12/26/2025
Does being titled follow someone for life?
What happened to probable cause?
“Titling and indexing were never designed to impose lifelong marks of suspicion. Yet that is exactly how the system works today—quietly, permanently, and with almost no due process.”
This isn’t just a military issue—it’s a due process issue.
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ROA LAW REVIEW
TITLING, INDEXING, AND DUE PROCESS REFORM
ROA Legislative Proposals Series
By John N. Maher, LTC (Ret.), USAR, JAG Corps
Kevin J. Mikolashek, former Major, US Army JAG Corps 2025
I. Introduction
Across the Reserve and National Guard, one of the most persistent and least understood problems servicemembers face is the Department of Defense’s “titling and indexing” system.
Under current Army CID, Air Force OSI, and NCIS investigative regulations, a servicemember’s name is placed into the “subject” block of a Report of Investigation (“ROI”) based solely on “credible information”—a deliberately low threshold far below probable cause and dramatically below proof beyond a reasonable doubt.¹
The Supreme Court has repeatedly emphasized that probable cause is a practical but meaningful constitutional threshold requiring facts sufficient to warrant a reasonable belief that a specific person committed a crime. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause exists where the “facts and circumstances within [the officer’s] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing” an offense was committed); Brinegar v. United States, 338 U.S. 160, 175 (1949) (probable cause deals with “probabilities” on which reasonable people act, not suspicion or hunches); Illinois v. Gates, 462 U.S. 213, 238 (1983) (adopting the “totality of the circumstances” test); Maryland v. Pringle, 540 U.S. 366, 371 (2003) (probable cause requires a reasonable belief that the particular individual committed the offense).
By contrast, the Department of Defense’s titling and indexing regime requires the far lesser showing of only “credible information”—defined in DoD Instruction 5505.07 as information that, considering its source and nature, supports a reasonable belief that an offense may have been committed—a standard far below probable cause and not requiring individualized suspicion, corroboration, or legal review. See Dep’t of Def. Instr. 5505.07, Titling and Indexing of Subjects of Criminal Investigations, encl. 4 (2018).
In practice, this means a servicemember may be titled—and permanently indexed in the Defense Central Index of Investigations (DCII)—based on allegations that would fall well short of probable cause, would never justify an arrest, and would not even support a search warrant.
The DCII is the Department of Defense’s permanent, centralized investigative index, maintained by the Defense Counterintelligence and Security Agency (DCSA), containing records of all DoD criminal investigations, counterintelligence inquiries, law-enforcement reports, and titling/indexing entries across Army CID, Air Force OSI, NCIS, and other DoD investigative components. See DoD Manual 5525.07, Criminal Justice Information Systems, vol. 2 (2012) (describing DCII as the central DoD repository for investigative and criminal history data used for background checks, clearance adjudication, and suitability determinations). Key features of DCII
Permanent retention: Entries for criminal investigations, including titling entries, are retained for 40 years or longer, even if the allegation is unfounded.
Enterprise-wide access: Clearance adjudicators, security managers, federal hiring officials, and law enforcement agencies query DCII during all Tier 3 and Tier 5 (formerly NACLC/SSBI) background investigations.
Not limited to convictions: DCII includes administrative investigative data, including titling entries, even without arrest, charges, or adverse action.
Triggers adverse clearance consequences: DCII records are often treated as derogatory information and can lead to denials, suspensions, or revocations of security clearances.
Cross-referenced: DCII pulls indexing data from CID, OSI, NCIS, DCIS, AFOSI, and other DoD investigative units.
Titling therefore triggers lifelong administrative consequences based on a threshold dramatically lower than the constitutional standard required for criminal process, even though titling itself produces effects that frequently exceed those of many criminal dispositions. ²
There is no presumption of innocence, no requirement for legal review, and no automatic removal even if the allegation is later disproven. The result is a quasi-criminal mark on a servicemember’s federal investigative history that can follow them for decades, appearing in background checks, undermining clearance eligibility, and affecting federal employment or credentialing as well as some federal benefits.
ROA members—many of whom have been titled despite being cleared at courts-martial, through administrative investigations, or by command inquiry—have pushed Congress for over a decade to correct what has become one of the most consequential administrative injustices in the military personnel system.
