MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 JUNE 2003                  
	DOCKET NUMBER:   AR2002077713

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Frank C. Jones II		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:  The applicant requests, in effect, that a September 1999 record of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice, and a September 1999 General Officer Memorandum of Reprimand (GOMOR), be expunged from his Official Military Personnel File (OMPF).  He also requests that he be promoted to captain with a retroactive  date of rank of 1 October 2000 and with entitlement to back pay and allowances.  
The applicant also requested that an October 1999 Officer Evaluation Report (OER) be expunged from his OMPF.  However, there was no indication the applicant had appealed the evaluation report under the provisions of Army Regulation 623-105.  As such, the applicant has been advised that he needs to exhaust administrative remedies available to him prior to having the Board address that issue.  In view of the foregoing, that portion of his request pertaining to his OER will not be addressed by the Board in these proceedings.

APPLICANT STATES:  He was accused of removing a price tag from one shirt that was priced at $45.00 and replacing it with the price tag from another shirt that was priced at $26.00.  As a result of the accusation he was punished under Article 15 of the Uniform Code of Military Justice for “wrongfully and dishonorably” stealing a shirt from the Army and Air Force Exchange Service (AAFES) at Fort Lewis, Washington and “conduct unbecoming an officer and a gentleman.”  His punishment included a written reprimand and forfeiture of $250.00 pay per month for two months.

Although the applicant stated that there was “insufficient evidence presented at the Article 15 hearing to find [him] guilty beyond a reasonable doubt,” the applicant indicated that he “elected to use the Article 15 as a means of resolving” the issue, based on the “instructions and guidance” given to him by his two legal advisors.  He stated that his legal counsel assured him that “this type of thing happens all the time with people and AAFES.”  The applicant maintains that he was not provided adequate counsel because his legal advisor was involved in “a large number of Court Martials(sic)” and that he (the advisor) had numerous medical appointments because of a broken leg.  He states that he “might have chosen a different option had [he] received a better explanation of the Article 15 process.”

The applicant states that during the NJP proceedings, the imposing general officer questioned the process by which an individual could remove and switch price tags, and then had an AAFES security employee demonstrate that it could be done.  The applicant maintains, in effect, that just because the task could be accomplished it did not “prove that [he] had committed the offense [he] was being charged with.”  He states that the AAFES employee statement was “ambiguous and contained conflicting information surrounding [his] case.”

He states that his unit commander had related to him that she had been to the Main Post Exchange on “multiple occasions and encountered identical items with different price tags” and yet she was not “allowed to fully present her testimony at the Article 15 hearing.”  He states that when he questioned her privately she “indicated that she wanted to but she was not allowed” and then did not elaborate on the issue.

The applicant also states that in preparation for his Article 15 hearing, he had photographs taken by his attorney, which “clearly” disproved the AAFES employee’s statement that he witnessed him (the applicant) removing and replacing the price tags.  He stated that it would have “been impossible to observe some [one] in the dressing room from where [the AAFES employee] indicated he was standing” at the time he said he witnessed the incident.

The applicant states that he raised all of these issues in his appeal of the NJP action but his appeal through the imposing general officer to FORSCOM (Forces Command) was denied.

The applicant also states that as a result of the NJP, an administrative elimination action was initiated by the PERSCOM (United States Total Army Personnel Command).  During an interview with the Commanding General of I Corps and Fort Lewis, regarding the elimination action, the applicant states he was asked why he accepted an Article 15 if he was innocent.  He related that he was instructed to do so by his attorney and that his “signing of the Article 15 was not an admission of guilt.”  He notes that his attorney was also given the opportunity to explain “her reasons for the advice she had given.”  When asked if he had committed the offense the applicant “clearly and boldly told” the questioning general officer, “NO, I did not steal anything from AAFES.”  The applicant stated that following the interview the Commanding General stated that he had been told by the applicant’s commander that he was a “hard worker” and that he had “not let this situation change [his] work ethic” and that he was a “good soldier who deserves a chance to excel.”  The Commanding General then indicated that he would recommend that the applicant be retained on active duty.

