ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160013356 APPLICANT REQUESTS: in effect: * correction of his military records to show he was not convicted by a court-martial * reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to general under honorable conditions * to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002067021 on 23 April 2002. 2. The applicant states a civilian Panama Canal court convicted him of having less than a gram of cocaine; the court gave him 3 months in a Panama City jail, after which he was sent to a U.S. Federal prison to serve 27 months and 18 days in confinement. The Federal authorities gave him a "special special parole"; in his view, it was 3 years of injustice because he never had this drug in his possession. A white witness condemned him with false accusations; the applicant asserts he mainly just gave up. He wishes to have this matter resolved before he dies; he asks the Board to expedite his request due to his debilitating health. 3. The applicant enlisted in the Regular Army on 22 April 1971. He was assigned to the Canal Zone, Panama on 28 September 1971 and was promoted to specialist four (SP4)/E-4, effective 10 December 1971. 4. On 5 January 1973, consistent with his plea, a U.S. District Court convicted him of distributing cocaine (two counts); the court sentenced him to 3 years confinement. A verbatim transcript essentially shows: * the applicant was one of three defendants; he admitted to selling cocaine in a statement to probation officials; the state's attorney indicated the applicant had had three counts, but the charges were reduced to two as part of a plea bargain; in effect, it was evident the applicant used fairly regularly * the state's attorney also stated there was a drug problem on local military bases; the three defendants were charged with bringing the cocaine to the base and distributing it; because of this the state's attorney recommended a "substantial sentence" * the applicant's counsel noted, in December 1971, the applicant's brigade commander wrote a letter to the applicant's parents lauding the applicant as one of his "finest troopers," but shortly after this all of the applicant's problems started * the applicant asserted all of his activities with cocaine began in May 1972; prior to entering the service, he had no criminal history, other than minor misconduct as a juvenile * the applicant's counsel also stated the applicant was "not the criminal type; he (was) not a street distributor"; it was a case where "people become involved through the urging of distributors who go out and try to make a profit... this was much more of.. one friend helping another" 5. On 6 February 1973, the applicant's commander notified him via letter of his intent to separate him under the provision of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave (AWOL) or Desertion)). a. The commander's basis for this action was the applicant's civil court conviction for distribution of cocaine; which was a violation of Article 92 (Violating a lawful general order), Uniform Code of Military Justice (UCMJ), and for which the maximum punishment included confinement for 2 years. b. On 25 June 1973, the applicant's chain of command indicated his election to have his case heard by a board of officers. 6. A board of officers convened on 7 September 1973; applicant was not present, but was represented by counsel. a. A summary of the proceedings indicated the following: * applicant's first sergeant stated, in November 1971, the Canal Zone police had two individuals in the unit act as an informants; one of them identified the applicant as someone who sold drugs; the applicant was arrested in July 1972 * a fellow Soldier testified he had bought drugs (marijuana) from the applicant (he had no knowledge of the applicant's involvement with cocaine) * the fellow Soldier felt the applicant had leadership traits because he (the applicant) had been in charge during field exercises; in effect, he felt confident enough in the applicant's leadership skills to follow him into combat * applicant's counsel stated the applicant sought to improve himself through education; he admitted he made a bad mistake and felt he had learned a lesson b. The board of officers recommended the applicant's discharge with an Undesirable Discharge Certificate. The separation authority approved the board's recommendation and directed the applicant's undesirable discharge (character of service: under other than honorable conditions) along with reduction to the lowest enlisted grade. 7. He was discharged under other than honorable conditions on 8 October 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showed his rank/grade as private/E-1. He was awarded or authorized the National Defense Service Medal. 8. On 26 February 1974, he submitted his first application to the Army Discharge Review Board (ADRB) for an upgraded character of service (general under honorable conditions). He stated he sought this upgrade because he wanted to finish college and support his family. He noted, since his discharge, he had already completed 2 1/2 years of college in automotive technology. He had also earned six certificates of achievement while serving in the penitentiary and was taking correspondence courses. (The applicant's available service record does not include the ADRB's action on his application). 9. He petitioned the ADRB again on 22 July 1974, essentially providing the same reasons for upgrade, and asserted he had not been properly represented before the board of officers who recommended his character of service (ADRB results also not available in the applicant's service record). 10. On 16 January 1978, the U.S. Department of Justice confirmed the applicant had completed his sentence, effective 15 January 1978. 11. On 19 October 1978, the U.S. District Court provided a letter to the ADRB that stated, in effect, the court sentenced the applicant to 3 years confinement for two counts of cocaine distribution; the court also ordered a 3-year Special Parole Term. During his confinement, the applicant was never involved in any type of misconduct, his job performance was excellent, and his dormitory reports showed he was an above-average inmate. He adjusted satisfactorily to his parole and maintained regular contact with his probation office; he was discharged from parole on 15 January 1978. 12. In October 1978, the applicant applied once more to the ADRB; he requested a personal appearance with counsel. a. On 24 April 1975, the applicant appeared with counsel before the ADRB. He testified: * he joined the Army to better himself; he explained the circumstances surrounding the charges for which he was convicted * some friends approached him to make drug purchases for them; he never accepted money for any of these purchases and was more of a "go-between" for sellers and buyers; one of those friends (a cocaine user) turned state's evidence and turned him in * since his release from prison, he has remained employed, though they have been low-wage jobs b. The ADRB found that, prior to his civil conviction, the applicant had no recorded acts of indiscipline and earned "Excellent" conduct and efficiency ratings. He had attained the rank of SP4/E-4. In addition, the U.S. Probation Officer affirmed the applicant was an above average inmate and has worked regularly since his parole. c. The ADRB further determined the applicant had admitted to obtaining cocaine from civilian sources and passing it on to other Soldiers in his unit. While he contended he did not earn a profit, he did receive other forms of remuneration. The board could find no improprieties in his separation action; his discharge was proper and equitable. The ADRB denied his request for an upgraded character of service. 13. The applicant applied to the Board for an upgraded character of service on 17 December 2001; he contended he had been "railroaded." The Board found the applicant's separation action was accomplished in compliance with the applicable regulations in effect at the time. In addition, the Board noted the applicant had not submitted any probative evidence in support of his request; he failed to satisfactorily show his records were either in error or unjust. 14. Per AR 15-185 (ABCMR), applicants bear the burden of proof, by providing a preponderance of evidence, to show the existence of an error or injustice. In addition, applicants are not entitled to a personal appearance. 15. AR 635-206 stated an individual discharged for conviction by civil court was normally furnished an undesirable discharge certificate. The exception was for cases where the separating Soldier had been awarded a personal decoration, or when the commander deemed it warranted by the particular circumstances of a given case; in these situations the commander could furnish an honorable or general discharge certificate. BOARD DISCUSSION: After reviewing the application and all supporting documents, as well as the statement of the applicant, the Board determined the discharge was appropriate based upon the severity of the misconduct and that no injustice or correction was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. REFERENCES: 1. AR 635-206, in effect at the time, prescribed policies and procedures for the elimination of Soldiers for misconduct due to fraudulent entry into the service, a conviction by civil court, or AWOL/desertion. Commanders considered Soldiers for separation under this regulation when convicted by civil authorities for an offense with a maximum punishment under the Uniform Code of Military Justice (UCMJ) was death or confinement for more than 1 year. Soldiers separated under this provision were normally furnished an undesirable discharge, except for cases where the Soldier was awarded a personal decoration or the commander determines an honorable or general discharge is warranted. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. It stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states 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 (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. ABCMR Record of Proceedings (cont) AR20160013356 5 1