RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2007 DOCKET NUMBER: AR20070006398 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Gerard W. Schwartz Acting Director Mrs. Victoria A. Donaldson Analyst The following members, a quorum, were present: Mr. Bernard P. Ingold Chairperson Mr. Thomas M. Ray Member Mr. Gerald J. Purcell Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. This case is being reconsidered as a result of a Court Order and Memorandum Opinion issued by the United States District Court for the District of Columbia, both dated 27 March 2007, which remanded the applicant's case to the Army Board for Correction of Military Records (ABCMR) for further proceedings. 2. As outlined in the Memorandum Opinion of 27 March 2007, the court determined that the ABCMR did not address the lack of record evidence on the merits. The court further determined that the ABCMR found that the applicant had not made his case due to lack of evidence. However, the applicant's argument that he was unable to obtain records was not a frivolous argument and was important to the applicant's case. The court determined that the ABCMR failed to adequately explain why it did not reach the applicant's argument regarding lack of records, especially because a major basis of the ABCMR's decision was the applicant's failure to submit sufficient evidence to support his claims. The court concluded that it could not determine whether the ABCMR's decision making process was deficient because it could not fully understand what the process was. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2003087268, on 9 October 2003. 2. Records show that the applicant was appointed as a first lieutenant in the Judge Advocate Generals (JAG) Corps on 28 November 1984 and was promoted to the grade of major on 15 December 1992. 3. A military police report, dated 7 August 1998, revealed that on 29 July 1998 an employee of the Fort Huachuca Post Exchange observed the applicant 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. 4. 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 earlier 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. 5. The applicant's academic evaluation report for the period ending on 31 July 1998 shows that he was relieved from the Military Intelligence Officer Advanced Course for misconduct. 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 3 August 1998, shows that a Flag was initiated against the applicant effective 3 August 1998 based on an adverse action. 7. 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 Article 15, found the applicant guilty, and directed that he be reprimanded and that the record of the punishment be placed in his 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 and stated that the reprimand would be filed as an attachment to the record of proceedings under Article 15, UCMJ. 8. In a 12 August 1998 memorandum to the Office of The Judge Advocate General, the Deputy Staff Judge Advocate of the 77th Regional Support Command (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 in 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 was lenient on the punishment. 9. 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, the Commanding General directed that the letter of reprimand be placed in the restricted fiche of his OMPF. 10. 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. 11. The applicant's records contain a Department of the Army, Office of The Judge Advocate General memorandum, dated 21 September 1998, from the Chief, Professional Responsibility Branch. The subject of this memorandum is shown as "Notice of Proposed Revocation of Credentials and Suspension from Practicing Law." This memorandum notified the applicant that based on the 7 August 1998 Article 15 punishment for shoplifting from the post exchange received from the Commanding General, Fort Huachuca, his actions may constitute professional misconduct as defined by Army Rule 8.4(b) and (c) of Army Regulation 27-26 (Rules of Professional Conduct for Lawyers). The applicant was further notified that the matter was to be referred to The Judge Advocate General (TJAG) with the recommendation that he revoke the applicant's Article 27b, UCMJ certification and authority to practice law in the Army. The applicant was advised that he had the opportunity to submit matters on his own behalf for TJAG's consideration. 12. On 24 October 1998, the applicant responded in a two-page memorandum to the Department of the Army, Office of The Judge Advocate General memorandum, dated 21 September 1998. The applicant stated, in effect, that he never intended to take the knife from the premises or unlawfully keep the knife for his own personal use. He continued that the removal of the knife was merely a practical joke and that he understood that his actions were unnecessary and irresponsible. The applicant further stated that "To do this on a military installation, on military time, and in uniform was reckless." The applicant argues that as a senior JAG Officer he should have known better than to act like an adolescent and that he was sincerely contrite for his conduct. 13. The applicant responded that his actions were an aberration and that he had never done anything like that before in his military or civilian life. The applicant requested that based on the fact that he had already been punished and ridiculed, that TJAG not revoke his attorney certification and allow him to withdraw from the Army. 14. On 20 January 1999, the Assistant Judge Advocate General addressed the applicant's response to the Notice of Proposed Revocation of Credentials and Suspension from Practicing Law. The Assistant Judge Advocate General notified the applicant that he had reviewed the matters submitted and the applicant's claim that the knife was taken as a good-natured prank. The Assistant Judge Advocate General continued, that contrary to the applicant's assertions, he found the applicant's actions violated Army Rule 8.4 (b) and (c) of Army Regulation 27-26 in that he received punishment under the provisions of Article 15 of the UCMJ for shoplifting, and as such, his criminal acts reflected adversely on his trustworthiness as a lawyer. The Assistant Judge Advocate General concluded that he was revoking the applicant's Article 27b, UCMJ certification and his authority to practice law before Army courts, and directed that the matter be reported to the state bar and other appropriate officials. 