MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 July 2002
	DOCKET NUMBER:   AR2002069123

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		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:  In two applications and extensive briefs, the removal of a noncommissioned officer evaluation report (NCOER) covering the period from July 1997 through August 1998, the setting aside and removal of a Record of Nonjudicial Punishment (NJP) dated 28 August 1998, the removal of a memorandum of reprimand (MOR) dated 31 August 1998, the removal of a bar to reenlistment, the removal of all references and statements that he engaged in any violation of Article 121 (Larceny), the removal of all derogatory information from his records, a grant of constructive credit reflecting completion of 30 years of active duty for retirement, back pay and allowances to 30 years, issuance of a new report of separation (DD Form 214), back pay for paid Survivor Benefit Program (SBP) premiums, the opportunity to enroll in SBP Child Survivor Program, be provided a complete retirement physical examination, that he be provided an American Flag and any other relief deemed appropriate.

APPLICANT STATES:  In effect, that the NCOER contains administrative and substantive error because the rating period was maliciously changed without his knowledge, to reflect a 14 month rating period and a statement of non-concurrence was added to include unfounded information alleging that he stole merchandise from the Military Exchange System.  He goes on to state that the NJP imposed against him did not fulfill the elements of larceny; therefore, absence of proof beyond a reasonable doubt, punishment was frivolously and capriciously administered.  He also states that he was unjustly barred from reenlistment just before his expiration of term of service (ETS), and contends that the charges against him were false and the means to fabricate such a case against him constituted numerous violations of his constitutional rights.  As a result, he was forced to retire prior to being able to attain 30 years of service and was denied the benefits associated with a 30-year retirement.  He continues by stating that his physical examination was hurried and not thorough and that he was not afforded the appropriate time and recognition for his service.  He further contends that he was intimidated, harassed and was denied the effective assistance of counsel and the right of discovery in his case. 

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

He enlisted in Jacksonville, Florida on 30 April 1971, for a period of 3 years and training as a food service specialist.  He completed his training and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-9 on 1 July 1995 and his last reenlistment was on 14 May 1997, for a period of 2 years.  His ETS was 13 May 1999. 

On 9 April 1998, the applicant’s commander preferred charges against the applicant for 42 specifications of larceny from military exchange facilities in Hawaii.

On 25 June 1998, an investigation/hearing was conducted under the provisions of Article 32, Uniform Code of Military Justice and the Manual for Courts-Martial.  The applicant was represented by both military and civilian counsel.  After reviewing the evidence and testimony presented, the investigating officer determined that there was sufficient evidence to reasonably conclude that the applicant did commit at least 16 of the 42 specifications of larceny for which he was charged.  The investigating officer completed his report of investigation on 16 July 1998 and recommended trial by general court-martial.

On 26 July 1998, after consulting with both military and civilian counsel, the applicant entered into a memorandum of agreement for alternate disposition of charges, whereas he agreed to accept NJP and to submit his request for retirement, with terminal leave commencing on 1 September 1998.  In return, the government agreed to withdraw all charges upon imposition of NJP and to return all seized property.

The DISCOM commander rejected the offer to dispose of the case by NJP and on 17 August 1998, the applicant demanded trial by court-martial.  Meanwhile, a new DISCOM commander assumed command and accepted the terms of the memorandum of agreement as originally proposed.  On 22 August 1998, the applicant again entered into a new memorandum that was further expanded to indicate that he would take annual leave from 31 August to 25 September 1998.  During the month of October, he would take the necessary steps to out-process for retirement, and on 1 November 1998, he would commence terminal leave and would not participate in a retirement ceremony.  The agreement indicates that he had consulted with his military and civilian counsel and they both agreed that in light of the evidence against him, the agreement was in the applicant’s best interest. 

On 28 August 1998, NJP was imposed against him for multiple incidents of larceny from the military exchange system.  His punishment consisted of a forfeiture of pay and a formal written reprimand.  The applicant appealed the punishment and his appeal was denied by the commanding general on 2 September 1998.  The imposing officer directed that the record of NJP (DA Form 2627) be filed on the performance fiche of his Official Military Personnel File (OMPF).

The applicant submitted a request for retirement on 28 August 1998, requesting that he be placed on the Retired List effective 1 March 1999.

The imposing officer also issued the applicant a MOR on 31 August 1998 and directed that it be filed with the record of NJP in the applicant’s OMPF.

On 29 September 1998, an NCOER covering the period of July 1997 to August 1998 was forwarded to the applicant by the servicing personnel office.  The ratings by the rater were all success, excellence, and among the best ratings.  The senior rater indicated that he did not meet minimum rating qualifications and the reviewer indicated that he non-concurred with the rating.  He provided a statement of non-concurrence in which he indicated that the report was inaccurate because the applicant was stealing from the exchange during the rated period. 

