulations promulgated thereunder;

b. Army CID’s duty to ensure the accuracy and completeness of the

information on fingerprint cards and CHRI that it sends to the FBI pursuant

to 28 C.F.R. § 20.33 and AR 195-2; and

c. Army CID’s duty to provide some notice to Ms. Rosales pursuant to DoDI

5505.11 and AR 195-2.

92. Under this claim, Ms. Rosales is entitled to have this Court compel agency action

unlawfully withheld pursuant to 5 U.S.C. § 706(1) and to have this Court hold unlawful and set

aside inappropriate agency action pursuant to 5 U.S.C. § 706(2).

COUNT IV
Bivens Claim
(Against Unknown Officers and Employees of the Department of Defense and Federal
Bureau of Investigation, in their individual capacities)

93. Ms. Rosales incorporated by reference all preceding paragraphs.

94. Upon information and belief, Defendants created, maintained, and distributed Ms.

Rosales’s false, illegal arrest record despite knowing that she was never arrested, in violation of

her due process rights under the Fifth Amendment. Then, they proceeded to discriminate against

Ms. Rosales in regards to her employment as a result of that false record.

95. In effect, Defendants constructively arrested, or seized, Ms. Rosales without the

prerequisite due process afforded to her under the Fifth Amendment and then punished her for it.

96. As a result, Ms. Rosales lost her position of employment, has and will continue to

suffer extreme mental anxiety while her false arrest records exists, and will suffer further harm.

97. Ms. Rosales is further entitled to monetary relief under this claim.

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DECLARATORY RELIEF

98. Ms. Rosales is entitled to declaratory relief pursuant to 28 U.S.C. §§ 2201-2202.

Ms. Rosales asks the Court to enter judgment declaring as follows:

a. Defendants’ protocols and processes for reporting servicemember criminal history

records to the FBI or other civilian law enforcement agencies—including but not
limited to DoDI 5055.11 and AR 195-2—fail to comply with due process because
they lack adequate procedural safeguards;
b. Defendants’ protocols and processes for correcting or amending false and
inaccurate servicemember criminal history records and records of arrest fail to
comply with due process and/or the Privacy Act;
c. DoD Instruction 5505.11’s identical procedure to handle fingerprint cards and
CHRI for persons who have and have not been arrested is contrary to constitutional
right, arbitrary, capricious, and an abuse of discretion;
INJUNCTIVE RELIEF

99. Ms. Rosales asks the Court to issue permanent injunctions against, enjoining

Defendants, as well as their officers and employees, agents, delegates, and authorized

representatives, as follows:

a. Prohibit Defendants from creating, maintaining, and distributing arrest records for
persons who were not arrested;
b. Cease distribution of Ms. Rosales’s and the Class’s false arrest records, return the
FD-249s (or alternate form) to the contributing DoD Law Enforcement Agency,
and delete the offending arrest records from all NCIC databases;
c. Defendants shall create adequate procedures to allow persons to challenge the
creation, maintenance, and distribution of false arrest records; and
d. Defendants shall create adequate procedures to ensure that arrest records are created
only for persons who were arrested.

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ATTORNEY’S FEES

100. Plaintiff requests payment of her reasonable attorney’s fees and costs. Plaintiff is

entitled to recover reasonable and necessary attorney’s fees under 28 U.S.C. § 2412 and 5 U.S.C.

§ 552a(g)(2)(B) & (4)(B).

VI. PRAYER FOR RELIEF

For these reasons, Plaintiff asks the Court to award judgment in her favor, including

a. declaratory and injunctive relief;

b. monetary relief;

c. Prejudgment and post-judgment interest as allowed by law;

d. Attorney’s fees;

e. Costs of suit; and

f. All other relief, in law and in equity, to which Plaintiff may be justly entitled.

Dated: October 26, 2023 Respectfully submitted,

O’CONNELL WEST, PLLC

/s/ Douglas K. O’Connell

Douglas K. O’Connell
Texas State Bar No. 00792028
505 West 12th Street, Suite 200
Austin, TX 78701
Telephone: (512) 547-7265
doug@oconnellwest.com

MCDOWELL HETHERINGTON LLP

By: /s/ William B. Thomas
William B. Thomas
Texas State Bar No. 24083965
William X. King
Texas State Bar No. 24027496

21
 Case 1:23-cv-00440-RP Document 23 Filed 10/26/23 Page 22 of 22

Richard R. Hood (pending admission)

Texas State Bar No. 24124181
First City Tower
1001 Fannin, Suite 2400
Houston, Texas 77002
Telephone: 713-337-5580
Facsimile: 713-337-8850
Email: William.Thomas@mhllp.com
William.King@mhllp.com
Richard.Hood@mhllp.com

ATTORNEYS FOR DENISE A. ROSALES

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served on October
26, 2023, on all counsel of record.
/s/ William B. Thomas
William B. Thomas

22
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EXHIBIT A
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ee ee
10

1) - AUDIO TRANSCRIPTION -

12 ARMY'S RECRUITER ASSISTANCE PROGRAM

13 INVESTIGATION OF RECORDS REVIEW

KKK KK KR KK KKK AK AK KEK KEK KEK KKK RK RK KKK KEKE

14

15

16

17

18

19

20

21

22

23

24

25

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HOST: Today's meet at the roundtable we'll

discuss the Army's Recruiter Assistance Program,

investigation of records review.

On today's panel is Mr. Gregory D. Ford,

Director, US Army Criminal Division; Lieutenant General

Douglas L. Stitt, US Army Deputy Chief of Staff G-1;

Ms. Denise Council+-Ross, US Army Principal Deputy General

Counsel; and Brigadier General David E. Mendelson, US

Army Assistant Judge Advocate General for Military Law

10 and Operations.

11 Today's meet at roundtable is on the record

12 with all statements attributable to the speaking

13 official. We will begin with opening comments by the

14 officials and then open the discussion for questions and

15 answers.

16 Please keep your microphone muted and wait

17 on me to call you. Please identify yourself by name and

18 agency when speaking. Due to time constraints, we do ask

19 that each media professional limit themselves to one

20 question with one follow-on.

21 T'll now call on Director Ford for his

22 opening statements.

23 DIRECTOR FORD: Good morning, everybody,

24 and thank you for taking the time to be with us.

25 I am Gregory Ford, the Director cf Army

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Criminal Investigation Division. Apologize upfront; I'm

getting over a bit of a cold, so I am happy to repeat if

I need to.

But joining me today, as previously

mentioned, are the US Army G-1, the Army's Office cf the

General Counsel and the Office of the Army Judge Advocate

General. We are here today to discuss the comprehensive

review of investigations conducted in relation to a

number of Army recruiting programs.

10 Between 2012 and 2016, CID conducted over

li $00 investigations pertaining to the National Guard

12 Recruiting Assistance Program, G-RAP, and the Army

13 Reserve Recruiting Assistance Program, R-RAP, based upon

14 information that these programs may have been vehicles

15 for fraudulent claims against the Government.

16 In the spring of 2022, CID was contacted by

17 a number of individuals potentially impacted by these

18 investigations who requested to be removed from criminal

13 databases. As a result of that, those inquiries, CID

20 reviewed the associated cases and identified the

21 deficiencies therein.

22 Based on the resuits of those reviews, in

23 June, I directed a broader review of a hundred percent of

24 the investigations related to the RAP programs to include

25 all associated subjects in order to ensure that

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appropriate standards were applied, particularly with

regard to placing these individuals in criminal

databases.

Since June 2022, CID has been reviewing

these cases from both an evidentiary and administrative

procedural standpoint. CID is fully committed to

identifying and correcting all records to align with the

documentation and evidence present in the case file.

CID takes our responsibilities in this area

10 very seriously, and it is clear that we fell short ina

11 large number of these investigations. We are dedicated

12 to compieting a review of our processes, policies, and

13 training to ensure that such errors do not reoccur.

14 These efforts will be undertaken as part of

15 a larger transformation of CID and raising of the level

16 up to the federal law enforcement standard. if

1? individuals believe they were impacted by these

18 investigations, they can visit our CID website, our crime

19 records center section. We expect to have the majority

20 of these investigations reviewed and corrected by the end

21 of 2022, though a few may extend into early 2023 based on

22 the complexity of the information in the files.

23 Thank you. I'li turn it over to my

24 colleagues.

