BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130013627 


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 payment for 29.5 days of accrued leave.

2.  The applicant states the Charge II of bigamy and its specifications and the Additional Charge II of making false statements and its specifications were dismissed by the U.S. Army Criminal Court of Appeals on 14 November 2012 and he has 29.5 days of accrued leave he is requesting payment for before being discharged.

3.  The applicant provides copies of his Leave and Earnings Statement (LES), General Court-Martial (GCM) Order Number 25, a letter to the Defense Finance and Accounting Service (DFAS), and Title 10, U.S. Code (USC), sections 501 and 857.

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 (RA) on 8 July 1982 and he held military occupational specialty 62B (construction equipment repairman).  He was honorably discharged on 22 January 1987 for the purpose of immediate reenlistment.  He reenlisted in the RA on 23 January 1987. 

3.  On 17 December 1987, he was arraigned at Frankfurt, Germany, on the following offenses at a general court-martial: 

* Charge I, Article 18, Plea: Not Guilty, Finding: Guilty: 

* Specification 1: premeditated murder of PHM by means of choking her, striking her in the head with a hammer, and submerging her head in a bathtub until she drowned; Plea: Not Guilty, Finding: Guilty
* Specification 2: premeditated murder of TAH by means of striking him in the head, throwing him against the wall, and submerging his head in a bathtub until he drowned; Plea: Not Guilty, Finding: Guilty
* Specification 3: premeditated murder of JTH by submerging his head in a bathtub until he drowned; Plea: Not Guilty, Finding: Guilty

* Charge II - Article 134, Plea: Not Guilty, Finding: Guilty

* Specification 1: committing bigamy by wrongfully marrying BLR having at the time of his said marriage to BLR a lawful wife then living to wit PHM; Plea: Not Guilty, Finding: Guilty

* Additional Charge I - Article 122, Please: Not Guilty, Finding: Not Guilty of violating Article 122 but guilty of violating Article 121

* Specification 1: stealing from PHM by means of force and violence against her will two sets of keys and an Armed Forces Identification card; Plea: Not Guilty, Finding: Not Guilty of violating Article 122 but Guilty of violating Article 121

* Additional Charge II - Plea: Not Guilty, Finding: Guilty

* Specification 1: wrongfully and unlawfully making false statements 

4.  The court sentenced him to death, a reduction to pay grade E-1, and a forfeiture of all pay and allowances.

5.  On 3 March 1988, as shown in General Court-Martial Order Number 29, issued by Headquarters, 3rd Armored Division, the convening authority approved the sentence and except for the part of the sentence extending to death, ordered it executed.

6.  On 25 May 1990, the U.S. Army Court of Military Review directed the correction of General Court-Martial Order Number 29 to reflect as to the Specification of Additional Charge II, a Plea of Not Guilty and a Finding Guilty. 

7.  On 13 May 2010, he was sentenced to a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for the length of his natural life, and to be dishonorably discharged from the service.

8.  On 10 November 2010, General Court-Martial Number 7, issued by Headquarters, U.S. Army Combined Arms Center, Fort Leavenworth, KS, on vacated the sentence as promulgated in General Court-Martial Order Number 29, issued on 3 March 1988, as corrected by the Notice of Court-Martial Correction, dated 25 May 1990, issued by the U.S. Army Court of Military Review, and authorized a rehearing of the sentence. 

9.  Pursuant to Court-Martial Convening Order Number 3, Headquarters, Combined Arms Center, Fort Leavenworth, KS, dated 24 April 209, as amended by General Court-Martial Order Number 5, dated 17 July 2009, as amended by General Court-Martial Order Number 7, dated 14 August 2009, as amended by General Court-Martial Orders Number 1, dated 1 February 2010, a rehearing on sentence only was ordered.  

10.  On 13 May 2010, the rehearing of the sentence was held before a general court-martial convened at Fort Leavenworth.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for the length of his natural life, and a dishonorable discharge. 

11.  On 10 November 2010, the convening authority approved the sentence and except for the portion of the sentence extending to a dishonorable discharge, he ordered it executed. 

12.  General Court-Martial Number 25, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, shows the findings of Guilty to Charge II and its Specifications and the Additional Charge II and its Specifications were set aside and dismissed.  The remaining findings of guilty and the sentence to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, confinement for the length of his natural life and dishonorable discharge adjudged on 13 May 2010, has been finally affirmed.  All rights, privileges, and property of which the applicant had been deprived by virtue of that portion his sentence set aside.  The dishonorable discharge will be executed. 

