MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001062382

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that he be paid back pay and allowances for the period 6 May through 14 November 1997.

APPLICANT STATES: In effect, that he falls under an ex-post facto clause of the law and should have been paid until the general court-martial (GCM) convening authority approved his sentence. He indicates that he complained to the post finance office and the Inspector General (IG); however, both of these agencies denied him back pay. He also comments that it was his intent to file his complaint in claims court, but he feels they would deny his petition based on the failure to exhaust administrative remedies, so he has instead petitioned this Board for relief. He also claims that the Gorski case contains the operative case law that is applicable to him and that although his offenses occurred both before and after the 1 April 1996 guideline date, he still deserves pay that was due him between 6 May and 14 November 1997. He states that he committed one offense before 1 April 1996, and because of this he deserves back pay. He also states that the “straddle offense doctrine” cited by the post finance office in denying him back pay cannot apply to a whole indictment as the 7^th Circuit Court has ruled. In support of his application, he provides the enclosed statement containing his argument for relief, his IG complaint, and the denial of back pay action from the post finance office.

EVIDENCE OF RECORD: The applicant's military records show:

On 23 April 1997, he was adjudged guilty by a GCM of violating the following
7 Articles of the Uniform Code of Military Justice (UCMJ) by committing the
17 offenses (specifications) listed on the dates indicated: Article 92, two specifications, disobeying a lawful order, 18 December 1996, and violating a general regulation, 16 December 1996; Article 111, one specification, operating a motor vehicle while drunk and or while impaired by the use of marijuana,
16 December 1996; Article 112a, five specifications, wrongfully using marijuana on four occasions, between 1 and 31 March 1996, 4 August 1996,15 October and 15 November 1996, and 16 December 1996, and wrongfully distributing marijuana, 4 August 1996; Article 120, one specification, rape, 23 December 1996; Article 125, one specification, committing sodomy, 23 December 1996;
Article 128, four specifications, assault with a dangerous weapon, 16 December 1996; and Article 134, three specifications, wrongfully having sexual intercourse with a women not his wife, 4 August 1996, wrongfully communicating a threat to physically injure, 23 December 1996, and wrongfully having sexual intercourse with a women not his wife, 23 December 1996.

As a result of the 17 guilty findings adjudged on 23 April 1997, the applicant was sentenced to be reduced to the grade of private/E-1 (PV1), to forfeit all pay and allowances, to be confined for 20 years, and to be discharged from the service with a Dishonorable Discharge (DD).

On 14 November 1997, the applicant’s GCM was promulgated in GCM Order Number 22, published by Headquarters, 4^th Infantry Division (Mechanized), Fort Hood, Texas, and the convening authority approved the sentence.

On 2 April 2001, the applicant submitted an Inmate Request Slip (USDB Form 510) requesting back pay and allowances from 6 May through 14 November 1997, the date the convening authority approved his sentence. On 3 April 2001, the United States Disciplinary Barracks (USDB), Defense Military Pay Office, denied the applicant’s request to receive back pay based on ex-post facto case law and that he be paid for his accrued leave. The applicant was also informed that he was not due back pay because his offenses occurred both before and after 1 April 1996; therefore, automatic forfeiture provisions of the law applied in his case, and he was provided the applicable provisions of the Department of Defense Financial Management Regulation (DODFMR). He was further advised that the 3 days of leave he had accrued prior to the date of his confinement,
23 December 1996, had been forfeited because soldiers could only be paid for accrued leave upon honorable discharge, reenlistment; or if required to go on excess leave pending an appellate review of a conviction, and none of these situations were applicable in his case.

On 17 April 2001, the applicant submitted an IG Action Request (DA Form 1559) with 14 pages that contained his argument for receiving back pay and allowances under ex-post facto provisions of the law. The IG’s response to the applicant’s complaint is not on file; however, by the applicant’s own admission, his complaint in regard to back pay was denied by the IG.

Department of Defense Financial Management Regulation, Volume 7a, provides the policy and procedure for the pay and allowances of military personnel. Chapter 48 provides the policy on the effect of a court-martial sentence on pay and allowances. Paragraph 480306 contains guidance on the forfeiture of pay or allowances during certain court-martial confinements. It states, in pertinent part, that effective with GCM sentences adjudged after 31 March 1996, for offenses committed after 31 March 1996, a member automatically forfeits all pay and allowances while in confinement or in a parole status when the member is sentenced to confinement of any length and to either a dishonorable or bad conduct discharge.

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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. The Board notes the contention of the applicant that he should be provided back pay and allowances for the period 6 May through 14 November 1997, because one of the 17 offenses for which he was adjudged guilty on 23 April 1997, occurred prior to the 1 April 1996. However, the Board finds this claim lacks merit.

2. By law and regulation, a member automatically forfeits all pay and allowances while in confinement based on a GCM sentence adjudged after 31 March 1996, for offenses committed after 31 March 1996, when the sentence includes confinement of any length and either a dishonorable or bad conduct discharge.

3. The evidence of record confirms that on 23 April 1997, the applicant was adjudged guilty of 17 specifications of violating 7 separate Articles of the UCMJ. These included guilty findings for 16 offenses that occurred after 31 March 1996, which included the very serious offenses of assault with a dangerous weapon and rape, and that his sentence included a lengthy confinement period and a DD.

4. The record also clearly establishes that of the 17 offenses for which the applicant was adjudged guilty, 16 were committed after 1 April 1996, and only
1 was committed prior to that date. This one offense was for the wrongful use of marijuana that occurred between 1 and 31 March 1996; however, it is also clear that he was also found guilty of 2 other specifications of this same offense that he committed after 1 April 1996, and which were included in the 17 offenses for which he was found guilty.

5. In view of the facts of this case, the Board concurs with the determinations made by USDB Defense Military Pay officials and IG officials, who concluded that automatic forfeiture provisions of the law were applicable in the applicant’s case given he was adjudged guilty subsequent to 1 April 1996, and that 16 of the 17 offenses for which he was convicted occurred after that date.

6. 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 this requirement.

7. 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

__INW__ __MMD__ __JTM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001062382
SUFFIX
RECON
DATE BOARDED	2002./04/16
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Court-Martial Conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2.
3.
4.
5.
6.