25 HOST: Okay. General Stitt.

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GENERAL STITT: Good morning. Lieutenant

General Doug Stitt. I'm the Army G-1l. Realiy appreciate

you-all taking the time to participate in this panel

today. And as Director Ford indicated, we are now going

to take the documentation that CID has uncovered and

transpose this and work with individuals and treat them

with dignity and respect because we take this seriocusiy;

and we want to assist and facilitate each one of these

individuals that's been impacted by this review and work

i0 with them across each of their individual actions as it

11 pertains to their military record.

12 ¥ look forward to your questions. Thank

13 you.

14 HOST: Okay. And then for our combined

15 legal team, General Mendelson.

16 GENERAL MENDELSON: Good morning. My name

17 is Brigadier General David Mendelson. Next to me is

18 Ms. Denise Council-Ross. Our legal teams have been fully

19 engaged in the assessment process,: and we wili remain

20 integrated with the teams as the review continues.

21 Thank you.

22 HOST: Okay. We'll now transition to

23 questions and answers. Again, please stay on mute until

24 I call on you and limit yourseif to a question and one

20 follow-up for the sake of time.

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We'll begin with Lolita Baldor, Associated

Press.

MS. BALDOR: Hi. Good morning. Lolita

Baldor with AP.

A quick question on the review so far: Can

you tell us, Mr. Ford, how many reviews your staff has

gotten through so far?

There was an indication that more than half

or -- were found to be wrongly done. So can you give us

10 a sense of how many have been done so far and what the

il results have been to date?

12 Thank you.

13 DIRECTOR FORD: Sure. Thank you. Again,

14 it's Greg Ford, CID. Two things: We have conducted

15 approximately 900 reviews. And when I say "reviews,"

16 those are not necessarily of cases. I'm talking about

1? reviews of individual subjects. So that's how we're

18 breaking it down. And what we're finding is the majority

19 of those are requiring some form of correction.

20 HOST: Okay. Thank you, sir.

21 MS. BALDOR: Thank you.

22 HOST: Okay. CBS, David Martin or Mary

23 Walsh, did you join? And, if so, do you have a question?

24 MR. MARTIN: This is David Martin. Can you

25 hear me?

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DIRECTOR FORD: Yeah, we can, David.

MR. MARTIN: What were the shortcomings?

DIRECTOR FORD: I'm sorry. I missed that.

Could you repeat that one more time?

MR. MARTIN: You said that you -- you found

shortcomings in the majority of the 900 cases reviewed.

What were the shortcomings?

DIRECTOR FORD: Sorry about that. Thank

you for repeating it.

10 So, again, Greg Ford, CID.

11 The shortcomings are related to the

12 criteria used for entering individuals into the criminal

13 databases. That is really the crux of this review. Was

14 there enough information and were the right procedures

135 followed in order to justify entering individuals in the

16 criminal databases?

i7 So when I say there were shortcomings,

18 that -- that was the shortcoming in that people were

i9 inappropriately entered into the databases. And, again,

20 just to clarify, with these cases occurring between 2012

21 and 2016, largely conducted by reservists activated to

22 conduct these cases, we are left to look at these

23 historical case files; and we are basing our decisions

24 solely on the information and evidence contained in those

295 case files; and that is where we are looking for the

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information necessary and the evidence necessary to

Warrant entry into those databases. If those are -~ if

they're not present in the files, we are taking

corrective action.

MR. MARTIN: So the bottom line is that

several hundred so far were wrongly listed in criminal

databases?

DIRECTOR FORD: So what I will tell you

right now is we -- we have between 100 and 200 ready for

10 notification, which means we have taken some corrective

11 action on those. And I earlier said we've reviewed, you

12 Know, around approximately 900. The difference there is

13 where we are in the process of actually correcting those

14 records. It's a multistep process. So that's the reason

15 for the gap there. But yes. We certainly expect -- we

16 have between 100 and 200 now. We certainly expect, as we

17 finish the corrective action on each piece there, we will

13 have several hundred to notify at least that -- that

19 we're tracking right now.

20 HOST: Okay.

2h MS. WALSH: This is Mary Walsh. Can I justi

22 Jump in with a question?

23 HOST: Mary --

24 MS. WALSH: What is -- what is the impact

25 of being listed in the criminal database?

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HOST: Mary. Excuse me, Mary. Your

organization has already been given a question anda

follow-up.

MS. WALSH: Ali right. Never mind. Okay.

HOST: Let -- let us just get through this,

and we -- we have others we haven't gotten to yet.

So Stars and Stripes, Corey Dickstein.

MR. DICKSTEIN: Yeah. Actually, I -- I'd

like to have y'all answer Mary's question first.

106 DIRECTOR FORD: Sure. Thank you. Again,

il Greg Ford, CID.

12 So the two databases we're talking about is

13 DCII, which is the Defense Clearance and Investications

14 Index. That is a database that someone gets entered to

15 when they are titled as part of a CID investigation and,

16 actually, any military criminal investigative

i7 organization investigation.

18 "Titling" is an administration process,

19 routine recordkeeping and identification, and does not

20 indicate any sort of guilt or innocence. In fact,

21 there's a Department of Defense instruction that

22 prohibits the use of mere titling for any adverse action.

23 "Indexing" is the process by which an

24 individual is enrolled in the Interstate Identification

25 Index, or III, which is an FBI administrative database.

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10

1 And, now, that enrollment can trigger certain impact; and

2 right now, it is impossible for us to know how an

3 individual may or may not have been impacted by that,

4 which is part of the reason we're directing folks to our

5 website so they can -- they can identify themselves if

6 they believe they've been impacted. Again, we are -- we

7 are conducting a hundred percent review, but we are

8 limited in some of the contact information we have. It's

9 very dated for some of these individuals. So we are

10 encouraging people to identify that website.

il And some of the potential impacts of that

12 indexing in III, that database is queried when people

13 apply for certain jobs, when people apply to be

14 volunteers in certain organizations, would be queried for

15 security clearances, different things like that.

16 HOST: Okay. Hannah Lambert, Fox News

17 Digital.

18 MR. DICKSTEIN: I've got a follow-up. Oh,

19 but I've got -- I've got a follow-up.

20 HOST: Oh, okay. Go ahead with your

21 follow-up.

22 MR. DICKSTEIN: Yeah. I'm curious to know.

23 Those that have been impacted -- fF mean, you just talked

24 about for jobs, for security clearances, and that kind of

25 stuff. What -- are -- are you guys prepared to

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1i

financially help these people or -- or, you know, what --

what are you guys going to do going forward for people

that have wrongly been denied jobs or security

clearances, things like that?

GENERAL STITT: Good morning.

DIRECTOR FORD: Go ahead. Go ahead,

General.

GENERAL STITT: Director Ford, good

morning.

10 And, sir, good morning. Doug Stitt here.

il So speaking within the reaim of military

12 personnel, as individuals are going through and we

13 receive information back from Director Ford and CID, we

14 will facilitate them and -- and treat individuals

i5 individuaily as, you know, do they have a question

16 regarding their personnel file and what impacts it had

17 potentially on promotion, separation, updating their

18 record. And then if they decide to, if they have

19 separated from the military, come forward with a ciain,

20 we would facilitate and assist them as well.

21 HOST: Director Ford, did you have anything

22 else?

23 DIRECTOR FORD: I do not. Iwas simply

24 going to cover the CID piece, which was the corrective

25 action, and then hand it over to General Stitt. So

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12

nothing additional.

HOST: Thank you, sir.

Okay. Now let's go to Hannah Lambert, Fox

News Digital.

MS. LAMBERT: Good morning. IT have a

question and a follow-up.

So my first question is just zeroing in on

the numbers a little bit more. You mentioned that you're

conducting a 100 percent review. How many cases is that

10 since we know at least 2,500 people were titled?

il DIRECTOR FORD: So, again, I'il try to

12 redirect you away from the cases and go to the

13 individuals because that's really how we are looking at

14 these is on an individual subject basis.

15 So prioritizing these 1,900 individuals

16 were potentially indexed in III, and that's where we're

17 focussing -- that's why we're focussing that additicnal

18 effort on those 1,900 is because, as I laid out, while

19 titling, you know, is not meant to have any impact, the

20 indexing potentialiy could have impact. So we are

21 focussing on those and making those corrective actions as

22 quickly as possible as well as any associated titling

23 corrections.

24 But, you know, you're right. The number

25 you referenced, the larger number of -- of individuals

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13

titled, we are also looking at those. So we will be

looking at the entire universe of G-RAP cases. That's

what I directed back in June.

And, again, we anticipate being able to get

there and complete the review and the corrective actions

by the end of the calendar year, potentially stretching a

little bit into '23.

MS. LAMBERT: Thank you.