Ultimately, the applicant maintains that the NJP action should be reversed because the imposing general officer “failed to prove beyond reasonable doubt that [he] committed the offense” and that “evidence adduced at the hearing did not fully demonstrate that [he] committed the act of switching price tags” and that the imposing officer “made his decision based on insufficient evidence.”

The applicant also notes, in effect, that his original promotion sequence number for promotion to captain was 3994, which would have provided for his promotion to captain effective 1 October 2000 had it not been for the NJP.  With the expunction of the NJP he maintains his promotion should be retroactive.

In support of his request, the applicant submits documents associated with his NJP action, the memorandum of reprimand, and his appeal of the NJP action.  He also submits copies of documents associated with his administration separation action, a current performance evaluation report, and a current award recommendation.

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

He entered active duty as an enlisted soldier in August 1988.  The applicant was 19 years old at the time of his enlistment.  He was trained, and assigned duties, as a finance specialist.  Although his enlisted separation report was not available to the Board, information contained in his OMPF indicates he served on active duty as an enlisted soldier for approximately 85 months and was discharged in 1995.  During his enlisted service he received successful performance evaluation reports and was awarded several Army Achievement Medals.

The applicant received a degree in criminal justice in 1996.  On 1 March 1997 he was appointed as a United States Army Reserve Officer and subsequently ordered to active duty.  He was 27 years old at the time.  He successfully completed the Military Intelligence Officer Basic Course in July 1997 and was then assigned to Fort Lewis, Washington.

Performance evaluation reports, rendered on the applicant between October 1997 and May 1999 indicate the applicant was consistently rated as “best qualified” by his senior raters.  He was promoted to the rank of first lieutenant in September 1998.

According to documents contained on the restricted portion of the applicant’s OMPF, the applicant was detained on 31 July 1999 after an AAFES security employee witnessed the applicant exchange price tags on two shirts while in a dressing room, pay for the shirt at the reduced amount, and then exit the store.  The AAFES security employee rendered a written statement recounting what he saw.  A military policeman, who escorted the applicant to the military police station, indicated in his account that store videotapes were also taken into evidence.  The record, however, contains no further comments regarding what was on the videotapes.  The applicant was read his rights and then requested an attorney.

On 2 September 1999, during an open hearing with the Acting Commanding General of I Corps and Fort Lewis, the applicant indicated that he did not demand trial by court-martial.  He also asked to have a person speak on his behalf and indicated that he would present “matters in defense, mitigation, and/or extenuation” in person and as attachments.

Included with information presented during the NJP hearing were the photographs referred to by the applicant in his appeal to the Board in which he tried to recreate the situation in the dressing room on the day he was detained for switching the price tags.  A statement from an enlisted soldier, authenticated on 
1 September 1999, indicated that he (the enlisted soldier) was present when the photographs were taken and that he “could not see the tag in [the applicant’s] lap until [he] put [his] head on the floor….”

Nonetheless, the imposing general officer noted that after considering “all matters in defense, mitigation, and/or extenuation” presented during the open hearing, he was imposing punishment under Article 15 of the Uniform Code of Military Justice which included forfeiture of $250.00 per month for two months and a written reprimand.  He directed that the NJP action be filed in the applicant’s OMPF.

