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.

_________________________________________________________________

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

                 Mr. Vaughn E. Schlunz, Panel Chair
                 Mr. Grover L. Dunn, Member
                 Mr. George Franklin, 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.



                                   VAUGHN E. SCHLUNZ
                                   Panel Chair