UPDATE 07-18-11 BCMR STORY

 

 

Major Court Decision Rules Against BCMR’S

 

by Edwin Crosby III

 

On JULY 13, 2011, the United States District Court for the District of Columbia ruled that the military BCMR’S ( Board For Correction of Military Records ) were arbitrary and capricious, committed an abuse of discretion, and violated matters of law.


 

Wilhelmus v. Geren, Civil Action No: 09-662, 2011 U.S. Dist. LEXIS 75020

 

 

U.S. Federal Judge James E. Boasberg in his Memorandum Opinion under “ B “ PRECEDENT, stated; “Defendant ( ARMY BCMR ) first responds that the ABCMR is not bound by precedent because it is a board of equity. Defendant has not cited a single case in support of this novel legal argument “. Moreover, “ it is axiomatic that an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so “. KREISS III, 406 F.3d at 687

Again quoting Judge Boasberg; “ Even if the ABCMR is not required to distinguish every similar prior decision, the need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific prior decision as very similar to his own situation. In such cases, the Board may not simply ignore such precedent for the sake of expediency “.

Late last year, this writer posted up two (2) stories on VETERANSTODAY, one, “ BCMR’S Seriously Failing Their Mandate to Veterans “, and the other, “ Report says BCMR’S Flying Blind, No Pilot “. Thanks to this latest Court Decision, WILHELMUS v. GEREN, this writer was spot on the mark with FAILURE TO FOLLOW LEGAL PRECEDENT. The legal term, “ stare decisis “ means to stand by and adhere to decisions and not disturb what is settled. In CASEY v. U.S. 8 Fed. Cl.Ct. 234 (1985) Judge YOCK ordered that veterans with a BAD SPN, SDN, or SPD code, should have had a DUE PROCESS HEARING before Discharge.

ALL veterans who submitted a claim with the military BOARDS from 1986 to NOW, if you had a BAD CODE and were not told, you can have your case placed back before the BOARD for reconsideration based upon “ ARBITRARY AND CAPRICIOUS, ABUSE OF DISCRETION, and INJUSTICE “. While acknowledging the existence of a prior case, the BCMR here entirely failed to distinguish it or to justify why the outcome in this case was different.

Since everything has been turned into an adversarial matter when it comes to veterans requesting justice for errors against their person, whether V.A. or correction of military records, veterans must now be made aware of LEGAL DECISIONS that effect how they proceed with their claims. Finding knowledge in the law is not a sin, it is however, beneficial to winning a claim submitted by the veteran, and having brother veterans like this writer ( Edwin Crosby ) who gather data to help vets with claims of INJUSTICE against their person is why we stick together helping one another.

For the BCMR stories, as well as, the WILHELMUS court decision go to: veterancourtcodes.com and look under the word PAGES on the right side of the site. APFN.org calls this site the best vets site on the internet.

FOR THE RECORD brother and sister veterans, there should be hundreds of millions of dollars there to pay for the injustice committed against American Veterans for branding them with a number without Due Process of Law. If the money is not there, then what happened to said monies ? This issue is for this writer something that veterans websites like VeteransToday should be investigating, i.e. where are the funds for pay BCMR claims from the CASEY case. In my opinion, monies spent investigating this sordid matter by websites who can step up to the plate would go far in helping veterans retrieve their LIBERTY RIGHTS lost to them in secrecy and abuse of discretion. In need of help or direction on how to proceed, contact veteran Crosby at; This email address is being protected from spambots. You need JavaScript enabled to view it. .

U.S. Federal Court Order 2, 1986, SPN CODES

 

 

Download document here.

SPN Codes

 

These are the codes, numerical & alphabetical, placed upon ALL veterans DD-214′s, of which, there are 8 or more copies made.

 

Numeric SPN codes found on DD-214 of those discharged before 1975

 

SPD CODES found on DD-214 of those discharged AFTER 1975

 

NEW SPD CODE LISTING

SOCIAL SECURITY BENEFIT FOR VETERANS ( Retirement )

 

 

View document here.

Question 7, SPN/SPD Code Info

 

 

 View document here.

