IN THE CASE OF:	  O'BYRNE, ROBERT M. 

		BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140001718 


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 expiration term of service (ETS) date be changed. 

2.  The applicant states he is requesting to have his ETS date changed based on the bad time he accrued while absent without leave (AWOL) from the Army.  He went AWOL in July 2006 and his ETS date was in June 2008.  He voluntarily turned himself in to military custody on 28 August 2009.  During the 7 months he awaited court-martial he was under no punishment under the provisions of the Uniform Code of Military Justice, and he retained his rank of private first class/pay grade E-3 performing all duties required, including showing up at formation each morning and doing various details around Fort Riley.  Sometime after his bad conduct discharge he received a debt letter from the Defense Finance and Accounting Service (DFAS) for the amount of $13,000.

3.  He states his "bad time" while he was AWOL should have been "tacked on" to create a new ETS date.  He asks that if his ETS date has already been amended based on his accrued bad time that confirmation be provided to him so he may send it to DFAS as evidence that their claim is erroneous.  He understands that because he was in military control and because his ETS should have been (or has been) adjusted, he is entitled to the pay he received starting in August 2009. 
  
4.  The applicant provides:

* self-authored statement
* DFAS debt validation letter
* three DA Forms 4187 (Personnel Action)
* seven pages of pay-related documents   
  
CONSIDERATION OF EVIDENCE:

1.  On 15 June 2004, the applicant enlisted in the Regular Army for a period of 4 years establishing an ETS date of 14 June 2008.  

2.  A DA Form 4187, dated 17 July 2006, shows he was AWOL beginning on 16 July 2006.

3.  A DA Form 4187, dated 28 August 2009, shows his battalion commander recommended the applicant's duty status be changed from dropped from rolls (DFR) to present for duty (PDY) effective 27 August 2009.

4.  A DA Form 4187, dated 24 September 2009, shows his commander had verified that the applicant's duty status was changed from DFR to PDY effective 27 August 2009.  The form shows in the remarks block that the applicant was being restored to a full-duty status for the purpose of making good his lost time.

5.  Department of the Army, Headquarters, Fort Riley Special Court-Martial Order Number 5, dated 28 July 2010, shows that on 26 March 2010 he was convicted of being AWOL from on or about 16 July 2006 to 25 August 2009.  He was sentenced to be reduced to the grade of E-1, to be confined for 120 days, to forfeit $800.00 per month for 4 months, and to be discharged from the service with a bad conduct discharge.  The sentence was approved and the applicant was to be credited with 119 days of confinement against the sentence to confinement.

6.  On 17 February 2011, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, issued Special Court-Martial Order Number 18.  It shows the applicant's sentence had been affirmed.  The portion of his sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the convening authority ordered his BCD executed.

7.  On 6 June 2011, he was discharged from active duty by reason of court-martial with a bad conduct characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 6 months, and 13 days of creditable active service. 

8.  Item 29 (Dates of Time Lost during This Period) of his DD Form 214 shows he had time lost under Title 10, U.S. Code, section 972 from 16 July 2006 to 25 August 2009 (AWOL) and 2 December 2009 to 31 March 2010 (confinement).  Item 18 (Remarks) of this form shows he had 425 days of excess leave (creditable for all purposes except pay and allowances) during the period 8 April 2010 to 6 June 2011.

9.  A DFAS letter, dated 14 May 2013, shows the applicant's debt of $12,054.43 remained valid.  It stated the amount due was for collection of an overpayment of 221 days of basic pay and allowances covering the period 27 August 2009 through 7 April 2010 due to his expired ETS effective 14 June 2008.  The letter further indicated his LESs for December 2009 through April 2010 showed payments were directly deposited to his bank account.  DFAS stated he was not entitled to those payments due to his expired ETS on 14 June 2008.  His receipt of the payments cited above created an overpayment of 221 days basic pay and allowances in the amount of $15,481.52.  Of the amount due, $3,427.09 was collected from entitlements due him at discharge leaving a balance due of $12,054.43 that caused his debt.

