Matter of: Kenneth A. Glover File: B-246495 Date: July 29, 1992

Matter of: Kenneth A. Glover File: B-246495 Date: July 29, 1992

MILITARY PERSONNEL Pay Retroactive pay Eligibility Courts-martial A former enlisted member of the United States Army whose general court-martial conviction and sentence were set aside on appeal, and whose original sentence included a forfeiture of all pay and allowances that was executed, is not entitled to recover the forfeited pay and allowances when a valid second sentence also includes forfeiture of pay and allowances. The member receives any credit available for the original forfeiture under the second sentence.

DECISION

Kenneth A. Glover, a former Sergeant, Grade E-5, United States Army, claims back pay and allowances for periods of time that he was held in confinement prior to a general court-martial convening authority's approval of a valid conviction and sentence. The claim is denied.

Background

A general court-martial convicted Mr. Glover on December 15, 1987, of multiple counts of larceny, forgery and other offenses under the Uniform Code of Military Justice (UCMJ), 10 U.S.C. Sec. 801 et. seq. He was confined on that date. On February 8, 1988, the general court-martial convening authority approved the findings and a four-part sentence consisting of a dishonorable discharge, confinement at hard labor for 6 years and 6 months, total forfeiture of all pay and allowances, and reduction to the pay grade E-1. So that Mr. Glover could complete his sentence, the Army retained him beyond the December 4, 1988 expiration of his term of service (ETS). On February 17, 1989, the United States Army Court of Military Review set aside the conviction and sentence [1] and authorized a rehearing. On March 1, 1989, the Army released Mr. Glover from confinement and restored him to full duty status. However, on July 19, 1989, Mr. Glover's case was reheard, and he was found guilty on most of the charges and specifications for which he was originally tried. He was returned to confinement the same day. On November 8, 1989, the convening authority approved a sentence which again included confinement and forfeiture of all pay and allowances. The Army Court of Military Review affirmed the findings of guilty and the sentence on July 10, 1991.

Mr. Glover claims full pay and allowances from the date of the approval of his initial sentence, February 8, 1988, to the date on which his second sentence was approved by the convening authority, November 8, 1989. [2] However, the Department of Defense maintains that the UCMJ and the applicable regulations, the Military Pay and Allowances Entitlements Manual (DODPM), do not permit full pay and allowances under such circumstances. We agree with Department.

DISCUSSION

Pay and allowances accrue to a member in military confinement unless they are ordered forfeited by court martial sentence or the term of enlistment expires. DODPM para. 10316, 10317(e). While Article 57(a) of the UCMJ, 10 U.S.C. Sec. 857(a), provides that no forfeiture may extend to any pay or allowances accrued before the date on which the sentence is approved by the person acting under section 860(c) of Title 10 (here the "convening authority"), it has been held that this provision is inapplicable where forfeitures, when effected, were proper under color of law. In the present case, the sentence of forfeiture of pay and allowances was properly approved by the convening authority on February 8, 1988 (Glover's pay had continued until that date), and the immediate execution of this part of the sentence was clearly proper under 10 U.S.C. Sec. 871(c)(2).

Furthermore, under Article 75(a), 10 U.S.C. Sec. 875(a), even if a sentence of forfeiture is set aside, the forfeited pay and allowances are not restored if (a) a new trial or rehearing is ordered and (b) the forfeiture sentence is also imposed in the new trial or rehearing. [3] Here, a new trial was ordered and a forfeiture of full pay and allowances was included in the new sentence.

DODPM para. 70509 implements Article 75(a), and remains in the same form today as it was at the time of the claimant's first court-martial. DODPM para. 70509b(1) indicates that once a forfeiture sentence is executed, as here, if it is subsequently set aside and a new trial ordered which results in an approved forfeiture, the member may receive credit for the amount of forfeiture effected under the first sentence in calculating the amount of the second sentence. Only if an unexecuted forfeiture sentence is set aside or disapproved will the member be entitled to pay and allowances for the period in question. [4]

The argument raised by the claimant is similar to that of the petitioner in Keys v. Cole, 31 M.J. 228 (CMA 1990), a case factually close to the current case. In Keys, the United States Court of Military Appeals held that if Congress had wanted an immediate return of executed forfeitures upon disapproval or set aside of a sentence, they would have so stated. Compare Article 58a(b),

10 U.S.C. Sec. 858a(b) where Congress specifically intended an immediate restoration of a member to the rights and privileges of his proper pay grade when the sentence is disapproved or set aside. Read together, Article 75 and its implementing regulation, DODPM para. 70509, clearly entitle the United States in this case to retain pay already withheld prior to the decision of the Court of Military Review setting aside the conviction, pending rehearing. Keys, supra, at 231-232.

Rhoades v. United States, 668 F.2d 1213 (Ct.Cl. 1982), a case cited by Mr. Glover where pay and allowances were permitted in a similar situation, is distinguishable. Article 71(c), 10 U.S.C. Sec. 871(c), as it existed prior to amendment in 1983 and as it was applied in Rhoades, provided that no sentence which included a punitive discharge or confinement for 1 year or more, could be executed prior to the completion of appellate review. Under the 1983 amendment, only those parts of a sentence subject to mandatory review remained unexecuted. Other parts of a sentence, including any forfeitures, could proceed to execution. In Rhoades, unlike the situation here and in Keys, the portion of the sentence pertaining to forfeitures remained unexecuted and pay continued during confinement. However, if a forfeiture is executed as in the present case, and the withheld amounts kept in escrow, these amounts are then available for a nunc pro tunc credit against any sentence which may be imposed at rehearing.

Based on the foregoing, we conclude that the part of the claim covering February 8, 1988 to March 1, 1989, when claimant was restored to full duty status, is not allowable. Further, the claimant is not entitled to pay and allowances or credit therefore, between July 19, 1989, when he was returned to confinement, and November 7, 1989, when his second sentence was approved, because his enlistment had expired and he was no longer serving in a full duty status. DODPM para. 10317e.

The claim is denied.

To: Director, Claims Group/GGD - Sharon S. Green From: Comptroller General Subject: Kenneth A. Glover (B-246495) (Z-2866815)

Returned is your file Z-2866815, and a copy of our decision of today denying the claim.

1. The Army Court of Military Review found that the military judge erroneously denied Mr. Glover's request for trial by military judge alone.

2. Mr. Glover received full pay and allowances from his release from confinement and return to full duty status on March 1, 1989, until the day before his second conviction on July 19, 1989, when he was re-confined. Such entitlements are not in issue.

3. Article 75(a), 10 U.S.C. Sec. 875(a) provides that an executed part (e.g., a forfeiture) of a court-martial sentence which has been set aside or disapproved shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed at the new trial or rehearing.

4. A member is not entitled to pay and allowances, or credit therefore, after the expiration of his enlistment unless the sentence is completely overturned or set aside. See DODPM para. 10317e.