II. What Titling Is—and Is Not
“Titling” is an administrative indexing action—not a legal, judicial, or prosecutorial determination.³ CID’s own regulations emphasize that titling does not imply guilt, charges, or even a completed investigation. Yet titling produces real-world, career-long consequences:
• Appears in federal background investigations
• Adversely affects security clearance adjudications⁴
• Blocks command selection, career progression, and leadership opportunities
• Surfaces in federal hiring and suitability screens
• Remains indexed for forty years in DCII and CRC databases⁵
Because “credible information” may be speculative, uncorroborated, or later disproven, titling often rests on evidence that would not support probable cause, not support arrest, not support warrantless search, would not support prosecution, and frequently does not even support administrative action.
III. Why Titling Is Nearly Impossible to Undo
Under 32 C.F.R. § 633.12, a servicemember may request amendment of a Report of Investigation or ROI. However, CID investigations are exempt from the Privacy Act’s amendment procedures, meaning ordinary correction rights under 5 U.S.C. § 552a(e)(5) do not apply. Requests for correction are granted only if the servicemember produces “new, relevant, and material” information.⁶
“Untitling” is permitted only in cases of mistaken identity. The decision rests solely with the Commanding General, CID, and is final and unreviewable.⁷ Army legal assistance guidance acknowledges bluntly that titling is “virtually permanent,” even when allegations are unfounded.⁸
IV. Why Congress Must Act
DoD created the very exemptions that shield titling decisions from meaningful review. The structure denies servicemembers the basic due-process protections expected in any administrative system affecting reputation, employment, suitability, fitness, and liberty interests. What began as an investigative convenience has evolved into an administrative shadow adjudication with consequences far beyond its intended purpose. It affects:
• Employment and livelihood
• Professional licensing and credentialing
• Security clearance and trustworthiness determinations
• Promotion, command selection, and assignment competitiveness
These stakes demand legislative intervention.
V. Why Legislative Action Is Necessary: The Doctrinal and Structural Case for Reform
For nearly four decades, federal courts have uniformly held that DoD investigative records—including titling and indexing entries—are exempt from amendment, correction, or judicial review under the Privacy Act when the agency invokes the law-enforcement exemption in 5 U.S.C. § 552a(j)(2).
The leading case, Doe v. United States Air Force, 812 F.2d 738 (D.C. Cir. 1987), held that OSI’s investigative files—including the placement of an airman’s name as the “subject” of an investigation—are categorically exempt from amendment even when the underlying allegation is disputed or disproven (holding that the Privacy Act’s law-enforcement exemption bars courts from ordering expungement or correction of investigative subject records).
District courts have consistently applied the same principle to Army CID, Navy/NCIS, and Air Force OSI records. See, e.g., Doe v. Army, 660 F. Supp. 2d 31, 36–38 (D.D.C. 2009) (holding CID titling records exempt from amendment despite evidence presented by soldier); Suggs v. U.S. Army Crime Records Ctr., 18 F. Supp. 3d 81, 92–94 (D.D.C. 2015) (upholding CID’s refusal to remove a titling entry, where only “mistaken identity” is a permissible basis for deletion under Army policy).
These authorities make clear that the judiciary cannot fix the titling problem under the existing statutory framework.
Indeed, the DoD has relied heavily on these cases to defend titling’s permanence. In Doe v. United States Air Force, 812 F.2d 738 (D.C. Cir. 1987), the D.C. Circuit held that OSI investigative files—including the placement of a servicemember’s name as the “subject” of an investigation—are categorically exempt from amendment under the Privacy Act when DoD invokes the law-enforcement exemption. The Court emphasized that it had no authority to order correction or expungement even if the titling was misleading or unfounded.
When Doe petitioned the Supreme Court, the Department of Justice defended titling and indexing as essential law-enforcement and national-security tools, arguing that allowing amendment would “undermine the integrity of investigative records.” Brief for the United States in Opposition at 11–13, Doe v. United States Air Force, No. 86-1025 (U.S. filed Feb. 9, 1987). The Supreme Court denied certiorari, 483 U.S. 1020 (1987), leaving intact a regime in which titling is effectively permanent and judicially unreviewable—underscoring the need for Congress to act.
