B-131093, JUN 18, 1957

B-131093, JUN 18, 1957

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO A LETTER OF MARCH 14, 1957, WITH ENCLOSURES (MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 172), FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING OUR DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE IMPOSITION OF PUNISHMENT UPON AN ENLISTED MEMBER OF THE UNIFORMED SERVICES PURSUANT TO THE AUTHORITY CONTAINED IN ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 815, 70A STAT. 41. THE QUESTIONS SUBMITTED DEAL SPECIFICALLY WITH THE LEGAL EFFECT, ON AN ENLISTED MEMBER'S ENTITLEMENT TO PAY, OF PUNISHMENT UNDER THE PROVISIONS OF ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE (WHICH PUNISHMENT INCLUDES REDUCTION TO THE NEXT INFERIOR GRADE) IMPOSED IN THE FOLLOWING QUOTED CIRCUMSTANCES:

"A. A STAFF SERGEANT IS REDUCED IN GRADE TO AIRMAN FIRST CLASS BUT THE REDUCTION IS SUSPENDED BY THE OFFICER IMPOSING THE PUNISHMENT AT THE SAME TIME, AND THE SUSPENSION IS SUBSEQUENTLY VACATED.

"B. A STAFF SERGEANT IS REDUCED IN GRADE TO AIRMEN FIRST CLASS AND, ON APPEAL PURSUANT TO MANUAL FOR COURTS-MARTIAL, 1951, PARAGRAPH 134, THE REDUCTION IS SUSPENDED BY THE NEXT SUPERIOR AUTHORITY.

"C. WHERE UNDER THE FACTUAL SITUATION OUTLINED IN PARAGRAPH B ABOVE THE SUSPENSION OF THE REDUCTION IS SUBSEQUENTLY VACATED.

"D. A STAFF SERGEANT REDUCED IN GRADE TO AIRMAN FIRST CLASS, DOES NOT ELECT TO APPEAL PURSUANT TO PARAGRAPH 134 OF THE MANUAL, BUT A SUBSEQUENT APPLICATION BY THE AIRMAN FOR SUSPENSION OF THE REDUCTION IS FORMALLY GRANTED AND APPROVED IN ACCORDANCE WITH PARAGRAPH 135 OF THE MANUAL."

NON-JUDICIAL PUNISHMENT IS ADMINISTERED PURSUANT TO ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ART. 15. COMMANDING OFFICER'S NON-JUDICIAL PUNISHMENT.

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY COMMANDING OFFICER MAY, IN ADDITION TO OR IN LIEU OF ADMONITION OR REPRIMAND, IMPOSE ONE OF THE FOLLOWING DISCIPLINARY PUNISHMENTS FOR MINOR OFFENSES WITHOUT THE INTERVENTION OF A COURT-MARTIAL--

"(2) UPON OTHER MILITARY PERSONNEL OF HIS COMMAND--

(A) WITHHOLDING OF PRIVILEGES FOR NOT MORE THAN TWO CONSECUTIVE WEEKS;

(B) RESTRICTION TO CERTAIN SPECIFIED LIMITS, WITH OR WITHOUT SUSPENSION FROM DUTY, FOR NOT MORE THAN TWO CONSECUTIVE WEEKS;

(C) EXTRA DUTIES FOR NOT MORE THAN TWO CONSECUTIVE WEEKS, AND NOT MORE THAN TWO HOURS PER DAY HOLIDAYS INCLUDED;

(D) REDUCTION TO NEXT INFERIOR GRADE, IF THE GRADE FROM WHICH DEMOTED WAS ESTABLISHED BY THE COMMAND OR AN EQUIVALENT OR LOWER COMMAND;

(E) IF IMPOSED UPON A PERSON ATTACHED TO OR EMBARKED IN A VESSEL, CONFINEMENT FOR NOT MORE THAN SEVEN CONSECUTIVE DAYS; OR

(F) IF IMPOSED UPON A PERSON ATTACHED TO OR EMBARKED IN A VESSEL, CONFINEMENT ON BREAD AND WATER OR DIMINISHED RATIONS FOR NOT MORE THAN THREE CONSECUTIVE DAYS.

