AAFES says that Congress gave them the authority to demand $200 Administrative Fees when AAFES patrons are detained and accused of shoplifting ---- but did they? AAFES says that Congress allows them to demand this $200 from the military and civilian sponsors for their own offense of "shoplifting" and also for the offense of a sponsored dependent, even a child as young as ten ----but did the Congress do this?
Congress did quietly make new law in 2001 by quietly slipping an amendment to Treasury Law (Federal Claims Collection Act, 31 U.S.C. 3701 et seq.)into the 2002 National Defense Authorization Act. The amendment itself was a violation of the rules of The House of Representatives because it made new law that impacted the legal rights of a new class of persons; i.e. the active duty military, the retired military, active government civilians and retired government civilians entitled to purchase retail items in government retail exchanges and commissaries.
Apparently, the DOD/MWR/AAFES authorities knew that Congress would never pass a bill authorizing Civil Recovery for Nonappropriated Fund Instrumentality Costs Relating to Shoplifting so they slipped into the back door of Congress and quietly passed an enabling amendment to Treasury Law that authorized this program and that resulted in this $200 fine on the troops ---that is demanded under the THREAT of a criminal prosecution for larceny in the federal district courts. This Civil Recovery Administrative Fee for shoplifting is a "debt" owned to the government according to AAFES but there is no standard or description of how "shoplifting" translates to this $200 debt owed to AAFES even when they have suffered no ACTUAL Damages whatsoever.
This amendment was hardly noticed at all by The Congress who were totally involved in the 9-11 aftermath. The Committee Chairman briefly described the amendment as a "mechanism outside formal judicial proceedings" that would allow the Exchanges to recover "some shoplifting losses". There is no public record of the committee hearings. We cannot know to what extent the MWR Committee approved the AAFES Civil Recovery Process and whether or not they signed off on the $200 fine. The enabling amendment was never codified in rule or regulation of the Department of Defense orThe Treasury Department. There is no standard for the debt or the tort of shoplifting in federal law or the UCMJ. Notice was not given in the Federal Register and this debt of $200, threfore, may not be a legally enforceable debt under federal law.
The AAFES opted for the HIGHEST MINIMUM CIVIL RECOVERY instead of the lowest.
State Courts have indicated that Civil Recovery For Shoplifting is NOT A DEBT because these recoveries are based on torts. The Federal Government has no tort law governing shoplifting and I didn't think that the Executive Agencies, like AAFES, were allowed to legislate.
In some state jurisdictions, only a civil demand is made and a criminal action is not initiated. It should be noted that civil recovery damages were established by the state legislatures and that it was the DOD/MWR/AAFES who established the damages under the Federal Civil Recovery Program, and not the Congress.
The "mechanism" outside of formal judicial proceedings is the AAFESdemand for $200 sent to the military for their own offense and also for the offense of their mate, their mother or father, or their child, as the case may be. The threat of a criminal prosecution looms in the back of this demand.
The "mechanism" outside of formal judicial proceedings is, of course, a mandatory appearance in the federal district court to plead and defend against the charge of theft/larceny. The mechanism also provided that the first offense of shoplifting by active duty personnel would be removed from the purview of the UCMJ and the Commanders to the jurisdiction of the federal district courts.
The AAFES couldn't demand this $200 from active duty military sponsors unless this mechanism was put into place. Of course, shoplifting is still the founded offence of larceny under the Uniform Code and under federal law and the government can apparently prosecute uniformed active duty troops under the Code or under federal law for the crime of larceny shoplifting, as they so desire. It would seem that the secret retail security police would have to warn military personnel that they are going to be ticketed for larceny when they first detain them outside of final checkouts but I don't think that they do this.
ALL AAFES patrons, this is not arbitrary, who pass final checkout points without paying for the merchandise,
no matter what their excuse, are ticketed on base traffic tickets on probable cause of having committed the crime of larceny. THE SECRET RETAIL POLICE WITHIN THE STORES HAVE COMPLETE DISCRETION to call the Base Police and are agents of the police authority and not agents of AAFES management. This is why AAFES management can claim that they do not initiate criminal prosecutions for shoplifting.
The Pentagon, on the other hand, advised me in 2004 that their
military police investigative forms do not implement the $200 civil recovery fines on the Sponsors.
However, these demands are made on the sponsors at the same time the government is threatening to prosecute these same shoplifting suspects in the federal courts for the crime of misdemeanor or felony larceny.
This practice of implementing both a civil demand for $200 and a criminal prosecution at about the same time seems to embody many of the elements of extortion. It would seem that one or the other sanction, either a criminal or a civil sanction, would be enough punishment for first-offense shoplifting. Indeed, the authority under which these base traffic tickets are written suggests that offenses should be prevented. But, if the AAFES prevents shoplifting, the suspects aren't intimidated with a ticket for stealing and AAFES appears to have no justification to demand $200.
It would appear that the secret security police should have the duty to prevent shoplifting and to warn when they observe the first covert act through secret surveillance. But, if they stop the shoplifting attempt, and the suspect pays for the merchandise, the AAFES can't extract $200.
AAFES admits that there is generally no actual loss in apprehended shoplifting and that this $200 fine is for the purpose of deterring a second attempt to steal from the store. However, AAFES makes no effort to warn patrons about the secret security police, the secret cameras, and the secret detection devices and the CRIMINAL and CIVIL consequences of failing to pay for merchandise at final checkout points. AAFES doesn't want to stop or prevent any FIRST attempts to steal their property and miss out on these $200 recoveries.
Why would they warn when there is more money in the ticket/detention for larceny and a civil demand for $200 than there is in the sale of the merchandise. Did Congress give the AAFES the incentive to arrest for profit?
WRITE, TELEPHONE, FAX, OR EMAIL YOUR CONGRESSMAN TODAY AND ASK THEM IF IT IS THEIR INTENT TO ALLOW THE AAFES TO EXTORT $200 SHOPLIFTING FINES UNDER THE THREAT OF THE CRIMINAL PROSECUTION FOR A COMPLETED LARCENY IN THE FEDERAL DISTRICT COURTS!
Your Commanders can't help you. The DOD won't help you. I asked them for help and they referred me to the Congress after denying my request for a DOD IG investigation of AAFES and this $200 fine on the troops and their families. THIS IS NOT RIGHT!
Kansas City, Missouri