B-178010, JUN 4, 1973, 52 COMP GEN 909

B-178010, JUN 4, 1973, 52 COMP GEN 909

PAY - COURTS-MARTIAL SENTENCES - FORFEITURES - EXECUTION - EFFECTIVE DATE FOR FORFEITURE PURPOSES A MARINE CORPS OFFICER WHOSE SENTENCE FOR VIOLATING THE UNIFORM CODE OF MILITARY JUSTICE ON NOVEMBER 22, 1972, WAS APPROVED AS TO THE FORFEITURE OF PAY AND ALLOWANCES, BUT NOT AS TO DISMISSAL AND FINALLY EXECUTED ON DECEMBER 18, 1972, FOLLOWING WHICH THE OFFICER WAS DETACHED FROM DUTY AND ORDERED TO TRAVEL TO HIS HOME OF RECORD WITHOUT ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES, WHERE HE WAS RELEASED ON DECEMBER 31, 1972, AND TRANSFERRED TO THE RESERVES WITH 45 DAYS' UNUSED LEAVE IS ENTITLED TO PAY AND ALLOWANCES THROUGH DECEMBER 17, 1972, PURSUANT TO THE INTERPRETATION OF 10 U.S.C. 857 AND 871 THAT THE DAY OF THE EXECUTION OF A SENTENCE CONTROLS; TO MILEAGE FOR AUTHORIZED TRAVEL BY PRIVATELY OWNED AUTOMOBILE AS PROVIDED BY PARAGRAPH M4157 OF THE JOINT TRAVEL REGULATIONS, BUT NOT TO PAYMENT FOR THE UNUSED LEAVE AS THE FORFEITURE IMPOSED WAS "ALL PAY AND ALLOWANCES."

TO C. B. PALMER, JUNE 4, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 22, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED FEBRUARY 8, 1973, HEADQUARTERS, UNITED STATES MARINE CORPS, REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF CREDITING THE PAY ACCOUNT OF FIRST LIEUTENANT JOHN J. KAZALONIS, XXX-XX-XXXX, U.S. MARINE CORPS RESERVE, WITH ACCRUED LEAVE PAY AND TRAVEL ALLOWANCE ON SEPARATION IN THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO MC-1181 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD INDICATES THAT BY GENERAL COURT-MARTIAL ORDER NO. 49-72 HEADQUARTERS, FIRST MARINE DIVISION, DATED NOVEMBER 22, 1972, LIEUTENANT JOHN J. KAZALONIS WAS FOUND GUILTY OF VIOLATIONS OF THE UNIFORM CODE OF MILITARY JUSTICE. HE WAS SENTENCED TO DISMISSAL FROM THE SERVICE AND FORFEITURE OF ALL PAY AND ALLOWANCES. ON THE SAME DAY, NOVEMBER 22, 1972, THE CONVENING AUTHORITY, HEADQUARTERS, 1ST MARINE DIVISION, APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR TOTAL FORFEITURES OF ALL PAY AND ALLOWANCES.

ON DECEMBER 18, 1972, THE CONVENING AUTHORITY ISSUED THE FOLLOWING:

IN THE GENERAL COURT-MARTIAL CASE OF FIRST LIEUTENANT JOHN J. KAZALONIS, XXX-XX-XXXX, U.S. MARINE CORPS RESERVE, ON ACTIVE DUTY, THE APPROVED SENTENCE TO FORFEITURE OF ALL PAY AND ALLOWANCES AS PROMULGATED IN GENERAL COURT-MARTIAL ORDER NUMBER 49-72, THIS HEADQUARTERS, DATED 22 NOVEMBER 1972, IS ORDERED EXECUTED EFFECTIVE 22 NOVEMBER 1972.

BY ORDERS DATED DECEMBER 21, 1972, LIEUTENANT KAZALONIS WAS DETACHED FROM HIS THEN DUTY STATION AND ORDERED TO PROCEED TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY AND WAS RELEASED FROM ACTIVE DUTY ON DECEMBER 31, 1972. UPON RELEASE FROM ACTIVE DUTY LIEUTENANT KAZALONIS WAS TRANSFERRED TO THE U.S. MARINE CORPS RESERVE, READY RESERVE FORCES. THE ORDERS FURTHER STATED THAT THEY WERE NOT TO BE CONSIDERED AS INVOLUNTARY RELEASE FROM ACTIVE DUTY AND THAT HE HAD 45 DAYS' UNUSED LEAVE DUE.

PARAGRAPH 2 OF THE SAME ORDERS WAS AMENDED THE SAME DAY, DECEMBER 21, 1972, TO READ:

YOU ARE NOT ENTITLED TO OR AUTHORIZED ACTIVE DUTY PAY AND ALLOWANCES FOR TRAVEL TO YOUR HOME OF RECORD. YOU ARE AUTHORIZED TO TRAVEL TO YOUR HOME OF RECORD VIA PRIVATELY OWNED CONVEYANCE.

