RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060005630


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be allowed to cash in 40.5 days of
accrued leave at the grade of Staff Sergeant (SSG), E-6.

2.  The applicant states that he earned the leave prior to his court-
martial but was not allowed to take it prior to being confined.

3.  In an undated letter to the Defense Finance and Accounting Service
(DFAS), the applicant stated that, in accordance with Title 10, U. S. Code,
section 857, no forfeiture may extend to any pay or allowances accrued
before the convening authority’s approval of a general court-martial
sentence.  The applicant states that the intent of Congress is that all
leave time accrued before the convening authority signs off is good time
and is to be compensated for.

4.  In his letter to DFAS, the applicant stated that it has been the
military’s habitual response to invoke Title 37, U. S. Code, section 501(e)
to state that once a person receives a dishonorable discharge that leave
cannot be turned into cash.  He stated that this statute cannot apply.
When the convening authority signs off and adjudges a court-martial, he
usually states that everything EXCEPT (emphasis in the original) for the
discharge will be executed.  Paragraph 4040.1 of the Department of Defense
Pay Manual states that, under regulations prescribed by the Secretary
concerned, a member sentenced to unsuspended dismissal or unsuspended
dishonorable discharge by court-martial may be required to take leave
pending review of the conviction as provided by Article 76(a) of the
Uniform Code of Military Justice.  The member may elect to be paid for
accrued leave to the member’s credit.

5.  In his letter to DFAS, the applicant stated that his enlistment was up
on        12 August 2001.  The convening authority acted on 1 March 2002.
Thus, Title 37, U. S. Code cannot apply because he was not discharged as of
his expiration term of service, and as of 25 October 2001 his pay and
allowances were suspended, and allotments were terminated in accordance
with the Department of Defense Pay Manual.  Although he did not take leave
due to his confinement, this regulation still applies until he receives an
authentic discharge.

6.  The applicant provides two U. S. Disciplinary Barracks Forms 510
(Inmate Request Slip), dated 8 January 2002 and 10 January 2006; a note
dated             9 January 2002; his leave and earnings statement for the
period 1 through           31 October 2001; Headquarters, Fort Stewart
General Court-Martial Order Number 4 dated 1 March 2002; and his Enlisted
Record Brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 September 1981.  He was
promoted to SSG, E-6 on 1 July 1993.  He last reenlisted on 13 August 1998
for 3 years.  He was apparently involuntarily extended until October 2001.

2.  In May 2001, the applicant was living in government quarters with his
wife, who was a Reservist, and his three daughters.  His oldest daughter,
T___, was 17 years old.  On 11 May 2001, T___ entered their living room
where the applicant was watching pornographic images of females on their
home computer. The applicant asked her if she wanted to watch pornographic
movies.  She replied, “Sure,” but later indicated that watching those
movies made her a little uncomfortable.  The applicant asked T___ whether
she would be willing to try the depicted sexual acts.

3.  On 6 July 2001, when his wife was attending drill out of town, the
applicant returned home.  T___ was in the living room watching a movie and
his two other daughters were asleep in their bedroom.  He decided to log
onto his home computer, located in the living room.  He viewed some
pornographic images and blended a frozen alcoholic drink for himself and
his daughter.  He invited T___ to watch more pornographic movies on the
computer.  The evening ended with the applicant performing indecent acts
with T___.

4.  On 18 July 2001, the applicant was informed of his post-trial and
appellate rights.  He indicated that he understood that any period of
confinement included in his sentence generally begins to run from the date
the court-martial adjudges his sentence.

5.  On 25 October 2001, the applicant was convicted, in accordance with his
pleas, by a general court-martial of wrongfully committing indecent acts
with his daughter and orally communicating to his daughter certain indecent
language.  He was convicted, contrary to his pleas, of two specifications
of wrongfully soliciting his daughter to commit sodomy and two
specifications of orally communicating to his daughter certain indecent
language.  His adjudged sentence was to be reduced to the grade of Private,
E-1, to be discharged with a dishonorable discharge, and to be confined for
8 years.

6.  On or about 26 October 2001, the applicant was reassigned to the U. S.
Army Disciplinary Barracks, Fort Leavenworth, KS.

7.  As of 31 October 2001, the applicant had accrued 40.5 days of leave.

8.  On or about 1 March 2002, the convening authority approved the sentence
and, except for that part of the sentence extending to a dishonorable
discharge, ordered the sentence executed.

9.  On 16 March 2005, the U. S. Army Court of Criminal Appeals affirmed the
findings of guilty and the sentence.

10.  The applicant petitioned the U. S. Court of Appeals for the Armed
Forces for consideration of a grant of review.  On 1 November 2005, his
petition was denied.

11.  On 19 December 2005, the applicant was discharged with a dishonorable
discharge pursuant to his conviction by court-martial.

12.  The applicant petitioned the U. S. Court of Appeals for the Armed
Forces for reconsideration of a grant of review.  On 13 January 2006, his
petition was denied.

13.  Title 10, U. S. Code, section 857(a)(1) states any forfeiture of pay
or allowances or reduction in grade that is included in a sentence of a
court-martial takes effect on the earlier of (A) the date that is 14 days
after the date on which the sentence is adjudged; or (B) the date on which
the sentence is approved by the convening authority.  Section 857(a)(3)
states that a forfeiture of pay or allowances shall be applicable to pay
and allowances accruing on and after the date on which the sentence takes
effect.

