RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00888 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: He receive back pay and allowances for the time he spent in confinement in excess of 98 days. _________________________________________________________________ APPLICANT CONTENDS THAT: He was court-martialed, received a dishonorable discharge and was sentenced to three years confinement. He was originally placed in pretrial confinement for allegedly communicating a threat; however, he was acquitted of the offense. He pled guilty to marijuana use and distribution of less than three grams. After serving 16 months confinement, the Air Force Court of Criminal Appeals (AFCCA) determined the judge and the prosecution had erred resulting in a harsh sentence, consequently he did not receive a fair trial. As a result of the errors, his sentence was reduced from 3 years to 98 days with a bad conduct discharge (BCD). In support of his request, the applicant submits a personal statement, copies of letters from his United States Senator and the United States Air Force Court of Criminal Appeals. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: According to Special Court-Martial Order No 3, dated 10 November 2003, the applicant was charged with two specifications of failing to obey a lawful no contact order. He was found guilty of one specification and not guilty of the other. He was also charged with wrongful use of marijuana; however, he was found not guilty. His sentence was adjudged 1 Oct 2003 and consisted of forfeiture of $952.00 pay per month for 6 months and a reprimand. General Court-Martial Order No 9, dated 7 March 2005, reflects the applicant was found guilty of wrongful use of marijuana and wrongfully distributing some amount of marijuana. In addition, it reflects that he was found not guilty of two specifications of communicating a threat. His sentence was adjudged 9 December 2004 and consisted of confinement for three years, reduction to the grade of airman basic (E-1) and forfeiture of all pay and allowances with a dishonorable discharge. In their 16 May 2006 decision, the Air Force Court of Criminal Appeals (AFCCA) agreed the military judge erred, and that the errors had the effect of depriving the appellant of a fair sentencing hearing. However, they did not believe that a rehearing was needed and reassessed his sentence of a bad-conduct discharge, confinement for 98 days, and reduction to E-1 and stated that the findings and sentence, as reassessed, were correct in law and fact, and no error prejudicial to the substantial rights of the appellant occurred. The AFCCM noted that because the sentence was reassessed, there was no need to address the appellant’s contention that the sentence previously adjudged and approved was inappropriately severe. General Court Martial Order No 2, dated 12 October 2006, reflects the AFCCA upon appellate review reduced the applicant’s sentence to a BCD, confinement for 98 days and reduction to the grade of airman basic. On 26 October 2006, the applicant was discharge with a BCD. He completed 7 years, 11 months and 2 days of military service. His DD Form 214 reflects lost time for the period 1 September 2004 thru 25 November 2004. _________________________________________________________________ AIR FORCE EVALUATION: The Defense Finance and Accounting Service (DFAS) recommends denial. DFAS states there is no statutory authority entitling the applicant to pay and allowances for the period of excess confinement he served. Title 10, U.S.C., section 875, states that when an executed part of a court-martial sentence is set aside, all rights, privileges and property affected by the execution of the sentence shall be restored, unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing. Although the applicant’s sentence to confinement was reduced, that reduction does not result in an entitlement to back pay under Title 10, U.S.C., section 875, because his right to military pay was not affected by the execution of the sentence. The applicant’s entitlement to pay did not cease by operation of the court martial sentence, rather, his entitlement to pay ceased prior to the adjudication of the sentence, when his term of obligated service expired. Department of Defense Financial Management Regulation, states that “if a member is confined waiting court- martial trial when the enlistment expires, then pay and allowances end on the date the enlistment expires.” The complete DFAS evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 30 July 2010 for review and response. As of this date, no response has been received by this office (Exhibit D). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After carefully considering all the facts and circumstances of this case, we do not find the evidence presented sufficiently persuasive to override the rationale provided by DFAS. In this respect, we note the applicant was sentenced by general court martial to confinement for three years, reduction to the grade of airman basic (E-1) and forfeiture of all pay and allowances with a dishonorable discharge. Although the AFCCA agreed the military judge erred and noted the errors had the effect of depriving the applicant of a fair sentencing hearing, the AFCCA reassessed his sentence and reduced his confinement from 3 years to 98 days. While the applicant states he served 16 months in confinement and believes the reduction in his sentence entitles him to pay for the period of excess confinement, the evidence reveals he was in a non duty status and performed no duty to warrant compensation under Title 10, U.S.C., Section 875. Moreover, as stated in DFAS’s advisory, the applicant’s entitlement to pay did not cease by operation of the court martial sentence, rather, his entitlement to pay ceased prior to the adjudication of the sentence, when his term of obligated service expired. Therefore, we agree with the opinion and recommendation of DFAS and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Absent persuasive evidence that he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of a material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2011-01609 in Executive Session on 13 Oct 11 under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2011-01609 was considered: Exhibit A. DD Form 149, dated 1 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, DFAS, undated. Exhibit D. Letter, SAF/MRBR, dated 30 Jul 10. Exhibit E. Letter, Applicant, 2 Jan 11, w/atchs.