BNUMBER: B-271415
DATE: September 12, 1996
TITLE: Courts-martial Sentences-Records Lost Before Appellate
Review-Appellate Leave Benefits
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Matter of:Courts-martial Sentences-Records Lost Before Appellate
Review-Appellate Leave Benefits
File: B-271415
Date:September 12, 1996
DIGEST
1. An enlisted member, who is in an appellate leave status under 10
U.S.C. sec. 876a (1994), and whose court-martial conviction with punitive
discharge or dismissal is set aside administratively because the
service concerned has lost the records of trial before completion of
action by the convening authority or before completion of appellate
review, and is thereafter given an administrative discharge, is
entitled to pay and allowances during the period he is retained in the
service, even for the period after he has passed the expiration of his
term of service.
2. An enlisted member, who is in an appellate leave status under 10
U.S.C. sec. 876a (1994), and whose court-martial conviction with punitive
discharge is set aside administratively because the service concerned
has lost the records of trial before completion of action by the
convening authority or before completion of appellate review, is
thereafter given an administrative discharge. His placement in an
appellate leave status may be voluntary or required. In addition, a
voluntary appellate leave status under those provisions may become a
required appellate leave status. Since all appellate leave under 10
U.S.C. sec. 876a could be processed as required leave and the member
remains subject to military control, the member is entitled to pay and
allowances for the entire appellate leave period because his placement
in that status is for the government's benefit.
3. The pay and allowances entitlement of a member who is in an
appellate leave status under 10 U.S.C. sec. 876a (1994), where the
court-martial conviction with punitive discharge is set aside
administratively because the service concerned has lost the records of
trial before completion of action by the convening authority or before
completion of appellate review and is thereafter given an
administrative discharge, is authorized under 10 U.S.C. sec. 707(a)
(1994). However, under 10 U.S.C. sec. 707(b)(2), that pay is to be
reduced by the total of all the outside earnings received by the
member for the period of appellate leave.
DECISION
This decision responds to a request from the Office of the Judge
Advocate General, Department of the Navy (JAG), through the Defense
Finance and Accounting Service (DFAS).[1] The issue involves the
entitlement of service members, who have been convicted by
court-martial and placed in an appellate leave status, but whose
sentences have been set aside and the charges dismissed because the
records of trial were lost before completion of action by the
convening authorities or before completion of appellate review, to
receive pay and allowances during their appellate leave status. As
discussed below, those members are entitled to that pay and
allowances, subject to set-off for any earnings the member received
during that leave.
BACKGROUND
In September 1994, the Navy discovered that the trial records of
approximately 141 cases, which were needed to accomplish the
statutorily-mandated appellate review, were missing. Most of the
cases involved special courts-martial with punitive discharges. DFAS
reports that for those cases where the records cannot be
reconstructed, the sentences will be set aside and the members will be
subject to a rehearing. However, if a rehearing is impractical, the
charges will be dismissed. Since in that event the adjudged punitive
discharges cannot be ordered executed, it is likely that
administrative discharges will be substituted.
DFAS reports that at the time these members were sentenced, most of
them were placed on voluntary appellate leave, although some were
placed on involuntary appellate leave. Presently, most, if not all,
of these members are beyond the expiration of their terms of service,
but have not been separated or discharged from the service.
ISSUES PRESENTED[2]
If the courts-martial sentences are set aside and the charges against
the members are dismissed because of the service's inability to
conduct appellate reviews:
a. Is the member entitled to back pay and allowances beginning the
date the member was placed on appellate leave, whether it was
voluntary or involuntary?
b. Is the member entitled to back pay and allowances after the member
passed his/her expiration of enlistment, before or after being placed
on appellate leave, voluntarily or involuntarily?
c. If the member is entitled to back pay while in an appellate leave
status, is there a set-off because of any earnings the member received
during appellate leave?
OPINION
It is a well settled rule that no credit for pay and allowances
accrues to a court-martialed enlisted member during periods after the
expiration of his term of enlistment, unless he is restored to a
full-duty status, or is found to have been held over in service for
the convenience of the government.[3] However, a punitive discharge
or dismissal of a service member, as ordered by a court-martial,
cannot be executed until all appellate review through the service
courts has been completed.[4] Because of the time necessary to
complete appellate review, the member may pass the date on which his
enlistment expires before appellate review is completed and the
punitive discharge can be executed.