14.  Title 10, U. S. Code, section 876a states that, under regulations
prescribed by the Secretary concerned, an accused who has been sentenced by
court-martial may be required to take leave pending completion of action
under this subchapter if the sentence, as approved, includes an unsuspended
dismissal or an unsuspended dishonorable or bad-conduct discharge.

15.  Title 10, U. S. Code, section 701(a) states a member of an armed force
is entitled to leave at the rate of 2 1/2 days for each month of active
service, excluding periods of (1) absence from duty without leave; (2)
absence over leave; (3) confinement as the result of a sentence of a court-
martial; and (4) leave required to be taken under section 876a of this
Title.

16.  Title 37, U. S. Code, section 501(b)(1) states a member who has
accrued leave to his credit at the time of his discharge is entitled to be
paid for such leave on the basis of the basic pay to which he was entitled
on the date of discharge. Section 501(b)(3) states payment may be made to a
member for any leave he elects to carry over to a new enlistment; however,
the number of days of leave for which payment is made may not exceed [a
career total of] 60.  Section 501(e)(1) states a member who is discharged
under other than honorable conditions forfeits all accrued leave to his
credit at the time of his discharge.

17.  Title 10, U. S. Code, section 858(b) states a court-martial sentence
that includes confinement in excess of six months results in an automatic
forfeiture of pay and allowances for the period of confinement.  The pay
and allowances forfeited during such period, in the case of a general court-
martial, shall be all pay and allowances due that member during such
period.

18.  The Department of Defense Financial Management Regulation, Volume 7A,
paragraph 010301F states that, under regulations prescribed by the
Secretary of the Military Department concerned, members sentenced to
unsuspended dismissal or unsuspended dishonorable or bad conduct discharge
by court-martial may be required to take leave pending review of their
conviction as provided by Article 76a, Uniform Code of Military Justice.
Such leave shall be charged against any accrued leave to the member’s
credit on the day before the day such leave begins unless the member elects
to be paid for accrued leave under subparagraph 350101.C of this volume.

19.  Army Regulation 600-8-10 (Leaves and Passes) states that the leave and
pass program is designed to allow Soldiers to use their authorized leave to
the maximum extent possible (within the constraints of operational military
requirements and to the degree of support for leave provided in the unit
manning document).  It also states the unit commander or designee is the
approval authority for ordinary leave requests.

DISCUSSION AND CONCLUSIONS:

1.  In an undated letter to DFAS, the applicant had stated that the intent
of Congress (in enacting section 857 of Title 10, U. S. Code) is that all
leave time accrued before the convening authority signs off is good time
and is to be compensated.  He stated that Title 37, U. S. Code, section
501(e) [which states a member who is discharged under other than honorable
conditions forfeits all accrued leave to his credit at the time of his
discharge] cannot apply in his case because his discharge was not ordered
to be executed until March 2002.  He indicated he recognized that a member
sentenced to an unsuspended dishonorable discharge by court-martial may be
required to take leave pending review of the conviction or elect to be paid
for accrued leave to the member’s credit (although he did not take leave
due to his confinement).

2.  It is noted that the applicant slightly misquotes Title 10, section
857.  Section 857(a)(1) states any forfeiture of pay or allowances or
reduction in grade that is included in a sentence of a court-martial takes
effect on the earlier of (A) the date that is 14 days after the date on
which the sentence is adjudged; or (B) the date on which the sentence is
approved by the convening authority.  His sentence was approved on 1 March
2002; however, 14 days after his sentence was adjudged was 8 November 2001.

3.  In accordance with Title 10, U. S. Code, section 701, the only
entitlements Congress provided for with regard to leave are basically the
entitlement to accrue leave, the entitlement to be paid for accrued leave
on the basis of the basic pay to which the member was entitled on the date
of discharge, and the entitlement to be paid for leave not carried over
into a new enlistment not to exceed a career total of 60.

4.  The applicant was not entitled to be paid for accrued leave at the time
of his discharge because he was not entitled to basic pay.

5.  The taking of leave is not an entitlement.  There is no evidence to
show the applicant could not have taken leave between July 2001, when it
appears authorities learned of his misconduct, and his trial on 25 October
2001.  If it was his decision not to request leave until after his trial,
he was taking a risk that he would not be convicted or, if convicted,
allowed to take leave pending review of his conviction.  However, even if
the applicant had requested leave, there was no requirement that his
commander had to approve his request.

6.  The applicant could not take leave once he was confined.  His discharge
was ordered executed while he was in confinement.  As a result, applicable
regulations did not permit him to sell back his accrued leave, for doing so
would require that he sell the accrued leave the day prior to actually
taking leave.  The applicant’s inability to sell his accrued leave was not
a forfeiture of pay accrued prior to his court-martial.  Rather, the loss
of this accrued leave was a function of his incarceration.  By his own
misconduct which placed him in confinement, he lost the ability under
applicable rules to use his leave.  By operation of law, he lost the leave
he was unable to take upon his discharge.

7.  Even if applicable regulations allowed the applicant to sell back his
leave, he would not be entitled to relief.  Per paragraph 350101 of the
Department of Defense Financial Management Regulation, Volume 7A, payment
for accrued leave is calculated at the rate of basic pay to which the
member is entitled.  By operation of Title 10, U. S. Code, section 858(b),
the applicant forfeited all pay and allowances by virtue of his conviction
and confinement.  Hence, his basic pay before his discharge was approved by
the convening authority was zero.  After his discharge, the applicant was
no longer entitled to basic pay or payment for his accrued leave.

8.  There is insufficient evidence which would warrant granting the relief
requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __pbf___  __rch___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __John T. Meixell_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060005630                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061017                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |121.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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