MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002                   
	DOCKET NUMBER:   AR2002068122

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 his records be corrected to show he was discharged on 21 November 1994.

APPLICANT STATES:  That he was discharged on 21 November 1994 after he was court-martialed, not on 16 May 1996 as shown on his Certificate of Release or Discharge from Active Duty, DD Form 214.  Now they claim he owes them for back pay in the amount of $17,333.87 for the term of his enlistment of, which amount he never received.  He provides his DD Form 214, a Waiver/Remission of Indebtedness Application, DD Form 2789, and Orders 3-22 as supporting evidence.

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

He enlisted in the Regular Army on 16 May 1989.  He was honorably discharged on 20 February 1992 for the purpose of immediately reenlisting on 21 February 1992.

On 1 September 1994, the applicant was convicted by a special court-martial of operating a passenger vehicle while drunk causing injury to the occupants of an oncoming vehicle.  He was sentenced to forfeit $500.00 pay for 3 months, to be confined for 2 months, and to be discharged with a bad conduct discharge.  The appropriate authority approved the sentence and ordered the sentence, except for the part of the sentence extending to the bad conduct discharge, to be executed.  

The applicant was confined from 1 September through 19 October 1994.  On       21 November 1994, he was placed on excess leave for an indefinite period pending appellate review.  Orders 3-22, 90th Personnel Service Battalion, Detachment A dated 18 November 1994 placed him on excess leave and authorized him travel to his home of record in Lyons, MI.

On 8 March 1995, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  

On or about 26 September 1995, a petition for a grant of review was filed with the U. S. Court of Appeals for the Armed Forces.  

On 9 November 1995, the U. S. Court of Appeals for the Armed Forces denied the petition for a grant of review.  

Special Court-Martial Order Number 11, Headquarters, U. S. Army Armor Center and Fort Knox dated 25 March 1996 noted that the applicant’s sentence had finally been affirmed and ordered the bad conduct discharge portion of the sentence to be executed.

Orders 121-00214, Headquarters, U. S. Army Armor Center and Fort Knox dated 30 April 1996 reassigned the applicant to the U. S. Army Transition Point with a discharge date of 14 May 1996.  On 14 May 1996, he was discharged with a bad conduct discharge pursuant to his court-martial sentence.

Army Regulation 600-8-10, in pertinent part, states that a soldier sentenced by court-martial to a punitive discharge may be directed to take excess leave.  The soldier must be pending completion of appellate review.  Excess leave is without pay and allowances.

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

2.  The evidence of record shows that the applicant was not discharged upon his release from confinement but was placed on excess leave pending appellate review.  Final appellate review was taken on 9 November 1995.  On 25 March 1996, the bad conduct discharge was ordered executed.  On 30 April 1996, he was ordered to report to the Transition Point.  On 14 May 1996 he was discharged.

3.  The period the applicant spent on excess leave should have been without pay and allowances.  He does not provide any documents pertaining to the $17,333.87 debt he mentions and so no determination can be made as to the validity of that debt.

4.  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

__mdm___  __le____  __kyf___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002068122	
SUFFIX		
RECON		
DATE BOARDED	20020523	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.01	
2.		
3.		
4.		
5.		
6.