 

Procedural Due Process

The phrase “procedural due process” refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life, liberty, or property. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. In cases where an individual has claimed a violation of due process rights, courts must determine whether a citizen is being deprived of “life, liberty, or property,” and what procedural protections are “due” to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These protections give a person a number of rights and freedoms in criminal proceedings, including freedom from unreasonable searches and seizures; freedom from Double Jeopardy, or being tried more than once for the same crime; freedom from Self-Incrimination, or testifying against oneself; the right to a speedy and public trial by an impartial jury; the right to be told of the crime being charged; the right to cross-examine witnesses; the right to be represented by an attorney; freedom from Cruel and Unusual Punishment; and the right to demand that the state prove any charges Beyond a Reasonable Doubt. In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. In one such case, gideon v. wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment right to have an attorney in “all criminal prosecutions,” including prosecutions by a state. The case proved to be a watershed in establishing indigents’ rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as opposed to criminal, sphere. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal government must hold hearings before terminating Welfare benefits (Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding procedural due process have exerted a great deal of influence over government procedures in prisons, schools, Social Security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct. 1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division of Labor & Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor. The sub-contractor, G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had violated the company’s procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.

Further readings

Cassel, Douglass W., Jr. 2003. “Detention Without Due Process.” Chicago Daily Law Bulletin 149 (March 13).

Israel, Jerold H. 2001. “Free-Standing Due Process and Criminal Procedure: the Supreme Court’s Search for Interpretive Guidelines.” Saint Louis University Law Journal 45 (spring).

Pennock, J. Roland, and John W. Chapman. 1977. Due Process. New York: New York University Press.

Cross-references

Criminal Procedure; Incorporation Doctrine; Judicial Review; Labor Law; Right to Counsel.

West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Plaintiff’s Exhibits 5, 6, 7, and 8

 

 

Plaintiff’s Exhibit 5, 6, 7, and 8

Exhibit 5:

Plaintiff’s Exhibit 5 “Day of Infamy”

Exhibit 6:

Plaintiff's Exhibit 6

Exhibit 7:

This is another Exhibit submitted to the Court proving the existence of SPN codes.

Exhibit 8:

Plaintiff’s Exhibit 8

Plaintiff’s Exhibits 1, 2, 3, and 4

 

 

Plaintiff’s Exhibit 2:

This is the original document from 1956, Plaintiff’s Exhibit No: 2.

Plaintiff’s Exhibit 3:

Plaintiff’s Exhibit 3

Plaintiff’s Exhibit 4:

Plaintiff’s Exhibit 4

Pg. 199, U.S. Sup. Ct. REPORTER

 

 

View document here.

Newspaper story SPN CODES April 1976

 

 

View document here.

NEW – Veterans Law Library

 

 

Check out the new veterans law library here.

Misprision of Felony

 

 

TITLE 18 > PART I > CHAPTER 1 > § 4

§ 4. Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

source ” http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000004—-000-.htm

NOVEMBER29,2010

 

 

 

UNITED STATES AIR FORCE

SECRETARY OF THE U.S. AIR FORCE

HON. MICHAEL B. DONLEY

1690AIR FORCE PENTAGON

WASHINGTON,D.C.20330-1670

 

 

 

 

 

 

RE:BCMR RESOLUTION

 

 

 

MR. SECRETARY,

 

 

Some years ago, the undersigned, Edwin H. Crosby III,took litigation to the U.S. Supreme Court regarding a “ false & stigmatising coded number placed upon my person “.Called a SPN, or, SDN code.In court in 1978 the U.S. Attorney and a U.S.A.F. Col. Bruinooge testified to U.S. Federal Judge Edmund Port that Mr. Crosby should have received SDN-46A, Unsuitability, Apathy.Fact of the matter Mr. Secretary, a REPORT from the Comptroller General dated AUGUST 11, 1972, old REPORT NO:B164031(2), NEW Report NO:094041, tells us the USAF was using SDN-46A to discharge soldiers for DRUG ABUSE.The U.S. Attorney and Col. Bruinooge committed FRAUD UPON THE COURT, and perjured themselves.