13.  Orders Number 109-1304, issued by Headquarters, U.S. Army Garrison, Fort Sill, OK, dated 19 April 2013, reassigned him to the transfer point on the same date for discharge processing.

14.  He was discharged in pay grade E-1 on 19 April 2013, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 3, as a result of a court-martial, other.  He was issued a dishonorable discharge.  He was credited with completing 5 years, 8 months, and 15 days of net active service with time lost from 31 August 1987 through 19 April 2013.

15.  He also provided copies of the following:

   a.  A letter to DFAS, dated 2 June 2013, wherein he requested assistance in receiving funds that were deducted from his final pay and allowances on 5 May 1988 as a result of his conviction by Article 134 (Bigamy) on 16 December 1987 and funds for leave accrued prior to his GCM.  He stated the leave amount was 29.5 days according to his LES dated 29 February 1988.  Under the Military Justice Act of 1983, Public Law 98-709, subsection (c)(1)(F), codified at USC, section 857(a), allows for him to be paid for the accrued balance due him at the time of the convening authority or other appropriate person's approval of his sentence which was 3 March 1988 and for accrued leave as well.  

   b.  Title 10, USC, section 501(e)(1), which states a member of the Army who is discharged under other than honorable conditions forfeitures all accrued leave to his/her credit at the time of their discharge.

   c.  Title 10, USC, section 857, which states:

		(1)  Any forfeiture of pay and allowances or reduction in grade that is included in a sentence of a CM 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.

		(2)  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.  All other sentences of the CM are effective on the date ordered executed.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a special or general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

17.  Department of Defense Financial Management Regulation, Volume 7, chapter 35, paragraph 35101(D), states a member who is discharged under other than honorable conditions forfeitures all accrued leave to his/her credit at the time of discharge and is not entitled to payment for accrued leave, regardless of the length of time the separated member has served. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial 17 December 1987.  He submitted a copy of his LES, dated 29 February 1988, which shows he had 29.5 days of leave.  His court-martial sentence to death, reduction to E-1, and forfeiture of all pay and allowances was approved on 3 March 1988.  

2.  A rehearing of his sentence only was ordered.  Accordingly, on 13 May 2010, the rehearing of the sentence was held before a general court-martial convened at Fort Leavenworth.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for the length of his natural life, and a dishonorable discharge.  On 10 November 2010, the convening authority approved the sentence and except for the portion of the sentence extending to a dishonorable discharge, he ordered it executed. 

3.  Upon review, a portion of his charges and specifications (the findings of Guilty to Charge II and its Specifications and the Additional Charge II and its Specifications) were set aside and dismissed.  However, the remaining findings of guilty and the sentence to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, confinement for the length of his natural life and dishonorable discharge adjudged on 13 May 2010, has been finally affirmed.  All rights, privileges, and property of which the applicant had been deprived by virtue of that portion his sentence set aside.  The dishonorable discharge will be executed.  Accordingly, he was dishonorably discharged from the service on 19 April 2013. 

4.  He contends he is entitled payment of 29.5 days of annual leave as stated in GCM Order Number 25 which states, "All rights, privileges, and property, of which the accursed has been deprived by virtue of that portion of his sentence set aside are ordered restored."  

5.  This is standard language contained in orders; however, in the applicant's case his entire sentence was not set aside- only a portion of the sentence was set aside - and he was dishonorably discharged on 19 April 2013.  The Court-Martial Order clearly states all rights and privileges of which he was deprived by virtue of the portion that was set aside is ordered restored.  That did not negate the other portions of the findings and the sentence, particularly the dishonorable discharge.

6.  By law, a service member who is discharged under other than honorable conditions forfeitures all accrued leave to his/her credit at the time of discharge and is not entitled to payment for accrued leave.  There is no error or injustice in his record. He provided no persuasive evidence or argument to show he is entitled to payment for annual leave.  

7.  Also by law, 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.  In this case, the date was 3 March 1988.  In view of the forgoing, he is not entitled to the requested relief.

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)                                         AR20130013627





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ABCMR Record of Proceedings (cont)                                         AR20130013627



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