BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017134 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 BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017134 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. BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150017134 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 his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. He also requests a personal appearance before the Board. 2. The applicant states, in effect, he needs his BCD upgraded to an under honorable conditions (general) discharge to receive healthcare from the Department of Veterans Affairs (VA). He is appealing his general court-martial for "ineffective assistance of counsel," for having been wrongly convicted when indicted by the Department of Justice (DOJ) for the same incident. 3. The applicant provides: * a four-page self-authored statement * National Guard Bureau (NGB) Form 22 (National Guard Bureau – Report of Separation and Record of Service), for the period ending 30 May 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 January 2014 CONSIDERATION OF EVIDENCE: 1. Following prior service in the Louisiana Army National Guard, the applicant enlisted in the Regular Army on 31 May 2008. He completed initial entry training and was awarded military occupational specialty 11B (Infantryman). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 2. General Court-Martial Order Number 31, published by Headquarters, Fort Carson, CO on 10 September 2010, shows the applicant was convicted on 26 April 2010 of violating Article 112a of the Uniform Code of Military Justice on or about: a. Specification 1: 22 September 2009, he wrongfully distributed some amount of methadone, a schedule II controlled substance. b. Specification 2: 23 April 2009, he wrongfully distributed some amount of heroin. c. Specification 3: 1 May 2009, he wrongfully distributed some amount of oxycodone, a schedule II controlled substance. d. Specification 4: 7 May 2009, he wrongfully distributed some amount of dihydrocodeinone, known as hydrocodone, a schedule III controlled substance. e. An additional Specification: between on or about 12 and 14 October 2009 shows he wrongfully used heroin. 3. His sentence was adjudged on 26 April 2010 and included confinement for 30 months and a BCD. His sentence was approved and, except for that part of the sentence extending to the BCD, was ordered to be executed. He was given credit for 57 toward his sentence to confinement. The record of trial was forwarded for consideration to the U.S. Army Court of Criminal Appeals. 4. The U.S. Army Court of Criminal Appeals affirmed the trial proceedings in the applicant's general court-martial trial. The U.S. Court of Military Appeals denied the applicant's petition for review. 5. General Court-Martial Order Number 3, issued by Headquarters, Fort Carson, CO on 4 February 2011, announced that after completion of all required post-trial and appellate reviews, the sentence had been approved and the BCD was ordered to be executed. 6. The applicant was discharged from the Army on 29 January 2014, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. His DD Form 214 shows: * he completed 3 years, 9 months, and 20 days of net active service * he was in an excess leave status from 5 March 2001 through 29 January 2014 * his character of service as "Bad Conduct" * he had lost time from 26 April 2010 through 4 March 2012 7. The applicant provides a four-page self-authored statement, wherein he states, in pertinent part: a. He is conflicted to plead his case for an upgrade as he could have been a better Soldier. However, he feels an obligation to his family and himself to try. He discusses his involvement with other veterans and his religious beliefs. b. He was involved in appealing his general court-martial decision on the grounds of "ineffective assistance counsel" with the Army's Appellate Court. While still in the appellate process, he was indicted by the DOJ regarding the same incidents for which he had been court-martialed. Fortunately, the indictment was dismissed without prejudice after a motion was granted as a result of "double jeopardy." He states he was forced to give up his rights under the due process clause in order to protect against a new indictment regarding the DOJ. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 set for the basic authority for the separation of enlisted personal. 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 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 3. 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. DISCUSSION: 1. The evidence of record shows the applicant wrongfully distributed methadone, heroin, oxycodone, and hydrocodone, and used heroin. There is no evidence that his misconduct, to which he admitted and pled guilty at a general court-martial resulted from any reason except the choices he made. His record is void of documentation that shows he was treated unfairly or that his chain of command was arbitrary or capricious in their actions. 2. The applicant received a BCD pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time. Conviction and discharge were effected in accordance with applicable laws and regulations, and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. The Board operates under the standard of a presumption of regularity in governmental affairs. This standard states, in effect, that in the absence of evidence to the contrary the Board must presume that all actions taken by the military were proper. There is nothing presented by the applicant or in the available records that overcomes this presumption. 4. The applicant's record of service during the period in question did not meet the standards of acceptable conduct and performance of duty for Army personnel. Any redress by this Board of the finality of a court-martial conviction is prohibited by law, meaning the Board does not have the authority to expunge the general court-martial conviction. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017656 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017134 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2