For reasons not fully explained in the available evidence, charges were again preferred against the applicant for the larceny charges and this time included his spouse as an accomplice.  Another Article 32 investigation/hearing was convened on 25 November 1998, where the applicant requested a delay based on the unavailability of counsel.  The hearing reconvened on 18 March 1999.  The investigating officer completed her report on 29 March 1999 and recommended that the commander not proceed with a court-martial because the evidence did not support a finding beyond a reasonable doubt.  She further indicated that since NJP had been imposed and not withdrawn, an administrative separation board would be appropriate in the case.  The court-martial charges were officially withdrawn on 28 June 1999.

Meanwhile, on 12 May 1999, a bar to reenlistment was imposed against the applicant.  He appealed the bar to reenlistment and his appeal was denied by the appropriate authority at the Department of the Army on 21 June 1999.

Orders were published on 27 July 1999 directing the applicant’s retirement on 31 December 1999.  However, because he had not completed his physical examination for retirement, he requested that his retirement be delayed until 1 February 2000.  His request was approved by the Department of the Army on 22 September 1999.

On 31 January 2000, he was released from active duty and was transferred to the Retired List, effective 1 February 2000.  He had served 28 years, 9 months and 1 day of total active service.

On 20 April 2000, the applicant submitted an appeal of the NCOER covering the period from July 1997 through August 1998 to the Enlisted Special Review Board (ESRB).  He contended at that time that the report was intentionally and illegally changed to reflect a 14-months rating period, that the SR had less than the minimum time to qualify as the SR, that he did not receive a copy of the report with the reviewer’s non-concurrence; therefore it should be removed and contended that the reviewer’s non-concurrence was a prejudicial submission. 

In the processing of the applicant’s appeal, the ESRB obtained copies of the Military Police (MP) and Criminal Investigation Division (CID) Reports which substantiated the reviewer’s comments.  The ESRB also determined that under the circumstances in which an investigation was being conducted during the rated period, the rating officials could not complete the report properly until the investigation was completed and was justified in extending the period of the report.  The ESRB determined that the applicant had not submitted sufficient evidence to warrant amending or withdrawing the NCOER and denied his appeal on 30 November 2000.

A review of his OMPF contains reenlistment documents dated 29 February 1984, which indicate that he was arrested for shoplifting on 23 June 1983, while stationed at Fort Jackson, South Carolina and that the charges were dismissed.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

AR 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.

Paragraph 3-18 of that regulation provides, in pertinent part, that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  If the commander decides to impose the punishment he or she will announce the punishment to the soldier and explain the soldier’s appellate rights and procedures.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s contention that his NCOER should be removed because the period of the report was changed without his knowledge and because the reviewer added a statement of non-concurrence appears to be without merit.  Given the circumstances in his case, it appears that the command took the appropriate steps to ensure that the applicant’s rights were protected and awaited the results of the investigation that was conducted throughout the rating period.  Unfortunately, the results of the investigation were not favorable.  Consequently, the reviewer non-concurred with the rating officials based on the results of the investigations.  Accordingly, the Board finds that the report is administratively correct and should remain in his OMPF as currently filed.

3.  The Board has also noted the applicant’s contention that NJP was unjustly imposed against him and also finds that contention to be without merit.  The applicant had the opportunity to demand trial by court-martial and while he exercised that option at one point, after consulting with his military and civilian counsel, he subsequently withdrew his demand and entered into an agreement to accept NJP and request retirement in return for the government’s dismissal of charges.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him.  Accordingly, the Board finds no basis to remove the properly filed record of NJP and related documents.

4.  The Board also finds no merit to his contentions that he was denied the effective assistance of counsel or that he was not given a proper physical examination.  The applicant has provided no evidence to show he was denied effective assistance of counsel and the evidence of record shows he was given an additional 30 days to complete his separation physical.  

5.  The Board also finds that a bar to reenlistment was justified under the circumstances and that none of his rights were violated.  The applicant exercised his right of appeal and his appeal was denied.  Therefore, the Board finds no basis to remove the bar to reenlistment or to give him additional credit for service he did not perform, especially since he requested retirement in lieu of being tried by a general court-martial.

6.  The Board also notes that the applicant was given more than sufficient time to make his SBP election, to out-process and to transition out of the Army.  Accordingly, the Board finds no relief is warranted in this case.

7.  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

__rtd____  ___kwl __  __rvo ___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002069123	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000/VOID NCOER	
2.  277	126.0000/REM NJP	
3.  280	126.0300/REM MOR	
4.  283	128.0000/BACK PAY	
5.  229	112.0700/CONST SVC	
6.  192	110.0300/REINSTATE