MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:     

		BOARD DATE:          09 OCTOBER 2003                    
		DOCKET NUMBER:  AR2003087268

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Robert J. Osborn II		Member	
	Ms. Eloise C. Prendergast		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 he be reinstated in the Army Reserve.  

APPLICANT STATES:  That he should have been retained and not discharged.

On 29 July 1998 he was accused of shoplifting a knife at the post exchange at Fort Huachuca, Arizona, where he was on annual training and attending the residential phase of the military intelligence (MI) course.  

While attending the course, and in the spirit of camaraderie of story telling and embellishing [stories] with his classmates, it was decided that a small token trophy was necessary to back up some of the good-natured gamesmanship.  He decided this his trophy was going to be a small pocket knife, similar to the knife that he had in his pocket from an earlier purchase, and he intended to use this ruse as his trophy claim.  He walked by the knife display [in the post exchange], removed a knife from the shelf, and attempted to display it to his friends who were outside the exchange.  It was never his intention to permanently remove the knife from the premise and unlawfully keep the knife.  He never left the premise of the exchange with the knife, nor did he get past the check-out counter of the cashier.

On 7 August 1998 he met with the Commanding General of Fort Huachuca to discuss proceedings under Article 15, Uniform Code of Military Justice (UCMJ).  He denied any intent to steal the knife and was given the opportunity to explain his alleged conduct.  The commanding general stated that he understood and believed that he had no ill intent and that his conduct was a prank.  Consequently, he ordered that a letter of reprimand be placed in the restricted fiche of his records, and stated that he was taking the action so that his military career would not be detrimentally affected.  He stated that once he left Fort Huachuca, the letter of reprimand would not follow him.  The general also stated that the case was not neat and clean and there was some confusion as to the incident.  He was given the benefit of the doubt. 

The applicant submits a copy of a letter from the Deputy Staff Judge Advocate of the 77th Regional Support Command (RSC), who submitted his opinion to his parent command on why the general took the limited action.  He submits a copy of the Article 15 proceedings and the letter of reprimand.  

Upon return to his command at the 4th Judge Advocate General (JAG) Legal Service Organization (LSO) in Bronx, New York, his commander accepted his version and informed him that it would not affect his military career. That officer gave testimony on his behalf before the misconduct board.

A board of officers was appointed on or about 3 August 1999 to determine whether he should be discharged for misconduct.  The board president was the newly appointed Staff Judge Advocate (SJA) of the 77th and was also the board legal advisor.  The other two board members were Active Guard/Reserve officers who closely worked with the SJA and the appointing authority.  All board members served under the auspices of the appointing authority and his deputy. There was clearly improper command influence, which made it impossible for him to receive a fair hearing.  He avers that the board president and the two board members could not be impartial because of their relationship to the appointing authority, and that there was undue and improper influence on all members of the board or at the very least an appearance of impropriety.  The three board members knew about his case and were predisposed to the findings and the sentence.  The board president was not impartial.  The office of the SJA did the legal review of the board action and the recorder and board president worked there.

The board president attempted to have ex-parte communications with the defense counsel, which was clearly improper.  He has never received a record of the proceedings, nor has his attorney received a copy of the tapes of the hearing. The voir dire of the board members was extensive and their (applicant and counsel) views on partiality and bias delineated through questioning.  The board's decision should be reversed pursuant to improper command influence, the appearance of impropriety, and the board's inability to render an impartial and unbiased decision.  There were professional conduct violations by a board member.  He did not receive due process.  The board improperly refused a factual dissertation, defense, and presentation by defense of the alleged misconduct.  The board president held that the legal doctrine of "res jujdicata" applied, adhering to the commanding general's (of Fort Huachuca) premise that a determination of misconduct had already been made.  The board improperly and unjustly shifted the burden of proof to himself.  The punishment imposed was disproportionate to his total military record and contributions to the Reserve. 

He provides information concerning his financial loss.  The recommendation to discharge him with a General Discharge Certificate was dichotomous to the evidence presented and inconsistent with the recommendations of general officers, numerous field grade and company grade officers, civilian attorneys, to include district attorneys, and two enlisted Soldiers, one a retired command sergeant major.  He provides as exhibits those statements of support.  He states that each of the individuals implored the board to retain him; however their pleas were of no avail primarily because of improper command influence and their (applicant and counsel) belief that their minds were made up prior to the hearing. He states that other than the record of nonjudicial punishment and the letter of reprimand, there was not one piece of negative evidence submitted against him.