This is the same structural argument DoD uses today to justify retaining a titling entry even when a servicemember is cleared at court-martial, when the allegation is disproven, or when the command finds “no offense occurred.”
Because Congress has never legislated specific due-process limits on titling, DoD has been able to rely on the Privacy Act exemption to make titling—and therefore DCII indexing—effectively permanent.
At the same time, federal courts and security-clearance adjudicators increasingly rely on DCII indexing as derogatory evidence, even without charges, even without probable cause, and even when the underlying investigation resulted in “unfounded” or “no offense occurred.” See, e.g., Duane v. Dep’t of Defense, 275 F.3d 988, 995–96 (10th Cir. 2002) (upholding DoD’s denial of a clearance based in part on historic investigative indexing); Hrdlicka v. Dep’t of the Air Force, EEOC Appeal No. 0120141291 (2016) (noting DCII titling data used in suitability determinations).
Clearance adjudication guidelines expressly allow derogatory investigative data—including titling entries—to be weighed as a reliability factor, even absent any adjudicative finding. See Defense Counterintelligence and Security Agency, Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (2021) (listing “unverified or incomplete allegations” and “unresolved conduct” as adjudicative factors). Thus, titling operates as a career-altering stigma that contradicts the core American values of presumption of innocence and proportionality.
Compounding the problem is the dramatic mismatch between the standard required to title a servicemember and the standard required to remove a titling entry. Under DODI 5505.07, a servicemember may be titled on nothing more than “credible information”—defined as information that may cause a reasonable investigator to believe an offense might have occurred (DODI 5505.07, encl. 4). This is far below probable cause, far below the standard for arrest, and far below the evidentiary standards necessary for adverse administrative action.
Yet, to remove that same titling entry, DoD requires proof of “actual innocence”—a standard that exceeds the standard for expungement in nearly every civilian jurisdiction. DODI 5505.07, encl. 2. Courts have consistently upheld this arrangement because the Privacy Act exemption leaves them no room to force DoD to adopt a fairer standard. See Doe v. Air Force, 812 F.2d at 741–43; Suggs, 18 F. Supp. 3d at 94.
What this means in practice is that a servicemember may be titled permanently—and indexed in DCII for 40 years—on information that falls far below probable cause, even when fully acquitted, even when the allegation is disproven, and even when another person is later found responsible.
The system has no external due-process protection, no judicial review, and no meaningful administrative safeguards. It is therefore no surprise that titling is widely described as “practically irreversible” and that DoD investigators themselves often warn servicemembers that titling is “career-ending.”
The structural absence of due process in titling mirrors the systemic flaws condemned in Manker v. Spencer, No. 3:18-cv-372, 2019 WL 5846828 (D. Conn. Nov. 7, 2019), where the court denied the Navy’s motion to dismiss a class action alleging unfair discharge-upgrade procedures for Marines with PTSD and TBI. There, the district court emphasized that when an administrative process affects thousands of servicemembers and carries profound liberty and property consequences, constitutional fairness requires meaningful review, consistent standards, and transparent procedures (holding that systemic procedural deficiencies in discharge review boards stated a plausible due-process claim).
Titling is even more consequential—and far less regulated—than discharge-upgrade procedures: it affects tens of thousands of servicemembers, shapes eligibility for service, employment, federal careers, and security clearances, and yet remains exempt from amendment, review, oversight, and judicial scrutiny.
Because the courts have made clear—repeatedly—that neither the Privacy Act nor current statutory frameworks permit judicial correction of titling, Congress alone has the authority to fix the problem.
Only Congress can impose rational evidentiary standards (such as probable cause), create an independent Titling Review Board with authority to order expungement and notify downstream agencies, require transparency and annual reporting, and authorize limited judicial review of denials.
Without legislative action, titling will continue to function as a system of lifelong administrative branding—imposed without probable cause, insulated from oversight, and incompatible with fundamental fairness – tangentially related to legitimate law enforcement record keeping designed to follow those who truly committed offenses.
VI. Proposed Legislative Fix — ROA Draft Provisions
ROA recommends a comprehensive reform package addressing both the low standard for titling and the near impossibility of correction.
