PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 December 2001                   
	DOCKET NUMBER:   AR2001059873

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Lester Echols		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, in effect, correction of his military records to show he did not have lost time and to reimburse him all due back pay and allowances.  He states that he was in jail but he was found not guilty of the charges.  

3.  The applicant’s military records show that he enlisted in the Regular Army on 21 September 1999.  On 3 January 2000, he was arrested by civilian authorities on charges of one count of assault in the second degree and two counts of criminal mistreatment in the first degree for incidents that occurred prior to his enlistment.  He was extradited to Oregon.  

4.  On 5 July 2000, the applicant was found not guilty of all charges in the Circuit Court of the State of Oregon for the County of Clackamas.  He returned to military control on 25 July 2000.

5.  On 3 August 2000, the applicant’s commander at Fort Knox, KY initiated separation action under the provisions of Army Regulation 635-200, chapter     11 for entry-level status performance and conduct.  The specific reason cited for the action was the applicant’s being out of training for eight months due to a court case where he was falsely accused and found not guilty of crimes against his family.  Due to personal issues, the commander was convinced that the applicant would not be able to complete his obligation to the Army and (retention) would only create a bigger problem for him and his gaining unit.

6.  On 15 August 2000, the applicant acknowledged notification of the separation action and elected not to make a statement in his own behalf.

7.  The appropriate authority approved the recommendation and on 24 August 2000 the applicant was discharged after completing 4 months and 10 days of active creditable service.  His Certificate of Release or Discharge from Active Duty, DD Form 214, shows that he had lost time from 3 January – 24 July 2000.

8.  The Defense Finance and Accounting Service has charged the applicant with a debt of $2,664.77 as a result of the lost time.

9.  The Department of Defense Financial Management Regulation states in Table 3-3 that when a member is confined by civil authorities and is tried and acquitted, then the absence may be excused as unavoidable.  Rule 4 of that regulation states that when a member is confined by civil authorities and the absence is excused as unavoidable then the member is entitled to pay and allowances.

CONCLUSIONS:

1.  The Board concludes that an injustice exists in this case.  It appears reasonable that, considering the seriousness of the offenses for which the applicant was charged, civilian authorities kept him under civil confinement for over seven months.  However, he was found not guilty of any of the three charges.  It appears the circumstances of the applicant’s confinement should have resulted in his commander excusing his absence as unavoidable and thereby allowing him to receive back pay and allowances for that period of time.

2.  The applicant’s chapter 11 separation action was initiated within days of his return to military control.  It appears that his commander had no time to initiate action to excuse the applicant’s absence as unavoidable resulting in the applicant’s subsequent loss of pay and allowances.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  showing that the applicant’s entire period of lost time was excused as unavoidable;

     b.  reimbursing the applicant for any and all lost pay and allowances due as a result of this correction;

     c.  amending the applicant’s DD Form 214, item 29 to read “None;” and

     d.  recalculating the applicant’s net active service for this period as a result of this correction and amending his DD Form 214, item 12c as appropriate.

BOARD VOTE:  

__jns___  __tbr___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			John N. Slone
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059873	
SUFFIX		
RECON		
DATE BOARDED	20011220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	123.08	
2.	128.00	
3.		
4.		
5.		
6.