PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  8 August 2000
	DOCKET NUMBER:  AR2000044800

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be authorized back pay, recomputation of service time, recomputation of retirement pay and back retirement pay.  Also, in effect, he requests that his DD Form 214 (Report of Transfer or Discharge) be corrected accordingly.

3.  The applicant states that he was convicted of being absent without leave (AWOL) and sentenced to a reduction to pay grade E-6.  On 6 July 1999, the conviction was set aside and all rights, privileges and property restored. 

4.  The applicant’s military records show that on 28 February 1998, while serving at Fort Sill, Oklahoma in pay grade E-7, the applicant was convicted by a Summary Court Martial (SCM) of being AWOL for 111 days.  His approved sentence was a reduction to pay grade E-6.

5.  On 31 December 1998, he was separated from active duty, in pay grade E-6, based on length of service, and transferred to the retired reserve the following day.  His DD Form 214 indicates he had 20 years, 6 months and 14 days of creditable service and 111 days of lost time.

6.  On 6 July 1999, the Fort Sill commander, a major general, set aside the applicant’s court martial conviction; disapproved the findings of guilty and the sentence; dismissed the charges; and restored all rights, privileges, and property of which the accused had been deprived.

7.  A staff member at the Defense Finance and Accounting Service – Denver (DFAS – Denver) advised a staff member of this Board that the proper procedure for restoration of those rights, privileges and property affected is to submit a claim to DFAS with all supporting documentation.  Supporting documentation should include the orders that deprived the applicant of those rights, privileges and property initially and the orders, which restored them.  

8.  Department of Defense Financial Management Regulation, volume 7A, Chapter 48, Section 4809 (Sentences Disapproved or Set Aside), Paragraph 480901 (When New Trial or Rehearing Is Not Ordered), indicates “When a court-martial sentence is set aside or disapproved and a new trial or rehearing is not ordered, all rights, privileges, and property affected by the executed part of the sentence are restored to the member.  Such restoration includes any executed forfeiture and any pay and allowances lost as a result of an executed reduction in grade.”

CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant’s conviction has been disapproved and he is entitled to have all rights, privileges and property of which he has been deprived restored.  His record should be corrected to show his grade at the time of separation and retirement as sergeant first class, E-7.

2.  There is no evidence that he was not AWOL during the periods indicated; therefore, that lost time will remain on his record.

3.  The applicant should make proper application to his servicing DFAS for restoration of his rights, privileges and property. 

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the individual concerned was separated in the rank of sergeant first class and pay grade E-7. 

2.  That the applicant be advised to submit his request for restoration to his servicing DFAS.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__sk____  ___ja__  ___rb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Stanley Kelley____
		        CHAIRPERSON

INDEX

CASE ID	AR2000044800	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	E7 & 214	
2.		
3.		
4.		
5.		
6.