APPLICANT REQUESTS: Reinstatement of pay for two years of involuntary excess leave.
APPLICANT STATES: That his court-martial was overturned. He was never retried. The two years is considered good time on his DD Form 214, so he should be compensated with back pay.
EVIDENCE OF RECORD: The applicants military records show:
He was born on 24 October 1965. He completed 12 years of formal education. He enlisted in the Regular Army on 18 November 1987 for 4 years. He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).
On 5 November 1992, the applicant was convicted by a special court-martial of wrongful use of cocaine. He was sentenced to a bad conduct discharge, to be reduced to pay grade E-1 and to forfeit $523 pay for 3 months.
On 5 November 1992, the applicant was notified by the general court-martial convening authority (GCMA) of his intent to place the applicant on involuntary excess leave. The applicant elected not to submit matters for the GCMAs consideration in deciding whether or not to retain him on active duty pending the appellate review process.
On 23 December 1992, the applicant was placed on involuntary excess leave.
On 15 July 1994, the U.S. Army Court of Military Review set aside the findings of guilty and the sentence.
The local Staff Judge Advocate (SJA) informed the GCMA that he, the GCMA, was requested to terminate the applicants excess leave and could order a rehearing or dismiss the charges. The SJA recommended that another special court-martial be reconvened.
On or about 15 August 1994, the applicant returned to active duty.
On 18 August 1994, court-martial charges were again preferred against the applicant.
On 20 January 1995, the applicant, after consulting with legal counsel, who advised him to accept the court-martial, voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf, wherein he requested the command consider giving him a general discharge.
On 24 January 1995, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.
The applicant was discharged on 8 May 1995, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial. He had completed 7 years, 4 months and 15 days of creditable active service and had no lost time.
Army Regulation 600-8-10 prescribes the policies for the leave and pass function of the Military Personnel System. The regulation defines excess leave as leave in excess of accrued or advanced leave. The soldier is not entitled to pay and allowances for a period of such leave. In pertinent paragraph, it states that the GCMA may direct this leave if a soldier is sentenced by court-martial to a punitive discharge. The GCMA will cause the soldier to be notified in writing of the intent to consider him or her for involuntary excess leave. Soldiers are given a reasonable time in which to present matters supporting a request to continue on duty, if desired.
The Department of Defense Military Pay and Allowances Entitlements Manual also states that members on excess leave are not entitled to pay and allowances.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.
On 3 April 1997, the Army Discharge Review Board (ADRB) upgraded the applicants discharge to a general under honorable conditions discharge.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicant was absent from duty while he was in excess leave. While it was involuntary, he had the opportunity to request to remain on active duty and chose not to request to do so.
3. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Loren G. Harrell
Director
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