IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003853 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003853 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003853 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his dishonorable discharge. 2. The applicant states he was convicted of five specifications of violation of Article 112a of the Uniform Code of Military Justice (UCMJ): one specification of possession of marijuana and four specifications of distribution. He was given one of the harshest sentences in the military: 24 years in confinement. His appellate attorney used this fact to get him clemency. His sentence was reduced to 10 years in confinement. He spent 4.5 years in confinement. There were two other Soldiers involved in the case. Private K____ R____, from another company, and Private E____ W____, his roommate. He, Private R____, and Private W____ all participated in possession and distribution of marijuana. Private R____ was sentenced to 5 years in confinement. Private W____ was not incarcerated at all and was released with a bad conduct discharge or a discharge under other than honorable conditions to the best of his knowledge. He is seeking the same character of service. Private W____ is a white male, while Private R____ and he are African American males. He does not know why Private W____ was not prosecuted. Private W____ did testify to his participation in the violation. The Board should consider his request because it is never too late to correct an injustice. Private W____ at no point claimed innocence or ignorance to the charges and was indeed even ordered to pretrial confinement but somehow escaped prosecution. 3. The applicant provides: * self-authored letter to the Army Review Boards Agency, dated 1 February 2015 * family photograph * insurance agent license * DD Form 458 (Charge Sheet), dated 29 April 1996 * Headquarters, Fort Carson, Order 006-03, dated 1 July 1996 * Headquarters, Fort Carson, General Court-Martial Order Number 29, dated 5 December 1996 * Probate Court Number 1 of Travis County, TX, court order appointing guardianship of an incapacitated person, dated 19 November 2007 * character-reference letter from an attorney, dated 30 May 2011 * letter from the U.S. District Court Western District of Texas Probation Office, dated 3 June 2011 * letter of guardianship, dated 3 March 2014 * congratulatory letter for completion of Life Underwriter Training Council Fellow (insurance) studies, dated January 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 30 December 1993. 3. On 29 April 1996, charges were preferred against him for violation of Article 112a of the UCMJ as follows: * specification 1 – wrongfully distributing 656 grams of marijuana, a controlled substance, on or about 30 March 1996 at or near Colorado Springs, CO * specification 2 – wrongfully possessing in excess of 10 pounds of marijuana, a controlled substance, with the intent to distribute on or about 31 March 1996 at or near Colorado Springs, CO * specification 3 – wrongfully distributing some marijuana, a controlled substance, to a private first class between on or about 1 March 1996 and 31 March 1996 at or near Colorado Springs, CO * specification 4 – wrongfully distributing 24 grams of marijuana, a controlled substance, to a private first class on or about 1 March 1996 at or near Colorado Springs, CO * specification 5 – wrongfully distributing 78 grams of marijuana, a controlled substance, to a private first class on or about 24 March 1996 at or near Colorado Springs, CO 4. Headquarters, Fort Carson, Order 006-03, dated 1 July 1996, reassigned him to the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, KS, with a reporting date of 9 July 1996. 5. Headquarters, Fort Carson, General Court-Martial Order Number 29, dated 5 December 1996, shows he was arraigned at a general court-martial at Fort Carson, CO. a. He pled not guilty and was found guilty of the following offenses: * specification 1 – wrongful distribution of a controlled substance, to wit: marijuana, on or about 30 March 1996 * specification 2 – wrongful possession of a controlled substance, to wit: marijuana, with the intent to distribute on or about 31 March 1996 * specification 3 – wrongful distribution of a controlled substance, t wit: marijuana, between on or about 1 March 1996 and 31 March 1996 * specification 4 – wrongful distribution of a controlled substance, to wit: marijuana, on or about 1 March 1996 * specification 5 – wrongful distribution of a controlled substance, to wit: marijuana, on or about 24 March 1996 b. The sentence was adjudged on 2 July 1996. He was sentenced to a dishonorable discharge, confinement for 24 years, forfeiture of all pay and allowances, and reduction to the grade of private/E-1. c. Only so much of the sentence as provided for a dishonorable discharge, reduction to private/E-1, forfeiture of all pay and allowances, and confinement for 15 years was approved and, except for that part of the sentence extending to a dishonorable discharge, will be executed, but the execution of that part of the approved sentence extending to confinement in excess of 10 years will be suspended for 3 years on the condition that he cooperate fully with the Bureau of Alcohol, Tobacco, and Firearms; the Drug Enforcement Agency; the Department of Justice; and the U.S. Army if called upon to do so; by providing information and be testifying truthfully and completely in any State or Federal criminal trial or court-martial concerning any ongoing criminal investigation within the investigative jurisdiction of the above-named Federal agencies. Suspension may also be vacated based on a violation of any punitive article of the UCMJ in accordance with Rules for Court-Martial 1109. He was credited with 64 days of confinement against the sentence of confinement. 