My follow-up question was just can you

10 provide any additional clarity on how the titling system

11 ended up showing that many of these soldiers and veterans

12 were received into custody, or it shows up as an arrest

13 on their record, but received into custody when most of

14 them say they were not received into custody?

15 {Off The Record Zoom Discussions)

16 HOST: Can everyone mute their mics,

17 please?

18 (Off The Record Zoom Discussions)

19 HOST: Excuse me. We've got a hot mic.

20 Can you please mute your microphones?

21 (Off The Record Zoom Discussions)

22 HOST: Hello. The group talking about

23 e-mail, can you please mute your microphone?

24 Okay. Apologies for that.

25 Hannah, can you go back to your question,

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please?

MS. LAMBERT: Yeah. No worries.

My question was just any additional clarity

on how the titling system resulted in so many people

having their records show that they were received into

custody when many individuals say they were never

received into custody?

DIRECTOR FORD: Sure. Again, Greg Ford,

CID.

10 And that's where there's a distinction

11 between the titling and the indexing. So the titling

12 itself was not -- does not reflect anybody being in

13 custody or reflecting a criminal history. That is simply

14 the administrative action of an individual being titled

15 in a CID investigation.

16 The reflection of an arrest or being taken

17 into custody comes in the III database, the indexing

18 portion of this; and that's where we're looking at the

19 protocols that were -- that were utilized to make those

20 decisions. We're reviewing it from, you know, the two

2i perspectives of: Was there enough information and

22 evidence in the file that would lead to the potential for

23 an arrest? And then were the appropriate procedures

24 followed, which, in this instance, would be an actual

25 arrest to warrant people being put in that database? And

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15

that's where, in many instances, those were not followed,

So that is why we're saying they were inaccurately,

inappropriately entered into that III system, which

reflects that as an arrest.

HOST: Okay. Thank you, sir.

Task & Purpose, Haley.

MS. BRIT@ZRKY: Hi. Yes. Thank you for

doing this.

I just want to clarify. You're saying that

10 CID is, like, proactively looking at all of these cases,

il but also that soldiers should be submitting reviews. So,

12 you know, who -- who has the responsibility here? Is

13 this up to soldiers to submit a review, or is CID, even

14 i£ they don't, going to be reviewing all of these cases,

15 and is there a deadline for them to submit those requests

16 to review?

17 DIRECTOR FORD: Thank <-- thank you for that

18 question. I would like to clarify that, too.

19 Yes. We are absolutely doing the reviews

20 regardless of whether or not anybody contacts us of the

21 entire universe of G-RAP cases. We have taken that on

22 ourself. That's our responsibility to do.

23 What we are doing in addition is providing

24 a mechanism for individuals that, you know, believe they

25 may have been impacted to also contact us on our website,

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16

provide some updated information, specifically mailing

information and contact information, so that as we

complete these reviews, we have a good mechanism to

contact those individuals and advise them, you know, of

what, if any, corrective action was taken with regard to

their individual situation.

It also allows us to pass that information

over to General Stitt's team of the G-1 side and others

to prepare for any follow-up conversations that may occur

10 between that individual and the -- the larger Army.

il MS. BRITZKY: Got it, and if -- if I can

12 follow up: When this was first reported I think earlier

13 this year, there was some skepticism among, you know,

14 people who said they were impacted by this that this

15 would be carried out correctly and, you know, probably

16 understandably so, they were a little weary of -- of, you

17 know, would this actually help them, would this, you

18 know, discover discrepancies, things like that. So I

19 guess what assurances can you give about those folks who

20 are -- (audio distortion).

21 (Off The Record Zoom Discussions)

22 HOST: Again, please mute your mics. We've

23 got someone with a hot mic.

24 (Off The Record Zoom Discussions)

25 HOST: Okay. Haley, apologies. Please --

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17

please continue, Haley.

DIRECTOR FORD: No, I got the question. No

need to repeat.

HOST: Okay.

DIRECTOR FORD: Yeah. No, I appreciate the

question.

So yes. Look, we are a -- we are a federal

law enforcement agency; and it is important that people

view us as responsible, conducting independent

19 investigations, and willing to take and accept

1 responsibility when we make mistakes.

12 So on these cases, again, I can't really go

13 into the whys the mistakes occurred because we're --

i4 we're limited to looking at the files and what's

15 contained in them, but it's clear that we made mistakes.

16 So on our own volition, we are taking responsibility for

17 that, directing the review, and will make all the

18 necessary corrections to these records.

13 I mentioned earlier. This is part of the

20 Larger transformation of CID, and the organization is

2i undergoing a lot of change right now to really model

22 ourselves in that traditional federal law enforcement

23 model and provide the Army with the superior felony

24 criminai investigative support it needs and deserves.

25 So again, for us, this is just what we must

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18

do and should do as a law enforcement agency. if we

identify we did something wrong, we need to be upfront

about it and take the action to fix it.

MS. BRIT@KY: Thank you.

HOST: Okay. We'll go to Military Times.

MR. LEHRFELD: Hi. Thank you. This is

Jonathan Lehrfelad with Military Times.

I wanted to ask how you think this

investigation compares to other CID investigations in

10 terms of its scope. Would you say that cther

11 investigations have risen to this standard and scope or

12 is this still the most prominent?

13 DIRECTOR FORD: So I will -- I will caveat

14 -- this is Greg Ford again, CID.

15 I will caveat this with I have been a

16 member of CID for about a year and a half. So you're

17 working with a limited -- you know, limited direct

i8 involvement here. But from what, you know, I've learned

19 about the organization and -- and from what we've started

20 to do here in terms of the transformation this -- this

21 certainly was a significant effort, a large number

22 investigations at one time, you know. And so in the

23 terms of effort, yes, it was a -- it was a large effort,

24 but we have other significant cases at any given point in

25 time.

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13

We've had very significant cases throughout

the history of the organization. And we absolutely, you

know, are and should be capable of conducting an

investigation with the span and scope of this.

So, yeah, I mean, it was large. I don't

want to minimize that at all. It ig certainly a lot of

effort, a lot of personnel dedicated to it at the time,

but not something that should be completely foreign to

us. And, again, I would have confidence, you know, today

190 in our ability to conduct an investigation of this size

11 and scope.

12 HOST: Jonathan, any follow-up?

13 MR. LEHRFELD: No. Thank you. i

14 appreciate it.

15 HOST: Okay. Let's go to Blizabeth Howe

16 with Defense One.

17 MS. HOWE: Hi. Thanks for doing this.

18 I was wondering about, you mentioned

19 several databases, organization systems. Have these

20 investigations revealed any issues with the data tracking

21 itself? Do these programs and softwares and databases

22 need to be updated? Are they -- or was it truly just

23 human error when -- when these issues occurred? Has the

24 software and the programs, do any changes need to be made

25 to how CID tracks this type of data?

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20

Thanks.

DIRECTOR FORD: Thank you. Greg Ford, CID

again.

No. We have not -- our reviews have not

indicated any concerns with the systems themselves, the

databases themselves. And, again, the III, the databases

used for titling, that is a Department of Defense system

that all the military criminal investigative

organizations feed into. And III is a FBI-managed system

190 that all law enforcement across the country -- state,

11 local, and federal -- feed into.

12 So, no, this -- this was not a problem

13 Getected with the systems themselves or any corrections

14 that need to be made there. This -- this was our

15 individuals and their assessment of the information,

16 evidence, and the protocols that led to individuals being

17 inappropriately indexed. Se the systems themselves, no

18 concerns there.

19 MS. HOWE: Great. And then I did have one

20 follow-up about this program kicked off because of severe

21 recruiting shortcomings at the time, kind of like the

22 ones the Army is facing now.

23 Dees the -- the renewal of investigations

24 have anything te do with the current recruiting

29 environment? Has the Army considered, like, how this

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21

investigation might impact current recruiting, anything

like that? Thanks.

DIRECTOR FORD: So I will let General Stitt

speak to the recruiting piece. But, again, I'll just

reiterate: For us, in CID, the review of these cases

predates the discussion -- or certainly, it was my

knowledge predates the discussion about future use of the

programs. This was related to the few initial contacts

we got and requests to review individual investigations

10 that led us to identify broader concerns and then mandate

il the -- the full review of the G-RAP cases. So that's

12 what caused this review. But I'll -- I'll kick it over

13 to General Stitt.

14 GENERAL STITT: Good morning. I

15 appreciate the question.

