MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001062076

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: That the letter of reprimand (LOR) and all related unfavorable information be removed from his Official Military Personnel File (OMPF). He is also requesting reinstatement to active duty with back pay, allowances, and time-in-grade retroactive from 26 July 1999.

APPLICANT STATES: Through his counsel, in effect, that he did not plead guilty in open civilian criminal court to sexually assaulting an 11 year-old girl. He states he maintained his innocence throughout the criminal proceedings and that there is no basis for the LOR, since he never admitted guilt. He further states that he continued to maintained his innocence and was allowed by the prosecutor to enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), which essentially allowed him to enter a plea without admitting guilt.

COUNSEL CONTENDS: In effect, that the inclusion of the LOR in the applicant’s OMPF is in violation of paragraph 7-2, Army Regulation (AR) 600-37 and should be removed from the applicant’s record. He contends that the written reprimand is flawed in that it contains the statement that the applicant “pled guilty to this offense in open court on 26 May 1996….” He further contends that this statement is untrue, and as a result, paragraph 7-2, AR 600-37, requires the removal of the reprimand and all related unfavorable information.

EVIDENCE OF RECORD: The applicant's military records show:

He had 10 years, 8 months, and 9 days of active and inactive prior honorable service. He reenlisted on 7 July 1986 and served continuously in the United States Army Reserve (USAR) Active Guard Reserve (AGR) Program, until he was honorably separated on 26 July 1999 by reason of reduction in force with 12 years, 11 months, and 28 days of active military service.

The applicant was accused of sexually abusing an 11 year-old girl in his automobile on 17 July 1994. He was charged by civilian authorities with sexual abuse in the first degree, a Class D Felony in the State of Missouri. He pled not guilty to this charge on 16 December 1994 in the Circuit Court of St. Charles County. After some discussion about the case, on 20 May 1996, the applicant was offered and accepted a plea bargain recommendation by the State that amended the Class D Felony to a Class B Misdemeanor of sexual assault in the third degree. This agreement carried a range of punishment from 1 day to 6 months in the County Jail and/or $500.00 fine. The recommendation was for a suspended imposition of sentence, which meant that if the applicant successfully completed his 2-year period of probation, he would not receive a misdemeanor conviction on his record. The applicant maintained his innocence throughout the criminal proceedings and was allowed by the prosecutor to enter a plea pursuant to North Carolina v. Alford, 400 United States (U.S.) 25 (1970). Under Alford, a U.S. Supreme Court case, a criminal defendant can enter a plea based on the advice of his counsel without admitting guilt.

---

On 31 May 1996, the applicant was officially administratively reprimanded for sexually abusing a child. It was noted that he pled guilty in civilian criminal court and that, on 28 February 1996, an administrative separation board found that he had committed this offense.

On 19 June 1996, the applicant appealed the letter of reprimand. He stated that he had a deep commitment to the USAR, his fellow soldiers, and his chain of command and that his commitment has never wavered, especially during the last two years while he was under close scrutiny. He stated that he was innocent; that the investigating civilian police officer coerced the written confession, and that this coerced confession was used against him during the administrative board proceedings. He asked that the LOR be placed in his local file until he either completed a permanent change of station (PCS) move or his period of probation was completed. The applicant’s appeal was denied and, on 4 October 1997, the applicant’s LOR was officially filed in his OMPF.

On 14 November 1997, the Department of Army (DA) Qualitative Management Program (QMP) convened to determine if the applicant should be barred from further reenlistment in the USAR AGR Program. The board found the applicant to be deficient in the area of discipline in that he had received a LOR for misconduct. He was advised of his options under the DA QMP and that, if he chose to appeal, he had 90 days after completion of the USAR AGR QMP Statement of Options (DA Form 8029) to do so. He was also told that the next standby advisory board would review his appeal and any other documents submitted by him and his chain of command. Finally, he was told that if his appeal was denied, his chain of command had to initiate separation action within 60 days of notification of the denial. The applicant was notified on 8 January 1998 that he had been barred from reenlistment.

On 17 March 1998, the applicant was notified that he had to appear before an administrative separation board to determine if he should be discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c), for serious misconduct.

On 15 April 1998, at Fort Leonard Wood, Missouri, an administrative separation board was held. The board found that the preponderance of the evidence presented did not support the government’s disciplinary action against the applicant. They further found that the applicant’s past duty performance and evidence presented indicated sufficient potential for further service. Ultimately, the board recommended that the applicant be retained.

Subsequently, the applicant completed his two years of probation in May of 1998 and his record was expunged in accordance with Missouri law.

