ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20170000194 APPLICANT REQUESTS, through counsel: * change in duty status from 22 August 2014 to 14 September 2015 as excused as unavoidable * back pay and allowances from 5 October 2014 to 31 December 2015 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Commander’s Inquiry (Findings) * 4 x DA Form 4187 (Personnel Action) * Letter from Lyon County Sheriff’s Office * 5 x Leave Earning Statements * Court Docket Case # 14-CR-01539 * Legal Representation Letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that he did not receive pay and entitlements from October 2014 through to 31 December 2015. 3. The applicant provides: a. Commander’s inquiry dated 2 November 2015 which states: * 10 June 2013 - applicant was accused of felony crimes in Lyon County Nevada * 22 August 2014 - he surrendered to the Federal Marshall’s * 17 September 2014- he was transferred to Yarrington County, Nevada and placed in pretrial confinement until his arraignment on 10 October 2014 * 5 October 2014 - his command changed his duty status to “civilian confinement” resulting in the immediate termination of all pay and entitlements * 5 November - the applicant was released from confinement; however, he was geographically restricted from returning to his home station until 11 September 2015 pending trial * 15 September 2015 - his duty status was changed to “present for duty” The organization continuously attempted to have the applicant released from his geographical restriction (Nevada) and returned to Hawaii but were unsuccessful until September 2015. During the restriction, on behalf of the Soldier, other individuals attempted to have the applicant transferred to local units within the restricted area but were unsuccessful * 6 May 2015 - attempts were made to restart his pay, however the acting commander declined this action based on the guidance within the Department of Defense 7000.14-R, volume 7A, chapter 1, page 1-31, paragraph D * 10 September 2015 - the applicant’s request for release from geographical restriction was granted by a judge within Yarrington County * 11 September 2015 - the applicant was removed from electronic GPS monitoring b. DA Form 4187 dated 4 November 2014 requesting initiation of pay and entitlements. c. DA Form 4187 dated 17 September 2015 requesting change in duty status from “civilian confinement” to “present for duty” effective 15 September 2015. d. DA Form 4187 dated 16 November 2015 requesting change in duty status from “civilian confinement” to “temporary duty” effective 5 November 2014. e. DA Form 4187 dated 21 January 2016 requesting change in duty status from “civilian confinement” to “present for duty” effective 6 November 2014. f. Letter from Lyon County Sheriff’s Office, Officer C_ dated 31 October 2014 stating that the applicant had been incarcerated in the county jail since 17 September 2014 for a felony warrant. g. Leave and Earning Statements (LES) for the months of June through September 2015 reflect that the applicant received zero pay and entitlements. Further review reflects a $24,136.04 debt. h. LES dated October 2015 reflects the receipt of some pay and allowances, minus a $6548.81 and a $11.59 debt. i. Court Docket reference case number dated 10 February 2017 dismissing both charges (sexual assault and lewdness) without prejudice. j. Legal Representation letter dated 11 October 2018 providing chronological history of events to include request for financial relief. * the applicant initiated pay inquiry with DFAS, but DFAS closed his case since he was no longer in the Army * he meets all of the criteria for having his absence characterized as excused as unavoidable * he was absent from active duty, confined by civilian authorities, his charges were permanently dismissed in 2016 and one can conclude that it is apparent the case will not be prosecuted; the charges were dismissed over two years ago and there is no evidence he will be re-charged; he is entitled to proper credits of pay and allowances * Column D of Table 1-13 in the DoD FMR provides discretionary guidance with the word “may” as it relates to finding of an unavoidable absence * the applicant never shirked duty or failed to report; made effort to contribute to mission while geographically restricted, he intended to contribute to the Army mission, he should have been placed in a TDY status and reassigned IAW AR 630-10, paragraph 7-3a(1)(c); in sum, the applicant spent over 14 months serving in the Army with no pay * the applicant at the very least is entitled to pay from the date of his release from civilian confinement until the date that he ETS’d * rarely is there a clearer example of injustice than what occurred to the applicant during his honorable creditable service 4. A review of the applicant’s service record shows the following on: * 11 October 2007 - enlisted in the Army * 31 December 2015 - released from active duty * 5 January 2016 - Orders # D-01-600208 reflecting honorable discharge from the Reserve 5. DOD 7000.14-R volume 7A, chapter 1d. (Absence in the hands of Civil Authorities) states that the service member is entitled to all pay and allowances earned through the day before the first day of unauthorized absence. If the member is delivered to civil authorities by military authorities, he or she is entitled to all pay and allowances earned through the day prior to the date of such delivery. 6. Table 1-12 (Unauthorized Absence and Other Lost Time – Effect on Pay and Allowances) rule 4 (in confinement by civil authorities) states that when the service member is absent from duty, in confinement by civil authorities and the absence is excused as unavoidable then the service member is entitled to otherwise proper credits of pay and allowances. If the absence is not excused as unavoidable then the service member is not entitled to pay and allowances, except for that part of the period that is covered by authorized leave, liberty or pass. A service member is not entitled to pay and allowances if granted a pass or liberty to serve civil confinement. 7. Table 1-13 (Rules for Determining Whether Absence Is Unavoidable) states that the absence may be excused as unavoidable when a service member is absent from duty in confinement civil authorities or by military authorities for civil authorities and: * is tried and acquitted * charges are dismissed or member is released without trial and it is clear that the arrest and detention were not due to misconduct * is released without trial upon agreement to make restitution or reparation for alleged offense and the commander determines that the absence was not due to misconduct * Is admitted to bail and trial is postponed indefinitely and it is apparent that the case will not be prosecuted * was released because the case was discontinued by the prosecutor or plaintiff or because the jury failed to agree 8. Table 1-13 (Rules for Determining Whether Absence Is Unavoidable) states that the absence may not be excused as unavoidable when a service member is absent from duty in confinement civil authorities or by military authorities for civil authorities and: * is tried and convicted * is released under bond (not in a full duty status) pending appeal of case to a higher court and the appeal does not result in acquittal * is discharged because of imprisonment or conviction by a civil court * confinement is due to failure to obey a decree of a civil court 9. Army Regulation (AR) 630-10, Chapter 7 paragraph 7-1b states that it is the policy of the Department of the Army to cooperate with civilian authorities unless the best interests of the Army will be prejudiced. Commanders assist in the expeditious delivery of a Soldier to civilian authorities when legally sufficient documentation is provided. Examples of documents include an indictment, warrant for arrest, contempt order, show cause order, or court order for the soldier with sufficient information to identify the Soldier. 