Lowery only had two days to process his appeal to the state board after the newly seated Swain County Board of Elections dismissed the challenge on April 9. The state board is now required by law to make a decision on the appeal based on the transcripts of the public hearing and the evidence presented at the April 9 hearing held in Swain County.
In his challenge, Lowery alleged Cochran was dishonorably discharged from the military in 1975 and as such is guilty of a felony under federal law, which would mean he is not eligible to run for sheriff in Swain County. According to North Carolina law, the burden of proof in a candidate challenge falls on the candidate who must show “by a preponderance of evidence” that he or she is qualified to run for election.
Lowery’s candidate challenge asked Cochran to present his DD-214 military release form in order to prove whether or not he was dishonorably discharged from the military. When the challenge was first filed at the end of February, Cochran and his attorney David Sawyer told the local board of elections that Cochran did not have a copy of his DD-214 but had requested it from the federal government and asked for it to be expedited.
When Cochran and Sawyer appeared at the public hearing April 9, Sawyer argued that Cochran was never issued a DD-214 form from the military because he had served less than 90 days of active duty.
While Sawyer argued that military personnel with fewer that 90 days of active duty aren’t issued the form, a representative from the National Personal Records Center in St. Louis, Missouri, said that wasn’t the case. Julie Willi said that every service member with at least one day of active duty is normally issued a DD-214 form.
However, she said there were “certain reasons” why Cochran was not ever issued a DD-214 and those special circumstances are not available to the public. The national archives was able to release certain information about Cochran’s time in the military though — the dates he served, his duty status, assignments and place of separation.
His personnel file shows that he served from June 12, 1975 to Aug. 30, 1975 and his duty status states he was discharged. Under the category “Transcript of Court-Martial Trial,” the record states “Not In File.”
Cochran said he reported to basic training at Parris Island on June 27 but his young son at the time had a medical emergency and the base chaplain sent him home for the surgery on Aug. 30.
“Some time after this date — I don’t remember the exact date — I received a letter from the military stating that if I would sign a form releasing them from any VA or medical benefits, they would send me a discharge,” Cochran told The Smoky Mountain News. “I never thought anymore about the need to have a discharge paper, since by the military rules it should be an ELS (entry level separation) because I was there for less than 180 days.”
Lowery said he was disappointed with the public hearing process because the local board of elections didn’t put the burden of proof on Cochran and instead placed it on the complainant. The board members told Lowery the only issue in question was whether Cochran ever committed a felony.
After Cochran’s administrative assistant Janet Cochran testified that the background checks she performed on the sheriff showed that he’ never been convicted or charged with a felony in the U.S., the board dismissed the candidate challenge.
Lowery claims military charges wouldn’t show up in the databases she ran the check through and no evidence was shown by the candidate as to his military discharge record, which is the basis for the challenge.
“No evidence of the record pertaining to Curtis A. Cochran’s military discharge was ever submitted that supported the candidate’s requirement to prove under NC GA 163-127.5 that the candidate is not dishonorably discharged from the military and therefore is a felon as alleged in the ‘Candidate Challenge,’” Lowery wrote in the appeal.
Lowery also stated that the board inappropriately placed the burden of proof on him instead of the candidate and also did not allow Lowery — who did not have an attorney to represent him at the public hearing — to present testimony and evidence that he thought was pertinent to the issue at hand.
After Sawyer claimed people with less than 90 days of active service don’t receive a DD-214, Lowery attempted to call fellow Swain County resident Gerry Laschober to the stand to testify, but the board members said it was irrelevant to the case. Laschober is a military veteran with less than 90 days of active duty service due to an injury and wanted to present his DD-214 form to the board to show that he was honorably discharged and given a DD-214 form.
The appeal paperwork and the transcripts from the April 9 public hearing have been submitted to the state board of elections, but as of press time on Tuesday, the state board hadn’t set a hearing date for the appeal.