Before the Uniform Code of Military Justice was amended by the
Military Justice Amendments of 1981, Pub. L. No. 97-81, November 20,
1981, 95 Stat. 1087, a member sentenced to a punitive discharge or
dismissal from the service would be restored to a duty status pending
appellate review of that sentence, or be placed in a leave status if
the member voluntarily agreed to take leave. If the member had
accrued leave to his credit, he could take that leave. If the member
exhausted that leave pending appellate review, or had no accrued
leave, he would be placed in an excess leave status until appellate
review of his case was completed, but only if he agreed to be in that
status.[5] He could not be ordered to take excess leave, but if the
member voluntarily did so, there was no authority to pay the member
for excess leave, even if the punitive discharge sentence was set
aside by a court of military appeals.
Public Law 97-81, supra, added articles 76a (10 U.S.C. sec. 876a (1994)),
to the Uniform Code of Military Justice, and sections 706 and 707 to
the leave chapter of title 10, United States Code. Section 876a of
title 10, United States Code, was enacted to prevent a member who has
been adjudged unfit for continued military service from having the
option of being restored to duty while awaiting the outcome of his
appellate review. The intent of the provision is to give military
commanders the authority to compel these court-martialed individuals
to take leaves of absence pending completion of appellate review if
the sentences include a punitive discharge. Congress also provided,
however, that if a member's court-martial sentence of dismissal or
punitive discharge from the service is subsequently set aside or
disapproved by the court, the member is entitled to be paid for leave
charged as excess leave, unless as a result of a new trial the
dismissal or punitive discharge is later executed.[6]
The threshold issue is whether the administration dismissal of a
punitive discharge, because the records of the trial have been lost,
entitles the member to receive the same pay and allowances that he
would have received had the discharge been set aside by a court of
military appeals. The holding in Cowden v. United States, 600 F.2d
1354 (Ct. Cl. 1979) supports an affirmative answer. There, the court
held that an Army member who was on parole and sent home in a furlough
status was entitled to pay and allowances following expiration of his
term of enlistment to the date of his formal release, because his
court-martial sentence was set aside and never set for rehearing. The
court reasoned that since the Army had retained the member in the
service and dismissed the charges against him for its own convenience,
it thus had an obligation to pay him.[7] Id. at 1359.
The Navy JAG notes the holding in Cowden, but believes it cannot be
applied to a member on appellate leave where the charges are similarly
dismissed administratively. It points to language in our decision,
David G. Saulter, 59 Comp. Gen. 595 (1979), where we held that a
member on excess leave when his conviction was set aside was not
entitled to pay and allowances during such period, as distinguished
from the situation where the member was serving on parole.[8]
However, the distinction between a parole status and an excess leave
status relative to pay and allowances can no longer be made in view of
10 U.S.C. sec. 707(a), supra. If the Court of Military Review sets aside
the sentence of a member while he is in an excess leave status, that
member is entitled to pay and allowances for excess leave.
The question here is whether the same result should obtain if the
court-martial sentence is dismissed or set aside administratively
because the service concerned has lost the records of trial. As the
court in Cowden observed, a punitive discharge that is set aside
without rehearing, or is dismissed, has the effect of nullifying the
original action, even though it is not an acquittal for purposes of
double jeopardy. Id. at 1359. Since individuals on appellate leave
pending review of their courts-martial convictions with a punitive
discharge or dismissal still have a residual status as military
members, they remain subject to military control and may be brought
back for further judicial hearings, for medical evaluation and
treatment, or for other purposes of an official nature in appropriate
circumstances.[9] Consequently, the government has an obligation to
pay the member during such period of retention in the service.
Moreover, the obligation to pay continues even after the member has
passed the expiration of his term of enlistment, no matter when the
member was placed on appellate leave.
The issue is also raised whether the member is entitled to pay and
allowances if his placement on appellate leave pending appellate
review was voluntary. The Navy believes that the member should not
receive pay and allowances for any period of voluntary appellate
leave. It advises that a member may be placed on voluntary appellate
leave immediately upon completion of any sentence of confinement. In
contrast, placing a member on required appellate leave cannot occur
until the member's sentence has been approved at a high command level,
which may not happen until well after the member has been released
from confinement. Thus, the Navy believes that voluntary appellate
leave serves the convenience of the member.