The applicant appealed the action via his legal representative.  In the appeal the applicant’s attorney indicated that a statement rendered by a military police officer after the NJP hearing contradicted information contained in the statement from the AAFES security employee.  The military police officer related in his statement that the AAFES security employee told him that he “did not actually see [the applicant] switch the price tag, or even touch the tag.”  The attorney also noted that during the demonstration by the AAFES security employee at the NJP hearing that it was possible to switch price tags, the AAFES employee “struggled for more than a minute trying to remove a tag….”  He noted that the AAFES employee aspired to a future career in law enforcement and that his “apparent eagerness for arrests is significant to this proceeding….”  He maintained that apprehension by AAFES security is not a determination of guilt, that the AAFES security employee may have been trying to save face, and that “incorrectly tagged items are not uncommon at AAFES.”  The attorney stated that because of a holiday weekend the applicant had a limited amount of time to prepare his appeal, that the evidence presented in support of the government’s case was sparse, and that documents obtained under the Freedom of Information Act, including the AAFES videotapes, would support the applicant’s position.  He also stated that the applicant lacked a motive to commit the offense as charged, that he had been a stellar soldier with 11 years of service, that he was an ordained minister, and that he had spent numerous hours as a mentor, counselor, pastor and friend to fellow members of his unit.  Several character statements were submitted in support of the applicant’s appeal.

After considering “all matters presented in appeal” the Deputy Commanding General of FORSCOM denied the applicant’s appeal.

Although the applicant’s OMPF does not contain all the documents associated with the applicant’s removal from the FY (Fiscal Year) 99 captain promotion selection list, a 23 February 2000 memorandum initiated by the applicant requested that his name not be removed from the promotion list.  In his request the applicant indicated that he had been recommended for promotion to captain by a promotion selection board, which recessed on 23 June 1999.  He stated that removing his name from the promotion list would “be an unfair and additional punishment” and stated that he did “not commit the crime in which [he] was administratively disciplined….”  He stated he was “battling to clear” his name and that “without a doubt [he] was one of the best officers the United States Army has.”  He noted in his request that during the NJP hearing his unit commander presented information that she “noticed identical fish bowls at AAFES marked with two different prices” and that former AAFES employees stated that “mispriced items of the same nature are common occurrences.”  He stated that although “questions regarding the completeness and accuracy of the investigation remained” unjust punishment was imposed.  He indicated that there were several ongoing formal investigations concerning the matter, including a congressional and equal opportunity investigation.

A board of officers convened on 13 March 2000 and recommended the applicant’s name be removed from the promotion list.  The Army’s Deputy Chief of Staff for Personnel, the Army’s Vice Chief of Staff and Chief of Staff all recommended removal.  On 28 September 2000, the Secretary of The Army, “acting on behalf of the President” directed that the applicant’s name be removed from the FY99 captain promotion selection list.

On 20 November 2000 the applicant’s records were “flagged” under the provisions of Army Regulation 600-8-2, which suspended all favorable personnel actions.  The suspension resulted from the initiation by the Commander, PERSCOM, to have the applicant “show cause for retention on active duty…because of misconduct, moral or professional dereliction.”  In his request to remain on active duty the applicant again stated that he “did not commit the crime in which [he] was administratively disciplined” and that “further elimination proceedings would only destroy the one thing” that he had worked so hard for “to be an officer.”  He stated that the Article 15 has tainted his military career and that because he chose not to share the details of his NJP “people draw their own conclusion as to what happened.”  He submitted several statements from individuals who supported his retention on active duty.

Although the applicant’s garrison commander recommended the applicant be discharged with a general discharge, the Commanding General of I Corps and Fort Lewis, ultimately recommended the applicant be retained.  On 22 March 2001 the Deputy Assistant Secretary (Army Review Boards) retained the applicant on active duty.

Army Regulation 27-10, which establishes the policies and provisions pertaining to the administration of military justice, states, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.  Article 15 proceedings are not adversarial in nature and the commander is not bound by the formal rules of evidence before courts-martial.  As an example, the formal rules of evidence before a court-martial preclude certain hearsay testimony, whereas a commander imposing nonjudicial punishment, may consider any matter, including unsworn statements that he reasonably believes to be relevant to the offense in question.

