MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 March 1999
	DOCKET NUMBER:   AC98-11815
	                                   AR1998013592

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Meta Waler		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That an Article 15 be expunged from his record.

APPLICANT STATES:  In effect, that he did not commit the crime, stealing a computer from the Base Exchange (BX), for which he received the Article 15; that his case was not properly investigated or reviewed; and that he had a mitigating medical condition.

The applicant submitted with his DD Form 149 a number of attachments to include:
	 1)  Copy of his Article 15.
	 2)  Article 15 appeal with enclosures that was denied by the Major General court-martial authority.
	 3)  A 5 May 1997 letter request by the applicant for Superior Authority Review of the Article 15 with enclosures; a 19 May 1997 1st endorsement by the applicant's commander recommending disapproval; and a 27 May 1997 
2nd endorsement by the Staff Judge Advocate recommending disapproval.
	 4)  An 11 May 98 letter with enclosures to the Director of Loss Prevention, Army and Air force Exchange Service (AAFES), Dallas, Texas, requesting a letter of exoneration.  The request for exoneration letter was returned from AAFES by a 23 June 1998 letter stating that AAFES was not the exonerating authority and that the applicant's command should deal with the matter according to AR 27-10, Military Justice.
	 5)  Security Police investigation report.
	 6)  Two sworn statements by the applicant.
	 7)  Witness statements by BX employees and store detectives.
	 8)  Video tape from the BX security monitoring system showing the applicant taping a box shut and his movements in the BX after that event until he left the BX.
	 9)  Medical statement concerning the applicant by an Army Physician's Assistant (PA).
	10)  A 10 September 1996 statement by a civilian doctor of psychiatry and neurology concerning the applicant's medical history.
	11)  Correspondence concerning the applicants removal from E-7 promotion list and concerning his reenlistment.
	12)  Evaluation reports and certificates of commendation during and after the issue in question.
	13)  Other documents as listed on DD Form 149 continuation pages.

EVIDENCE OF RECORD:  The applicant's military records show:

That at the time of the incident in question, June to August 1995, he was a Administrative NCO Staff Sergeant E-6 in the Regular Army with approximately 16 years of active service.  He was assigned at the US Army Support Element, US Special Operations Command, Mac Dill Air Force Base (AFB), Florida.  He

had attended Advanced NOC Course at Fort Jackson, South Carolina, from 
24 April to 1 June 1995 and had returned to Mac Dill AFB.

On or about 8 June 1995, the applicant was detained by BX store detectives who observed by both closed circuit camera and eye contact, suspicious actions by the applicant.  The applicant had taken an opened typewriter box from the electronics area to the hardware area where he used a new roll of tape to seal the box shut.  He went through the check-out and paid for the sealed box, the roll of partly used tape, and some other merchandise.  A store detective followed him to his car in the parking lot where he was asked to return with the detective to the BX.  There the typewriter box was opened and found to contain a computer CPU. The applicant alleged that he did not know the box contained a computer instead of a typewriter.  A check in the electronics department revealed the typewriter from the box in its packing plastic cover and some of the packing formed foam out in the department and a computer CPU, the one in the typewriter box, missing from display.  The BX store detective did not see the applicant put the computer in the typewriter box nor did the video tape from the closed circuit security camera show such.  However, the video tape clearly shows the flaps of the box open sufficiently for the applicant to see what was in the box and shows him closing the flaps and pushing down on them to tape them shut.  The tape also shows the applicant's movements, actions, and demeanor to be alert and fully aware.  A close up on the video tape of the applicant's face and eyes further support this observation.  He was observed sealing the box and purchasing the box.  The applicant and evidence were turned over to the base security police.