All the vindictiveness of the 77th was clearly evident by their informing the New York State Bar of the allegation and the proceedings, causing a detrimental effect upon his civilian occupation and license.  He is a federal law enforcement officer in jeopardy of termination due to the board's action.  He notes that the shoplifting incident occurred more than a year prior to the board hearing, and his performance during that time was exemplary.  

The applicant encloses a copy of his biographical summary and his personnel qualification record.  He submits copies of his officer evaluation reports dating from 1989.  He states, in effect, that those documents depict his dedication and devotion to duty, and his exceptional performance of his duties as shown by his rating officials.

The board's action clearly evidenced double jeopardy in that he was repeatedly punished for the one incident – Article 15, letter of reprimand, board decision.  In addition, to the loss of his promotion to lieutenant colonel, the action by the New York State Board, and disenrollment from the military intelligence course on the last day of the course.  

COUNSEL CONTENDS:  Counsels contend that they have reviewed the contents of the applicant's appeal and the enclosures, have participated in the entire proceedings, and state that the contents of the appeal are accurate and true.

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

The applicant was a Judge Advocate General (JAG) Corps officer, appointed as such in the grade of first lieutenant on 28 November 1984.  He was promoted to major on 15 December 1992.  He was a Reserve officer assigned to the 4th JAG LSO in Bronx, New York.  The applicant lists his civilian occupation as a special agent with the United States government.

He has completed the JAG Officer Advanced Course, the Military Intelligence Basic Course, and the Command and General Staff College Course.  His awards include two Army Commendation Medals, two Army Achievement Medals, three Army Reserve Components Achievement Medals, the Armed Forces Reserve Medal with Bronze Hourglass Device and M-2 Device, and the Army Reserve Components Overseas Training Ribbon with #6 Device.

The 10 officer evaluation reports the applicant cites in his request show that his senior raters considered him above center of mass on two of the reports, center of mass on five of the reports, and below center of mass on three of the reports.  

His last evaluation report, for the one-year period ending on 17 June 1999 was a center of mass report in which his senior rater stated that he was fully qualified for promotion to the next higher grade.  His senior rater stated, "Despite his loss of his 55A MOS, caused by his commission of a stupid, childish prank while at MI school last summer, he continues to work hard and provide this unit with high quality, professional work." 

A 7 August 1998 military police report revealed that on 29 July 1998 the applicant was observed by an employee of the Fort Huachuca post exchange removing a knife from a shelf and then attempting to exit the exchange without paying for it.  A store security officer detained the applicant and escorted him to the security office.  While in the security office, an exchange employee found the knife, which the applicant had placed on top of a television monitor.  

A statement attached to that report indicates that while in the security office, the applicant produced a knife; however, that knife was not the knife presumed to be stolen.  The applicant stated that he had purchased that knife early in the week.  While searching the security room, an exchange employee found the knife that was presumed stolen.  

The report shows that the applicant was transported to the military police station, processed, and released on his own recognizance.

The applicant's academic evaluation report for the period ending on 31 July 1998 shows that he was relieved from the MI Advanced Course for misconduct.

On 7 August 1998 the applicant received nonjudicial punishment under Article 15, UCMJ, for stealing a knife from the Fort Huachuca post exchange.  The Commanding General of Fort Huachuca administered the punishment and directed that the applicant be reprimanded, and that the record of the punishment be placed in the applicant's restricted fiche in his official military performance file (OMPF).  The applicant elected not to appeal.  Also, on that same day, the Commanding General issued a memorandum of reprimand to the applicant, stating that the military police report convinced him that he attempted to commit the alleged shoplifting incident.  He stated that the reprimand would be filed as an attachment to the record of proceedings under Article 15, UCMJ.

In a 12 August 1998 memorandum to the Office of The Judge Advocate General, the Deputy Staff Judge Advocate of the 77th RSC indicated that he enclosed the Article 15 proceedings, the letter of reprimand, and the military police report, and various other documents.  He stated that there was some confusion about the knife; however, the knife if question was found in the security room where the applicant was pacing prior to interrogation.  He stated that the confusion with the two knives might have been the reason that the Commanding General of Fort Huachuca found him guilty of the charge but took it easy on the punishment.
On 11 August 1998 the Deputy Commander, 77th RSC, issued the applicant a memorandum of reprimand for stealing the knife from the Fort Huachuca post exchange.  In his rebuttal, the applicant stated that the Commanding General of Fort Huachuca had understood and believed that he had no ill intent in taking the knife and that his conduct was a prank as compared to a crime; consequently, he directed that the letter of reprimand be placed in the restricted fiche of his OMPF. He stated that his action was a prank, and that he never intended to permanently remove the knife from the premise; however, he should have known better than to act like an adolescent.  He stated that he had never done anything like that before in his life.  He stated that having already been punished and ridiculed, he requested that he not be issued another letter of reprimand and especially not place anything into his OMPF.  On 2 October 1998 the Deputy Commander of the 77th RSC directed that the letter of reprimand be placed in the performance portion of the applicant's OMPF.

