PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 August 2003                   
	DOCKET NUMBER:   AR2002081278

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Mae M. Bullock		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, that he receive back pay for his period of incarceration at Fort Leavenworth, Kansas.

3.  The applicant states that he was incarcerated from February 1981 to May 1982 when his conviction was overturned.  He adds that he was supposed to be retried, but instead all charges were dismissed and he was fully restored to duty. He contends that he was supposed to receive all back pay and allowances, plus $75.00 per day for the length of his incarceration.  He said he did receive two payments of $1,500, but believes he is due more.

4.  The applicant’s military records show that he enlisted in the Regular Army (RA) for 3 years on 25 September 1979.  Upon completion of all required training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  On 13 January 1980, he was assigned for duty with C Battery, 1st Battalion, 2nd Field Artillery, Germany.  On 25 September 1980, he was advanced to private first class, pay grade E-3.  This was the highest pay grade that he achieved.  

5.  On 21 January 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed 16 January 1981.  His punishment included reduction from pay grade E-3 to pay grade E-2, and forfeiture of $100.00 pay per month for 1 month.  

6.  The available record does not contain the initial court martial conviction order. However, General Court-Martial (GCM) Order Number 444, dated 19 June 1981, Headquarters, United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, shows that the applicant's sentence as related to forfeiture of all pay and allowances promulgated in GCM Order Number 23, Headquarters, 8th Infantry Division, dated 30 April 1981, was suspended contingent upon the applicant's continued satisfactory performance of duty with the Food Service Division, USDB, or elsewhere as assigned, and contingent upon his not violating the rules of the USDB or the Uniform Code of Military Justice until such time as the sentence was ordered into execution or remitted.

7.  GCM Order Number 434, US Army Combined Arms Center, Fort Leavenworth, dated 5 November 1982, reflects that the applicant was then assigned to the Correctional Holding Detachment, USDB, Fort Leavenworth, and states that the findings of guilty and the sentence as promulgated in GCM Order 23, dated 30 April 1981, were set aside on 30 April 1982 by the US Court of Military Review and a rehearing authorized.  A rehearing was determined not to be practicable, therefore, the charges were dismissed.  All rights and privileges, and property of which the applicant was deprived by virtue of the findings of guilty were restored. 

8.  All of the applicant's pay records covering his period of service between February 1981-November 1982 are also not available.  The applicant's Leave and Earning Statement (LES) for 1-30 April 1981 shows he received $123.37 at the end of that month.  His LES's between May and October 1981 show that he received no pay for those months.  Item 39 (Remarks) shows "Member removed for early separation 30 April 1981."  A military pay voucher, dated stamped 24 November 1982, shows the applicant received 749.72 for the period 1-12 November 1982.  No additional pay records are available.

9.  The applicant's DD Form 214 shows that, on 12 November 1982, he was honorably separated as a result of court-martial.  He had completed 3 years, 1 month and 18 days of creditable active military service and he had no recorded lost time.  His DD Form 214 shows that he was retained in an active duty status 49 days beyond his normal end term of service (ETS) date for the convenience of the government.  

10.  On 19 October 1987, the applicant was issued a DD Form 215 (Correction to 214) to show that he was separated under the provisions of chapter 4, Army Regulation 635-200, due to the expiration of his term of service.  

CONCLUSIONS:

1.  The evidence available indicates that effective 30 April 1982, the applicant's sentence was set aside and the charges were dismissed.  All rights, privileges and property of which the applicant was deprived as a result of the guilty verdict and sentence were restored. 

2.  Based upon the actions of the Court of Military Review, the applicant should have received all pay and allowances previously withheld by virtue of forfeiture as a result of his court-martial conviction.  It is unclear whether he received such monies; LES's for May-October 1981 show that he received no pay during that period.  The applicant does make mention of receiving two payments of $1,500 each, however there is no record of such payments.

3.  There is no evidence to indicate that the applicant served in a no-pay status between 30 April 1981 and 12 November 1982.

4.  There is also no evidence to indicate that the applicant is entitled to receive $75.00 per day, in addition to his regular pay, during his period of incarceration.

5.  The Board believes the applicant's military pay records should be reviewed to determine whether he is due any back pay and allowances as a result of the dismissed charges.  If so, he should be paid the appropriate amount.

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

RECOMMENDATION:

1.  That the Defense Finance and Accounting Service review all records related to this case and, if appropriate, pay the individual concerned any amount that he may be due.

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

BOARD VOTE:  

__aao___  __tbr___  __mmb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002081278	
SUFFIX		
RECON		
DATE BOARDED	20030807	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19821112	
DISCHARGE AUTHORITY	AR635-200, Chap 4 	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	120.0200	
2.		
3.		
4.		
5.		
6.