RECORD OF PROCEEDINGS


      IN THE CASE OF:      .


      BOARD DATE:           30 March 2004
      DOCKET NUMBER:   AR2003091524


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Mr. Larry C. Bergquist            |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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.  The applicant requests reconsideration of the denial of his request to
correct his records by: removing his noncommissioned officer evaluation
report (NCOER) for the period July 1997 through August 1998; setting aside
and removing from his records his 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;
being provided a complete retirement physical examination; and being
provided an American Flag and any other relief deemed appropriate.  He also
asks that the Board review the evidence of record and determine for itself
whether his command proved that he was guilty of the charges preferred
against him beyond a reasonable doubt and whether he was denied due
process.

2.  The applicant states that the Ninth Circuit Court of Appeals has now
ruled in his case.  He continues that he was coerced into accepting NJP;
that NJP was later set aside, and then re-imposed and then was improperly
used to justify a bar to reenlistment 15 days prior to the expiration of
his term of service (ETS), which forced him to retire for years of service;
during the investigation, Criminal Investigation Division (CID) agents
deprived him of due process by the agent’s obstruction of justice, illegal
seizure of personal property, and improper command influence; improper
command influence denied him of a fair and impartial Article 32 hearing and
investigation; illegal subpoenas were used to obtain financial records from
several financial institutions; and that the bar to reenlistment imposed on
him was improperly used instead of trial by court-martial.  The applicant
then chronicles his perception of the events which transpired in his case,
and how the specifics of those events support his many contentions of error
and injustice.  In a supplemental request for reconsideration, the
applicant adds the argument that his NJP was in violation of the Uniformed
Code of Military Justice (UCMJ) because the charges were preferred on
28 August 1998, which was after the two-year statute of limitations for the
offenses which were alleged to have occurred in January and December of
1997 (with the exception of one charge which alleged he stole property
between October 1994 and 6 December 1997).

3.  The applicant provides 150 numbered exhibits in support of his request,
which consist of a receipt, sworn statements and an interview (1-9);
Criminal Investigation Division technical documents, including
fingerprints, crime lab results, and imaging reports (10-19); CID
investigation documents, including a subpoena to the applicant’s financial
institution, an Article 32 investigation, and other correspondence
pertaining to the applicant’s financial worth (20-36); record of
proceedings under Article 15, UCMJ (37-38); e-mails, charge sheet,
investigation appointment orders, memorandum for record, and bar to
reenlistment complete with his appeal to that bar (39-48); correspondence
pertaining to the bar to reenlistment (49-70); documents pertaining to the
applicant’s attempts to be retained on active duty by challenging his
suspension of favorable personnel actions and bar to reenlistment,
documents pertaining to his retirement, and the brief made to the United
States Court of Appeals (71-82); and orders and allied documents pertaining
to his retirement, documents pertaining to his appeal to his bar to
reenlistment, the United States Court of Appeals order, evidence used in
the proceedings against the applicant including a subpoena, letters to his
lending institutions, property receipts, court-martial charge sheet,
documents pertaining to his Article 32 investigation, documents pertaining
to his bar to reenlistment appeal, documents pertaining to his request to
be retained on active duty, request for leave, NCOER appeal, appeal to this
Board, and this Board’s denial of his appeal (83-150).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous two considerations of the applicant's case by
the Army Board for Correction of Military Records (ABCMR) in Dockets Number
AR2002069123, on 25 July 2002, and AR2002077730, on 30 January 2003.

2.  On 12 March 1998, an individual who worked for the Post Exchange Loss
Prevention Department made a sworn statement.  In that statement, she said
that the applicant started being monitored while in the Post Exchange
because he chronically exchanged merchandise purchased at the exchange.
She continues that they watched the applicant on closed circuit television
and saw that he would place items in a cart and would then go to an area
which wasn’t covered by the cameras.  The applicant would then leave the
cart and all the items he had placed in the cart and leave the exchange.
In both cases where he was monitored, an immediate search revealed empty
boxes which had contained a miniature portable television and computer
software.

3.  A CID Report of Investigation (ROI), dated 27 March 1998, summarized
that the “Investigation established probable cause to believe [the
applicant] conspired with [his wife] and stole in excess of $27,300.00
worth of merchandise from various Army and Air force Exchange Service and
Navy Exchanges.”  In the investigation, it was determined that the Post
Exchange tracked purchases over $250.00, and that the applicant and his
wife had only made two purchases which qualified to be tracked during the
preceding 90 days.  After obtaining a search warrant, the CID found a
closet which contained 6 boxes which were taped closed.
4.  Those boxes contained 56 Sony Play Station games, five Nintendo 64
games, two Minolta “Vectis 25” cameras, one Cannon “Elph 4902” Advanced
Photo System camera, one Itel Pentium Overdrive Processor with MMX
Technology, one Internal Data/Fax Modem, one Microsoft Office 97 Upgrade,
five Iomega “Jaz” IGB discs, three Kenwood portable compact disc players,
one Pentax IQ Zoom 80-E camera, one Panasonic portable compact disc player,
one RCA VHS-C camcorder with LCD display, one Cannon EOS Rebel K IDE series
controller, one Visioneer Paper Port Strobe, one Omega SCSI PCI card, one
Omega Personal hard drive, one AI TECH television and radio cord, one AI
TECH PC/TV-1108 Scan Converter, one Page Brush True Color Scanner, one US
Robotics 28.8 fax modem with personal voice mail, three Casio portable
televisions, eleven JVC Mini Digital video cassettes, two JVC Digital Video
Cameras, two Sega Genesis games, three Omega 16B disks, one Nintendo
Gameboy game, one PNY Memory Master 16 MB upgrade, and one Pioneer
audio/video stereo receiver.