1. Establish a Judicially Reviewable Standard for Titling
Congress should require:
• A probable-cause threshold for titling and DCII indexing⁹
• Independent legal review before an individual’s name is entered into DCII
• Automatic deletion when allegations are disproven
This brings titling into alignment with constitutional norms and basic fairness.
2. Create a Statutory Untitling Procedure
Congress should adopt a clear, timely, and appealable method allowing removal when:
• Allegations are unfounded
• The investigation is closed with “no offense occurred”
• Exculpatory evidence emerges
• Another individual is responsible
This parallels the authority of Boards for Correction of Military Records while addressing titling directly.
3. Require Notification and Counseling
Upon titling, servicemembers should receive:
• Notice of the basis for the action
• A description of their rights
• A timeline for review
• Access to the ROI
Most titled servicemembers only discover the entry years later during a clearance or job check.
4. Implement the Legislative Proposal
ROA’s proposal—developed with the support of members and military justice practitioners—provides a comprehensive legislative fix:
• Creation of an independent Titling Review Board with expungement authority¹⁰
• Mandatory DoD notification to all downstream federal, state, and credentialing agencies when a titling record is corrected or removed¹¹
• Authorization for federal district court review of titling-removal denials¹²
• Prohibition on taking adverse action based solely on a titling entry absent corroborated evidence¹³
• Annual reporting to congressional oversight committees on titling activity and corrections¹⁴
These reforms bring transparency, fairness, and accountability to a system currently lacking all three.
VII. Why This Matters: What Reality Looks Like After Congress Acts
If Congress enacts these reforms, the landscape of military justice, career mobility, and national-security vetting changes overnight. Titling would no longer function as an unreviewable, career-long administrative scar imposed on the lowest evidentiary threshold in American law.
Instead, a servicemember could be titled only upon a probable-cause determination, documented in writing and reviewed by an independent legal authority before any name is entered into DCII. Investigators could still pursue leads, open cases, and conduct interviews based on credible information, but a person’s name could not be permanently indexed in a federal investigative system unless the facts met a constitutionally recognized standard. This alone prevents thousands of future wrongful or premature entries.
Just as importantly, the new Titling Review Board would give servicemembers for the first time a meaningful opportunity to challenge, correct, and, where appropriate, expunge an erroneous titling action. Untitling would no longer require the impossible “actual innocence” showing; instead, the standard would mirror ordinary administrative justice—allowing removal when allegations are disproven, when the investigation is unfounded, when another individual is responsible, or when the underlying information is unreliable. And because the Board’s decisions would be subject to limited judicial review, servicemembers would no longer be trapped inside a closed-loop system where the agency that created the error is the only entity permitted to review it.
Downstream agencies—the Defense Counterintelligence and Security Agency, federal suitability offices, state licensing boards, and law-enforcement organizations—would receive formal notice of any correction or deletion, ensuring that long-disproven allegations do not continue resurfacing years or decades later.
DCII would become an accurate, fair investigative tool rather than a one-way ratchet of stigma. Clearance adjudications would still consider legitimate derogatory information, but no longer treat a bare titling entry as evidence of misconduct. Federal employers would be barred from denying a job based solely on an uncorroborated titling record.
In practical terms, servicemembers who are wrongly titled would no longer see their careers permanently derailed. An infantry officer falsely accused during a command climate survey, an aircrew member caught in a mistaken-identity situation, a Marine cleared by a civilian prosecutor—none of these individuals would spend the rest of their careers explaining a DCII entry that never should have existed. Instead, they would have access to due process, a path to correction, and a system aligned with constitutional values.
Above all, adopting this legislative fix restores trust—trust that the military justice system is fair; trust that the government will not brand servicemembers without evidence; and trust that the investigative tools designed to protect national security will not be misused to damage innocent lives. For the first time since titling was created, the system would reflect the principles servicemembers swear to defend: fairness, accountability, and the rule of law.
VIII. Conclusion
Titling and indexing were never designed to impose lifelong marks of suspicion. Yet that is precisely how the system functions today—quietly, permanently, and with almost no due process.
ROA remains committed to advocating for reforms that restore fairness, transparency, and accountability to this powerful yet poorly understood administrative mechanism.