An investigation of the incident was conducted by the security police and a report given the applicant's command for action.  The investigation did not make any conclusive recommendations on guilt or innocence.  The applicant's three statements were very detailed but inconsistent.  In addition to his assertion that he did not know that there was a computer in the typewriter box, the applicant also claimed that he was taking prescription drugs and suffering from insomnia that affected his awareness and mental state and contributed to his inattentiveness in knowing that there was a computer in the typewrite box and his inability to give coherent statements when questioned about the incident.  The medications that he was taking was Hydroxyzine for a poison oak infection and Motrin for hip injury pain.  The investigation was closed and turned over to the command for action.  There is no evidence that the applicant's Lieutenant Colonel (LTC) commander at that time took any action.  A new LTC commander assigned to the applicant's unit acted on the information and evidence provided by the security police and on 18 August 1995 gave the applicant an Article 15 for stealing a computer from the BX.  An Article 15 hearing was conducted on 29 August and on 26 September punishment was imposed of reduction to E-5 and forfeiture of $1,640, both punishments suspended.  The LTC directed that the Article 15 be filed in the applicant's Official Military Personnel File.  In a later endorsement to the appeal of the Article 15, the LTC stated that he had suspended the punishment on the remote possibility that the medications being taken by the applicant had some bearing on his alleged loss of control but the LTC did not personally believe such was the case.  He further stated that in retrospect he regretted that he had suspended the punishment.

On 26 September 1995, the applicant appealed the Article 15 on the basis that severe insomnia, stress, depression, memory loss, incoherence, and medication affected his judgement and mitigated his incident of shoplifting.  The command Staff Judge Advocate reviewed the Article 15 for accuracy and justice and recommended denial of the appeal.  The Major General Commander of the US Army Element reviewed the applicant's appeal submission and recommendations from the command and denied the appeal on 13 October 1995.  The applicant received a deficient NCO Evaluation Report for period March 1995 to October 1995 due to the Article 15.

On 18 December 1995, the applicant was allowed to reenlist for 4 years due to a pending Medical Evaluation Board (MEB) which would extend beyond his Expiration of Term of Service on 19 December 1995.  Although the record does not contain a copy of a MEB finding, it is assumed that the applicant was found fit for duty since there is no evidence that he was further recommended for a Physical Evaluation Board.

On 5 May 1996, the applicant submitted to his Major General commander a request for Superior Authority Review of Article 15.  The applicant raised the same questions as he raised in the appeal.  He also submitted a 10 September 1996 statement from a civilian doctor who gave his opinion that the applicant's taking of prescription drugs, Motrin and an overdose of Hydroxyzine, had affected his nervous system resulting in a state of confusion, memory loss, depression, hallucinations, dizziness, and insomnia.  The applicant also submitted a post July 1996 statement from a Mac Dill AFB medical facility Physician's Assistant giving the applicant's medical history from March 1993 to July 1996 and concluding that the applicant was allergic to Hydorxyzine, Motrin, Tylenol III, Augmentin, and Diclozucillin, and that he should be evaluated for a possible sleep disorder.  The Deputy Surgeon for the US Special Operations Command reviewed these medical documents.  He questioned the authenticity and accuracy of the Physician's Assistant's statement and in consultation with four military medical doctors, questions the validity of the civilian doctor's conclusion's rendered a year after the incident in question and concludes that the medications would have reduced pain and anxiety but would not have effected a change in the applicant's character to make or allow him to do something illegal.  The Deputy Surgeon also states that if the applicant had taken an overdose of Hydroxyzine as he alleged, that it would have caused a state of deep sedation and low blood pressure which would have been life threatening and required emergency medical treatment.  In the absence of any record of such event, the Deputy Surgeon did not credit the applicant's contentions that his medical condition was mitigating in stealing the computer.  The applicant's commander and the Staff Judge Advocate recommended denial of the request for Superior Authority review of the Article 15.  There is no indication of the final action on the request for Superior Authority Review in the record.

In an 11 May 1998 letter, the applicant's current military supervisor, a LTC Chief of the Mac Dill AFB Executive Services, requested that AAFES give the applicant a letter of exoneration.  On 23 June 1998, AAFES responded by letter that AAFES was not the exonerating authority and that the applicant's command should deal with the matter according to AR 27-10, Military Justice.

A 2 June 1994 Department of the Army (DA) Promotion Board had selected the applicant for promotion to Sergeant First Class (SFC) E-7.  Due to the Article 15, the applicant was recommended by the DA Personnel Center on 29 November 1996 for determination on retention on the promotion list.  The applicant was removed from the promotion list on 9 March 1997.