16 I think the Army National Guard is

17 reviewing their referral program to isolate and access

i8 control measures that were lacking in the previous

19 program, but the Army National Guard -- and would refer

20 you to the NGB to get more details as they have the

21 direct oversight and responsibility.

22 HOST: Okay. Thank you, sir. Hey, we want

23 -- we have time for one final question. Steve Beynon,

24 Military.com, did you join?

25 MR. BEYNON: Yeah. T'm here. Hey, thanks.

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22

Thanks for doing this. And real quick: How many actual

fraud cases were found? That's how this investigation

actually started.

DIRECTOR FORD: So in terms of action that

was taken on the universe of G-RAP investigations, there

was 137 prosecutions -- sorry. Again, Greg Ford, CID

again -- 137 prosecutions and 286 or so adverse

administrative actions.

MR. BEYNON: Thank you. Thank you. And

10 just -- just real quick: Tt -- it is a lot of people got

11 entangled in this stuff that potentially ruin their

12 lives. Is the Army prepared for any litigation on this?

13 I think the screened class action lawsuit -- and then [I

14 know Stitt talked about it a little bit, but I didn't

15 really get a clear answer.

16 Is there any compensation set aside that

17 the Army can give these people?

18 BRIGADIER GENERAL MENDELSON: Brigadier

19 General David Mendelson. Thank you for the question.

20 In -- in terms of individuals impacted by

21 these record corrections, the website as been referenced

22 multiple times will be a primary scurce for those toa

23 reach out to to get guidance in order to assist them,

24 wanting and determining where they think they may have

25 been impacted and getting relief, whether it be an

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23

evaluation which they determine or think may have

impacted them moving forward or promotion, all that

information is online and the team is ready to assist in

that regard.

In -- in terms of what «- what the longer

term impacts are, at this point this time, we are just

trying to do the right thing. This is about dignity and

respect for those who have been maybe wrongly noted in

the FBI index. It's correcting the record and then

10 providing a forum and an opportunity for those

11 individuals to seek the remedy they need.

12 Thank you.

13 HOST: Okay. Thank you, everyone. Hey, we

14 are running short on time.

15 So to conclude this, I'll call on Director

16 Ford for any closing remarks he has.

17 DIRECTOR FORD: Thank you.

18 And I just want to thank everybody again

19 for joining us today and very much appreciate the

20 questions and the opportunity to shed additional light on

21 the areas that maybe needed a little more clarity.

22 So I just want to end by saying CID is

23 committed to being transparent and correcting any errors

24 made, and that is -- that is not just for this set of

25 investigations, but we are committed to transparency

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24

across the board as we conduct our investigative mission.

And I again will encourage you to direct folks to the CID

crime record center website where they can identify

themselves as potentially impacted and provide some of

that information that will ailow us to quickiy and easiiy

get ahold of them to pass on the information relative to

their individual portion of this review.

So, again, thank you for everybody's time

and very much appreciate your questions today.

10 HOST: Thank you, Director Ford. So for

11 the media, the Army media relations team is available for

12 follow-ons. That information is on the advisory. Thank

13 you. Have a great day.

14 {End of Recording)

15

16

17

i8

19

20

21

22

23

24

25

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25

REPORTER'S CERTIFICATE

STATE OF TEXAS )}

COUNTY OF TRAVIS )

T, Delani Long, Certified Shorthand Reporter,

certify that the foregoing is a correct transcription, to

the best of my ability, from the audio recording of the

proceedings as provided to me.

I further certify that I am neither counsel

10 for, related to, nor employed by any of the parties to

11 the action in which this audio was transcribed, and

12 further that I am not financially or otherwise interested

13 in the outcome of the action.

14 I further certify that the total cost for the

15 preparation of this Reporter's Record is $150.00 to be

16 paid by Mr. Doug O'Connell.

17 WITNESS MY OFFICIAL HAND this the 29th day of

18 November, 2022.

19

20 /S/ Delani Long

Delani Long, Texas CSR 09278
21 Expiration Date: 6/30/2023
Certified Shorthand Reporter
22 Travis County, Texas
Austin, Texas
23 delanilongcsr@yahoo.com
940.389.7739
24

25

Dei ani Long, CSR ~ Aue o Transeri ption

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EXHIBIT B
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STATE OF TEXAS §
- §
COUNTY OFwcll ) §
AFFIDAVIT

BEFORE ME,the undersigned authority, personally appeared DENISE ROSALES, who,

after being by me duly sworn stated the following under oath:

My name is DENISE ROSALES. I am over the age of eighteen (18) years, and J ain
competent to make this affidavit. The statements contained herein are true and correct,

The fact that the Army and the FBI has created an illegal and false criminal history report
on me has caused a great deal of stress, pain and damageto mylife and the lives of my
fainily.

I was neverarrested or apprehended by Army Military Police, Criminal Investigators,

commissionedofficer, warrant officer, petty officer, or noncommissioned officer.

| was nevertakeninto custody or received into custody by any governmentofficial.

During my overseas deployment I was never confined to quarters, relieved of my duties,

or disarmed.

The government’s criminal history record falsely showingthat I was arrested has created
havoc in my life. After returning from my overseas deployment, [ wasn’t able to return
to my full-time position working for the Texas Army Nationa! Guard because ofthe
criminal history reporting that 1 was arrested. On or about April 07, 2021, I was
terminated from my National Guard job in the Joint Counterdrug Task Force because of
the criminal record. The Task Force provides Soldiers to support various law
enforcement organizations to assist in narcotics investigations and cases. | worked on
this Task Force for 12 years and foved my job and undeniably supported the mission.
While on Counterdrug, I assisted U.S. Marshals, Texas Department of Public Safety and
DEA as acriminal analyst. As a criminal analyst, I assisted with complex drug related
investigations, identified, and analyzed raw data and conducted pattern analysis. While
onmission, | was chosen from the entire Task Force to attend and successfully complete
the DEA BasicIntelligence Research Specialist Training at Quantico, completing a 384
hours course. 1 have assisted in the coordination and execution of DEA’s Red Ribbon
campaign and supported 20 National Prescription Drug Take Back events. 1 supported
over 100 Red Ribbon presentations and have spread the word ofdrug prevention
awareness to over 50,000 students. | participated in the Texas ChalleNGe Academy to
help reclaim the potential of at-risk youth througheducation, training, and mentoring.

Losing my Activity Duty Operational Support (ADOS)position has interfered with my

ability to obtain an active-duty retirement from the Texas National Guard. I have
approximately 15 years of active-duty time and am unable to obtain another ADOS or
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full time Guard position due fo my criminal record. Currently, | am unable to applyfor
another position to complete my 20 years of active-duty time which hinders my ability to
retire from the National Guard with fulf benefits immediately upon retirement.
After losing my Counterdrug position, | have been reluctant to apply for other Guard
employment to save myself from the embarrassment of bringing up my false criminal
history and being told I do not qualify for the position. There have been Title 10, ADOS
and federal positions that | am qualified for but will never get the opportunity to apply for
due to the false criminal history.

Due to lack of employment opportunities due to the false criminal history, | was forced to
find work on Operation Lone Star on the Texas-Mexico border. This meantselling my
home and re-locating myself and the family to the Rio Grande Valley. This false
criminal history still haunts me in my current position. When I arrived at the border, my
background history was run, and I wasnotified that I would have to get the Battalion
Commander’s permissionto stay on the mission. | was also notified that I would not be
able to work as an Intelligence Analyst, as 1 was not authorized access to certain
databases and pertinent information which would hinder my ability to properly conduct
my duties. My supervisors had to assign me as a logistics NCO in order to keep me on
the mission. An opportunity came up for me to be transferred to one ofthe line
companies as a Platoon Sergeant (Supervisor). However, part of the supervisorduties
required access to Texas Department of Public Safety facility and when they ran my
background for a key card, | was denied access basedon the false criminal history. Asa
result, I was unable to properly conduct my duties and eventually moved to another
position. I am constantly questioning what other positions 1 will be denied due to my
false criminal! history.