6. U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 101, dated 20 May 1999, finally affirmed Headquarters, Fort Carson, General Court-Martial Order Number 29, dated 5 December 1996. He was credited with 64 days in confinement toward the sentence to confinement. Article 71(c) having been complied with, the dishonorable discharge would be executed. 7. U.S. Disciplinary Barracks, Fort Leavenworth, KS, Order 039-04, dated 27 May 1999, discharged him from the Regular Army effective 11 June 1999. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was dishonorably discharged as a result of court-martial effective 11 June 1999 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10. He completed 2 years, 3 months, and 29 days of net active service and he was retained in service for 529 days for the convenience of the government. 9. He provided Probate Court Number 1 of Travis County, TX, court order appointing him guardianship of an incapacitated person, dated 19 November 2007. 10. He provided a character-reference letter from an attorney, dated 30 May 2011, stating he thinks very highly of the applicant. The applicant is one of the hardest working men he has had the pleasure of knowing and is a man of the highest integrity and honesty. 11. He provided a letter from the U.S. District Court Western District of Texas Probation Office, dated 3 June 2011, stating the applicant was sentenced to a 15-year term of incarceration on 9 July 1996 (should read 2 July 1996), 10 years were suspended, and he was released from custody to commence his term of parole on 4 August 2000. He did not have any violations and was compliant with his conditions of his parole during his term of supervision. 12. He provided a letter congratulating him for completion of Life Underwriter Training Council Fellow (insurance) studies, dated January 2015. 13. He provided a self-authored letter to the Army Review Boards Agency, dated 1 February 2015, wherein he stated: a. He is a licensed insurance agent, a married father of four girls, and legal guardian of his adult mentally disabled brother. b. He was convicted by general court-martial for five specifications of violation of Article 112a of the UCMJ for possession and distribution of marijuana in 1994. He was sentenced to 24 years in confinement. His sentence was later reduced to 10 years and he spent 4.5 years incarcerated at Fort Leavenworth, KS. He had two co-defendants: Private K____ R____, an African American, and Private E____ W____, a Caucasian. Private R____ was sentenced to 5 years in confinement and Private W____ was allowed to be discharged in lieu of prosecution. Private W____ never made any claims denying his role as a co-conspirator. c. He was released on parole in 2000. He reconnected with his daughter and worked his way up from dishwasher for a staffing agency to co-founder of another widely successful agency. d. He learned a great deal from the poor decision he made and credits his success to the training he received from the Army and his incarceration. He has become a great father, a loving husband, a loving brother, and a great member of society. His dishonorable discharge has prohibited him from achieving even more. e. He has been a model citizen since his release and an unyielding supporter of service members and veterans. He harbors no ill feelings and never passes up the opportunity to recommend military service to his younger family members. f. An upgrade of his bad conduct discharge is warranted to correct a clear selective-prosecution injustice. It would also benefit society because it would enable him to obtain credentials that would allow him to be an even bigger influence on his community. He fully accepts his shortcomings and humbly requests an upgrade of his discharge to improve his family's standard of living. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. d. Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The evidence of record shows he was convicted of five specifications of violation of Article 112a of the UCMJ on 2 July 1996 for possession and distribution of marijuana. He was sentenced to 24 years in confinement. His sentence was reduced to 10 years and he was released from confinement on 4 August 2000 after serving 4 years. 2. He contends that his sentence was inequitable given the sentences received by his two co-conspirators. He implies that the length of his sentence was racially biased. 3. His contentions that he was unjustly sentenced and the subject of racial bias relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. The evidence shows he was granted clemency at the time of sentencing. He was sentenced to a 15-year term of incarceration on 2 July 1996, 10 years were suspended, and he was released from custody to commence his term of parole on 4 August 2000. 6. The evidence shows he was properly and equitably discharged in accordance with the statutes and regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge he received accurately reflects his overall record of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003853 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003853 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2