PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 13 February 2003
         DOCKET NUMBER: AR2002075573


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

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Gail J. Wire		Member
Mr. Robert J. Osborn II		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that he be reimbursed the amount of $1,740.33.

3. The applicant states, in effect, that he should be allowed to collect the amount of $1,740.33 from the pay account of another soldier who stole the money from his bank account. He further states that because the Army delayed his Article 139 claim against the soldier, he was unable to collect his money from the soldier because the soldier was not receiving pay and was discharged before the collection could be made. He continues by stating that he was confined by civil authorities from 6 April to 25 May 2001 for an incident of domestic violence and his noncommissioned officer in charge (NCOIC) agreed to pay his bills for him while he was confined. He goes on to state that instead of paying his bills, his NCOIC stole the money and spent it on himself. On 14 June 2001, he submitted an Article 139 claim against the NCOIC with the intent of collecting his money back. He asserts that his claim was delayed until it was too late to collect the money because the NCOIC was reduced in grade, placed in a no-pay-due status and was discharged before he could collect his money. He also states that two commanders upheld his claim; however, because his claim had been delayed by the chain of command until the results of the court-martial, he could not be paid. Accordingly, he is asking the Board to adjust the NCOIC’s records to allow for him to be made whole again. In support of his application he submits a copy of the court-martial order, his original Article 139 complaint and the approval of his complaint.

4. The applicant’s military records show that he enlisted in the Regular Army on 10 May 2000 for a period of 4 years and training as a medical specialist. He successfully completed his training and was transferred to Fort Huachuca, Arizona. He was advanced to the pay grade of E-4 on 10 November 2000.

5. On 6 April 2001, the applicant was placed into civilian custody at the Cochise County Prison in Bisbee, Arizona, and was charged with attempted aggravated assault. On 25 May 2001, he plead guilty to the charges and was sentenced to 3 years of supervised probation, a fine, time served (51 days), community service, participation in domestic violence education and anger management, and abstinence from the consumption of alcohol or frequenting any establishment where alcohol was served. His conviction was deemed a class V felony. He was returned to military control on 25 May 2001.

6. On 14 June 2001, the applicant submitted a complaint under Article 139, Uniform Code of Military Justice (UCMJ), in which he asserted that his NCOIC wrongfully appropriated $1,742.04 from his bank account and $240.61 by stealing and using his telephone calling card. The commander concurred with his complaint.

7. On 16 January 2002, the NCOIC was convicted by a general court-martial of stealing $1,587.00 in United States currency from the applicant, falsely obtaining long distance services with a value of $162.75, and drunken operation of a vehicle. He was sentenced to confinement for 60 days, reduction to the pay grade of E-1 (from E-5), forfeiture of all pay and allowances and a bad conduct discharge.

8. On 4 February 2002, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct, due to his felony conviction by civil authorities. After consulting with counsel, the applicant elected to submit a statement in his own behalf, whereas he asserted that while he had been convicted of a felony assault for hitting his wife, things were not as they seemed. He indicated that he had not been in trouble before, that his marriage was in trouble, that he was supporting two daughters, and that he was near completing his bachelor’s degree. He requested that the commander allow him to continue to serve his country.

9. On 11 February 2002, the applicant’s commander (a different commander than previously upheld his claim) notified the applicant that she had determined that his Article 139 claim was cognizable and meritorious in the amount of $1,740.33. Her approval of his claim did not explain how she determined the amount of the claim she approved. She also informed him that unless a request for reconsideration was submitted within 10 days, she would direct that amount to be withheld from the NCOIC’s pay and paid to the applicant.

10. The appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate. Accordingly, he was discharged under honorable conditions on 19 April 2002, under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He had served 1 year, 11 months and 10 days of active service during his enlistment.

11. Army Regulation 27-20 provides the standards and procedures for filing a claim under Article 139, UCMJ, which provides for redress for property willfully damaged, destroyed or wrongfully taken by members of the Armed Forces. To be considered, a claim must be submitted within 90 days of the incident out of which the claim arose, unless the special court-martial convening authority acting on the claim determines that good cause has been shown for the delay. Subject to any limitations provided in appropriate regulations, the servicing finance officer will withhold the amount directed by the Special Court-Martial Convening Authority (SPCMCA) and pay it to the claimant. The SPCMCA’s assessment is not subject to appeal and is conclusive on any finance officer. If the servicing finance officer finds that the required amount cannot be withheld because he or she does not have custody of the soldier’s pay records or because the soldier is in a no pay due status, the servicing finance officer will promptly notify the SPCMCA in writing. It also provides that administrative action under Article 139 is entirely separate and distinct from disciplinary action taken under other sections of the UCMJ. Because action under Article 139 requires independent findings on issues other than guilt or innocence, the mere fact that a soldier was convicted or acquitted of charges is not dispositive of a claim under Article 139.

CONCLUSIONS:

1. The applicant’s contention that his complaint under Article 139, UCMJ, was unduly delayed to the point that before he could collect the money due him from a noncommissioned officer (NCO) who was convicted by a special court-martial for the offense, the NCO was reduced in grade, placed in a no-pay-due status and was subsequently discharged appears to have merit.

2. The evidence submitted by the applicant clearly shows that he submitted his complaint on 14 June 2001, within the 90 days prescribed by the applicable regulation and the SPCMCA concurred with his complaint. However, for reasons not explained in the available records, the applicant was not paid the monies that were to be collected from the NCO’s pay account and he again submitted a complaint under Article 139 to the succeeding commander. The succeeding commander also approved his complaint (in a specific amount lower than requested) and afforded the applicant the opportunity to appeal her decision. However, by the time the succeeding commander approved his complaint, the NCO had already been convicted by a special court-martial, reduced in grade, placed in a no-pay due status, and placed in confinement with a bad conduct discharge upon release from confinement. Accordingly, the finance officer could not make the necessary collections and payments.

3. Although the individual who stole the funds from the applicant should have been held liable for paying the applicant back, the Board finds that the Department is most culpable in this case, in that the actions by the chain of command denied the applicant his recourse under Article 139. Accordingly, the Department should bear the burden of reimbursing the applicant for the funds that he otherwise would have been able to recoup, had the Department acted on his request in a timely manner.

4. Therefore, it would be in the interest of justice that the individual be paid from the Board's funds, the amount of $1,740.33.

5. 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 a debt under Article 139, UCMJ, exists as a valid debt in the amount of $1,740.33 and that payment of that debt to the individual concerned is now authorized by funds controlled by the Board under section 1552.

BOARD VOTE:

__rjo ___ ___gw___ __rvo ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Raymond V. O’Connor, Jr.__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075573
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 297	128.1400/PAY/ART 139 COLLECTION
2.
3.
4.
5.
6.