10.  The DFAS letter stated a DA Form 2139-E (Military Pay Voucher) was enclosed for his review.  This DA Form 2139-E, dated 7 June 2010, with attached Leave and Earnings Statements (LESs) shows DFAS audit details of the applicant's pay account, which showed a new debt at the time of $12,054.43.  It appears a second audit was conducted on or about 15 March 2013 in response to his appeal. 

11.  Department of Defense Financial Management Regulation (DODFMR), Volume 7A, provides military basic pay policies.  Paragraph 010402 provides guidance on absence from duty, effect on pay, and allowances - unauthorized absence and other lost time.  It states, in sub-paragraph 010402.G (term of enlistment expires), in pertinent part, that:

   a.  Pay and allowances accrue to a member upon return to a full-duty status.  Full duty is attained when a member, not in confinement, is assigned useful and productive duties (as opposed to duties prescribed by regulations for confinement facilities) on a full-time basis which are not inconsistent with the grade, length of service, and military occupational specialty.  
   
   b.  An absentee who surrenders or is apprehended after a term of enlistment has expired is not entitled to pay and allowances until restored to a full-duty status for the purpose of making good the lost time.  While held in retention, a member may be assigned duties as prescribed by regulations governing detained prisoners without being returned to full-duty status.
   
   c.  An enlisted member retained in the Military Service for the purpose of trial by court-martial is not entitled to pay for any period after the expiration of the enlistment unless acquitted or the charges are dismissed, or the member is retained in or restored to a full-duty status.
   
   d.  If confined while in a status of being held in the Military Service to make up lost time, then an enlisted member continues in a pay status, except to the extent that pay may be forfeited by court-martial, the same as during the regular enlistment period.
   
   e.  An enlisted member whose term of enlistment has expired while in a status of absence without leave or desertion is not entitled to pay and allowances upon return to military control while confined awaiting trial and disposition of the case if the conviction becomes final and the member has not been returned to a full-duty status.  A member, however, who is returned to military control and restored to full duty for the purpose of making good the lost time before being confined to await trial, continues in a pay status except to the extent that pay may be forfeited by court-martial, the same as during the regular enlistment period.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states:

	a.  Every Soldier in active Federal service who is unable for more than 1 day to perform duty will complete the full term of service or obligation, exclusive of such time lost.  The term will be served when the Soldier returns to full-duty status.  Lost time refers to periods of more than 1 day when a Soldier on active duty cannot perform duty because of:

* desertion
* absence without proper authority
* confinement under sentence
* confinement while awaiting trial or disposition of Soldier’s case, if trial results in conviction
* intemperate use of drugs or alcohol
* disease or injury, the result of Soldier’s misconduct

   b.  A Soldier may be retained after his or her term of service has expired when one of the following applies:

* an investigation of his or her conduct has been started with a view to trial by court-martial
* charges have been preferred
* the Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record appears to support the applicant's contention that his ETS date should have been or was extended to allow for making up all time lost before and including the original ETS date.

2.  A DA Form 4187 shows his commander had verified that the applicant was being restored to a full-duty status for the purpose of making good his time lost.  Regulatory policy states a term of time lost will be served when the Soldier returns to full-duty status.  Based on the above, it appears the applicant's original ETS date should have been adjusted by adding 1 year, 10 months, and 29 days (time lost for being AWOL inclusive of his original ETS date - 16 July 2006 through 14 June 2008) to the date he was restored to a full-duty status, which was 27 August 2009.  This would result in an adjusted ETS date of 25 July 2011.

3.  In view of the foregoing, as a matter of equity it would be appropriate to complete an appropriate document showing his ETS date was changed to 25 July 2011 for the purpose of making up time lost and providing that document to DFAS.

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 






completing an appropriate document showing his ETS date was changed to 25 July 2011 for the purpose of making up time lost and providing that document to DFAS.



      _______ _   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)                                         AR20140001718



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ABCMR Record of Proceedings (cont)                                         AR20140001718



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