B-139265, JULY 20, 1959, 39 COMP. GEN. 42

B-139265, JULY 20, 1959, 39 COMP. GEN. 42

MILITARY PERSONNEL - PAY AND ALLOWANCES - COURT-MARTIAL SENTENCES - CONVENING AUTHORITY ACTION SET-ASIDE AN ENLISTED MEMBER IN THE GRADE OF SERGEANT FIRST-CLASS WHO WAS CONFINED PENDING APPELLATE REVIEW OF A COURT-MARTIAL SENTENCE WHICH INCLUDED DISHONORABLE DISCHARGE, FORFEITURE OF PAY AND ALLOWANCES AND CONFINEMENT TO HARD LABOR, AND WHO HAD THE ACTION OF THE CONVENING AUTHORITY SET ASIDE ON THE BASIS THAT IT ERRED IN THE CONSIDERATION OF THE SENTENCE DID NOT HAVE AN EXECUTED FORFEITURE OF PAY; AND, THEREFORE, FROM THE DATE OF THE ACTION OF THE FIRST CONVENING AUTHORITY UNTIL THE DATE OF THE NORMAL EXPIRATION OF ENLISTMENT, THE MEMBER WAS ENTITLED TO ACCRUE PAY AND ALLOWANCES IN THE GRADE OF SERGEANT FIRST CLASS IN THE ABSENCE OF AN APPROVED SENTENCE AS USED IN EXECUTIVE ORDER NO. 10652 WHICH WOULD EFFECT A REDUCTION IN GRADE. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS CONFINED BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT PENDING REVIEW OF A COURT MARTIAL SENTENCE WHICH INCLUDED DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND CONFINEMENT TO HARD LABOR, AND WHO HAD THE ACTION OF THE FIRST CONVENING AUTHORITY SET ASIDE EVEN THOUGH THE SENTENCE WAS CONSISTENTLY APPROVED EXCEPT FOR REDUCTION OF PERIOD OF CONFINEMENT AT HARD LABOR, IS NOT ENTITLED TO PAY AND ALLOWANCES BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT UNTIL RESTORED TO DUTY. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES IN THE GRADE OF SERGEANT FIRST-CLASS WHOSE COURT-MARTIAL SENTENCE, WHICH INCLUDED DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT TO HARD LABOR, WAS APPROVED BY THE SECOND CONVENING AUTHORITY ON JULY 7, 1958, AFTER THE MEMBER HAD BEEN RESTORED TO DUTY PENDING APPELLATE REVIEW IS ENTITLED TO PAY AND ALLOWANCES OF A SERGEANT FIRST-CLASS UNTIL JULY 6, 1958, THEREAFTER THE REDUCTION IN GRADE TO PRIVATE AUTOMATICALLY BECAME EFFECTIVE AS PRESCRIBED IN EXECUTIVE ORDER NO. 10652 AND THE MEMBER IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF A PRIVATE OR A HIGHER GRADE, IF SUBSEQUENTLY PROMOTED, UNTIL DATE OF DISCHARGE OR UNTIL THE SENTENCE WAS ORDERED EXECUTED, WHICHEVER OCCURRED FIRST.

TO LIEUTENANT COLONEL W. T. HALL, DEPARTMENT OF THE ARMY, JULY 20, 1959:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1958, WITH ENCLOSURES, FORWARDED HERE BY ENDORSEMENT DATED APRIL 7, 1959, OF THE OFFICE OF THE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO RAY D. WILSON, RA 18 1016 696, ON MILITARY PAY ORDER NO. 699, DATED NOVEMBER 7, 1958, PRESENTED TO YOU FOR PAYMENT. THE REQUEST HAS BEEN ALLOCATED D.O. NO. 412 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT WILSON ENLISTED IN THE ARMY ON JUNE 19, 1951, FOR A PERIOD OF 6 YEARS; THAT ON SEPTEMBER 29, 1956, WHILE SERVING IN THE GRADE OF SERGEANT FIRST-CLASS, HE WAS TRIED BY A GENERAL COURT-MARTIAL, FOUND GUILTY AND SENTENCED TO A DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND TO BE CONFINED AT HARD LABOR FOR TEN YEARS; THAT ON OCTOBER 26, 1956, THE REVIEWING AUTHORITY APPROVED THE SENTENCE, DIRECTING THAT THE FORFEITURES WOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER HIS ACTION, AND, FURTHER, THAT PENDING COMPLETION OF APPELLATE REVIEW, THE ENLISTED MEMBER WAS TO BE CONFINED.

