IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100008036 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, he be paid while he was in confinement by civil authorities during the periods November 1994 to July 1995 and August 1995 to October 1997.  He also requests rescission of the Army's detainer or, alternatively, transfer to the U.S. Disciplinary Barracks so he can begin serving his military sentence and file an appeal; and that an evidentiary hearing be conducted.

2.  The applicant states:

* when he was sentenced, the military judge said he was to be paid to support his family
* he requests pay from November 1994 to July 1995 (approximately $16,200.00) and pay from August 1995 to October 1997 (approximately $22,500.00)
* he wants his detainer removed because the military judge said his sentence was to run concurrent with his State sentence
* he would like to be transferred to the U.S. Disciplinary Barracks so he can file an appeal
* the evidence shows he is innocent, he was not identified by the victim in a physical line up, and there was no physical or DNA evidence to connect him to this crime

3.  The applicant provides no documentary evidence in support of his application.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 30 June 1993 for a period of 3 years.  He served as an indirect fire infantryman in Southwest Asia from 20 August 1990 to 20 October 1990 and he served in Somalia from 27 December 1992 to 27 April 1993.

3.  On 6 July 1995, the applicant was temporarily released from the custody of the Fourth Judicial District in Colorado Springs, Colorado, to military authorities for prosecution by a general court-martial.  The agreement states the U.S. Army will assume custody of the applicant for the term of his court-martial and will return him to the Fourth Judicial District custody after sentencing to await his trial in Colorado Springs.

4.  On 7 July 1995, the applicant was convicted by a general court-martial of rape and larceny in accordance with his pleas.  He was sentenced to be reduced to 
E-1, to be confined for life, and to be discharged with a dishonorable discharge.  On 19 September 1995, the convening authority approved the sentence, but suspended confinement in excess of 27 years for 27 years from the date the sentence was adjudged.  Further, the execution of that part of the sentence adjudging confinement was postponed and will not begin until such time as the applicant is permanently released to the Armed Forces.  He was returned to civil authorities after his court-martial. Nothing in the court's sentence indicates military confinement was to run concurrently with the State sentence or that the applicant was entitled to pay while serving the State sentence.

5.  On 28 September 1995, the applicant was convicted of kidnapping by civil authorities in Colorado and sentenced to a 35 year sentence.  He is currently incarcerated in the Colorado State Penitentiary.  

6.  On 18 September 1997 the convening authority ordered the dishonorable discharge to be executed.

7.  Accordingly, the applicant was dishonorably discharged on 10 October 1997 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a conviction by court-martial.  He had served 5 years, 7 months, and 20 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows lost time from 4 November 1994 to 9 October 1997.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

10.  Table 1-12 (Unauthorized Absence and Other Lost Time - Effect on Pay and Allowances) of the Department of Defense Financial Management Regulation, Volume 7A, states that when a member is absent from duty in confinement by civil authorities and the absence is not excused as unavoidable, the member is not entitled to pay and allowances.

11.  Title 10, U.S. Code, section 1552 (Correction of Military Records:  Claims Incident Thereto), states that the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or to remove an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be paid while he was in confinement by civil authorities during the periods November 1994 to July 1995 and August 1995 to October 1997 was noted.  However, the governing regulation states that when a member is absent from duty in confinement by civil authorities and the absence 


is not excused as unavoidable, the member is not entitled to pay and allowances.  Therefore, there is no basis for granting the applicant's request.

2.  The applicant wants his detainer removed because the military Judge said his sentence was to run concurrent with his state sentence.  However, the evidence 
of record does not support this contention.  The evidence of record shows the convening authority approved the sentence, but suspended confinement in excess of 27 years for 27 years from the date the sentence was adjudged.  Further, the convening authority directed the execution of that part of the sentence adjudging confinement was postponed and would not begin until such time as the applicant was permanently released to the Armed Forces (i.e., the sentences were not concurrent, but consecutive).  By law, this Board cannot disturb the finality of a court-martial conviction.  Therefore, there is no basis for granting the applicant's request to remove his detainer.  Note:  the ABCMR could, as a matter of clemency, reduce his sentence to confinement.  However, given his current status, he hasn't provided any basis for such relief. 
  
3.  The applicant requests that an evidentiary hearing be conducted.  His contentions that evidence shows he is innocent, he was not identified by the victim in a physical line up, and there was no physical or DNA evidence to connect him to this crime relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.  In addition, he pled guilty to the rape charge.  

4.  The applicant's request that he be transferred to the U.S. Disciplinary Barracks was noted.  However, this portion of his request does not appear to be a records correction.  The ABCMR has no authority to order Colorado correctional authorities to turn the applicant over to the Army prior to expiration of his State sentence.  Therefore, again, the Board has no authority to grant this request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100008036



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ABCMR Record of Proceedings (cont)                                         AR20100008036



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