MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 September 1999                   
	DOCKET NUMBER:   AR1999021075

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Christopher J. Prosser		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 he be reimbursed $42,406.70 for the period     19 May 1992 through 23 December 1994 when he received no pay and allowances.

APPLICANT STATES:  He was court-martialed in December 1991 and sentenced to a bad conduct discharge.  He was placed on involuntary excess leave.  In January 1993, the U. S. Army Court of Military Review set aside the action.  In July 1993, a new action was taken, mirroring the original sentence, which the U. S. Army Court of Military Review affirmed in November 1993.  The only basis for not paying him after 24 January 1992 was the action of that date which was declared to be null and void (“set aside”) on 26 January 1993 and was not reinstated (“affirmed”) until 1 July 1993.  Supporting evidence is as listed on the attachment to the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 11 August 1983.  

On 12 December 1991, the applicant was convicted by a special court-martial of wrongfully making a false sworn statement.  He was sentenced to be reduced to the grade E-1 and to be discharged with a bad conduct discharge.  The convening authority approved the sentence on 24 January 1992 after carefully considering not only the Staff Judge Advocate’s Post Trial Recommendation and its Addendum, but also the “1105 Matters” submitted by Mr. _____ on 23 January 1992.  On this date he was placed on involuntary excess leave pending completion of the appellate review of his case.  (He was paid for 36 days of accrued leave.)

On 26 January 1993, the U. S. Army Court of Military Review, in noting that the applicant had asserted that his civilian defense counsel was ineffective during the post-trial phase of representation, found that he had failed to show that his counsel was ineffective.  However, that Court also noted that the applicant had not been served with either a copy of the staff judge advocate’s post-trial recommendation or his copy of the record of trial in violation of Article 54(c), Uniform Code of Military Justice and Rule for Courts-Martial 1104(b) (1) (A) and 1106(f) (1).  Accordingly, that Court afforded the applicant a new opportunity to submit his personal plea for clemency to the convening authority prior to his taking action on the case.  That Court set aside the action of the convening authority dated 24 January 1992 and returned the record of trial to the Judge Advocate General for a new action by the same or a different convening authority.

On 1 July 1993, the convening authority made a new action on the record of trial. He approved the sentence after carefully considering not only the Staff Judge Advocate’s Post-Trial Recommendation and its Addendum, but also all matters submitted by the accused and his defense counsel.

On 16 November 1993, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.

On 23 December 1994, the applicant was discharged, pursuant to his court-martial sentence, with a bad conduct discharge.  (The Army Discharge Review Board later upgraded his discharge to a general discharge under honorable conditions.)

In the processing of this case, an advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS).  DFAS opined that the applicant was placed in a no-pay status when he was placed on involuntary excess leave on 24 January 1992.  He incurred a debt of $6,302.53 which is due to the release of mid-month and end-of-month, casual and other payments after he went into a no-pay status.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.  

The Department of Defense Financial Management Regulation (DODFMR), volume 7A, section 030107 (Leave Pending Review of Certain Courts-Martial Convictions) subparagraph A. 1. states if a member elects to be paid for accrued leave, the entire period of leave shall be charged as excess leave and pay and allowances will not accrue for such period except under the provisions of subparagraph B.  Subparagraph B states that a member required to take leave whose sentence by court-martial to a bad conduct discharge is set aside shall accrue pay and allowances for the period of leave charged as excess leave unless a rehearing or new trial is ordered and a bad conduct discharge results from the rehearing or new trial and such discharge is later executed.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion 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 the aforementioned requirement.

2.  The basis for not paying the applicant after 24 January 1992 was that he was on excess leave.  In accordance with the DODFMR, the applicant could have been authorized pay and allowances for the period of leave charged as excess leave after his sentence was set aside if his new hearing had not also resulted in a sentence to a bad conduct discharge.  However, his new hearing did result in a sentence to a bad conduct discharge, the U. S. Army Court of Military Review affirmed the findings and sentence, and the sentence was executed on              23 December 1994.  Therefore, he is not entitled to such pay and allowances.

3.  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

__ejo___  __inw___  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021075	
SUFFIX		
RECON		
DATE BOARDED	19990909	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.05	
2.		
3.		
4.		
5.		
6.