ON JANUARY 15, 1957, THE BOARD OF REVIEW APPROVED THE FINDING OF GUILTY AND SENTENCE, BUT REDUCED THE PERIOD OF CONFINEMENT AT HARD LABOR FOR TWO YEARS (23 CMR 441, 444). ON JUNE 10, 1957, A PETITION FOR REVIEW WAS GRANTED BY THE UNITED STATES COURT OF MILITARY APPEALS (23 CMR 420). MAY HERE BE OBSERVED THAT, BUT FOR THE COURT-MARTIAL PROCEEDINGS AND CONFINEMENT, THE NORMAL EXPIRATION DATE OF THE ENLISTED MEMBER'S TERM OF SERVICE WOULD HAVE BEEN JUNE 18, 1957. IT FURTHER APPEARS THAT ON MARCH 29, 1958, THE ENLISTED MEMBER WAS RELEASED FROM CONFINEMENT AND RESTORED TO DUTY. ON MAY 9, 1958, THE UNITED STATES COURT OF MILITARY APPEALS HELD THAT THE CONVENING AUTHORITY HAD ERRED IN HIS CONSIDERATION OF THE COURT- MARTIAL SENTENCE, SET THAT ACTION ASIDE, AND DIRECTED THAT THE CASE BE RETURNED TO A NEW CONVENING AUTHORITY FOR CONSIDERATION. (26 CMR 3, 6.)

ON JULY 7, 1958, THE NEW CONVENING AUTHORITY APPROVED ONLY SO MUCH OF THE COURT-MARTIAL SENTENCE THAT PROVIDED FOR DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR TWO YEARS. THE EXECUTION OF THE DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL THE ENLISTED MEMBER WAS RELEASED FROM CONFINEMENT OR UNTIL COMPLETION OF APPELLATE REVIEW; HE WAS CREDITED WITH THE CONFINEMENT FROM SEPTEMBER 29, 1956, TO MARCH 29, 1958, AND THE APPLICATION OF FORFEITURES WAS DEFERRED UNTIL THE SENTENCE WAS ORDERED EXECUTED. WE HAVE NOW ASCERTAINED THAT WILSON AGAIN PETITIONED THE UNITED STATES COURT OF MILITARY APPEALS FOR REVIEW, BUT THAT PETITION WAS DENIED ON DECEMBER 30, 1958. WE ALSO ARE ADVISED THAT WILSON WAS DISCHARGED FROM THE SERVICE ON FEBRUARY 28, 1959, BY REASON OF NORMAL EXPIRATION OF TERM OF SERVICE.

THE QUESTION IN YOUR LETTER MAY BE PARAPHRASED AS FOLLOWS:

1. IS THE MEMBER ENTITLED TO PAY AND/OR ALLOWANCES FOR THE PERIOD FROM OCTOBER 26, 1956, DATE OF FIRST CONVENING AUTHORITY ACTION, TO THE DATE OF NORMAL EXPIRATION OF TERM OF SERVICE, JUNE 18, 1957, AND, IF SO, IN WHAT GRADE?

2. IS THE MEMBER ENTITLED TO PAY AND/OR ALLOWANCES FOR THE PERIOD OF CONFINEMENT SUBSEQUENT TO THE NORMAL DATE OF EXPIRATION OF SERVICE TO DATE OF RESTORATION TO DUTY?

3. IS THE MEMBER ENTITLED TO PAY AND ALLOWANCES AS A PRIVATE OR AS A SERGEANT FIRST-CLASS UPON RESTORATION TO DUTY, MARCH 29, 1958, TO DATE OF ACTION BY THE SECOND CONVENING AUTHORITY?

4. TO WHAT PAY AND/OR ALLOWANCES IS THE MEMBER ENTITLED ON AND AFTER JULY 7, 1958, DATE OF ACTION BY THE SECOND CONVENING AUTHORITY?