5.  Similar items in similar quantities were also found in each of the
following rooms:  the downstairs living room, the upstairs master bedroom,
the spare bedroom, and the computer room.  Most of these items had Army and
Air Force Exchange Service price tags attached.

6.  The CID interviewed the applicant’s former wife (they were divorced).
She said that, to her knowledge, the applicant had never shoplifted.
However, she stated that he owed her around $16,000.00 in back child
support payments.

7.  On 24 June 1998, a subpoena was issued for the applicant’s bank account
information from 1 January 1997.

8.  On 16 July 1998, an Article 32 investigation was completed, which
recommended trial by general court-martial for 42 specifications of
violations of the UCMJ.  This included returning shoplifted items for cash
refunds using forged receipts.

9.  On 26 July 1998, the applicant signed a memorandum of agreement for
alternative disposition of charges.  In that memorandum, he agreed to
accept NJP and submit an immediate request to retire for years of service.
In exchange, the applicant’s commander agreed to withdraw the court-martial
charges against him and return specified items which had been seized from
his quarters.

10.  The United States Court of Appeals for the Ninth Circuit, in response
to a suit filed by the applicant against his financial institution for
releasing his financial records in violation of the Right to Financial
Privacy Act (RFPA), reversed a District Court’s decision that the financial
records were released properly.  The United States Court of Appeals for the
Ninth Circuit ruled that the Government did not have the authority to issue
a subpoena in the process of an Article 32 investigation, which is a
preliminary investigation to determine whether court-martial charges should
be preferred against a soldier.

11.  Army Regulation 27-10, Military Justice, paragraph 3-12, statute of
limitations, states that NJP may not be imposed for offenses which were
committed more than two years before the date of imposition.  This
regulation provides that NJP is appropriate in all cases involving minor
offenses in which non-punitive 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 rules of evidence before courts-martial and may
consider any matter, including unsworn statements the commander reasonably
believed 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.

12.  Army Regulation 15-185 sets forth the procedures for processing
requests to correct military records.  Paragraph 2-15b provides specific
guidance to be applied in cases involving requests for reconsideration that
are received more than 1 year after the Board’s original consideration or
after the Board has already reconsidered the case.  In such cases, the
staff of the Board will review the request to determine if substantial
relevant evidence has been submitted that shows fraud, mistake of law,
mathematical miscalculation, manifest error, or if there exists substantial
relevant new evidence discovered contemporaneously with or within a short
time after the Board’s original decision.  If the staff finds such
evidence, the case will be resubmitted to the Board.  If no such evidence
is found, the application will be returned to the applicant without action.


13.  If a request for a reconsideration is received within one year of the
prior consideration and the case has not been previously reconsidered, it
will be resubmitted to the Board if there is evidence (including but not
limited to any facts or arguments as to why relief should be granted) that
was not in the record at the time of the Board’s prior consideration.  The
staff of the Board is authorized to determine whether or not any such
matters have been submitted.

DISCUSSION AND CONCLUSIONS:

1.  The Board has already reconsidered the applicant’s request for removing
his noncommissioned officer evaluation report (NCOER) for the period July
1997 through August 1998.  He has not submitted any evidence which shows
fraud, mistake of law, mathematical miscalculation, manifest error; nor did
he submit any substantial relevant new evidence discovered
contemporaneously with or within a short time after the Board’s original
decision.  As such, this issue will not be further considered.

2.  The Board has already determined in its 25 July 2002 review of this
case that there was no error or injustice in the imposition of the
applicant’s NJP and MOR.  While the applicant has outlined his recollection
of the incidents which transpired in his case and uses this chronology to
support his contention that the actions taken against him were in
contravention of Army regulations and the UCMJ, he did not submit any new
evidence or argument which would overcome the Board’s previous conclusion
that there were no errors or injustices in his case.

3.  However, the fact that the United States Court of Appeals for the Ninth
Circuit ruled that there was no legal basis for the Army to issue subpoena
for the applicant’s financial records must be carefully considered.  In
this consideration, the evidence compiled against the applicant prior to
the subpoena was reviewed.  This evidence, compiled from statements from
personnel working at the Post Exchange and the evidence collected from the
applicant’s quarters, was so overwhelming that there is no doubt that there
was sufficient evidence in which to prefer court-martial charges against
the applicant without the financial records gleaned from the subpoena.  As
such, the fact that the subpoena was erroneously issued does not create any
error or injustice on any of the issues raised by the applicant.  In other
words, an error occurred, but it did not prejudice the substantial rights
of the applicant.

4.  The applicant’s contention that the charges on his NJP were beyond the
specified statute of limitation is not supported by the evidence of record.


5.  The applicant’s request that the Board review the evidence of record
and determine for itself whether his command proved that he was guilty of
the charges preferred against him beyond a reasonable doubt and whether he
was denied due process must also be addressed.  In this regard, it must be
remembered that the commander imposing NJP is not bound by the formal rules
of evidence before courts-martial and may consider any matter.  The
question is whether a reasonable person could be convinced of the
applicant’s guilt beyond a reasonable doubt on the basis of the evidence
properly before him or her.  This question was addressed in an earlier
conclusion and need not be reiterated.  As for due process, that issue was
considered by the first Board which considered his request, and therefore
is exempt from being revisited.

6.  Also taken into consideration is the applicant’s rank, sergeant major,
and his almost 29 years of active Federal service.  It must be presumed
that a soldier of the applicant’s rank and years of service consciously,
after consulting with legal counsel, made the decision to accept NJP and to
submit his retirement instead of demanding trial by court-martial.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mm__  ____alr__  ___lcb ___  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 Dockets Number AR2002069123, on 25 July 2002, and
AR2002077730, on 30 January 2003.




            ________Melvin H. Meyer______________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091524                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040330                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |