RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  01-02114
		INDEX CODE 105.01  128.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He be paid E-1 base pay from 7 Nov 88, minus the agreed upon $447.00 monthly forfeiture, until 7 Sep 01.

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APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust and the evidence submitted in support of the appeal are at Exhibit A.

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STATEMENT OF FACTS:

During the period in question, the applicant was a quality assurance inspector at Hurlburt Field, FL. His performance reports reflect the highest overall ratings. In Jan 88, he was convicted of several major thefts, assault and other offenses by a General Court-Martial (GCM) pursuant to his guilty pleas. In accordance with the terms of his pre-trial agreement with the Government, he was sentenced to confinement for 14 years, forfeiture of $447 of pay per month for 14 years, reduction to the grade of airman basic, and a bad conduct discharge (BCD), by GCM Order No. 31, dated 11 Apr 88). During the initial months of his confinement, he continued to receive his military pay, subject to the forfeitures. By GCM Order No. 3, dated 25 Oct 88, his court-martial punishment was finally affirmed and his BCD was ordered executed.  He was discharged with a BCD, Conviction by Court-Martial (Other than Desertion), on 7 Nov 88. He had a total of 9 years, 2, months and 1 day of total active service, with lost time from 7 Sep 87 through 7 Nov 88. 

The remaining relevant facts pertinent to this application, extracted from the applicant's official documents (Exhibit A) and military records (B), are contained in the letters prepared by 
the Defense Finance and Accounting Service (DFAS) (Exhibit C), AFLSA/JAJM (Exhibit F), and HQ USAF/JAG (Exhibit I). 

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DFAS EVALUATION:

DFAS-POCC/DE reviewed the appeal and provided their rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF DFAS EVALUATION:

The applicant provided a response, contending that DFAS’ assertion that discharge ends any contractual relationship with the government regarding pay and entitlements is in error.  His odd situation of a General Court-Martial order specifically dictating otherwise placed him in a rare situation.  Reliance on the dictates of the administrative pay manual is misplaced in his case.

His complete response is at Exhibit E. 

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ADDITIONAL EVALUATION:

AFLSA/JAJM notes the applicant contends that by discontinuing his pay and allowances upon the execution of his bad conduct discharge, the Government acted contrary to the action of the convening authority which limited his forfeitures to $447 pay per month for 14 years.  He asserts that the DOD Pay Manual provision dictating that pay and allowances are authorized through the date of discharge does not override the determination of the convening authority as reflected in his action or the terms of the pre-trial agreement.  The applicant argues that it is inconsistent that, while incarcerated, he is subject to military discipline subsequent to his discharge, while at the same time he is not entitled to military pay. JAJM also notes the applicant's appeal is outside the three-year statute of limitations.

JAJM cites US v. Forister, which discusses the effect of the execution of a punitive discharge imposed by a court-martial upon a sentence including partial forfeitures.  Forfeitures of pay are applicable solely against pay accrued by an airman during the continuance of the contract of enlistment. If the contract of enlistment is terminated, a man may not be retained in the service merely to effect collection of forfeitures.  The court held that "The only intent discernable from the court's assessment of partial forfeitures, as well as other punishment, which we regard as implicit is that an accused will suffer certain specified withholdings from accrued pay for specified periods so long as he is, in the exercise of subsequent appellate procedure, permitted to remain in the status where pay accrues to him."

JAJM indicates that to argue in the applicant's case that the partial forfeitures arose from the convening authority's action reducing the total forfeitures originally imposed by the court is a distinction without a difference.  Since the pre-trial agreement did not preclude the convening authority from approving a punitive discharge, his approval of the bad conduct discharge and partial forfeitures was valid within the terms of the agreement, and consistent with the court's holding in Forister. Accordingly, once the applicant's bad conduct discharge was executed, he was not entitled to pay and the partial forfeitures became a nullity.  Denial is recommended.

A complete copy of the additional evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

The applicant disagrees with the evaluation's citing of US v. Forister, asserting that his case is more reflected in US v. Bell, US v. Walsh, and US v. Hancock.  He also cites US. v Cowden and New York v. Santobello. He contends his application is timely.  

The applicant's complete rebuttal is at Exhibit H.

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ADDITIONAL EVALUATION:

HQ USAF/JAG concurs with the DFAS and AFLSA/JAJM advisory opinions. They indicate that none of the legal sources the applicant cites are relevant to the issue at hand. The sentence imposed allowed forfeitures to be withdrawn from his pay for a full 14 years, but at the point he stopped earning pay, the ability of the Government to collect forfeitures ended. Similarly, there is nothing to indicate his pre-trial agreement did anything more than limit the total sentence he might receive from a court-martial. HQ USAF/JAG explains the court-martial procedures in the applicant's situation. They conclude that a punitive discharge imposed by a court-martial is not a "get out of jail free" card. None of the orders associated with the applicant's court-martial entitled him to release from prison upon his discharge from the Air Force, nor was he entitled to receive any pay beyond his discharge date merely because his pre-trial agreement limited the forfeiture portion of his sentence to 14 years.  In any event, if the applicant believes the terms of his pre-trial agreement were violated, his recourse was, and still is, through the judicial appellate system, not the AFBCMR.  Denial is recommended.

A complete copy of the evaluation is at Exhibit I.

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APPLICANT'S REVIEW OF ADDITIONAL EVALUATION:

The applicant claims none of the advisories cite any law, regulation, etc. which indicates the convening authority lacked the authority to legitimately order that his pay be continued for the 14-year time frame of anticipated confinement.  He believes there are very few cases such as his where forfeitures were so closely defined.  His contentions are not vague or without merit. He asserts that because of the Apr 88 order he did not enter a non-pay status in Nov 88. He believes the convening authority overcomes the authority contained in any pay manual.  He disagrees with the HQ USAF/JAG evaluation that the military appellate judicial system is the proper venue for redress, rather than the AFBCMR. 

A complete copy of the applicant’s response is at Exhibit K.
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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 error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief is warranted. Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. The HQ USAF/JAG advisory addresses his arguments and cites the governing directives in their evaluation’s text and footnotes. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. Therefore, absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered this application in Executive Session on 7 May 2002 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence pertaining to AFBCMR Docket No. 01-02114 was considered:

   Exhibit A.  DD Form 149, dated 9 Jul 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, DFAS-POCC/DE, dated 31 Aug 01.
   Exhibit D.  Letter, SAF/MIBR, dated 14 Sep 01.
   Exhibit E.  Letter, Applicant, dated 4 Oct 01.
   Exhibit F.  Letter, AFLSA/JAJM, dated 31 Dec 01.
   Exhibit G.  Letter, AFBCMR, dated 17 Jan 02.
   Exhibit H.  Letter, Applicant, dated 5 Feb 02.
   Exhibit I.  Letter, HQ USAF/JAG, dated 21 Mar 02.
   Exhibit J.  Letter, AFBCMR, dated 28 Mar 02.
   Exhibit K.  Letter, Applicant, postmarked 15 Apr 02.