While there may be a difference between when a member may begin
voluntary appellate leave and when he would be placed on required
appellate leave, the purpose of the appellate leave is the same. In
both cases, the purpose is to move the member from a duty status to a
leave status pending completion of appellate review. While a member
may receive a longer period of appellate leave if he agrees to it, his
placement in such a leave status clearly is intended to serve the
government's interest.
The legislative history of Public Law 97-81, supra, confirms this
view. The Committee report, cited above, noted the testimony of the
Army's Judge Advocate General questioning whether repayment for
involuntary excess leave where a conviction is reversed would create a
disincentive for an accused to apply for voluntary leave while
awaiting appellate review. In response, the Committee said that it is
not the intention of the appellate leave provision that the Department
of Defense (DOD) should create two classes of appellate leave with
different pay results if courts-martial sentences are overturned. The
Committee advised that the DOD regulations could state the requirement
that all appellate leave be processed as required leave, since the
decision to place a member on appellate leave belongs to the command
and not to the member. Id. at 1772.
DFAS and the Navy JAG appear to disagree as to whether the DOD has
adopted such a regulation. DFAS notes that under paragraph F.21.c of
DOD Directive 1327.5, Sept. 21, 1985, when a sentenced member is
placed in a voluntary leave status, that status is changed to
"required" appellate leave after the member's sentence is approved by
the convening authority, and the command is required to send a written
notice to the member of his change in statue. The Navy argues that
the subsequent administrative recharacterization of the leave as
"required" changes nothing, since "these service members voluntarily
embarked upon the status of appellate leave, an agree-upon, non-pay
status."
Contrary to the Navy's contention, it does appear from the cited DOD
Directive that all voluntary appellate leave shall be processed as
required appellate leave once a court-martial sentence has been
approved by the convening authority. The fact that the member
voluntarily agreed to the appellate leave status has no particular
significance. Until a member in an appellate leave status is
separated from the service, he remains under military control, however
minimal, and is subject to all lawful orders.[10] If a member does
not voluntarily agree to take leave pending the outcome of appellate
review, the service can require him to do so. Thus, the member's
agreement to take appellate leave is a mere formality and there is no
logical basis to draw a distinction between these two methods of
appellate leave placement. The important factor is that the appellate
leave, whether required or voluntary, is for the government's benefit.
The last issue is whether a member, who is entitled to back pay while
in an appellate leave status, is subject to set-off on account of
outside earnings received during the period of appellate leave.
Members who are authorized under 10 U.S.C. sec. 707(a) to receive pay and
allowances during a period of voluntary or required appellate leave,
are required under 10 U.S.C. sec. 707(b)(2) to have that pay reduced by
the total of all other income received "from wages, salaries, tips,
other personal service income, unemployment compensation, and public
assistance benefits from any Government agency during the period."
Therefore, all outside earnings of a member while on appellate leave
are to be set-off against his back pay and allowances entitlement
during the period of appellate leave.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. This request has been assigned control number DFAS 96-1-M.
2. While the request for decision was submitted by DFAS, the Deputy
Assistant Judge Advocate General of the Navy (Criminal Law),
subsequently advised us that the request was submitted in behalf of
the Navy but contained some errors and the issues needed to be
rephrased. Our discussion is based on the issues as set forth by the
Deputy Assistant Judge Advocate General.
3. 63 Comp. Gen. 25 (1983), and cases cited.
4. 10 U.S.C. sec. 866 (1994).
5. If he refused to take excess leave, he would remain in his unit
even though he had been adjudged unfit for duty.
6. 10 U.S.C. sec. 707 (1994).
7. In support of its position, the government relied on 40 Comp. Gen.
202 (1960). There, we held that an Army member who died subsequent to
the expiration of his enlistment and while a prisoner pending
appellate review of his sentence, was not entitled to pay and
allowances and his right to benefits could not be restored by the
Secretary of the Army after his death. The Court in Cowden stated
that our decision "may be wrong insofar as it adheres to the rule that
only a formal acquittal will require payment of pay and allowances to
an enlisted man held in confinement awaiting trial or some review of
his court-martial sentence after his period of enlistment."
8. The Navy advises in this connection that a member on parole in a
furlough status is subject to many more restrictions than is a member
on appellate leave.
9. See H.R. Rep. No. 306, 97th Cong. 1st Sess. 1-4, reprinted in 1981
U.S. CODE CONG. & AD. NEWS 1769-1772. See also 63 Comp. Gen. 135,
138-139 (1963).
10. Cf. David G. Saulter, 59 Comp. Gen. 12, 14 (1979).