2.  The applicant requests that he receive back pay for the time his court-martial sentence of forfeiture was set aside.

3.  He states, in effect, that the verdict in his court-martial was set aside and he should receive back pay from the date the sentence of forfeiture was imposed until it was set aside.

4.  The applicant was found guilty by a general court-martial of conspiracy to commit assault, assault and communicating a threat.  He was sentenced to be confined at hard labor, for 2 years and 6 months, to forfeit all pay and allowances and to be discharged from the service with a bad conduct discharge (BCD).  The sentence was adjudged on 5 April 1977.  At the time of his conviction he was serving as a private, pay grade E-1.

5.  On 24 July 1978 the Court of Military Review set aside the convening authority's action in this case on the basis that the staff judge advocate’s (SJA) review was deficient. The Court directed a new SJA review and action by the same or another convening authority be completed.  

6.  On 20 September 1978, following a new SJA review, the convening authority upheld the applicant’s original conviction but modified the sentence pertaining to hard labor and forfeiture of pay. The sentence to confinement was reduced to 28 months, which amounted to time served, and the forfeiture was to apply to pay and allowances becoming due on and after the date of the convening authority’s 20 September 1978 action.  The BCD portion of the sentence was unaffected.

7.  On 12 March 1979 the Court of Military Review completed another post-trial review and affirmed the findings and sentence in the case.  Accordingly, the applicant was discharged with a BCD on 28 September 1979.

CONCLUSIONS:

1.  Based on the second convening authority’s action to modify the forfeiture portion of the sentence, it appears that the applicant is due back pay as an E-1 for the period from the imposition of the original court-martial sentence on 5 April 1977 until it was set aside on 20 September 1978.

2.  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 showing that the individual concerned is due back pay and allowances as an E-1 for the period 5 April 1977 to 20 September 1978.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON