IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150006527 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: 28 April 2016 DOCKET NUMBER: AR20150006527 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 to amend the decision of the ABCMR set forth in Docket Number AC81-11542 on 14 April 1982. _______ _ _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: 28 April 2016 DOCKET NUMBER: AR20150006527 THE BOARD CONSIDERED THE FOLLOWING SUMMARY POINTS: 1. The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC81-11542 on 14 April 1982. In effect, he requests an upgrade of his dishonorable discharge. 2. The applicant states he was tried by the same jury that heard the case of a co-defendant; he later learned this individual had testified against him in exchange for a plea agreement. For this reason, he was considered guilty before he had the opportunity to plead his case, since the jury had already heard inculpatory testimony and was thereby tainted. 3. In a cover letter submitted to the President of the United States on 27 July 2015, the applicant [addressing his open letter of 9 March 2015 addressed at paragraph 4 below] states: Sir, I address the enclosed letter to you for your attention, especially in view of the news concerning the recent pardons that your office granted. As indicated in the letter, I am a Vietnam veteran who volunteered to serve his country at the young age of 18. I make no excuses for the mistakes I made. I ask that you consider the time I spent incarcerated as punishment for the crimes I committed and the strides I have taken since then to turn my life around along with the lives of troubled youth and adults who I come [into] contact with on a daily basis in my capacity as a substance abuse counselor. 4. In an open letter submitted to the President on 9 March 2015, the applicant states: a. He has wrestled with the idea of writing this letter for years now and has decided to do so with the hope that somebody will take a few minutes to read it. b. His name is Rxxxxxx Sxxxxxxx. He was born in the Bronx, New York on 21 October 1952, the youngest of 5 boys and 3 girls. Many of his siblings and relatives served in the military. He enlisted in the U.S. Army at age 18; he completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Knox, Kentucky. He then volunteered for duty in the Republic of Vietnam. c. Upon his arrival in August 1971, he was assigned to Military Assistance Command – Vietnam in Saigon for his first 6 months. Later, he was reassigned to Pleiku, where he worked with the supply division and was responsible for getting food and supplies to units in the outlying provinces. During his year in Vietnam, he was promoted to the rank/grade of specialist four (SP4)/E-4 and his performance evaluations were always excellent. d. He did what he had to do, despite dealing with a Heroin addiction that he brought upon myself. By the time he was transferred to Pleiku in March 1972, he had been in the Long Binh Detox center twice. His commander asked if he had taken care of his problem. He responded that he had and his commander instructed him that if he had any problems in the future, he should come to him and not have him find out or he would put him "under the jail." He was still using when he had this conversation with my commander. e. As he approached his DEROS date in August 1972, he decided he needed help so he went to his commander and explained how bad his problem was. He was placed on a regimen of various addiction medications. When he returned home at the conclusion of his year of service, he knew his habit was beyond his control. f. He was stationed at Fort Monmouth, New Jersey and his affiliation with the wrong people led him back to alcohol and drug use, resulting in his arrest and trial by General Court Martial in March 1973. He was sentenced to 10 years confinement at hard labor, reduction in grade from E-4 to E-1, forfeiture of all pay and allowances and a dishonorable discharge. He took a plea deal for 3 years, which the Court allowed only upon his admission that he had committed crimes on the compound, many of which he didn’t commit but knew who had and was thereby able to give detailed accounts of how the crimes occurred. He did this because his wife was 3 months pregnant at the time of his sentencing. g. He arrived at the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas in March 1973, where he began to serve his sentence. He can recall the intake process and remember vividly the person writing in his records his rehabilitative potential amounted to "0 percent (%)." He was deemed incorrigible. He notes the crimes he confessed to were breaking and entering and possession and use of drugs. He was released from custody on 23 May 1975. h. He was greeted by two of his brothers upon his arrival at the airport. After reacquainting with family, he went out of town to spend time with his wife's family. When he returned his father informed him that his brothers had drowned in a fishing accident after their boat capsized. Despite this tragedy, he did not relapse into drug and alcohol use. Instead, he worked odd jobs, enrolled in college, graduated from college, and had a second daughter. i. He obtained employment with the New York City Department of Corrections (DOC); he worked for the DOC for 18 years before retiring and moving to Florida, where he now resides. j. He moved to Florida in 1998 and began working as a Community Outreach Worker, case managing families of persons living with HIV/AIDS. Four years later, he moved on to work with the Counseling and Recovery Center (CRC) as an intervention specialist, assessing clients with substance abuse issues and referring them for appropriate levels of care. In this capacity, he also provide training for child protective investigators and dependency case managers. In addition, he represented CRC at misdemeanor and felony drug court staffings and he completed initial assessments for those wanting to avail themselves of program services. He has been with CRC since August 2002 and his performance evaluations have all been outstanding. k. He has also been an amateur boxing coach and use that as a means of outreach to troubled youth. While employed with the DOC, he helped put together an inmate boxing team and in the 9 months that he had the program, the assaults in the jails decreased significantly. He moved to Florida in 1998 and began coaching the Fort Pierce Police Athletic League for approximately 6 years before starting his own gym. He stopped when a young 18 year old amateur boxer whom he had trained for 4 and a half years accidentally shot himself in the head while handling a firearm with a hair trigger. He has resumed coaching, reaching out to train children and adults in the Olympic style of boxing. l. He is asking that his case be considered for an upgrade of his discharge. He has continued to be a productive member of society. He feels he has paid his dues for the wrong he has committed and he has been blessed to have been placed in positions where he can give back, drawing on his own experiences. His primary goal is to redeem himself in hopes he can proudly display an Honorable Discharge Certificate, as his brothers have, and to avail himself of veteran's benefits, particularly medical benefits. 