B-124087, OCTOBER 13, 1955, 35 COMP. GEN. 204

B-124087: Oct 13, 1955

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PAY - CHECK AGES AND FORFEITURES - COURT-MARTIAL SENTENCES - WITHHOLDING PENDING REHEARING PAY AND ALLOWANCES WHICH WERE WITHHELD INCIDENT TO A GENERAL COURT- MARTIAL SENTENCE PRIOR TO A DECISION BY THE COURT OF MILITARY APPEALS WHICH SET ASIDE THE SENTENCE AND ORDERED A REHEARING. 1955: REFERENCE IS MADE TO LETTER OF MAY 23. THE QUESTION IS AS FOLLOWS: A NAVY GENERAL COURT-MARTIAL SENTENCE TO REDUCTION TO LOWEST ENLISTED GRADE. CONFINEMENT AT HARD LABOR FOR ONE YEAR WAS APPROVED BY THE CONVENING AUTHORITY ON 28 MAY 1952. THE FINDINGS OF GUILTY AND THE SENTENCE AS APPROVED WERE AFFIRMED BY THE BOARD OF REVIEW. THE SENTENCE WAS APPROVED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY WHO SPECIFIED THAT "UPON RELEASE OF THE ACCUSED FROM CONFINEMENT THE UNCOLLECTED FORFEITURES FOR ANY PERIOD THEREAFTER SHALL AUTOMATICALLY BE REMITTED.'.

B-124087, OCTOBER 13, 1955, 35 COMP. GEN. 204

PAY - CHECK AGES AND FORFEITURES - COURT-MARTIAL SENTENCES - WITHHOLDING PENDING REHEARING PAY AND ALLOWANCES WHICH WERE WITHHELD INCIDENT TO A GENERAL COURT- MARTIAL SENTENCE PRIOR TO A DECISION BY THE COURT OF MILITARY APPEALS WHICH SET ASIDE THE SENTENCE AND ORDERED A REHEARING, SHOULD CONTINUE TO BE WITHHELD PENDING THE OUTCOME OF THE REHEARING.

TO THE SECRETARY OF DEFENSE, OCTOBER 13, 1955:

REFERENCE IS MADE TO LETTER OF MAY 23, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON A QUESTION PRESENTED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 118, MILITARY PAY AND ALLOWANCE COMMITTEE. THE QUESTION IS AS FOLLOWS:

A NAVY GENERAL COURT-MARTIAL SENTENCE TO REDUCTION TO LOWEST ENLISTED GRADE, DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR ONE YEAR WAS APPROVED BY THE CONVENING AUTHORITY ON 28 MAY 1952. THE CONVENING AUTHORITY PROVIDED IN HIS ACTION THAT THE FORFEITURE SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF HIS ACTION. THE FINDINGS OF GUILTY AND THE SENTENCE AS APPROVED WERE AFFIRMED BY THE BOARD OF REVIEW, AND THE SENTENCE WAS APPROVED BY THE JUDGE ADVOCATE GENERAL OF THE NAVY WHO SPECIFIED THAT "UPON RELEASE OF THE ACCUSED FROM CONFINEMENT THE UNCOLLECTED FORFEITURES FOR ANY PERIOD THEREAFTER SHALL AUTOMATICALLY BE REMITTED.' UPON PETITION OF THE ACCUSED, THE COURT OF MILITARY APPEALS, ON 18 AUGUST 1954, REVERSED THE DECISION OF THE BOARD OF REVIEW AND ORDERED A REHEARING. IS THE MEMBER IMMEDIATELY ENTITLED TO HAVE PAID TO HIM THE PAY AND ALLOWANCES WHICH WERE WITHHELD PURSUANT TO THE ORDER OF THE CONVENING AUTHORITY? STATED DIFFERENTLY--- CAN THE FORFEITURES WHICH WERE WITHHELD PURSUANT TO THE CONVENING AUTHORITY'S ACTION PROPERLY CONTINUE TO BE WITHHELD PENDING THE OUTCOME OF REHEARING PROCEEDINGS?

ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, APPROVED MAY 5, 1950, 64 STAT. 126, 50 U.S.C. 638, PROVIDES THAT:

(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, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE SUCH SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE SHALL EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE SUCH DATE.

