IN THE CASE OF:	

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20140003678 


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 that his DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes) and retirement orders be corrected to show that he was in the U.S. Army Reserve (USAR) on active duty during the period 1 February 2004 – 4 September 2006 and that he be paid all back pay and allowances for that period.

2.  The applicant states his DA Form 1506 shows that he was in the USAR not on active duty during the period 1 February 2004 – 4 September 2006, the period he was on appellate leave pending review of his court-martial conviction.  After a rehearing of his sentence his punishment was changed to no dismissal and in accordance with Army Regulation 600-8-10, paragraph 5-19, Soldiers will receive pay and allowances for the period of excess leave provided that a rehearing or new trial does not result in a dismissal or a dishonorable or bad conduct discharge.  Accordingly, he should be credited with an additional 2 years, 7 months, and 4 days of active service and paid accordingly. 

3.  The applicant provides copies of his DA Form 1506, retirement orders, a statement from his counsel, an information paper from the U.S. Army Human Resources Command (HRC), his DD Forms 214 (Certificate of Release or Discharge from Active Duty), and a letter explaining 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 was a USAR chief warrant officer four (CW4) serving on active duty in the Active Guard Reserve (AGR) when he was convicted by a general court-martial on 28 March 2002.  He was sentenced to pay a fine of $50,000 or serve additional confinement of 2 years if the fine was not paid, a forfeiture of all pay and allowances, confinement for 22 months, and dismissal from the service.

3.  After completing his time in confinement, U.S. Disciplinary Barracks Order  41-2, dated 10 February 2004, relieved the applicant from active duty and assigned him to the USAR Control Group (Standby).  The additional instructions stated in part, “…The fact that he is being released from active duty shall not…The period of service from which he is being released from active duty will be characterized according to the final action upon said sentence.”

4.  Meanwhile, on 31 January 2006, the Army Criminal Court of Appeals (ACCA) affirmed only part of the findings of guilty, set aside the sentence, and ordered a rehearing of the sentence. 

5.  Effective 6 September 2006, the applicant was ordered to active duty for Uniform Code of Military Justice processing.

6.  On 30 November 2006, during a rehearing of the sentence, the applicant was sentenced to pay a fine of $3,322.11 or serve an additional 6 months if the fine was not paid, a forfeiture of $5,811.00 pay per month for 108 months, and confinement for 42 months.  However, the convening authority approved only so much of the sentence as provided for confinement for 22 months and a forfeiture of $5,811.00 pay per month for 108 months. 

7.  On 20 January 2010, the United States Court of Appeals for the Armed Forces set aside and dismissed seven of the specifications and affirmed seven others.  It set aside the sentence and ordered a rehearing of the sentence.

8.  On 23 June 2010 during a rehearing of the sentence, the applicant was sentenced to a forfeiture of all pay and allowances, confinement for 24 months, and dismissal from the service.  However, on 10 November 2010, the convening authority approved only so much of the sentence providing for confinement for  22 months, a forfeiture of $5,855.00 pay per month for 22 months, followed by a forfeiture of $3,855.00 pay per month for 86 months. 

9.  On 27 September 2011, the ACCA affirmed the findings and sentence as approved on 10 November 2010.

10.  The conviction became final on 18 January 2012 when the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

11.  Meanwhile, on 9 February 2011, HRC published orders retiring the applicant effective 1 February 2011.  The orders indicated no travel was involved and the applicant was credited with 24 years, 11 months, and 18 days of AFS.  His AFS coincides with a Service Computation for Separation prepared by HRC on 8 February 2011 and a DA Form 1506 prepared by HRC on 9 February 2011.  

12.  The applicant applied to the Board to have his records corrected to show that he served 25 years, 6 months, and 24 days of active service and to show his entitlement to ship his household goods and dependents to a designated location.  The Board approved his request on 13 December 2012.  

13.  In the processing of this case a staff advisory opinion was obtained from HRC which opines that relief is not warranted in the applicant’s case because he was transferred to the USAR Control Group (Standby) during the period he was on excess leave pending the appellate review of his case.

14.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he did not agree with the opinion because it did not address the fact that he was granted a sentence rehearing and his new sentence did not include a dismissal.  He goes on to state that Army Regulation 600-8-10 (Leaves and Passes) states that Soldiers who receive a rehearing that does not result in a dismissal or a dishonorable ort bad conduct discharge will receive pay and allowances for the period of required excess leave.  He also states that during the time a service member is placed on excess leave, they are in an active duty non-paid status.  Accordingly, he should receive pay and allowances and service credit for the period he was on excess leave.

15.  Army Regulation 600-8-10 states, in pertinent part, that Soldiers who receive a rehearing that does not result in a dismissal or a dishonorable or bad conduct discharge will receive pay and allowances for the period of required excess leave.    
16.  Army Regulation 135-200 (Active Duty for Missions, Projects, and Training for Reserve Component Soldiers), effective 30 June 1999, paragraph 7-6b(2) stats that if a sentence to confinement is adjudged an involuntary active duty order will be issued.

17.  Army Regulation 190-47 (The Army Corrections System), in effect at the time, stated a reserve officer whose sentence included a dismissal or dishonorable discharge could be released from active duty prior to completion of appellate review, upon completion of confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be paid his pay and allowances and be given active duty service credit for the period he was on excess leave has been noted and appears to lack merit.

2.  Notwithstanding the advisory opinion, the applicant was not on excess leave during the period 1 February 2004 to 4 September 2006.  After completing his time in confinement, U.S. Disciplinary Barracks Order 41-2, dated 10 February 2004, relieved the applicant from active duty and assigned him to the USAR Control Group (Standby).  This relief from active duty was accomplished in accordance with regulatory guidance in effect at the time.

3.  Accordingly, his service was recorded on his DA Form 1506 as “USAR not on Active Duty.”

4.  The applicant has not provided and the records do not indicate that he performed any service during that period that would result in his receiving any pay and allowances. 

5.  Therefore, absent evidence to show he was improperly transferred to               the USAR Control Group (Standby) during the period 1 February 2004 to            4 September 2006, there appears to be no basis to grant his 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)                                         AR20140003678





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003678



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1