IN THE CASE OF:	   

		BOARD DATE:	 2 December 2013 

		DOCKET NUMBER:  AR20130003542 


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 restoration of his rank/grade of Staff Sergeant (SSG)/E-6.

2.  The applicant states:

* in August 2008, while stationed in Korea, he was arrested and charged by the Korean government for wrongfully smuggling marijuana and conspiracy and for alleged involvement in a Nigerian drug-smuggling ring
* the U.S. Army Criminal Investigation Command (CID) in Korea investigated the alleged drug crimes and determined there was insufficient evidence to support the charges
* the CID investigation included multiple polygraphs, all of which he passed showing no deception, and a complete review of evidence collected by the Korean government in the case
* notwithstanding CID's determination there was insufficient evidence to title him with the alleged offenses, the U.S. Government allowed the Korean government to retain jurisdiction over the case under the Status of Forces Agreement
* the Korean government prosecuted him for the drug offenses as well as infliction of bodily injury and interference with the performance of official duty for allegedly resisting arrest by Korean authorities
* on 21 November 2008, the Inchon District Court convicted him of the crimes


* on 5 December 2008, he was sentenced to 5 years for the alleged crimes and he was transferred from the control of his unit to Korean custody and confinement where he appealed his conviction to the Seoul High Court
* on 2 June 2009, the Seoul High Court set aside portions of his conviction and reduced his sentence from 5 years to 1 year and 8 months
* after his conviction and while in custody, a fourth Nigerian was arrested and convicted of smuggling drugs into Korea
* he believes that since he was Nigerian, he was confused with this other later-arrested Nigerian man, who owned the cell phone that had been used to contact the Nigerian businessman the Korean government claimed he had conspired with
* he appealed the remaining conviction to the ROK Supreme Court; however, on 26 November 2009, the appeal was denied
* his Korean attorney filed a new appeal to the Seoul High Court based on the additional evidence of the fourth Nigerian's involvement
* on 5 August 2010, the Korean government released him from confinement to the custody and care of his unit, the 35th Air Defense Artillery Brigade, Korea
* his chain of command in Korea stood behind him throughout the ordeal and believed in his innocence and had intentions to allow him to continue to serve
* on 23 February 2011, the appeal was denied after his return to Joint Base Lewis-McChord, WA
* he reported his experience in Korea to his gaining chain of command in order to further clear his name and continue his military career; however, his gaining unit reduced him to the grade/rank of private (PV1)/E-1
* he was not found guilty by the U.S. government at any time nor did CID title him for the underlying offenses in Korea
* he did not receive any pay or allowances while in confinement and this caused his family to suffer a great deal of debt
* having been reduced, he had no choice but to leave the Army upon the completion of his enlistment

3.  The applicant provides:

* self-authored statements
* an undated letter from U.S. Department of State, Citizens Services Specialist, Overseas Citizens Services
* 5 character support letters
* 5 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
* DD Form 214 (Certificate of Release or Discharge from Active Duty), Member Copy 1 and Copy 4

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 June 1998.  He was promoted to SSG on 1 December 2007.

2.  The specific facts and circumstances surrounding the applicant's conviction by the Korean government, his reduction, and his separation are not available for review.

3.  His Enlisted Record Brief shows:

* he was assigned in Korea during the period 1 July 2007 through 25 April 2011
* Flag Codes "AA" (adverse action) effective 29 June 2011 and "BA" (involuntary separation) effective 9 September 2011
* his date of rank for PVT/E-1 effective 6 September 2011
* his ETS (expiration of term of service) as 8 August 2012

4.  On 8 August 2012, the applicant was honorably discharged by reason of
non-retention on active duty.  His DD Form 214 shows:

* his rank/grade as PV1/E-1
* in item 29 (Dates of Time Lost During This Period) the entry "Under
10 USC 972 (Title 10, U.S. code, section 972):  20081208 - 20100731"

5.  The applicant provides self-authored statements; letters from his chain of command attesting to his good character; and a letter from the U.S. Department of State, Overseas Citizens Services, to a member of Congress explaining that the applicant was a victim of mistaken identity and that his issue was a civil matter and not political.  He also provides copies of his NCOERs for the periods February 2005 through July 2005, 1 July 2007 through 31 January 2008, 1 February 2008 through 30 July 2008, and 31 July 2008 through 31 December 2010, all that show for his overall potential and/or service in positions of greater responsibility, he was rated "Among the Best" by his rater and "Superior" by his senior rater.

6.  A review of the CID report confirms insufficient evidence was presented to support charges of conspiracy and smuggling of marijuana.


7.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army personnel.  Chapter 10, Table 10-2 states a Soldier serving in any enlisted grade above private will be reduced to the lowest enlisted grade without referral to a reduction board if convicted by a civil court (domestic or foreign) and sentenced to death or confinement of 1 year or more that is not suspended.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for restoration of his rank/grade of SSG was carefully considered.

2.  The applicant's sentence of 1 year and 8 months was sufficient evidence for his reduction in rank and grade on 6 September 2011; however, his record is void of the specific facts and circumstances surrounding his conviction.  Additionally, his available record also shows he was flagged for an adverse action on 29 June 2011; however, these facts and circumstances are also unavailable for review.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Therefore, since there is no evidence of record to show that his reduction in rank/grade months after his return from Korea and his flag action were not in accordance with the Army regulatory guidance in effect at the time, there is no basis to restore his rank/grade.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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)                                         AR20130003542



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ABCMR Record of Proceedings (cont)                                         AR20130003542



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