THE COURT-MARTIAL PROCEEDINGS, ITS FINDINGS AND THE SENTENCE ADJUDGED ON SEPTEMBER 29, 1956, WERE NOT FOUND TO BE DEFICIENT OR ILLEGAL AT ANY REVIEW OR APPELLATE STAGE. THE SENTENCE ADJUDGED OF DISHONORABLE DISCHARGE FROM THE SERVICE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR TEN YEARS, WAS CONSISTENTLY APPROVED, EXCEPT FOR THE REDUCTION OF THE PERIOD OF CONFINEMENT AT HARD LABOR TO TWO YEARS BY THE FIRST BOARD OF REVIEW. (23 CMR 441.)

THE SECOND CONVENING AUTHORITY, IN HIS ACTION OF JULY 7, 1958, APPROVED SO MUCH OF THE COURT-MARTIAL SENTENCE AS PROVIDED FOR DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR TWO YEARS, BUT SUSPENDED EXECUTION OF THE DISHONORABLE DISCHARGE PENDING APPELLATE REVIEW. THE SECOND CONVENING AUTHORITY ALSO DIRECTED THAT "THE APPLICATION OF THE FORFEITURES IS DEFERRED UNTIL THE SENTENCE IS ORDERED INTO EXECUTION.' HENCE, THE SITUATION IS NOT UNLIKE THAT CONSIDERED IN OUR DECISION OF JANUARY 17, 1957, 36 COMP. GEN. 512, WHEREIN WE HELD---

SINCE THE OFFICER'S ORIGINAL SENTENCE (DATED JUNE 30, 1955) WAS NEVER EXECUTED, MONEYS WITHHELD FROM HIM UNDER THAT SENTENCE, PENDING COMPLETION OF APPELLATE REVIEW, WERE NOT EXECUTED FORFEITURES AND UPON SUCH REVIEW THE ORIGINAL SENTENCE WAS SET ASIDE. HENCE, THE ONLY VALID EXISTING COURT -MARTIAL SENTENCE IN THE CASE IS THAT WHICH WAS SET ASIDE. HENCE, THE ONLY VALID EXISTING COURT-MARTIAL SENTENCE IN THE CASE IS THAT WHICH WAS APPROVED BY THE CONVENING AUTHORITY ON SEPTEMBER 23, 1956, AND BY THE TERMS OF THAT SENTENCE (WHICH APPARENTLY ARE IN CONFORMITY WITH THE TERMS OF ARTICLES 57 AND 75 OF THE UNIFORM CODE OF MILITARY JUSTICE) THE ONLY PAY FORFEITED IS THAT WHICH OTHERWISE MIGHT ACCRUE ON AND AFTER SEPTEMBER 23, 1956.

ACCORDINGLY, PAY AND ALLOWANCES CONTINUED TO ACCRUE TO THE MEMBER FROM OCTOBER 26, 1956, DATE OF FIRST CONVENING AUTHORITY ACTION, TO THE DATE OF NORMAL EXPIRATION OF TERM OF SERVICE, JUNE 18, 1957. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY AS TO ENTITLEMENT TO PAY AND ALLOWANCES.

IN OUR DECISION DATED OCTOBER 7, 1957, 37 COMP. GEN. 228, AT PAGE 229, WE STATED---

IT IS THE RULE THAT PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT, AWAITING TRIAL BY COURT- MARTIAL, TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT UNLESS HE IS ACQUITTED, IN WHICH EVENT PAY AND ALLOWANCES ACCRUE UNTIL HE IS DISCHARGED. 30 COMP. GEN. 449. THIS RULE IS SUBJECT TO MODIFICATION IN THOSE CASES WHERE AN ENLISTED MAN, SENTENCED BY A COURT-MARTIAL TO DISHONORABLE OR BAD CONDUCT DISCHARGE, AND WHO IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, IS RELEASED FROM CONFINEMENT AND "RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW.' IN THE LATTER CASE THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES WHILE PERFORMING DUTY AFTER RESTORATION TO DUTY, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE OR BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. COMP. GEN. 281.

YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE. IN OTHER WORDS, MR. WILSON IS NOT ENTITLED TO ANY PAY AND ALLOWANCES FOR THE PERIOD OF HIS CONFINEMENT SUBSEQUENT TO NORMAL DATE OF EXPIRATION OF TERM OF SERVICE, THAT IS FROM JUNE 19, 1957, TO MARCH 28, 1958.

EXECUTIVE ORDER NO. 10652, DATED JANUARY 10, 1956, 21 F.R. 235, AMENDING PARAGRAPH 126C OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES AS FOLLOWS:

UNLESS OTHERWISE PRESCRIBED IN REGULATIONS PROMULGATED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, IN THE CASE OF AN ENLISTED PERSON OF OTHER THAN THE LOWEST PAY GRADE, A COURT-MARTIAL SENTENCE WHICH, AS APPROVED BY THE CONVENING AUTHORITY, INCLUDES: (1) DISHONORABLE OR BAD CONDUCT DISCHARGE, WHETHER OR NOT SUSPENDED, (2) CONFINEMENT, OR (3) HARD LABOR WITHOUT CONFINEMENT, IMMEDIATELY, UPON BEING SO APPROVED, SHALL REDUCE SUCH ENLISTED PERSON TO THE LOWEST ENLISTED PAY GRADE; PROVIDED, THAT THE RATE OF PAY OF THE PERSON SO REDUCED SHALL BE COMMENSURATE WITH HIS CUMULATIVE SERVICE; AND PROVIDED FURTHER, THAT ANY PERSON REDUCED SHALL HAVE ALL RIGHTS, PRIVILEGES AND PROPERTY AFFECTED BY SUCH REDUCTION RESTORED IF THE SENTENCE IS SUBSEQUENTLY SET ASIDE OR DISAPPROVED, OR IF THE SENTENCE AS FINALLY APPROVED DOES NOT CONTAIN ANY OF THE ELEMENTS LISTED ABOVE.

THIS ORDER SHALL BECOME EFFECTIVE ON JANUARY 20, 1956.

SINCE THE ACTION TAKEN IN OCTOBER 1956 BY THE FIRST CONVENING AUTHORITY IN THIS CASE WAS SET ASIDE, IT IS OUR OPINION THAT THERE EXISTED NO "APPROVED" SENTENCE AND, HENCE, THAT NO EFFECT MAY BE GIVEN HIS ACTION INSOFAR AS THE REDUCTION IN GRADE IS CONCERNED. ACCORDINGLY, THE MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES OF A SERGEANT FIRST-CLASS FROM OCTOBER 26, 1956, THROUGH JUNE 18, 1957. THE SECOND PART OF THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

UNDER THE TERMS OF THE ABOVE-QUOTED EXECUTIVE ORDER, HOWEVER, THE REDUCTION TO THE GRADE OF PRIVATE (E-1) AUTOMATICALLY BECAME EFFECTIVE ON THE DATE ( JULY 7, 1958) THE SECOND CONVENING AUTHORITY APPROVED THE SENTENCE AND, HENCE, HE IS ENTITLED, UPON RESTORATION TO DUTY ON MARCH 29, 1958, TO THE PAY AND ALLOWANCES OF A SERGEANT FIRST-CLASS UNTIL JULY 6, 1958, INCLUSIVE. THEREAFTER, HE IS ENTITLED ONLY TO THE PAY AND ALLOWANCES OF A PRIVATE (E-1), OR HIGHER GRADE IF SUBSEQUENTLY PROMOTED, UNTIL THE DATE OF HIS DISCHARGE, OR UNTIL THE SENTENCE WAS ORDERED EXECUTED, WHICHEVER FIRST OCCURRED. YOUR THIRD AND FOURTH QUESTIONS ARE ANSWERED ACCORDINGLY.

SINCE THE MILITARY PAY ORDER ( NO. 699), ENCLOSED WITH YOUR LETTER, STATES THAT THE MEMBER IS DUE PAY AS A SERGEANT FIRST-CLASS FROM OCTOBER 26, 1956, TO JULY 6, 1958, IT IS NOT PROPER AND IT WILL BE RETAINED HERE. A NEW MILITARY PAY ORDER MAY BE PREPARED IN ACCORDANCE WITH THIS DECISION, AND, IF OTHERWISE CORRECT, PAYMENT MAY BE BASED THEREON.