I have been notified by military security clearance managers that when my Top-Secret
Clearance comes up for renewal, my clearance may be revoked due to the false criminal
history. My attorney, who regularly represents military service members andcivilians
with security clearance issues tells me in his experience my clearance will certainly be
suspended / revoked. Of course, I will be given the opportunity to explain thatI really
wasn’t ever arrested or received into custody, but who will take my word overthe plain
text of the FBI’s criminal history?

lam concernedthat 1 cannot attend school field trips with my child because they run
background checks on parents that sign up to chaperone school events. I understand that
schoolofficials will see that according to the FBI criminal history record, | have been
arrested. Further, since there is no disposition to the arrest or received into custody
schoolofficials will logically assume I really have a pending criminal case thatis
unresolved. Since I can’t disprove something that never happened, | will not be able to
adequately explain to the school officials that | was not actually arrested and there is no
pending case. Schootofficials, like most people, will assume the government and
especially the FBI can berelied on to keep accurate records on citizens, This causes me a
great deal of sadness and anxiety because I would very muchlike to attend schoo! events
and field trips, but I am extremely concerned that I will end up embarrassing my 2
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4

children. I want my children to be proud of their mother and not ask why I cannot attend
a school event.

Ontop ofeverythingelse, I have had to spend thousandsofdollars fighting this injustice.

WITNESS MY HANDthis | day of August 2023.

Nno Va
DENISE ROSALES

SWORN TO AND SUBSCRIBED BEFORE MEonthis the oA \t~ day of August 2023,
an

“Wasi (dino
Notary igs}Public veg"a | | Ye wai,
Commission expires: | fs — "84NotaryEVELYN
=
Publle,MEDRANO
State of Texas
wyFe‘ve
aaee Comm.Expires 07-12-2025
Notary 1D 10579536
Case 1:23-cv-00440-RP Document 23-3 Filed 10/26/23 Page 1 of 3

EXHIBIT C
 LEAVE BLANK CRIMINAL (STAPLE HERE) LEAVE BLANK
Case 1:23-cv-00440-RP STATE
Document
USAGE
23-3 Filed 10/26/23 Page 2 of 3
NFF SECOND

5-15-17) SUBMISSION APPROXIMATE CLASS AMPUTATION SCAR

FD-249 (Rev.
FD-249 (Rev.11-1-20) 1110-0046
STATE USAGE LAST NAME, FIRST NAME, MIDDLE NAME, SUFFIX

SIGNATURE OF PERSON FINGERPRINTED SOCIAL SECURITY NO. LEAVE BLANK

ALIASES/MAIDEN
LAST NAME, FIRST NAME, MIDDLE NAME, SUFFIX

UNIVERSAL CONTROL NO. STATE IDENTIFICATION NO. DATE OF BIRTH MM DD YY SEX

SE X RACE HEIGHT WEIGHT EYES HAIR

R. THUMB 2. R. INDEX 3. R. MIDDLE 4. R. RING 5. R. LITTLE

6. L THUMB 7. L. INDEX 8. L. MIDDLE 9. L. RING 10. L. LITTLE

LEFT FOUR FINGERS TAKEN SIMULTANEOUSLY L. THUMB R. THUMB RIGHT FOUR FINGERS TAKEN SIMULTANEOUSLY
 FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE
CRIMINAL JUSTICE INFORMATION
Case 1:23-cv-00440-RP Document SERVICES DIVISION,CLARKSBURG,
23-3 Filed 10/26/23 WV 26306 Page 3 of 3
The FBI's acquisition, preservation, and exchange of identification information is generally authorized under 28 USC 534. This FD-249 is to be used for criminal justice purposes, such as incident to arrests and
This FD-249 is to
incarcerations. ThebeApplicant
used for criminal justicecontains
form (FD-258) purposes, such as incident
applicable to arrests
Paperwork and Act
Reduction incarcerations.
and Privacy Act notices and should be used for noncriminal justice purposes. “A Social Security Account Number (SSAN)
is helpful to keep records accurate because other people may have the same name and birth date. Pursuant to the Federal Privacy Act of 1974 (5 USC 552a), any Federal, State, or local government ______________
agency which
The Applicant
requests form (FD-258)
an individual contains
to disclose applicable
his/her SSAN isPaperwork
responsibleReduction Act and
for informing Privacywhether
the person Act notices and should
disclosure be used or
is mandatory forvoluntary,
noncriminal
by justice purposes.
what statutory or other authority the SSAN is solicited, and
____________________________
what uses will be made of it..”
JUVENILE FINGERPRINT DAT E O F A R R E S T ORI

SUBMISSION YES MM DD YY C O N T R I B U TO R

ADDRESS
T R E AT A S A D U LT YES
R E P LY YES
DESIRED?

S E N D C O P Y TO : DAT E O F O F F E N S E P L AC E O F B I RT H ( S TAT E O R C O U N T RY ) C O U N T RY O F C I T I Z E N S H I P
(ENTER ORI)
MM DD YY

MISCELLANEOUS NUMBERS S C A R S , M A R K S , TAT TO O S , A N D A M P U TAT I O N S

RESIDENCE/COMPLETE ADDRESS CITY S TAT E

O F F I C I A L TA K I N G F I N G E R P R I N T S L O C A L I D E N T I F I C AT I O N / R E F E R E N C E P H OTO AVA I L A B L E ? YES

(NAME OR NUMBER)

PA L M P R I N T S TA K E N ? YES

E M P L OY E R : I F U. S . G OV E R N M E N T, I N D I C AT E S P E C I F I C AG E N C Y. O C C U PAT I O N
I F M I L I TA RY, L I S T B R A N C H O F S E RV I C E A N D S E R I A L N O.

C H A R G E / C I TAT I O N DISPOSITION
1. 1.

2. 2.

3. 3.

ADDITIONAL ADDITIONAL

A D D I T I O N A L I N F O R M AT I O N / B A S I S F O R C AU T I O N S TAT E B U R E AU S TA M P
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EXHIBIT F
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505 WEST 12TH STREET, SUITE 200

AUSTIN, TEXAS 78701

Douglas K. O’Connell
Telephone: (512) 547-7265
E-Mail: Doug@DougOConnell.com
________________________________

November 1, 2021

United States Army

Criminal Investigation Division
Crime Records Center
Russell Knox Building
Quantico, VA 22134-2253

Via Email – usarmy.belvoir.usacidc.mbx.crcfoiapa@mail.mil

Re: Privacy Act Request to Change False Record Entry

Dear Sir or Madam:

This is a request submitted pursuant to the Privacy Act, 5 U.S.C. § 552a, on behalf of my client
SFC Denise Rosales.

Your agency is responsible for generating an incorrect National Crime Information Center
(NCIC) record. Specifically, as you can see on the attached NCIC report, my client was
purportedly arrested or received into custody by your agency on January 5, 2021 for the
charge of false official statements. This assertion is patently false. My client has never been
arrested or placed into custody by Army CID or any other law enforcement agency—ever. In the
attached e-mails, LTC Dale McFeatters—Deputy Staff Judge Advocate for Combined Joint Task
Force – Operation Inherent Resolve—confirms SFC Rosales was not arrested pursuant to this
charge. In an e-mail dated May 4, 2021, LTC McFeatters said, “She [SFC Rosales] was not
placed under arrest.”

1
 Case 1:23-cv-00440-RP Document 23-6 Filed 10/26/23 Page 3 of 21

Likewise, SFC Rosales was never charged by any civilian or military agency or court with any
criminal violation. I demand that you delete this NCIC entry with the FBI.

Pertinent information regarding my client:

Name: Denise Alysia Rosales

Social Security Number:
Date of Birth:

If your records indicate that SFC Rosales was in fact arrested, please consider this a Freedom of
Information Act request for all records showing SFC Rosales was taken before a magistrate as
required by law. Please provide court docket information, booking information, rights warning,
and a copy of the warrant or complaint signed by a Judge as required by the Federal Rules of
Criminal Procedure and the Uniform Code of Military Justice.

I look forward to a written acknowledgment of this request for amendment within 10 working
days and a final response within 30 working days of the date this request is received in
accordance with 5 U.S.C. § 552a(d) and AR 25-22, paragraph 8-1. Please acknowledge this
request via email to: Ashley@DougOConnell.com.

Respectfully,

_______________________
Doug O’Connell
Attachments:
1. NCIC Record
2. Attorney Authorization
3. E-mails from LTC Dale McFeatters

2
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DocuSign Envelope ID: ED8C3725-EA53-4F34-BF69-3074D6B1E44D
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November 1, 2021

Re: Attorney Designation & Representation

This letter serves to designate Attorneys represent me. The Attorneys listed below
represent and are acting on my behalf:

Doug O’Connell
Ashley Haisler (Paralegal)
Richard Hood (Law Clerk)

Mr. O’Connell & Ms. Haisler may be contacted at:

O’Connell & Associates, PLLC

505 West 12th Street
Suite 200
Austin, Texas 78701
(512) 547-7265

Please comply with any and all requests made on my behalf by my Attorneys or
their staff.

Thank you.

