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).