"(D) A PERSON PUNISHED UNDER THIS ARTICLE WHO CONSIDERS HIS PUNISHMENT UNJUST OR DISPROPORTIONATE TO THE OFFENSE MAY, THROUGH THE PROPER CHANNEL, APPEAL TO THE NEXT SUPERIOR AUTHORITY. THE APPEAL SHALL BE PROMPTLY FORWARDED AND DECIDED, BUT THE PERSON PUNISHED MAY IN THE MEANTIME BE REQUIRED TO UNDERGO THE PUNISHMENT ADJUDGED. THE OFFICER WHO IMPOSES THE PUNISHMENT, HIS SUCCESSOR IN COMMAND, AND SUPERIOR AUTHORITY MAY SUSPEND, SET ASIDE, OR REMIT ANY PART OR AMOUNT OF THE PUNISHMENT AND RESTORE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED."

IN EACH OF THE CIRCUMSTANCES DESCRIBED IN YOUR QUESTIONS, WE NOTE THAT THE POWER OF SUSPENSION IS APPLIED TO A SENTENCE, EITHER CONCURRENTLY OR SUBSEQUENTLY, IN A CASE WHERE THE SOLE DISCIPLINARY PUNISHMENT INVOLVED IS REDUCTION TO THE NEXT INFERIOR GRADE. THAT PUNISHMENT, AS DISTINGUISHED FROM THE OTHER PUNISHMENTS FOR ENLISTED MEN UNDER ARTICLE 15, IS THE ONLY PUNISHMENT THAT IS CONSUMMATED UPON ITS IMPOSITION. THAT IS TO SAY, WHEN SUCH REDUCTION IS IMPOSED, THE PUNISHMENT IS COMPLETE.

THE WORD "SUSPEND" IS DEFINED IN BLACK'S LAW DICTIONARY 3RD EDITION, TO MEAN: (1) TO INTERRUPT; (2) TO CAUSE TO CEASE FOR A TIME; OR (3) TO STAY, DELAY, OR HINDER. THAT BEING THE CASE, IT IS DIFFICULT TO ENVISAGE IN WHAT MANNER A SUSPENSION COULD OPERATE UPON A PUNISHMENT WHICH HAS BEEN ACCOMPLISHED AND COMPLETED. IN THE EXAMPLES MENTIONED, THE SUBJECT MATTER UPON WHICH A SUSPENSION MIGHT TAKE EFFECT WOULD SEEM TO NO LONGER EXIST ONCE THE REDUCTION IN GRADE HAS TAKEN PLACE.

ACCORDINGLY, WE MUST CONCLUDE THAT, IF THE STAFF SERGEANT INVOLVED, IN EACH QUESTION WAS ACTUALLY REDUCED IN GRADE TO AIRMAN FIRST CLASS, ANY SUSPENSION OR VACATION OF A SUSPENSION AS TO THAT REDUCTION WOULD BE INEFFECTIVE. IT FOLLOWS THEN, IN EACH OF THE QUESTIONS PRESENTED, THAT THE ENLISTED MEMBER'S LEGAL ENTITLEMENT TO PAY WOULD BE FOR DETERMINATION SOLELY ON THE BASIS OF AN ACTUAL REDUCTION IN GRADE TO AIRMAN FIRST CLASS. IF THE AUTHORITY IMPOSING PUNISHMENT SHOULD WANT TO RESTORE THE GRADE LOST, THE REDUCED MEMBER MIGHT SUBSEQUENTLY BE PROMOTED IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS OR, UNDER THE TERMS OF ARTICLE 15, THE PUNISHMENT COULD BE SET ASIDE, IN WHICH EVENT, IT WOULD APPEAR THAT THE REDUCTION IN GRADE WOULD BE NULLIFIED.