YOU ASK WHETHER THE TOTAL FORFEITURE OF PAY AND ALLOWANCES APPLIES TO ACCRUED LEAVE PAY FOR LEAVE EARNED PRIOR TO AND AFTER THE DATE OF EXECUTION OF THE GENERAL COURT-MARTIAL SENTENCE WHEN THE MEMBER'S SEPARATION IS HONORABLE. YOU ALSO ASK WHETHER THE TRAVEL ALLOWANCE ON SEPARATION IS SUBJECT TO FORFEITURE UNDER THE SAME CONDITIONS.

IN TRANSMITTING YOUR REQUESTS HERE, THE HEAD, DISBURSING BRANCH, FISCAL DIVISION, HEADQUARTERS UNITED STATES MARINE CORPS, ASKS AN ADDITIONAL QUESTION - WHETHER THE OFFICER IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 22 THROUGH DECEMBER 17, 1972. IT IS STATED THAT THE OFFICER WAS NOT PAID PAY AND ALLOWANCES FOR ANY PERIOD AFTER NOVEMBER 21, 1972.

SECTION 857, TITLE 10, U.S. CODE, GOVERNING THE EFFECTIVE DATE OF SENTENCES, PROVIDES IN PERTINENT PART:

(A) WHENEVER A SENTENCE OF A COURT MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY OR ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED OR DEFERRED, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY.

(C) ALL OTHER SENTENCES OF COURTS-MARTIAL ARE EFFECTIVE ON THE DATE ORDERED EXECUTED.

UNDER SECTION 871(D) OF TITLE 10, THE CONVENING AUTHORITY MAY SUSPEND THE EXECUTION OF ANY SENTENCE, EXCEPT A DEATH SENTENCE.

IN UNITED STATES V. WATKINS, 8 CMR 87(1953), THE COURT OF MILITARY APPEALS IN DISCUSSING WHEN A FORFEITURE BECOMES EFFECTIVE CONSIDERED THE ABOVE STATUTORY PROVISIONS. IT HELD THAT SECTION 857 OF TITLE 10(ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE) MUST BE CONSTRUED ALONG WITH SECTION 871(ARTICLE 71 OF THE CODE). WHEN THAT IS DONE, THE COURT SAID IN PART THAT THE VARIOUS PORTIONS OF A SENTENCE BECOME EFFECTIVE (B) IF IN ADDITION TO CONFINEMENT, UNSUSPENDED, SENTENCE INCLUDES FORFEITURES, IT MAY BECOME EFFECTIVE ON THE DATE THE CONVENING AUTHORITY APPROVES; (C) IF CONFINEMENT IS NOT INCLUDED, FORFEITURES MAY BECOME EFFECTIVE ON THE DATE THE CONVENING AUTHORITY ORDERS THEM INTO EXECUTION. THE COURT DREW A CLEAR DISTINCTION BETWEEN APPROVAL OF A SENTENCE AND WHEN IT IS ORDERED EXECUTED. IN UNITED STATES V. MCDANIEL, 21 CMR 182(1956), THE COURT OF MILITARY APPEALS HELD THAT APPROVAL OF A SENTENCE AND ITS EXECUTION ARE TWO DISTINCT LEGAL EVENTS. HOWEVER, IN ONE INSTRUMENT THE CONVENING AUTHORITY CAN ACT IN REGARD TO THE TWO MATTERS, APPROVAL AND EXECUTION.

SECTION 88, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1969(REVISED EDITION) "POWERS OF THE CONVENING AUTHORITY WITH RESPECT TO THE SENTENCE," PROVIDES IN PART:

EXECUTION OF SENTENCE (1) AUTHORITY TO ORDER, EXCEPT IN THE CASE OF A NEW TRIAL (110B), THE CONVENING AUTHORITY MAY, AT THE TIME OF APPROVAL OF ANY SENTENCE, ORDER ITS EXECUTION IF, AS APPROVED BY HIM, IT DOES NOT INVOLVE A GENERAL OR FLAG OFFICER, A SENTENCE OF DEATH OR DISMISSAL, OR AN UNSUSPENDED SENTENCE OF DISHONORABLE DISCHARGE, BAD CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE.***.

(3) TO FORFEITURES OF PAY AND ALLOWANCES. IF A SENTENCE AS APPROVED BY THE CONVENING AUTHORITY DOES NOT INCLUDE CONFINEMENT OR IF THE SENTENCE TO CONFINEMENT IS TO BE SUSPENDED, ANY APPROVED FORFEITURES MAY NOT BE APPLIED UNTIL THE SENTENCE IS ORDERED INTO EXECUTION.***.