 

In 1999, veteran Crosby submitted a CLAIM to the U.S. Air Force Board For Correction of Military Records.There was “ legal precedent “from a court case at the U.S. Federal Claims Court,CASEYv.U.S.8 Cl.Ct. 234 (1985) .Judge YOCK ruled that a veteran with a “ stigma “ discharge involving a BAD reason for discharge, was in fact entitled to a Due Process of Law Hearing.Of course,upon discharge,Veteran Crosby was given NO DUE PROCESS Hearing, nor any notice of such a false and stigmatizing coded number being placed upon his DD-214.

 

Attached to this resolution request,please locate a letter from the Department of The Army, dated September 10, 2010, and addressed to U.S. Senator Richard Lugar.I call your attention to QUESTION 2.TITLE 10 U.S.C. Section 1552 gives you the authority Mr. Secretary to correct a military record, correct an error or remove an injustice.Moreover, you can authorise records to reflect the completion of period of service, which would result in payment of back pay and allowances.

 

Mr. Secretary, members of the U.S.A.F. have committed serious crimes involving this case/claim.A 536 page legal transcript in the Court of Veterans Appeals has been spoliated; Fraud Upon the Court and perjury committed; obstructing governmental administration; etc.It is quite possible with interest due,Veteran Crosby could be due many hundreds of thousands of dollars, or even millions of dollars.I wonder what kind of person would want this all aired in a Federal Court Room, when better heads can come to a reasonable negotiated settlement.

 

When this case would be filed in Federal Claims Court, all the criminal acts would be mentioned, what excuse can be given for failure to follow res judicata( an issue that has been definitively settled by judicial decision ) by your legal department ??

 

Veteran Crosby who re-enlisted in Vietnam, was discharged for failing to get down on his hands and knees and MOW an acre of grass with a pair of HAND CLIPPERS.In the least, we should be discussing the proper corrections of records, deprivation of civil rights, deprivation of UCMJ Rights, fulfilment of Due Process Rights, proper compensation for the duration of contracted duty, loss of re-enlistment opportunities and promotions, defamation of character, loss of civilian opportunities and earnings, USAF malicious intent, and damages.Through settlement discussion without a filed court complaint, we can save the taxpayers some money, preserve the image of the USAF, and settle these matters via a non-contentious manner- out of court.

 

Mr. Secretary,under the law,Title 10 U.S.C. Section 1552 YOU have the authority to settle this matter.In good faith,this resolution is submitted to you hoping to prevent the airing of dirty laundry in public.It is hereby requested Mr. Secretary that you respond to this resolution, whereupon, Veteran Crosby who has USAF stipulation that they gave veteran Crosby a false & stigmatising coded number, then failed to HONOR JUDGE YOCK’S decision in CASEYv.U.S.Mr. Secretary, please read the attached AUGUST 22, 2008, MOTION, CLEAR & UNMISTAKABLE ERROR submitted to YOUR BCMR.Once again, they make NO mention of the CASEYv. U.S. decision or a Due Process Hearing, or, correction of records as mentioned in the US ARMY response to Question 2.

 

Question 3 from the U.S. Army letter dated 09-10-2010 mentions destroying or altering a relevant document.Would you produce a copy of the letter in which USAF Personnel notified Justice Department Officials of SPOLIATION of a legal transcript submitted to “ any Federal Court Clerk “ ?That would be appreciated.

 

It is my belief Mr. Secretary that upon reading this missive, and reading both the U.S. Army letter of 09-10-2010 and the AUGUST 22, 2008, claim to USAF BCMR,that we can come to negotiated settlement without airing this matter in Federal Court.You clearly realize Mr. Secretary, this matter should have been settled years ago, in an Honorable manner.

 

This decorated combat veteran who was about to return to Vietnam for a 3rd tour, but ran into a group of anti-Vietnam Veterans who never served in combat.Veteran Crosby served his country with Honor, and should never have been stabbed in the back with a false and stigmatising coded number.I await your reply as to whether or not it’s the courtroom,or we can settle this matter in an Honorable fashion via negotiations.You have the legal authority to do this.

 

Lastly, this resolution represents NO threat whatsoever.Makes NO blackmail attempt or extortion from the U.S. Air Force.It is merely an attempt to resolve a CLEAR & UNMISTAKABLE ERROR on part of U.S. Air Force Board For Correction of Military Records failing to follow res judicata,i.e.CASEYv.U.S.8 Cl.Ct. 234 (1985) without going to Federal Court.Secretary DONLEY does have the legal authority to settle this 30 year old LIBERTY issue.