_________________________________
Denise Rosales
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EXHIBIT G
 Case 1:23-cv-00440-RP Document 23-7 Filed 10/26/23 Page 2 of 3

DEPARTMENT OF THE ARMY

U.S. ARMY CRIMINAL INVESTIGATION DIVISION
U.S. ARMY CRIME RECORDS CENTER
27130 TELEGRAPH ROAD
QUANTICO VA 22134-2253

November 16, 2021

Sergeant First Class Denise Rosales

Attention: Ashley Haisler
ashley@dougoconnell.com

Dear Sergeant First Class Rosales:

This is in further response to your request to update/correct information in the

National Crime Information Center (NCIC) from the files of the U.S. Army Criminal
Investigation Division (USACID) received November 10, 2021. Your request was
assigned control number FA22-0440.

The report responsive to your request has been finalized and received at this
headquarters. Release of this report is presently being withheld and denied to you because
disciplinary or administrative action has not been completed. You may submit another written
request for a copy of the investigation at a later date, after it is completed. You may consider
this an initial denial of your request pursuant to Title 5, USC, Section 552a, Exemption (j)(2)
of the Privacy Act and Title 5, USC, Section 552, Exemption (b)(7)(A), (b)(7)(B), (b)(6) and
(b)(7)(C) of the Freedom of Information Act.

This response is made on behalf of the Director, USACID, the Initial Denial Authority
for USACID records under the FOIA.

If you decide to appeal at this time, your appeal must be submitted within 90 days of
the date of this letter. In your appeal, you must state the basis for your disagreement
with our response. Your appeal is made through this Center and should be addressed
to the Director, U.S. Army Crime Records Center, 27130 Telegraph Road, Quantico,
Virginia 22134, for forwarding, as appropriate, to the Office of the Secretary of the Army,
the appellate authority. An appeal may not include a request for additional information
or a request for an investigation to be conducted.

You have the right to seek dispute resolution concerning this release. If you intend to
do so, you may contact the U.S. Army Criminal Investigation Division, Crime Record
Center FOIA Public Liaison, Ms. Michelle Kardelis at usarmy.usacidc-foia@army.mil.
Please put "Dispute" in the subject line.

You may also seek dispute resolution services by contacting the Office of
Government Information Services (OGIS) at 877-684-6448 or by emailing
OGIS@nara.gov.

Printed on Recycled Paper

 Case 1:23-cv-00440-RP Document 23-7 Filed 10/26/23 Page 3 of 3

-2-

Questions regarding this action should be addressed in writing to the address shown
on the letterhead or by emailing mariya.l.julien.civ@army.mil.

Sincerely

Randal L. Doyle
Randal L. Doyle
Deputy Director
Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 1 of 17

EXHIBIT H
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 2 of 17

505 WEST 12TH STREET, SUITE 200

AUSTIN, TEXAS 78701

Douglas K. O’Connell
Telephone: (512) 547-7265
E-Mail: Doug@DougOConnell.com
________________________________

November 22, 2021

TO: Office of the General Counsel, Secretary of the Army, 104 Army Pentagon, Washington, DC 20310-
0104

THROUGH: Director, U.S. Army Crime Records Center, 27130 Telegraph Road, Quantico, VA 22134

Via Email – usarmy.belvoir.usacidc.mbx.crcfoiapa@mail.mil

Re: Appeal from Denial of Privacy Act Request to Change False Record Entry

Dear Sir or Madam:

This letter is an appeal on behalf of my client, SFC Denise Rosales, from the denial of her request
to update/correct information in the National Crime Information Center (NCIC) from the files of the U.S.
Army Criminal Investigation Division pursuant to Privacy Act, 5 U.S.C. § 552a and AR 25-22,
paragraphs 6-6 and 8-1. In the original request to amend, I demanded that you delete the NCIC entry
regarding SFC Rosales in Attachment 3. The original request was assigned control number FA22-0440.
The denial letter was dated November 16, 2021.

First, the denial of my client’s request to delete the NCIC entry is both factually and legally
wrong. There is no incomplete disciplinary or administrative action. SFC Rosales received the attached
General Officer Memorandum of Reprimand (GOMOR) in Attachment 6 as final punishment for any
disciplinary or administrative action. Furthermore, SFC Rosales was released from active duty (Title 10
status) and resumed her position in the National Guard (Title 32 status). As a result, even if you wanted to
pursue further disciplinary or administrative action, you lack the authority to pursue that course of action.
Therefore, there is no reason to not delete the NCIC entry.

1
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 3 of 17

Second, there is still no change to the fact that my client was never arrested or placed into custody
by Army CID or any other law enforcement agency. LTC Dale McFeatters—Deputy Staff Judge
Advocate for Combined Joint Task Force – Operation Inherent Resolve—confirms SFC Rosales was not
arrested pursuant to this charge. In an e-mail dated May 4, 2021, LTC McFeatters said, “She [SFC
Rosales] was not placed under arrest.”

Thus, there is no valid exemption under 5 U.S.C. § 552a(j)(2) because there is no factual basis for
which SFC Rosales’s NCIC record can apply to any of the information or report requirements listed under
sections (A)–(C). In addition, there is no ground for an exemption under 5 U.S.C. 552 §§ (b)(6) and
(b)(7)(A)–(C) because there is no ongoing investigation.

In conclusion, I demand that you delete this NCIC entry with the FBI. I look forward to your
notice of amendment or denial in accordance with AR 25-22, paragraph 8-3.

Pertinent information regarding my client:

Name: Denise Alysia Rosales

Social Security Number:
Date of Birth:

Please acknowledge this request via email to: Ashley@DougOConnell.com.

Respectfully,

______________________

Doug O’Connell

Attachments:
1. Denial Letter
2. Original Statement of Reasons Seeking Review (Amendment Request)
3. NCIC Record
4. Attorney Designation
5. E-mails from LTC Dale McFeatters
6. General Officer Letter of Reprimand

2
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 4 of 17

DEPARTMENT OF THE ARMY

U.S. ARMY CRIMINAL INVESTIGATION DIVISION
U.S. ARMY CRIME RECORDS CENTER
27130 TELEGRAPH ROAD
QUANTICO VA 22134-2253

November 16, 2021

Sergeant First Class Denise Rosales

Attention: Ashley Haisler
ashley@dougoconnell.com

Dear Sergeant First Class Rosales:

This is in further response to your request to update/correct information in the

National Crime Information Center (NCIC) from the files of the U.S. Army Criminal
Investigation Division (USACID) received November 10, 2021. Your request was
assigned control number FA22-0440.

The report responsive to your request has been finalized and received at this
headquarters. Release of this report is presently being withheld and denied to you because
disciplinary or administrative action has not been completed. You may submit another written
request for a copy of the investigation at a later date, after it is completed. You may consider
this an initial denial of your request pursuant to Title 5, USC, Section 552a, Exemption (j)(2)
of the Privacy Act and Title 5, USC, Section 552, Exemption (b)(7)(A), (b)(7)(B), (b)(6) and
(b)(7)(C) of the Freedom of Information Act.

This response is made on behalf of the Director, USACID, the Initial Denial Authority
for USACID records under the FOIA.

If you decide to appeal at this time, your appeal must be submitted within 90 days of
the date of this letter. In your appeal, you must state the basis for your disagreement
with our response. Your appeal is made through this Center and should be addressed
to the Director, U.S. Army Crime Records Center, 27130 Telegraph Road, Quantico,
Virginia 22134, for forwarding, as appropriate, to the Office of the Secretary of the Army,
the appellate authority. An appeal may not include a request for additional information
or a request for an investigation to be conducted.

You have the right to seek dispute resolution concerning this release. If you intend to
do so, you may contact the U.S. Army Criminal Investigation Division, Crime Record
Center FOIA Public Liaison, Ms. Michelle Kardelis at usarmy.usacidc-foia@army.mil.
Please put "Dispute" in the subject line.

You may also seek dispute resolution services by contacting the Office of
Government Information Services (OGIS) at 877-684-6448 or by emailing
OGIS@nara.gov.

Printed on Recycled Paper

 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 5 of 17

-2-

Questions regarding this action should be addressed in writing to the address shown
on the letterhead or by emailing mariya.l.julien.civ@army.mil.

