Courts-martial Sentences-Records Lost Before Appellate

B-271415 Sep 12, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Who is in an appellate leave status under 10 U.S.C. sec. 876a (1994). 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. Is thereafter given an administrative discharge. Is entitled to pay and allowances during the period he is retained in the service. Who is in an appellate leave status under 10 U.S.C. 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. View Decision Matter of: Courts-martial Sentences-Records Lost Before Appellate Review-Appellate Leave Benefits File: B-271415 Date: September 12, 1996 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. 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. 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.