 

 

THANK YOU MR. SECRETARY FOR YOUR JUST AND HONORABLE CONSIDERATION.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EDWINH.CROSBYIII

107E.MEADOWBROOK

CLEVER,MO.65631

Briefs submitted to U.S. Federal Courts regarding argument over Due Process of Law, i.e. branding human beings with a number.

Brief 1

Brief 1a

Brief 1b

Brief 1c

Brief 2

Brief 2a

Brief 2b

Brief 2c

Brief 3

BCMR Complaint

Moneywatch news article claims bank cheated veterans with fees.

Check out this article here: http://online.wsj.com/article/AP1fd2aacd7c684361b18102cc9b56f4b6.html

Download document here.

Report Says BCMR’s Flying Blind, No Pilot, includes Court Decision SPN Code Info

In a REPORT entitled “Military Record Correction Boards and their Judicial Review, Military Law Section Program“,  dated JUNE 11, 2010, and prepared by one Raymond J. Toney, a lawyer from Woodland, Calif.  The State of Texas Military Law Committee asked Mr. Toney to present said Report.  This writer spoke on the telephone with Mr. Toney this day, October 5, 2010.   The BCMR’S are basically a joke.

This REPORT prepared for the State Bar of Texas Annual Meeting, Military Law Committee Correction of Military Records and Judicial Review, has proven to be a shocker, and, should OUTRAGE every veteran !  Why you ask, well hold the phone.

In said REPORT under “ L. “ it states;  “ (1)  Navy BCMR members devote on average 1.6 minutes to deciding each application;  (2)  Army BCMR members devote on average 3.75 minutes to deciding each application;  (3)  the Navy, Army, and Coast Guard do not require their board members to review applications and supporting evidence before deciding applications “.  ( underscoring supplied )   WHAT ??!!

See Link – Report

Under “ S “, Thoughts and Observations on BCMR Practice it states;  (1)  Create no expectations of a successful outcome and try to keep client expectations in check, even where claims appear very strong .  end quote  ( underscoring supplied )    What this is saying is,  if you have a strong case NOBODY will look it over, and whoopee, who cares about America’s Veterans !  Moreover, one of the claims you can bring before said Boards is “ Procedural violations ( due process ) “.

Mr. Toney writes again under “ S “, Thoughts & Observations;  (6)  In my experience, the BCMRs see their roles as defending the actions of the military, not as impartial adjudicators, i.e. the process is adversarial, though not intended to be and without the procedural safeguards of an adversarial process.

In a recent posting here at Veterans Today, this writer told readers about a court case,  CASEY  v.  U.S.  from 1985 having to do with “ STIGMA DISCHARGES “, those vets branded with a secret coded number known as a SPN, SDN, or SPD code.  Legal Precedent and Res Judicata ( already decided )  were discussed in REOPENING a claim with a BCMR.  Mr. Toney points out the following;  Courts must “ defer to the Board’s decision unless it is arbitrary and capricious, contrary to law, or unsupported by substantial evidence “.  In CASEY  v.  U.S.  it had already been decided that a veteran should have had a Due Process Hearing before being assigned a stigmatizing coded number.  Moreover,  the BCMR’S were aware of this court decision and rendered arbitrary decisions contrary to law, and completely unsupported by substantial evidence.

A point of interest, some commentators have spoken out that the Court of Federal Claims be designated the sole forum for judicial review of military decisions.  If this were so, the CASEY case would have prevented the BOARDS from running amuck.  There is a Sub-Committee on the HOUSE ARMED SERVICES called  MILITARY PERSONNEL, and the Chairwomen for that Committee is one Congresswomen Susan A. Davis of San Diego.  Where is the oversight ?   Congresswoman Davis was FAXED on two (2) occasions, Aug. 12, 2010, and September 23, 2010, those same four (4) questions that appeared in the story BCMR’S FAILING VETERANS.  To date, there has been no reply from her office.

We who served in the military expect proper and respectful treatment when asking to correct records.  This is NOT a joke to us.  Veterans should demand properly trained personnel to work at the BOARDS, and take time to read, and examine evidence presented.   Fair and Just is all we ask for, and its not present.

Copyright 2010 -   Edwin Crosby III