IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20100010943 


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 promotion to sergeant/E-5.  He also requests his dates of rank from E-1 to E-5 be adjusted starting with E-1 as of 17 November 2007.

2.  The applicant states:

* he was tried and convicted by a general court-martial on 16 November 2006 on four separate charges
* at that time he held the rank of staff sergeant/E-6 and had been selected for promotion by the 2006 Sergeant First Class Board
* he was originally sentenced to 14 years of confinement, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge
* a rehearing on the sentence was ordered
* the rehearing was conducted on 13 February 2007; two charges were dismissed and he was resentenced to 11 years of confinement, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge
* on 18 June 2009 the U.S. Court of Appeals for the Armed Forces set aside the finding of guilty of one specification and that specification was dismissed
* the remaining finding of guilty was affirmed
* the court also set aside the sentence as promulgated and authorized a rehearing on the sentence
* he was released from confinement on 11 August 2009 after serving 1000 days of confinement
* he was attached to Headquarters and Headquarters Company, Combined Arms Center, Fort Leavenworth, Kansas, to await the rehearing
* on 20 November 2009 a rehearing was conducted and a sentence of 1 year was adjudged
* on 8 February 2010 the convening authority approved the sentence and he was credited with 1000 days of confinement
* due to the length of the sentence, automatic reduction to the lowest enlisted grade became effective upon the convening authority's action on 8 February 2010
* since his approved sentence was for only 1 year, he spent an additional 635 days in confinement
* the additional time served was unjust and could have been used to reestablish himself fully in the Army had the correct sentence been adjudged originally
* he would have been released from confinement on or about 17 November 2007 at the latest
* from then to now he could potentially have achieved promotions from E-1 to E-5 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions) by meeting both time-in-service (TIS) and time-in-grade (TIG) requirements for each pay grade
* he proposes the following dates of rank based on a release date of 17 November 2007 and meeting TIS and TIG requirements:

* E-2 on or about 17 May 2008
* E-3 on or about 17 September 2008
* E-4 on or about 17 March 2009
* E-5 on or about 17 September 2009 

3.  The applicant provides:

* General Court-Martial Order Number 23, dated 28 June 2007
* U.S. Army Court of Criminal Appeals decision, dated 27 August 2008
* U.S. Court of Appeal for the Armed Forces decision, dated 18 June 2009
* charge sheet
* DA Form 4430 (Department of the Army Report of Result of Trial)
* General Court-Martial Order Number 2, dated 8 February 2010
* convening authority action, dated 8 February 2010
* excerpts from Army Regulation 600-8-19

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 July 1993 and has remained on active duty through continuous reenlistments.  He was promoted to staff sergeant/E-6 on 1 April 2002.

2.  On 13 February 2007, the applicant was convicted by a general court-martial of signing a false official statement and rape (of a person under the age of 12).  The applicant contested the rape at all times, but pled guilty and was found guilty of making a false official statement, sodomy with a child, and indecent acts upon a child.  The military judge later realized the statute of limitations then in effect prevented the applicant's conviction on the sodomy charge and indecent acts charges.  The military judge dismissed the sodomy and indecent acts charges leaving the applicant guilty of a single rape contrary to his plea and guilty of making a false official statement consistent with his plea.  The military judge reassessed the sentence and reduced the amount of adjudged confinement from 14 years to 11 years.  The applicant was sentenced to be reduced to E-1, to be confined for 11 years, and to be discharged from the service with a dishonorable discharge.  On 28 June 2007, the convening authority approved the sentence.

3.  On 27 August 2008, the U.S. Army Court of Criminal Appeals affirmed the sentence.

4.  On 18 June 2009, the U.S. Court of Appeals for the Armed Forces reversed the decision of the U.S. Army Court of Criminal Appeals.  The basis for the court's decision was a technical error on the military judge's part in failing to identify which of two possible acts of penetration constituted the single instance of rape of which she found the applicant guilty beyond a reasonable doubt.  The finding of guilty of specification 2 of charge II (rape) and the sentence were set aside, the specification and charge were dismissed, and the remaining finding of guilty (signing a false official statement) was affirmed.  A rehearing on the sentence was ordered.

5.  A rehearing on the sentence was conducted on 20 November 2009.  The applicant was sentenced to be confined for 1 year.  On 8 February 2010, the convening authority approved the sentence and credited the applicant with 1000 days of confinement against the approved sentence to confinement.

6.  Paragraph 5-29e(2)(b) of Army Regulation 27-10 (Military Justice) states a reduction to the lowest enlisted pay grade will be automatic only in a case in which the approved sentence includes, whether or not suspended, either a dishonorable discharge or bad conduct discharge or confinement in excess of 180 days (if the sentence is awarded in days) or in excess of 6 months (if the sentence is awarded in months).



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the evidence of record shows his reduction was not effective until 8 February 2010 when the convening authority approved the sentence (confinement for 1 year) adjudged on 20 November 2009.  In accordance with the governing regulation, and as the applicant himself acknowledged, he was automatically reduced to E-1 on 8 February 2010 since his approved sentence included confinement in excess of 180 days.  

2.  Although the applicant had served 1000 days in confinement prior to his release, when the Court of Appeals for the Armed Forces set aside the sentence, that sentence became a nullity.  Therefore, from the time a finding of guilty as to false official statement was entered at his original trial in November 2006 until the time the convening authority approved his sentence to 1 year of confinement upon rehearing on 8 February 2010, he was essentially restored to E-6 and the rights and privileges attendant thereto -- though flagged from favorable personnel action -- and awaiting sentencing.  He is thus entitled to unpaid pay and allowances accrued from his original 16 November 2006 trial to 8 February 2010 when the convening authority approved his sentence.  Therefore, his pay records should be reviewed by the Defense Finance and Accounting Service (DFAS) to determine if he received pay and allowances in the rank of E-6 during the period 16 November 2006 to 8 February 2010.  If not, he should be paid.

3.  The information/correction noted in paragraph 2, above, grants him greater relief than that requested concerning his request for promotion to E-5.

BOARD VOTE:

____x____  ____x____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing DFAS to review his pay records to determine if he received pay and allowances in the rank of E-6 during the period 16 November 2006 to 8 February 2010 and, if not, that he be paid.




      ___________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)                                         AR20100010943



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010943



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1