10. AR 630-10, Chapter 7 paragraph 7-2 (Conus) states that there is no statutory authority for a commander to deliver a Soldier to bail bondsman or their surety. The surety must coordinate with the installation Staff Judge Advocate and the commander of the Soldier prior to attempting to apprehend the Soldier. To preserve peace and order on the installation, military police will be notified by the Soldier’s commander and accompany the surety to observe the surety’s taking custody of the Soldier. On approval of the request to surrender a soldier by the court–martial convening authority or designee, the Soldier remains assigned to the parent unit. Soldiers assigned in Alaska and Hawaii are processed in the same manner as CONUS Soldiers. 11. Article 86 of the Uniformed Code of Military Justice paragraph C(5) states that a member of the armed forces turned over to the civilian authorities upon request under Article 14 (Delivery of military members to civilian authorities) is not absent without leave while held by them under that delivery. If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member’s own misconduct. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the circumstances of the applicant’s absences, the geographical restrictions imposed by the court, the outcome of the civil proceedings and the regulatory guidance for excusal of absences as unavoidable. The Board determined, based on the preponderance of evidence, that the applicant’s absences should be considered excused and that he is entitled to any pay and allowances due as a result of this excusal. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant’s absence from 22 August 2014 to 14 September 2015 and that he is entitled to any pay and benefits due as a result of this excusal. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. DOD 7000.14-R volume 7A, chapter 1d. (Absence in the hands of Civil Authorities) states that the service member is entitled to all pay and allowances earned through the day before the first day of unauthorized absence. If the member is delivered to civil authorities by military authorities, he or she is entitled to all pay and allowances earned through the day prior to the date of such delivery. 3. Table 1-12 (Unauthorized Absence and Other Lost Time – Effect on Pay and Allowances) rule 4 (Confinement by civil authorities) states that when the service member is absent from duty, in confinement by civil authorities and the absence is excused as unavoidable then the service member is entitled to otherwise proper credits of pay and allowances. If the absence is not excused as unavoidable then the service member is not entitled to pay and allowances, except for that part of the period that is covered by authorized leave, liberty or pass. A service member is not entitled to pay and allowances if granted a pass or liberty to serve civil confinement. 4. Table 1-13 (Rules for Determining Whether Absence Is Unavoidable) states that the absence may be excused as unavoidable when a service member is absent from duty in confinement civil authorities or by military authorities for civil authorities and: * is tried and acquitted * charges are dismissed or member is released without trial and it is clear that the arrest and detention were not due to misconduct * is released without trial upon agreement to make restitution or reparation for alleged offense and the commander determines that the absence was not due to misconduct * Is admitted to bail and trial is postponed indefinitely and it is apparent that the case will not be prosecuted * was released because the case was discontinued by the prosecutor or plaintiff or because the jury failed to agree 5. Table 1-13 (Rules for Determining Whether Absence Is Unavoidable) states that the absence may not be excused as unavoidable when a service member is absent from duty in confinement civil authorities or by military authorities for civil authorities and: * is tried and convicted * is released under bond (not in a full duty status) pending appeal of case to a higher court and the appeal does not result in acquittal * is discharged because of imprisonment or conviction by a civil court * confinement is due to failure to obey a decree of a civil court 6. Army Regulation (AR) 630-10, Chapter 7 paragraph 7-1b states that it is the policy of the Department of the Army to cooperate with civilian authorities unless the best interests of the Army will be prejudiced. Commanders assist in the expeditious delivery of a Soldier to civilian authorities when legally sufficient documentation is provided. Examples of documents include an indictment, warrant for arrest, contempt order, show cause order, or court order for the soldier with sufficient information to identify the Soldier. 7 AR 630-10, Chapter 7 paragraph 7-2 (Conus) states that there is no statutory authority for a commander to deliver a Soldier to bail bondsman or their surety. The surety must coordinate with the installation Staff Judge Advocate and the commander of the Soldier prior to attempting to apprehend the Soldier. To preserve peace and order on the installation, military police will be notified by the Soldier’s commander and accompany the surety to observe the surety’s taking custody of the Soldier. On approval of the request to surrender a soldier by the court–martial convening authority or designee, the Soldier remains assigned to the parent unit. Soldiers assigned in Alaska and Hawaii are processed in the same manner as CONUS Soldiers. 8. Article 86 of the Uniformed Code of Military Justice paragraph C(5) states that a member of the armed forces turned over to the civilian authorities upon request under Article 14 (Delivery of military members to civilian authorities) is not absent without leave while held by them under that delivery. If a member is released by the civilian authorities without trial, and was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized absence only if it is proved that the member actually committed the offense for which detained, thus establishing that the absence was the result of the member’s own misconduct. ABCMR Record of Proceedings (cont) AR20170000194 2 1