SINCE LIEUTENANT KAZALONIS' SENTENCE DID NOT INCLUDE CONFINEMENT AND SINCE THE CONVENING AUTHORITY ONLY APPROVED THAT PORTION OF THE SENTENCE THAT PROVIDED FOR TOTAL FORFEITURE OF PAY AND ALLOWANCES, THE FURTHER ACTION OF THIS CONVENING AUTHORITY ON DECEMBER 18, 1972, ORDERING THE EXECUTION OF THE SENTENCE EFFECTIVE NOVEMBER 22, 1972, APPEARS TO BE INCONSISTENT WITH THE LAW AND THE ABOVE-CITED AUTHORITIES. IT IS OUR VIEW THAT SINCE THE SENTENCE WAS NOT ORDERED INTO EXECUTION BY THE CONVENING AUTHORITY UNTIL DECEMBER 18, 1972, COLLECTION OF FORFEITURES PRIOR TO THAT DATE WOULD NOT BE PROPER. THUS, LIEUTENANT KAZALONIS IS ENTITLED TO PAY AND ALLOWANCES THROUGH DECEMBER 17, 1972.

CONCERNING THE QUESTION WHETHER A SENTENCE OF TOTAL FORFEITURE OF ALL PAY AND ALLOWANCES WOULD PROHIBIT THE PAYMENT FOR 45 DAYS' ACCRUED LEAVE AT THE DATE OF LIEUTENANT KAZALONIS' RELEASE FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, SECTION 501(E) OF TITLE 37, U.S. CODE, PROVIDES:

A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, OR ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION WHO IS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS FORFEITS ALL ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE.

IN THE INSTANT CASE, WHILE THE OFFICER'S RELEASE FROM ACTIVE DUTY WAS UNDER HONORABLE CONDITIONS, THE COURT-MARTIAL SENTENCE BY ITS EXPRESS TERMS IMPOSED THE FORFEITURE OF "ALL PAY AND ALLOWANCES." SINCE THE RIGHT TO A LEAVE PAYMENT ACCRUES AT THE DATE OF DISCHARGE, IT IS OUR VIEW THAT A SENTENCE TO FORFEIT ALL PAY AND ALLOWANCES INCLUDES A PAYMENT FOR UNUSED ACCRUED LEAVE WHICH IS PART OF THE MEMBER'S COMPENSATION FOR ACTIVE MILITARY SERVICE. IN 34 COMP. GEN. 95(1954) WE HELD THAT A DISHONORABLE DISCHARGE OF AN ENLISTED MAN WHOSE MILITARY RECORD HAD BEEN CORRECTED TO SHOW HONORABLE DISCHARGE, BUT NOT CORRECTED TO DELETE THE PAY FORFEITURE PROVISION OF A COURT-MARTIAL SENTENCE, MAY NOT BE PAID FOR ANY UNUSED LEAVE, WHICH IS PART OF THE MEMBER'S COMPENSATION FOR ACTIVE MILITARY SERVICE AND WAS FORFEITED BY THE COURT-MARTIAL SENTENCE. SEE, ALSO, B- 122440, JUNE 8, 1955, AND B 160170, OCTOBER 11, 1966.

IN THE LIGHT OF THE ABOVE, AND IN VIEW OF THE SENTENCE TO FORFEIT ALL PAY AND ALLOWANCES, THE OFFICER IS NOT ENTITLED TO BE COMPENSATED FOR UNUSED ACCRUED LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY.

THE ORDERS OF DECEMBER 21, 1972, AS AMENDED, RELEASING LIEUTENANT KAZALONIS FROM ACTIVE DUTY, PROVIDED IN PERTINENT PART:

YOU ARE NOT ENTITLED TO OR AUTHORIZED ACTIVE DUTY PAY AND ALLOWANCES FOR TRAVEL TO YOUR HOME OF RECORD. YOU ARE AUTHORIZED TO TRAVEL TO YOUR HOME OF RECORD VIA PRIVATELY OWNED CONVEYANCE.

SECTION 404(A)(3) OF TITLE 37 OF THE U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER ORDERS UPON RELEASE FROM ACTIVE DUTY FROM HIS LAST DUTY STATION TO HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED OR ORDERED TO ACTIVE DUTY.

JOINT TRAVEL REGULATIONS PARAGRAPH M4157 IMPLEMENTING THAT LAW PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY UNDER CONDITIONS PRESCRIBED IN SUBPARAGRAPH 2 OR UNDER CONDITIONS OTHER THAN THOSE OUTLINED IN SUBPARAGRAPHS 3 THROUGH 5 OR UNDER PARAGRAPH M4158(NONE OF WHICH ARE APPLICABLE TO LIEUTENANT KAZALONIS) WILL BE ENTITLED TO MILEAGE FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, AS THE MEMBER MAY ELECT. SINCE LIEUTENANT KAZALONIS WAS RELEASED FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, HE IS ENTITLED UNDER THE LAW AND REGULATIONS TO TRAVEL AND TRANSPORTATION ALLOWANCE CONSISTENT WITH HIS ORDERS OF DECEMBER 21, 1972.

ACCORDINGLY, PAYMENT FOR MILEAGE TO LIEUTENANT KAZALONIS FOR THE TRAVEL VIA PRIVATELY OWNED VEHICLE IN ACCORDANCE WITH THE ORDERS OF DECEMBER 21, 1972, AS AMENDED, IS AUTHORIZED.