IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005606 


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, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that he was set-up on drug charges by the Federal Bureau of Investigation (FBI).  He claims that he, along with the other Soldiers, were manipulated, deceived, abused and treated as bait.  He claims the military's view on the entrapment issue was he, along with the other Soldiers, were mules in the FBI's ring of chaos and they did not initiate the activity; therefore, no Uniform Code of Military Justice (UCMJ) action was taken.

3.  The applicant provides the documents listed in the three folders he provides in support of his application. 

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's records show he enlisted in to the Regular Army and entered active duty on 9 December 1999.  It also shows he was awarded and served in Military Occupational Specialty (MOS) 75B (Personnel Administrative Specialist), and that the highest rank he attained while serving on active duty was specialist (SPC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  On 12 December 2001, the applicant was indicted and ultimately convicted of some or all of the following offenses in the United States District Court of Arizona:  conspiracy to commit bribery of a public official; bribery of a public official; possession with intent to distribute cocaine; conspiracy to possess with intent to distribute marijuana; and possession with intent distribute marijuana.  

4.  On 5 April 2002, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of Paragraph 14-12c, 
Army Regulation 635-200, by reason of misconduct.  The unit commander cited the reasons for his proposed action were the applicant's transportation of approximately 500 pounds of marijuana on 7 September 2001 in a military vehicle through Fort Huachuca, Arizona; his transportation of approximately 
40 kilograms of cocaine on 21 October 2001 from Sierra Vista to Tucson, Arizona; and his transportation of approximately 10 kilograms of cocaine from Sierra Vista to Tucson.  He further indicated that the applicant was pending prosecution for these offenses in a Federal court. 

5.  On 24 April 2002, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect of a waiver of those rights.  He elected consulting counsel and representation by counsel at no expense, and elected not to submit a statement in his own behalf.  Subsequent to this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon the government providing transportation of dependants, household goods, and a privately owned vehicle (POV).  The applicant further acknowledged that he understood he could encounter substantial prejudice in civilian life if he received an under other than honorable conditions (UOTHC) discharge.  

6.  On 29 April 2002, the separation authority approved the applicant’s separation and directed he receive an UOTHC discharge.  On 17 May 2002, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued shows he separated under the provisions of chapter 14-12c, Army Regulation 635-200, by reason of misconduct.  It also shows that at the time, he had completed a total of 2 years, 5 months and 9 days of active military service, and that he held the rank of private/E-1 (PV1). 

7.  On 11 February 2005, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that he had been properly and equitably discharged, and it voted to deny his request for a change to the characterization of his service and/or to the reason for his discharge.  

8.  The applicant provides a sentencing memorandum from the District Court of Arizona, dated 16 October 2006.  This document shows that the applicant was requesting that the court consider sentencing him to time served and allowing him to continue to build his life after having served 36 months of the stipulated range of 36-96 months sentence.  The applicant's public defender based the applicant's request on the fact that although the applicant was arrested he never gave up on being a productive citizen.  He outlined examples of the applicant's education and career accomplishments after having paid his debt to society. 

9.  The applicant also provides third-party statements from co-workers who state that the applicant has displayed nothing short of exceptional moral character, and which commend him for his professionalism, courteousness, and helpful attitude at the work place, which attest to his caring team play attitude.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c (2) pertains specifically to a commission of a serious offense that is drug related. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general, under honorable conditions discharge (GD) or honorable discharge (HD) if such is merited by the Soldier’s overall record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was setup by FBI agents was carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, an UOTHC discharge is normally appropriate for Soldiers discharged for misconduct under the provisions of Chapter 14.  However, the separation authority may direct a GD or HD if such is merited by the Soldier's overall record of service during the current enlistment.  

2.  The evidence of record confirms the applicant was ultimately convicted in Federal Court and sentenced to confinement.  It further shows his separation processing was accomplished in accordance with the applicable regulation and that he was separated under the terms of his own conditional waiver.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  The applicant's post service accomplishments have been carefully considered, and while they are noteworthy, this factor alone is not sufficiently mitigating to warrant an upgrade of his discharge.  His record documents no acts of valor, significant achievement, or service warranting special recognition that would have supported the issue of a GD or HD by the separation authority at the time of his discharge, or that would support an upgrade at this time.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  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 the aforementioned requirement.

BOARD VOTE:

________  ________  ________  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 that 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.
ABCMR Record of Proceedings (cont)                                         AR20080005606



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ABCMR Record of Proceedings (cont)                                         AR20080005606


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