On 28 July 1997, DA imposed a bar to reenlistment under the Qualitative Management Program (QMP) and gave him options on his continued service.  He chose the option to retire at 20 years service on 30 June 1999.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Article 15 was reviewed for accuracy and justice by two different Major General commanders, one during the Article 15 appeal on 13 October 1995 and a different Major General for the Superior Authority Review in May and June 1997.  Neither Major General found sufficient justification for further mitigation of the Article 15 beyond the suspended punishment nor did they find any error in procedure or an injustice in the findings and punishment to justify appeal or removal the Article 15.

2.  The Article 15 was reviewed for legal sufficiency and justice by two different Judge Advocates (JA).  The first JA reviewed the Article 15 appeal on 
4 October 1995 along with submitted evidence and testimony, found them to be legally sufficient and the punishment just, and recommended disapproval of the appeal.  The second JA, a senior Staff Judge Advocate, reviewed the Superior Authority Review request with all of its supporting documentation to include the medical statements for and against the applicant.  He concluded that the result of an independent psychiatric evaluation does not exculpate the applicant, especially when viewed in light of the contrary opinion issued by the Command Surgeon's office and the evidence which led to the original findings of guilt.  The applicant had presented evidence concerning the possible adverse affects of the combinations of certain medications and medical conditions at his Article 15 hearing.  The argument was considered and rejected.

3.  While the Deputy Surgeon's review of the medical evidence presented by the applicant may miss a point on the timing of the medication taken, he does consult with 4 senior medical doctors on the possible effects of the medications and medical condition presented in the applicant's evidence and they all conclude that although the medications and medical condition might have had some effect on the applicant's memory and alertness, they would not have changed the character of the applicant to cause him to commit the crime in question.  The Deputy Surgeon also points out that if the applicant had taken the overdose of medication he alleges, he would have been in a life threatening situation and would have required emergency medical treatment.

4.  The independent psychiatric evaluation was conducted in September 1996, 
1 year 4 months after the incident of 8 June 1995, and is therefore well after the fact and not based on observations of the applicant's medical and mental condition at the time of the event.  Such an opinion is subjective.

5.  The Deputy Surgeon questioned authenticity of the medical statement alleged to have been that of the military PA.  A comparison of the hand writing style, grammar construction, and format on the statement with that of the PA's entries on the Chronological Record of Medical Care do call into question the authenticity of the alleged medical statement by the PA.

6.  It is noted that while the applicant alleges that his medication and medical condition affected his memory and actions, his statements to investigators concerning the crime and his statements concerning his medical history are very detailed casting doubt on his assertion that his medication and medical condition affected his alertness and memory and that he did not know what he was doing.

7.  While it does appear that the security police investigation, witness statements, and the BX security system video tape are not individually conclusive, legal authorities on several occasions reviewed this evidence and found it in total to be ethically and legally sufficient to justify imposing the Article 15 and deny appeals to withdraw the Article 15.

8.  The video tape does clearly show the box flaps open in the applicant's shopping cart and the applicant in such a position when closing and taping the lids shut that he could have plainly seen what was in the box and that is was not a typewriter as advertised on the box..  The tape also shows the applicant to be fully alert and aware and moving purposefully instead of confused, drugged, and unknowing as the applicant alleged.

9.  A review of the applicant's military record, excepting the issue in question, and his submitted letters of character reference and support do indicate that the applicant is otherwise a highly successful NCO.  However, this does not mitigate the offense committed nor justify the removal of the Article 15 imposed on the offense.  It is recognized that this record and support have enabled him to reenlist for a final tour of duty to allow him to retire honorably from the service.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

_       ____  _      ____  _       ___  GRANT

________  ________  ________  GRANT FORMAL HEARING

_JHL ___  _MW____  __KLW __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11315/AR1998013592	
SUFFIX		
RECON		
DATE BOARDED	19990310	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         126.00.		
2.		
3.		
4.		
5.		
6.