On 31 July 1998, the applicant appealed the DA QMP bar to reenlistment. He submitted a statement referencing the 15 April 1998 administrative board findings and recommendation. He also submitted several letters of duty performance and character references in support of his request to remove the bar to reenlistment.

On 2 October 1998, the applicant was notified that his appeal to the DA-imposed bar to reenlistment had been denied by the Enlisted Standby Advisory Board, Office of Promotions, Reserve Components. He was reminded that his commander had to initiate his discharge or release from active duty not later than 60 days from the date of notification, and that separation action had to be submitted through his General Court Martial Convening Authority

On 16 February 1999, the applicant was issued orders reassigning him to the U.S. Army Transition Point, Fort Leonard Wood, Missouri, for separation processing. On the same date, the applicant also received orders discharging him from the USAR AGR Program, effective 26 July 1999.

On 26 July 1999, the applicant was honorably separated from the USAR AGR under the provisions of Army Regulation 635-200, paragraph 16-8, by reason of reduction in force and was transferred to a troop program unit, the16^th Psychological Operations Battalion, Fort Sheridan, Illinois. He was credited with 12 years, 11 months, and 28 days of continuous military service for this period and a total time of active and inactive service of 22 years, 8 months, and 6 days.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-8 applies to the early separation of personnel due to reduction in force, strength limitations, or budgetary constraints. Soldiers may be separated prior to expiration of enlistment or fulfillment of active duty obligation.

Army Regulation 600-37, prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. This regulation also sets forth policies and procedures to (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in an individual official personnel file; and (3) ensure that the best interests of both the Army and the soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. This regulation applies to all officers and enlisted personnel in the Active Army, Army National Guard and the United States Army Reserve.

In an Alford Plea, the defendant does not admit the act, but admits that the prosecution could likely prove the charge. The court will then pronounce the defendant guilty. This plea originated in the case of North Carolina v Alford, 400 U.S. 25 (1970).

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board noted the applicant’s contention that he did not plead guilty to the charge and that he was allowed to enter an Alford plea. The claim by the applicant and his counsel that an Alford plea is not a binding admission of guilt is a misstatement of the law. In North Carolina v. Alford, 400 U.S. 25 (1970), Alford had pled guilty to second-degree murder but protested his innocence during testimony. On appeal, Alford claimed that he pled guilty only to avoid the possible imposition of the death penalty under the charged offense, first-degree murder. The Supreme Court upheld Alford’s conviction, holding that “while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty.” Id at 37. Furthermore, the applicant’s plea is immaterial; he was pronounced guilty by the court and was sentenced to a 2-year period of probation.

3. The record does not demonstrate whether the plea entered by the applicant was a true Alford plea, that is, a plea of guilty combined with protestations of innocence, or a plea of nolo contendere, or no contest. While the law regarding such pleas varies from jurisdiction to jurisdiction, a plea of no contest generally “has been viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.” Id at 35, note 8.

4. The assertions by counsel that the particular phraseology of the applicant’s plea should somehow absolve him of the criminal and administrative consequences of his offense are meritless. In Alford, the Supreme Court recognized that “[t]he fact that [a] plea [is] dominated a plea of guilty [or] a plea of nolo contendere is of no significance.’ Id at 37. It is “the practical consequences, not the formal categorizations” that define the substance and effect of the plea. Id. Regardless of the categorization of the applicant’s plea, the fact remains that he consented to the entry of a finding of guilt and the imposition of a criminal penalty for sexual abuse of an 11-year-old girl. By his consent, the applicant was convicted of this offense.

5. Following a thorough review of the evidence of record, the Board finds that the LOR is valid and is not in violation of Army Regulation 600-37. The applicant, through his counsel, misstates the substance of paragraph 7-2a, AR 600-37. To contest the propriety of matters contained in a soldier’s OMPF, “[t]he burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that [a] document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Where a soldier demonstrates that a single detail of an otherwise accurate document is in error, the appropriate remedy is correction of that single detail, not the deletion of the entire document. Therefore, the Board finds no reason to remove the LOR or related documents from the applicant’s OMPF.

6. The evidence of record shows that the applicant was barred from reenlistment under the DA QMP, that he appealed the bar to reenlistment, and that the appeal to the bar to reenlistment was denied. Accordingly, he was appropriately discharged and there is no reason to reinstate him to active duty with back pay, allowances, and time-in-grade.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_JHL____ __RJW__ __RTD __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2001062076
SUFFIX
RECON
DATE BOARDED	20020226
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19990726
DISCHARGE AUTHORITY	AR 635-200, c16-8
DISCHARGE REASON	Reduction in force
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	128.0000
2.	134.0100
3.
4.
5.
6.