On 30 March 1999 the Army Reserve Personnel Command notified the applicant that his promotion status was suspended because he was not assigned to a higher grade position, he did not have a qualifying physical examination, did not have a current Army Physical Fitness Tests (APFT), and did not have a current date for maximum allowable weight.

On 3 August 1999 the Commanding General of the 77th RSC appointed a board of officers pursuant to Army Regulation 135-175 to determine if the applicant should be separated from the Army.  The president of the board, the 77th RSC Staff Judge Advocate, was also appointed as the legal advisor (without vote).

On 24 August 1999 the applicant's attorney requested that the board president recuse himself as president and legal advisor to the board, stating that it was impossible for him to rule on potentially prejudicial and inadmissible evidence that might be proffered outside the presence of the board and maintain neutrality and impartiality.  He also stated that as the newly selected 77th RSC SJA he would be in the rating chain of the convening authority, creating an appearance of impropriety and potential conflict of interest.  

On 22 September 1999 the applicant's co-counsel submitted a similar request to the Commanding General of the 77th RSC.

On 1 November 1999 the applicant was assigned to the Army Reserve Control Group (Reinforcement) at St. Louis.

Orders issued by the Army Reserve Personnel Command at St. Louis on          13 January 2000 show that the applicant was discharged from the Army Reserve, effective that date, under the provisions of Army Regulation 135-175.  The type of discharge directed was a general discharge.

Demands were made to the Commanding General of the 77th RSC by the applicant's counsel on 4 January 2000 and again on 1 February 2000 for a copy of the summarized record of the board proceedings and a copy of the tapes of the hearing for the purpose of appealing the board's decision.    

On 2 May 2001 the Army Discharge Review Board (ADRB), in a majority opinion, granted the applicant's request to upgrade his discharge to honorable.  That board, however, concluded that his discharge was proper, and in a unanimous opinion determined that the reason for his discharge not be changed.  That board noted that the evidence indicated that on 2 October 1999 a board of officers met and recommended that the applicant be discharged with the issuance of a general discharge, and that on 7 November 1999 the Commander, 77th RSC recommended approval of the board proceedings.  This comment by the ADRB is the only evidence indicating that a decision and a recommendation was made by a board of officers, with a subsequent recommendation by the commanding general, 77th RSC.  The involuntary separation board proceedings are not available.

Orders were published by the Army Reserve Personnel Command on                  5 November 2001 discharging the applicant from the Army Reserve effective on 13 November 2000 with an honorable discharge.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Prior to accepting nonjudicial punishment, a Soldier is made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters.

Army Regulation 135-175 provides for the separation of Reserve officers of the Army.  Paragraph 2-12 provides for the involuntary separation of an officer due to moral or professional dereliction, to include acts of personal misconduct.  Officers discharged may be furnished an Honorable or General Discharge Certificate, or an other than honorable conditions discharge.

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 record of the applicant's nonjudicial punishment indicates that the applicant committed larceny.  The Commanding General of Fort Huachuca, in administering that punishment and in issuing the ensuing letter of reprimand, clearly believed that the applicant stole a knife from the Fort Huachuca post exchange.  He so stated in his 7 August 1998 letter of reprimand, with no indication that he considered the incident a prank gone bad.  There is no evidence to support the applicant's argument that the incident was a harmless prank, that unfortunately backfired. The applicant alone makes reference to the incident as a prank, and not larceny.  The Board notes that the applicant did not have to accept the nonjudicial punishment, but could have demanded trial by court-martial where he would have had the opportunity to prove his innocence.

2.  The applicant's contentions of partiality and bias, undue and improper command influence, professional conduct violations, and the like remarks, on the part of board members, are not supported by any evidence in the record or any evidence submitted by the applicant.  His contentions have no basis in fact.  Notwithstanding the applicant's arguments, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.   
  
3.  The Board notes the applicant's record of service as shown by his awards, evaluation reports, and assignments.  The Board also takes cognizance of the numerous expressions of support that he has received.  None of these factors, either individually or in sum, warrant the relief requested. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

__RVO__  __RJO __  __ECP __  DENY APPLICATION

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

INDEX

CASE ID	AR2003087268	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031009	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.030	
2.		
3.		
4.		
5.		
6.