RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00888 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

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APPLICANT REQUESTS THAT: 

 

He receive back pay and allowances for the time he spent in 
confinement in excess of 98 days. 

 

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APPLICANT CONTENDS THAT: 

 

He was court-martialed, received a dishonorable discharge and was 
sentenced to three years confinement. 

 

He was originally placed in pretrial confinement for allegedly 
communicating a threat; however, he was acquitted of the offense. 
He pled guilty to marijuana use and distribution of less than 
three grams. 

 

After serving 16 months confinement, the Air Force Court of 
Criminal Appeals (AFCCA) determined the judge and the prosecution 
had erred resulting in a harsh sentence, consequently he did not 
receive a fair trial. 

 

As a result of the errors, his sentence was reduced from 3 years 
to 98 days with a bad conduct discharge (BCD). 

 

In support of his request, the applicant submits a personal 
statement, copies of letters from his United States Senator and 
the United States Air Force Court of Criminal Appeals. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

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STATEMENT OF FACTS: 

 

According to Special Court-Martial Order No 3, dated 10 November 
2003, the applicant was charged with two specifications of 
failing to obey a lawful no contact order. He was found guilty 
of one specification and not guilty of the other. He was also 
charged with wrongful use of marijuana; however, he was found not 
guilty. His sentence was adjudged 1 Oct 2003 and consisted of 
forfeiture of $952.00 pay per month for 6 months and a reprimand. 

 


General Court-Martial Order No 9, dated 7 March 2005, reflects 
the applicant was found guilty of wrongful use of marijuana and 
wrongfully distributing some amount of marijuana. In addition, 
it reflects that he was found not guilty of two specifications of 
communicating a threat. His sentence was adjudged 9 December 
2004 and consisted of confinement for three years, reduction to 
the grade of airman basic (E-1) and forfeiture of all pay and 
allowances with a dishonorable discharge. 

 

In their 16 May 2006 decision, the Air Force Court of Criminal 
Appeals (AFCCA) agreed the military judge erred, and that the 
errors had the effect of depriving the appellant of a fair 
sentencing hearing. However, they did not believe that a 
rehearing was needed and reassessed his sentence of a bad-conduct 
discharge, confinement for 98 days, and reduction to E-1 and 
stated that the findings and sentence, as reassessed, were 
correct in law and fact, and no error prejudicial to the 
substantial rights of the appellant occurred. The AFCCM noted 
that because the sentence was reassessed, there was no need to 
address the appellant’s contention that the sentence previously 
adjudged and approved was inappropriately severe. 

 

General Court Martial Order No 2, dated 12 October 2006, reflects 
the AFCCA upon appellate review reduced the applicant’s sentence 
to a BCD, confinement for 98 days and reduction to the grade of 
airman basic. 

 

On 26 October 2006, the applicant was discharge with a BCD. He 
completed 7 years, 11 months and 2 days of military service. His 
DD Form 214 reflects lost time for the period 1 September 
2004 thru 25 November 2004. 

 

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AIR FORCE EVALUATION: 

 

The Defense Finance and Accounting Service (DFAS) recommends 
denial. DFAS states there is no statutory authority entitling 
the applicant to pay and allowances for the period of excess 
confinement he served. Title 10, U.S.C., section 875, states 
that when an executed part of a court-martial sentence is set 
aside, all rights, privileges and property affected by the 
execution of the sentence shall be restored, unless a new trial 
or rehearing is ordered and such executed part is included in a 
sentence imposed upon the new trial or rehearing. Although the 
applicant’s sentence to confinement was reduced, that reduction 
does not result in an entitlement to back pay under Title 10, 
U.S.C., section 875, because his right to military pay was not 
affected by the execution of the sentence. The applicant’s 
entitlement to pay did not cease by operation of the court 
martial sentence, rather, his entitlement to pay ceased prior to 
the adjudication of the sentence, when his term of obligated 
service expired. Department of Defense Financial Management 


Regulation, states that “if a member is confined waiting court-
martial trial when the enlistment expires, then pay and 
allowances end on the date the enlistment expires.” 

 

The complete DFAS evaluation is at Exhibit C. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to applicant on 
30 July 2010 for review and response. As of this date, no 
response has been received by this office (Exhibit D). 

 

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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 an error or injustice. After 
carefully considering all the facts and circumstances of this 
case, we do not find the evidence presented sufficiently 
persuasive to override the rationale provided by DFAS. In this 
respect, we note the applicant was sentenced by general court 
martial to confinement for three years, reduction to the grade of 
airman basic (E-1) and forfeiture of all pay and allowances with 
a dishonorable discharge. Although the AFCCA agreed the military 
judge erred and noted the errors had the effect of depriving the 
applicant of a fair sentencing hearing, the AFCCA reassessed his 
sentence and reduced his confinement from 3 years to 98 days. 
While the applicant states he served 16 months in confinement and 
believes the reduction in his sentence entitles him to pay for 
the period of excess confinement, the evidence reveals he was in 
a non duty status and performed no duty to warrant compensation 
under Title 10, U.S.C., Section 875. Moreover, as stated in 
DFAS’s advisory, the applicant’s entitlement to pay did not cease 
by operation of the court martial sentence, rather, his 
entitlement to pay ceased prior to the adjudication of the 
sentence, when his term of obligated service expired. Therefore, 
we agree with the opinion and recommendation of DFAS and adopt 
its rationale as the basis for our conclusion the applicant has 
not been the victim of an error or injustice. Absent persuasive 
evidence that he was denied rights to which he was entitled, we 
find no basis to recommend granting the relief sought in this 
application. 


 

4. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved. 
Therefore, the request for a hearing is not favorably considered. 

 

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THE BOARD DETERMINES THAT: 

 

The applicant be notified that the evidence presented did not 
demonstrate the existence of a 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 Docket Number BC-
2011-01609 in Executive Session on 13 Oct 11 under the provisions 
of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

, Member 

 

The following documentary evidence pertaining to Docket Number 
BC-2011-01609 was considered: 

 

 Exhibit A. DD Form 149, dated 1 Mar 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, DFAS, undated. 

 Exhibit D. Letter, SAF/MRBR, dated 30 Jul 10. 

 Exhibit E. Letter, Applicant, 2 Jan 11, w/atchs. 

 

 

 

 

 

 Panel Chair