Sincerely

Randal L. Doyle
Randal L. Doyle
Deputy Director
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 6 of 17

505 WEST 12TH STREET, SUITE 200

AUSTIN, TEXAS 78701

Douglas K. O’Connell
Telephone: (512) 547-7265
E-Mail: Doug@DougOConnell.com
________________________________

November 1, 2021

United States Army

Criminal Investigation Division
Crime Records Center
Russell Knox Building
Quantico, VA 22134-2253

Via Email – usarmy.belvoir.usacidc.mbx.crcfoiapa@mail.mil

Re: Privacy Act Request to Change False Record Entry

Dear Sir or Madam:

This is a request submitted pursuant to the Privacy Act, 5 U.S.C. § 552a, on behalf of my client
SFC Denise Rosales.

Your agency is responsible for generating an incorrect National Crime Information Center
(NCIC) record. Specifically, as you can see on the attached NCIC report, my client was
purportedly arrested or received into custody by your agency on January 5, 2021 for the
charge of false official statements. This assertion is patently false. My client has never been
arrested or placed into custody by Army CID or any other law enforcement agency—ever. In the
attached e-mails, LTC Dale McFeatters—Deputy Staff Judge Advocate for Combined Joint Task
Force – Operation Inherent Resolve—confirms SFC Rosales was not arrested pursuant to this
charge. In an e-mail dated May 4, 2021, LTC McFeatters said, “She [SFC Rosales] was not
placed under arrest.”

1
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 7 of 17

Likewise, SFC Rosales was never charged by any civilian or military agency or court with any
criminal violation. I demand that you delete this NCIC entry with the FBI.

Pertinent information regarding my client:

Name: Denise Alysia Rosales

Social Security Number:
Date of Birth:

If your records indicate that SFC Rosales was in fact arrested, please consider this a Freedom of
Information Act request for all records showing SFC Rosales was taken before a magistrate as
required by law. Please provide court docket information, booking information, rights warning,
and a copy of the warrant or complaint signed by a Judge as required by the Federal Rules of
Criminal Procedure and the Uniform Code of Military Justice.

I look forward to a written acknowledgment of this request for amendment within 10 working
days and a final response within 30 working days of the date this request is received in
accordance with 5 U.S.C. § 552a(d) and AR 25-22, paragraph 8-1. Please acknowledge this
request via email to: Ashley@DougOConnell.com.

Respectfully,

_______________________
Doug O’Connell
Attachments:
1. NCIC Record
2. Attorney Authorization
3. E-mails from LTC Dale McFeatters

2
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DocuSign Envelope ID: ED8C3725-EA53-4F34-BF69-3074D6B1E44D
Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 13 of 17

November 1, 2021

Re: Attorney Designation & Representation

This letter serves to designate Attorneys represent me. The Attorneys listed below
represent and are acting on my behalf:

Doug O’Connell
Ashley Haisler (Paralegal)
Richard Hood (Law Clerk)

Mr. O’Connell & Ms. Haisler may be contacted at:

O’Connell & Associates, PLLC

505 West 12th Street
Suite 200
Austin, Texas 78701
(512) 547-7265

Please comply with any and all requests made on my behalf by my Attorneys or
their staff.

Thank you.

_________________________________
Denise Rosales
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 14 of 17

DEPARTMENT OF THE ARMY

HEADQUARTERS, 36TH INFANTRY DIVISION (FORWARD)

APO AE 09306-0000

ACTF-OSS -CG April 2021

MEMORANDUM FOR SGT Eleno Rosales, Headquarters Support Company, 36th

Infantry Division, Task Force Spartan, Camp Arifjan, Kuwait APO AE 09306

SUBJECT: General Officer Memorandum of Reprimand

1. An investigation into allegations that you took part in an event involving alcohol, in
violation of General Order One, along with, false official statement and obstruction of
justice, were substantiated

2. The Army and this command put significant trust and confidence in
noncommissioned officers (NCO). As an NCO, you are charged with the responsibility
of setting examples for subordinates to emulate. Clearly, your actions fell below the
standards expected of an NCO in the United States Army. There is no excuse for your
actions. That you took part in a party where you knowingly witnessed alcohol
consumption in a nation where such substances are illegal and your character after-the -

fact raise serious questions as to your potential for continued service in the United
States Army at any level

3. This is an administrative reprimand imposed under the provisions of AR 600-37, and

not as punishment under Article 15, UCMJ. You are advised that in accordance with AR
600-37, Paragraph 3-5b, I am considering whether to direct this reprimand be filed
permanently in your Army Military Human Resource Record. Prior to making my filing
decision, I will consider any matters you submit in extenuation, mitigation, or rebuttal.
You will be provided, by separate cover, a copy of the evidence which forms the basis
for this reprimand. You will immediately acknowledge receipt of this reprimand in
writing. You will forward any matters you wish me to consider through your chain of
command within seven calendar days, pursuant to Army Regulation 600-37, paragraph
3-7.
/ 2<
/ /
,. -

¯
/,/' '7"
L,,/: ¯

End ¯'RICK M. HAMILTON

Major General, USA
Commanding General
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 15 of 17

DEPARTMENT OF THE ARMY

HEADQUARTERS, 36Th INFANTRY DIVISION (FORWARD)
TASK FORCE SPARTAN
CAMP ARIFJAN, KUWAIT
APO AE 09306-0000

ACTF-l H B-H April 2021

MEMORANDUM FOR Commander, Task Force Spartan, Camp Arifjan, Kuwait

APO AE 09306

SUBJECT: Acknowledgement of Receipt of Reprimand

1. I have read and understand the General Officer Memorandum of Reprimand that I
received on _______________

2. I acknowledge that I have the opportunity to respond by submitting matters in

extenuation, mitigation, or rebuttal. If I choose to submit written matters, I understand
that I must submit them to my immediate commander within seven calendar days.

3. I elect (initial):

[ ] Not to submit any matters.

To submit written matters within seven calendar days. I understand that if I

select this option, but do not submit written matters within the time prescribed, I waive
my right to respond.

Sig
&DaJ

ELENO ROSALES
SGT, USA
Respondent
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 16 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DENISE A. ROSALES, Civ. Action No.

Plaintiff, COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF
v.

CHRISTINE WORMUTH, Acting

Secretary of the Army, in her official
capacity; DEPARTMENT OF THE
ARMY; GREGORY D. FORD, Acting
Director of the Department of the Army
Criminal Investigation Division, in his
official capacity; DEPARTMENT OF
THE ARMY CRIMINAL
INVESTIGATION DIVISION;
CHRISTOPHER WRAY, Acting
Director of the Federal Bureau of
Investigation, in his official capacity;
and FEDERAL BUREAU OF
INVESTIGATION,
Defendants.

EXHIBIT E
 Case 1:23-cv-00440-RP Document 23-8 Filed 10/26/23 Page 17 of 17
DEPARTMENT OF THE ARMY
OFFICE OF THE GENERAL COUNSEL
104 ARMY PENTAGON
WASHINGTON DC 20310-0104

December 21, 2022

Douglas O’Connell Esq.

505 West 12th St. Ste. 200
Austin, TX 78701
Email: Ashley@DougOConnell.com

Dear Mr. O’Connell

This letter responds to your Freedom of Information Act (FOIA) appeal FA22-0702, dated 22
November 2021 on behalf of SFC Denise Rosales.

On November 10, 2021 a Privacy Act Request to Change Record was submitted to U. S. Army
Criminal Investigation Division (USACID) to update/correct records pertaining to SFC Rosales.
After carefully considering the issues presented by your appeals, we conclude that USACID’s
denials complied with the FOIA and, accordingly, deny the appeal concerning USACID’s
withholding of information contained in their system of record.

The FOIA permits an agency to withhold requested records if (1) the information qualifies for a
FOIA exemption; and (2) the agency reasonably foresees that disclosing the withheld information
would harm an interest protected by an exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I),(b). Here, the
denials are proper because disciplinary or administrative action concerning other involved parties
has not been completed. You may submit another written request to USACID for a copy of the
investigation after the pending actions are completed. The denial is proper at this time pursuant to
Title 5, USC, Section 552a, Exemption (j)(2 of the Privacy Act and Title 5, USC, Section 552,
Exemption (b)(7)(A), (b)(7)(B), (b)(6) and (b)(7)(C) of the Freedom of Information Act.

This letter constitutes final action on behalf of the General Counsel, designated by the
Secretary of the Army to consider appeals under the FOIA. You may, if you so desire, seek judicial
review of this determination in the federal court system in accordance with the FOIA, 5 U.S.C. §
552(a)(4)(B).