AUTHOR BIOGRAPHIES
John N. Maher is a retired Lieutenant Colonel in the U.S. Army Reserve Judge Advocate General’s Corps, a career national-security attorney, and the founder of Maher Legal Services, P.C., a veteran-owned law firm focused on USERRA and veterans’ rights, federal employment litigation, national-security matters, and complex civil litigation. Over a three-decade career in uniform and federal service, he served as Deputy General Counsel of the Defense Intelligence Agency, General Counsel of the U.S. Office of Personnel Management by Presidential Appointment to the SES, and as a trial attorney in the Civil Division of the U.S. Department of Justice.
LTC Maher served multiple overseas deployments, including missions in Macedonia, Afghanistan (twice), and Kuwait. He also served as Chief of Contracts and Fiscal Law within for General McChrystal’s USFOR-A Command in Kabul and as the program manager at the Justice Center in Parwan, assisting the Afghan government—under a Bureau of International Narcotics and Law Enforcement program—with the prosecution of national-security crimes under Afghan law.
He has secured presidential pardons for combat veterans (U.S. Army 1LT Clint Lorance in 2019 and former Marine Dustin Heard in 2020), and his advocacy has been featured in national media, including the STARZ documentary series Leavenworth and Don Brown’s book, Travesty of Justice.
Mr. Maher has taught as an adjunct professor of law for over 20 years and has published extensively on military justice, habeas corpus review of court-martial convictions, federal contracting, and veterans’ law. He has delivered continuing legal education lectures recently on USERRA for the Chicago Bar Association, the Illinois Institute for Continuing Legal Education (IICLE), and the DuPage County Bar Association in October and November 2025. He is a lifetime member of the VFW and the Reserve Organization of America (ROA).
Kevin J. Mikolashek served on active duty as a Judge Advocate in the U.S. Army, including assignments as a prosecutor, operational law attorney in Kuwait, appellate defense counsel, and as an attorney in the Army Litigation Division at the Pentagon. Following his active-duty service, he also served in the U.S. Army Reserve JAG Corps.
Mr. Mikolashek spent a decade as an Assistant United States Attorney in the Eastern District of Virginia, one of the fastest federal dockets in the country. After earning a mid-career M.B.A. from the University of Virginia’s Darden School of Business, he served as legal counsel at the Federal Reserve Board and later earned qualification as a Certified Compliance Specialist. He has served on the board of a nonprofit organization and currently serves as the Managing Director of Maher Legal Services, where he focuses on veterans’ rights, federal-sector employment disputes, fraud investigations, and national-security matters. Mr. Mikolashek lives in Northern Virginia with his family.
FOOTNOTES
¹ DODI 5505.07, Titling and Indexing of Subjects of Criminal Investigations (2018) (defining “credible information” and mandating titling based on the minimum threshold necessary to presume an offense may have occurred).
² Id. (requiring law-enforcement components to upload titling data to DCII, a permanent investigative index used in clearance and suitability adjudications).
³ MAJ Patricia A. Ham, Titling and Indexing, Army Lawyer, Aug. 1998 (explaining administrative nature of titling decisions).
⁴ DCSA, Adjudication Guidelines (2021) (listing investigative data, including titling entries, as factors in evaluating reliability and trustworthiness).
⁵ I’ve Been Titled! (2018) (explaining DCII’s 40-year record retention).
⁶ 32 C.F.R. § 633.12 (requiring “new, relevant, and material” evidence to amend an ROI).
⁷ Id. (untitling permitted only for mistaken identity; CG, CID decision final).
⁸ Id.; Fort Benning Legal Assistance Guide (“titling is virtually permanent”).
⁹ Maher Legal Services Draft Legislation (2021) (proposing probable-cause threshold for titling).
¹⁰ Id. (proposing independent Titling Review Board).
¹¹ Id. (requiring downstream agency correction notice).
¹² Id. (allowing judicial review in district court).
¹³ Id. (barring adverse actions based solely on titling entries without corroboration).
¹⁴ Id. (mandating annual reporting to oversight committees).
¹⁵ Manker v. Spencer, No. 3:18-cv-372 (D. Conn. 2019) (denying motion to dismiss systemic challenge to discharge review procedures).