The regulation notes, in effect, that prior to imposing nonjudicial punishment the imposing commander should investigate the matter promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether an offense was committed, whether the soldier was involved, and the character and military record of the soldier.  Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports.  If, after the preliminary inquiry, the commander determines, “based on the evidence currently available, that the soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate” he should take action as set forth in the regulation.  Included in those actions is the soldier’s right to demand a trial.  The demand for trial may be made at any time prior to imposition of punishment.  

However, the regulation also states that a commander should not impose punishment unless he is convinced “beyond a reasonable doubt” that the soldier committed the offense.

Black’s Law Dictionary defines “beyond a reasonable doubt” as, “fully satisfied, entirely convinced, satisfied to a moral certainty….”  Reasonable doubt is defined as, “such a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”

Army Regulation 27-10 also establishes the policies and provisions whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual.  The basis for any set aside action is a determination that, under all the circumstances of the case the punishment has resulted in a clear injustice.  “Clear injustice” means that there exists an “unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier.”  An example of “clear injustice” would be the discovery of new evidence “unquestionably exculpating” the soldier.

Webster’s II New Riverside University Dictionary defines “unquestionably” as, “not open to doubt or dispute” and “exculpating” as, “to clear of blame.”

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 Board notes the contentions of the applicant and his counsel.  However, the NJP action was conducted in accordance with applicable laws and regulations with no evidence of procedural errors which would tend to jeopardize his rights.  

2.  The fact that the applicant was retained is irrelevant and does not presuppose a finding that the applicant did not commit the offense for which he received nonjudicial punishment.  The Board concludes that there is no evidence of any “unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier” and as such, no basis to wholly set aside or expunge the NJP action.

3.  In spite of the applicant’s contention that there was insufficient evidence presented at the Article 15 hearing to find him guilty beyond a reasonable doubt, he has presented no evidence, which was not already available to the commander who imposed the NJP.  While he continues to deny that he switched the price tags, that same argument has been heard and reviewed by numerous members of the applicant’s chain of command, including the Secretary of The Army, and his argument failed to persuade any of the reviewing officials.  This Board is also not persuaded by the applicant’s argument.  As noted in Black’s Law Dictionary, beyond a reasonable doubt is defined as “fully satisfied, entirely convinced, satisfied to a moral certainty….”  The Board concludes that the evidence which was available to the applicant’s commander, who was free to consider any matter he reasonably believed to be relevant, was sufficient to satisfy and convince him that the applicant was guilty of the offense in question.

4.  In particular, the Board notes that the applicant argued that his unit commander was not permitted to present her information regarding her experience with the discrepancies in price tags on AAFES products and yet in his appeal to be retained on the captain promotion selection list he stated that his unit commander’s testimony during the NJP hearing was merely dismissed by the imposing general officer.  While the applicant maintains his innocence, the Board notes that no one in the applicant’s chain of command has provided any statements which have persuaded the Board that he was wrongly accused.

5.  The Board also notes that the applicant could have demanded a trial but instead chose to have the matter settled with nonjudicial punishment.  His argument that he elected to accept the NJP action solely because of the misguided suggestions of his legal counsel is without foundation.  The applicant had approximately 7 years of service as an enlisted solider, had progressed to the rank of sergeant, and was a finance clerk, a college graduate, and a military intelligence officer.  Clearly the applicant is an intelligent individual who would have been more than familiar with the ramifications of a NJP action on the career of a soldier.  The applicant decided to waive his right to demand trial by court-martial, and permitted the commanding general to determine his guilt or innocence.  He should not now be able to avoid the ramifications of his original decision to forego a court-martial simply because the NJP action continues to interfere with his military progression or that he was successful in his quest to be retained on active duty.

6.  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.

7.  Because the Board finds no basis to expunge the NJP action, the Board also finds no basis to expunge the GOMOR or to promote the applicant retroactively to October 2000 with entitlement to pay and allowances.

8.  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

__MKP__  __REB __  __FCJ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002077713	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030624	
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.	126.00	
2.	131.00	
3.		
4.		
5.		
6.