15. A 16 March 1999 memorandum from the Clerk of the Court, United States Army Judiciary, informed the Army Staff Judge Advocate (SJA) that the Assistant Judge Advocate General had taken two actions against the applicant. This memorandum stated that on 20 January 1999, the Assistant Judge Advocate General suspended the applicant from practicing before Army Courts-Martial and the United States Court of Criminal Appeals; and revoked his Article 27b, UCMJ, certification and authority to practice law in the Army. 16. 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). 17. The applicant's records contain a 24 August 1999 memorandum from the applicant's counsel. The applicant's counsel expressed apologies for the non-appearance at the Administrative Separation Board Proceedings of the applicant and stated he was under the impression that the case had been adjourned. The applicant's counsel requested that the President of the Board, the Staff Judge Advocate, recuse himself as President and Legal Advisor to the Board based on the appearance of impropriety and potential conflict of interest. 18. The applicant's records contain a 22 September 1999 memorandum from his counsel to his commander. This memorandum also requested that the President of the Board, the Staff Judge Advocate, be recused from participating in the Administrative Separation Board for the applicant based on his appointment as the Staff Judge Advocate of the 77th Regional Support Command. The applicant's counsel further requested that a new board be appointed and assured that no additional request for adjournment would be made. 19. On 2 October 1999, the Board of Officers found that there was sufficient evidence to support a finding that the applicant committed larceny and recommended that he be discharged from the service with a general under honorable conditions discharge. 20. On 2 November 1999, an Assistant Staff Judge Advocate reviewed the applicant's Administrative Separation Board for Legal Sufficiency. After reviewing the Administrative Separation Board procedure, findings, recommendations, and all attachments, the Assistant Staff Judge Advocate found that the file was legally sufficient. The legal review shows that the separation board convened three times, that the board was appointed by a proper appointing authority, that consisted of officers senior to the applicant and there were two JAG officers included as members of the board. The Assistant Staff Judge Advocate recommended approval of the findings and recommendation of the board and forwarded the administrative separation packet through the United States Army Reserve Command to Headquarters, Department of the Army, for final action. 21. On 4 January 2000, the applicant's counsel demanded that the Commanding General of Headquarters, 77th RSC provide copies of the tapes of the board hearing. Counsel continued that neither he nor the applicant was given the opportunity to respond to the summarized transcript and the recordings in the case because they were never provided to him or the applicant. On 1 February 2000, the applicant's counsel sent a second notice demanding copies of the transcript and the tapes of the proceedings. 22. On 13 January 2000, the applicant was discharged under the provisions of Army Regulation 135-175 for misconduct, moral or professional dereliction. The character of his discharge was general under honorable conditions. 23. On 23 June 2000, the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge. 24. On 4 May 2001, the applicant was notified by the ADRB that his request for upgrade of his discharge was granted. The ADRB voted 3-2 to upgrade his discharge to honorable but unanimously voted not to change his reason for separation. The ADRB did not relieve the applicant of his responsibility for his actions; merely found that the punishment was too harsh given his overall record of service and the act that he had committed. 25. The applicant's records have been amended to show that he was honorably discharged on 13 January 2000. 26. 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. 27. Nonjudicial punishment is different from a trial by court-martial. A nonjudicial punishment hearing is an 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 trial by court-martial where he would receive the protection of the rules of evidence and could argue technical matters. 28. 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 AND CONCLUSIONS: 1. Although the applicant successfully appealed to the ADRB for upgrade of his discharge to show that he was honorably separated, his records clearly show that he was punished for committing the crime of larceny which is unbecoming behavior for an officer serving in the United States Army. Additionally, the ADRB did not relieve the applicant of responsibility for his actions by voting unanimously to not change his reason for discharge for misconduct, moral or professional dereliction. 2. The applicant's counsel demanded that the transcript of the Administrative Separation Board be provided to the applicant for his review. There is no indication that the request was complied with in a timely manner. However, there are no provisions in the procedures for the Administrative Separation Board for rebuttal or response to the findings/recommendation. Additionally, neither the applicant nor his counsel provided any evidence or argument that the lack of these transcripts prevented him from providing sufficient evidence to the ABCMR to justify granting the relief requested in his previous case. It should be noted that the applicant and his counsel are in now in possession of the requested documents but still have not provided a response to the findings. 3. Records show that the proceedings of the Administrative Separation Board were reviewed by an Assistant Staff Judge Advocate and determined to be legally sufficient. There is no evidence in the available records and the applicant has not provided sufficient evidence which shows that Administrative Separation Board violated his rights or that it was conducted contrary to law or regulation. 4. The applicant's separation was conducted in accordance with all policies and procedures and there is no evidence that the applicant's due process rights were violated. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _BPI_____ _GJP___ _TMR___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2003087268, dated 9 October 2003. __Bernard P. Ingold__ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.