Sincerely,

Peter V. Lee
Assistant to the General Counsel
Case 1:23-cv-00440-RP Document 23-9 Filed 10/26/23 Page 1 of 2

EXHIBIT I
 Case 1:23-cv-00440-RP Document 23-9 Filed 10/26/23 Page 2 of 2
DEPARTMENT OF THE ARMY
OFFICE OF THE GENERAL COUNSEL
104 ARMY PENTAGON
WASHINGTON DC 20310-0104

December 21, 2022

Douglas O’Connell Esq.

505 West 12th St. Ste. 200
Austin, TX 78701
Email: Ashley@DougOConnell.com

Dear Mr. O’Connell

This letter responds to your Freedom of Information Act (FOIA) appeal FA22-0702, dated 22
November 2021 on behalf of SFC Denise Rosales.

On November 10, 2021 a Privacy Act Request to Change Record was submitted to U. S. Army
Criminal Investigation Division (USACID) to update/correct records pertaining to SFC Rosales.
After carefully considering the issues presented by your appeals, we conclude that USACID’s
denials complied with the FOIA and, accordingly, deny the appeal concerning USACID’s
withholding of information contained in their system of record.

The FOIA permits an agency to withhold requested records if (1) the information qualifies for a
FOIA exemption; and (2) the agency reasonably foresees that disclosing the withheld information
would harm an interest protected by an exemption. 5 U.S.C. § 552(a)(8)(A)(i)(I),(b). Here, the
denials are proper because disciplinary or administrative action concerning other involved parties
has not been completed. You may submit another written request to USACID for a copy of the
investigation after the pending actions are completed. The denial is proper at this time pursuant to
Title 5, USC, Section 552a, Exemption (j)(2 of the Privacy Act and Title 5, USC, Section 552,
Exemption (b)(7)(A), (b)(7)(B), (b)(6) and (b)(7)(C) of the Freedom of Information Act.

This letter constitutes final action on behalf of the General Counsel, designated by the
Secretary of the Army to consider appeals under the FOIA. You may, if you so desire, seek judicial
review of this determination in the federal court system in accordance with the FOIA, 5 U.S.C. §
552(a)(4)(B).

Sincerely,

Peter V. Lee
Assistant to the General Counsel
Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 1 of 7

EXHIBIT J
 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 2 of 7

*redacted portions of these

From: Doug O"Connell email exchanges are outside
To: Richard Hood the scope of this complaint
Subject: Fwd: Rosales Privacy Act Request
Date: Friday, March 17, 2023 12:59:16 PM
Attachments: sl-badge-s-w-2020.png
sl-badge-s-w-2020.png
1 - Denial Letter.pdf
2 - Original Statement of Reasons Seeking Review (Amendment Request).docx
3 - NCIC Record.pdf
4 - Attorney Designation.pdf
5 - E-mails from LTC Dale McFeatters.pdf
6 - General Officer Letter of Reprimand.pdf
SFC Denise Rosales Appeal.docx
Rosales FOIA Appeal (FA22-0440) Response - OGC.pdf

Douglas K. O’Connell
Attorney at Law
Colonel (Ret) U.S. Army Special Forces

505 West 12th Street - Suite 200

Austin,TX,78701
512.547.7265

CONFIDENTIALITY NOTICE: This email message and any accompanying data or files is confidential and
may contain privileged information intended only for the named recipient(s). If you are not the intended
recipient(s), you are hereby notified that the dissemination, distribution, and or copying of this message is strictly
prohibited. If you receive this message in error, or are not the named recipient(s), please notify the sender at the
email address above, and delete this email from your computer, and destroy any copies in any form immediately.
Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or other
applicable privilege.
 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 3 of 7

Begin forwarded message:

From: O'Connell West Law <doug@oconnellwest.com>

Subject: Fwd: Rosales Privacy Act Request
Date: January 20, 2023 at 5:45:29 PM CST
To: "Turlington, Lance B COL USARMY HRC (USA)"
<lance.b.turlington.mil@army.mil>, "Levy, G Robert JR COL USARMY
USACIDC (USA)" <gary.r.levy.mil@army.mil>
Cc: "Moore, Christopher L (Chris) COL USARMY HRC (USA)"
<christopher.l.moore48.mil@army.mil>

Gentlemen: On our call yesterday you asked for an example of a

case where the Army created (sent to FBI) a false
criminal history.

This is the case of Denise Rosales. While deployed to Kuwait,

Rosales was investigated for possession / consumption of alcohol
in violation of GO #1. She received a GOMOR for that misconduct
(attached). However she has a NCIC criminal history (attached)
that shows she was arrested and or received into custody for that
offense. We don’t object to her being investigated, titled or the
GOMOR, we object to the criminal history that shows she was
arrested or received into custody - because she was not arrested
or received into custody.

We confirmed that she was not arrested with the in-theater JAG -
LTC Dale McFeathers. In the attached email correspondence
McFeathers acknowledges Rosales wasn’t arrested but refused to
do anything to correct the problem.

We requested CID correct the record. CID denied this request

(attached).
We appealed to DA based on the Privacy Act. This appeal was
denied (attached).

Our plan before yesterday’s call was to file a lawsuit in Federal

Court. I’m hoping that you gentlemen can get the NCIC record
fixed and we can avoid the hassle and expense of litigation.

Please let us know if you have any questions.

vr
 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 4 of 7

Doug

Douglas K. O’Connell
Attorney at Law
Colonel (Ret) U.S. Army Special Forces

505 West 12th Street - Suite 200

Austin,TX,78701
512.547.7265

CONFIDENTIALITY NOTICE: This email message and any accompanying data or files is
confidential and may contain privileged information intended only for the named recipient(s). If
you are not the intended recipient(s), you are hereby notified that the dissemination, distribution,
and or copying of this message is strictly prohibited. If you receive this message in error, or are
not the named recipient(s), please notify the sender at the email address above, and delete this
email from your computer, and destroy any copies in any form immediately. Receipt by anyone
other than the named recipient(s) is not a waiver of any attorney-client, work product, or other
applicable privilege.

Begin forwarded message:

 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 5 of 7

From: Turlington, Lance B COL USARMY HRC (USA)

To: Doug O"Connell
Cc: Levy, G Robert JR COL USARMY USACIDC (USA); Richard Hood
Subject: RE: Follow Up from Phone Conference
Date: Thursday, February 2, 2023 4:05:35 PM
Attachments: image002.png

Doug,

Here’s what I had taken as questions, feel free to verify / edit / correct.

7. some clients have a Federal Criminal History that indicate they were taken into
custody, but they actually were not. National Crime Information Center (NCIC) records- how to
clean up?

8. For cases that were investigated and Titled properly, and the action was forwarded to the FBI,
those records indicate that the subject was arrested, even when they were not. When the
subject approached the FBI to resolve the error in the record, the FBI sends them back to the
reporting agency. The record says “Arrested and received into custody” but that is not correct.

Rob said FBI ‘reports’ the records. Subjects should request correction to the CID record. CID submits
an index record. CID can pull back the fingerprint card – III entry. Again- submit a request for
correction.
 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 6 of 7

v/r,

Lance Turlington
COL, JA
HRC CJA

(502) 613-4248
(502) 387-0950 (gov cell)

CONFIDENTIALITY NOTICE:

This email and any accompanying attachments may contain information protected by the Freedom
of information Act, the Privacy Act, the attorney-client privilege and/or attorney work product
doctrine. This information may not be released outside of the Department of Defense without prior
authorization from the Office of The Judge Advocate General, Department of the Army. If you are
not the intended recipient of this information, any disclosure, copying, distribution, or the taking of
any action in reliance on this information is prohibited. If you have received this email in error,
please notify this office immediately by return email (see 5 U.S.C. sec. 552 and Army Regulations 25-
55 and 27-26).

From: Doug O'Connell <doug@oconnellwest.com>

Sent: Wednesday, February 1, 2023 8:12 PM
To: Turlington, Lance B COL USARMY HRC (USA) <lance.b.turlington.mil@army.mil>
Cc: Levy, G Robert JR COL USARMY USACIDC (USA) <gary.r.levy.mil@army.mil>; Richard Hood
<richard@oconnellwest.com>
Subject: [Non-DoD Source] Follow Up from Phone Conference

Lance: Following up from our conference call on January 19th.

 Case 1:23-cv-00440-RP Document 23-10 Filed 10/26/23 Page 7 of 7

You indicated that you’d be sending a summary of the due outs and our RFIs. Checking to make sure
I didn’t miss that.

Please let me know if you need us to send you an email with the issues.

Thanks,
Doug

Douglas K. O’Connell
Attorney at Law
Colonel (Ret) U.S. Army Special Forces

505 West 12th Street - Suite 200

Austin,TX,78701
512.547.7265

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