5. The applicant provides five character affidavits and an extract of his court-martial proceedings. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC81-11542 on 14 April 1982. 2. The applicant provides five character affidavits and an extract of his court-martial proceedings, which he believes were not previously considered by the Board in his case. These documents constitute new evidence since that now warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 30 March 1971. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 71B (Clerk Typist). 4. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 23 August 1971 through on or about 5 August 1972. 5. Item 38 (Record of Assignments) of his DA Form 20 shows he was in a patient status at a drug treatment center from 27 July 1972 through 9 August 1972. 6. He returned from Vietnam and was assigned to Fort Monmouth, New Jersey on 10 August 1972. 7. Before a general court-martial on 1 March 1973, he was convicted of: * a single specification of Charge I (violation of Article 81 of the Uniform Code of Military Justice (UCMJ)); specifically, larceny on or about 3 January 1973 * four specifications of Charge II (violations of Article 121 of the UCMJ); specifically, theft of property on or about 27 December 1972, 29 December 1972, and 3 January 1973 * two specifications of Charge III (violations of Article 134 of the UCMJ); specifically, wrongful possession of narcotics on or about 3 January 1973 * a single specification of Charge IV (violation of Article 130 of the UCMJ); specifically, unlawful entry with intent to commit a criminal offense on or about 27 December 1972 * a single specification of Additional Charge I (violation of Article 81 of the UCMJ); specifically, conspiracy to commit an offense under the UCMJ (larceny) on or about 16 October 1972 * a single specification of Additional Charge II (violation of Article 108 of the UCMJ); specifically, selling, without authority, U.S. government property on or about 16 October 1972 * a single specification of Additional Charge III (violation of Article 121 of the UCMJ); specifically, theft of U.S. government property on or about 16 October 1972 * a single specification of Additional Charge IV (violation of Article 130 of the UCMJ); specifically, unlawful entry with intent to commit a criminal offense on or about 16 October 1972 8. The convening authority approved his sentence on 23 July 1973 and ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 9. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. The U.S. Court of Military Appeals denied his petition for review. 10. General Court-Martial Order Number 861, issued by the USDB, Fort Leavenworth, Kansas on 7 August 1974, shows that after completion of all required post-trial and appellate reviews, the applicant's dishonorable discharge was ordered duly executed. 11. He was dishonorably discharged on 6 September 1974. 12. The ABCMR denied his petition for a discharge upgrade on 14 April 1982. 13. The applicant provides five character affidavits and an extract of his court-martial proceedings. a. The character reference letters are from individuals (a County and State judge, an attorney, an intervention specialist, and a manager of a school improvement team) who attest to the applicant's positive attributes and contributions to society. b. The extract of his court-martial proceedings (pages 62-101) details testimony given during the applicant's court-martial trial. The initial pages (pages 62-63) detail discussions between members of the court-martial panel, the presiding military judge, and counsel for the trial and defense, in which the discussion centered on the fact that the same panel had sat on the trial of Private First Class (PFC) Pxxxxxxxx, a co-defendant of the applicant's. In this case, panel members acknowledged that they had sat on the trial of PFC Pxxxxxxxx; however, they did not claim any knowledge of the applicant beyond any details discussed in the case of PFC Pxxxxxxxx. When addressed, no panel members indicated they could not render a fair and impartial verdict, or a fair and impartial sentence, based on what they were about to hear in the applicant's case. Moreover, the presiding judge accepted the panel in spite of this fact, indicating it did not present an unfair or legal challenge to the applicant's case. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) establishes the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 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 11-1, in effect at the time, provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 2. 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 (emphasis added). Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. DISCUSSION: 1. The applicant's request for reconsideration of the previous ABCMR decision as promulgated in Docket Number AC81-11542; specifically, an upgrade of his dishonorable discharge, was carefully considered. 2. The applicant contends he was tried by the same jury that heard the case of a co-defendant; he later learned this individual had testified against him in exchange for a plea agreement. For this reason, he was considered guilty before he had the opportunity to plead his case, since the jury had already heard inculpatory testimony and was thereby tainted. 3. The provided extract of the applicant's court-martial proceedings details testimony given during the applicant's court-martial trial. In this extract, there is discussion centered on the fact that the same panel had sat on the trial of Private First Class (PFC) Pxxxxxxxx, a co-defendant of the applicant's. However, panel members acknowledged this fact and did not claim any knowledge of the applicant beyond any details discussed in the case of PFC Pxxxxxxxx. When addressed, no panel members indicated they could not render a fair and impartial verdict, or a fair and impartial sentence, based on what they were about to hear in the applicant's case. Moreover, the presiding judge accepted the panel in spite of this fact, indicating it did not present an unfair or legal challenge to the applicant's case. Additionally, the record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review, which affirmed the approved findings of guilty and the sentence. Consequently, the applicant's contention is rejected. 4. The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the final approved discharge appropriately characterized the misconduct for which he was convicted. 5. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed (emphasis added). Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. 6. The applicant's post-service accomplishments and positive contributions to society are noted; however, they do not mitigate the seriousness of the charges for which he was convicted. 7. Based on the applicant's record of serious misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to an upgraded discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006527 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2