(B) ANY PERIOD OF CONFINEMENT INCLUDED IN A SENTENCE OF A COURT MARTIAL SHALL BEGIN TO RUN FROM THE DATE THE SENTENCE IS ADJUDGED BY THE COURT- MARTIAL, BUT PERIODS DURING WHICH THE SENTENCE TO CONFINEMENT IS SUSPENDED SHALL BE EXCLUDED IN COMPUTING THE SERVICE OF THE TERM OF CONFINEMENT.

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

ARTICLE 67 (E) OF THE CODE, 64 STAT. 130, 50 U.S.C. 654, PROVIDES THAT:

IF THE COURT OF MILITARY APPEALS SETS ASIDE THE FINDINGS AND SENTENCE, IT MAY, EXCEPT WHERE THE SETTING ASIDE IS BASED ON LACK OF SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE FINDINGS, ORDER REHEARING. IF IT SETS ASIDE THE FINDINGS AND SENTENCE AND DOES NOT ORDER A REHEARING IT SHALL ORDER THAT THE CHARGES BE DISMISSED.

ARTICLE 75 (A) OF THE CODE, 64 STAT. 132, 50 U.S.C. 662, IS AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY AN EXECUTED PORTION OF COURT MARTIAL SENTENCE WHICH HAS BEEN SET ASIDE OR DISAPPROVED, EXCEPT AN EXECUTED DISMISSAL OR DISCHARGE, SHALL BE RESTORED UNLESS A NEW TRIAL OR REHEARING IS ORDERED AND SUCH EXECUTED PORTION IS INCLUDED IN A SENTENCE IMPOSED UPON THE NEW TRIAL OR REHEARING.

IT DOES NOT APPEAR THAT THE SETTING ASIDE OF A SENTENCE AND THE CONTEMPORANEOUS ORDERING OF A REHEARING BY THE COURT OF MILITARY APPEALS CONSTITUTE A DISMISSAL OR A DECLARATION THAT THE PRIOR PROCEEDINGS ARE ILLEGAL, IT DOES NOT ORDER A REHEARING, BUT, INSTEAD, ORDERS THAT THE CHARGES BE DISMISSED, WITHOUT FURTHER QUALIFICATION. THE PROVISIONS OF PARAGRAPH 92 OF THE MANUAL FOR COURTS-MARTIAL SEEM TO CONTAIN ABUNDANT EVIDENCE THAT REHEARINGS ARE INTENDED TO BE LIMITED TO THE CONSIDERATION OF THE ULTIMATE EFFECT OF PROCEDURAL ERRORS APPEARING IN THE ORIGINAL PROCEEDINGS AND WHICH ARE DISCOVERED UPON REVIEW. THERE IS TO BE NOTED IN THIS CONNECTION THAT PARAGRAPH 92 AUTHORIZES, INTER ALIA, A REHEARING AS TO ANY OFFENSE EVEN THOUGH CONVICTION THEREOF IS BASED ON A PLEA OF GUILTY.

IT IS BELIEVED THAT APPARENT AMBIGUITIES OR INCONSISTENCIES IN THE CODE OF MILITARY JUSTICE, WITH RESPECT TO THE DISPOSITION OF PAY AND ALLOWANCES WHICH HAVE BEEN WITHHELD UNDER CIRCUMSTANCES SUCH AS ARE HERE PRESENT, RESOLVE THEMSELVES SOMEWHAT WHEN REASONABLE APPLICATION IS GIVEN TO PARAGRAPH 89C (7) OF THE MANUAL TITLED " ACTION ON REHEARING," WHERE IT IS STATED, IN PERTINENT PART, THAT:

THE CONVENING AUTHORITY MAY APPROVE A SENTENCE ADJUDGED UPON A REHEARING WITHOUT REGARD TO WHETHER ANY PORTION OR AMOUNT OF THE PUNISHMENT ADJUDGED AT THE FORMER TRIAL HAS BEEN SERVED OR EXECUTED. HOWEVER, IN COMPUTING THE TERM OR AMOUNT OF PUNISHMENT ACTUALLY TO BE SERVED OR EXECUTED UNDER THE NEW SENTENCE, THE ACCUSED WILL BE CREDITED WITH ANY PORTION OR AMOUNT OF THE FORMER SENTENCE THAT WAS SERVED OR EXECUTED PRIOR TO THE TIME IT WAS DISAPPROVED OR SET ASIDE. FOR EXAMPLE, IF THE ORIGINAL SENTENCE CONSISTED OF CONFINEMENT AT HARD LABOR FOR SIX MONTHS AND FORFEITURE OF $50 PER MONTH FOR SIX MONTHS, OF WHICH ONE MONTH'S CONFINEMENT HAS BEEN SERVED ( ART. 57B) BUT NO FORFEITURES HAVE BEEN EXECUTED, AND THE SENTENCE ADJUDGED UPON THE REHEARING IS IDENTICAL TO THAT ORIGINALLY ADJUDGED, THE PERSON CHARGED WITH ADMINISTRATIVE EXECUTION OF THE NEW SENTENCE WOULD CREDIT THE ACCUSED WITH ONE MONTH'S CONFINEMENT; THE ACCUSED WOULD HAVE A BALANCE OF CONFINEMENT FOR FIVE MONTHS AND FORFEITURES FOR SIX MONTHS YET TO BE EXECUTED. * * *

WHILE THE EXAMPLE GIVEN DOES NOT INCLUDE AN ELEMENT OF EXECUTED PAY FORFEITURES INCIDENT TO THE SENTENCE, TO BE CREDITED IN A PROPER CASE AGAINST A LOSS OF PAY AS A RESULT OF THE REHEARING, THE ANTECEDENT LANGUAGE DEFINITELY SHOWS A PURPOSE AND UNDERSTANDING THAT THE ACCUSED WILL BE CREDITED UNDER THE NEW SENTENCE "WITH ANY PORTION OR AMOUNT OF THE FORMER SENTENCE THAT WAS SERVED OR EXECUTED PRIOR TO THE TIME IT WAS DISAPPROVED OR SET ASIDE.' NO DIFFICULTY IS ENCOUNTERED IN INTERPRETING THE PHRASE "PORTION OR AMOUNT" AS APPLYING, RESPECTIVELY, TO CONFINEMENT AND FORFEITURES OF PAY. ANY DOUBT THAT THE EXECUTED PART OF THE PAY AND ALLOWANCES WHICH WAS FORFEITED PRIOR TO THE SETTING ASIDE AND REHEARING, SHOULD BE RETAINED UNTIL CONCLUSION OF THE REHEARING SEEMS TO BE COMPLETELY REMOVED BY THE FURTHER PROVISIONS OF THE SAME PARAGRAPH 89C (7) WHICH TATES:

* * * IF THE COURT, AT A REHEARING, ACQUITS THE ACCUSED OF ALL CHARGES AND SPECIFICATIONS WHICH WERE TRIED AT THE FORMER HEARING, THE PROMULGATING ORDER WILL PROVIDE FOR THE RESTORATION OF ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY ANY EXECUTED PORTION OF THE SENTENCE ADJUDGED AT THE FORMER HEARING. * * *

CONSIDERING THE LANGUAGE JUST QUOTED ALONG WITH THE PROVISIONS OF ARTICLE 75 (A) OF THE UNIFORM CODE OF MILITARY JUSTICE, IT SEEMS REASONABLE TO CONCLUDE THAT RETENTION PENDING A REHEARING, IN EFFECT, IS NOT A FORFEITURE OF PAY AND ALLOWANCES ACCRUED PRIOR TO THE DATE OF THE CONVENING AUTHORITY'S ACTION INCIDENT TO THE REHEARING, BUT MERELY REPRESENTS A WITHHOLDING IN ESCROW FOR NUNC PRO TUNC CREDIT, AND HENCE AVOIDS REPETITIOUS ADMINISTRATIVE ACTION IN THOSE CASES WHERE THE ULTIMATE SENTENCE UPON REHEARING INCLUDES THE SAME LOSS OF PAY AND ALLOWANCES AS ADJUDICATED IN THE ORIGINAL SENTENCE. HENCE, WHETHER THE PAY AND ALLOWANCES WHICH HAVE BEEN WITHHELD IN THE PRESENT CASE ARE "EXECUTED" FORFEITURES OR "APPLIED" FORFEITURES IS NOT MATERIAL. AS WAS SAID IN THE CASE OF UNITED STATES V. SMITH, 12 CMR 92, 96:

* * * BECAUSE THE SENTENCE INCLUDED A BAD-CONDUCT DISCHARGE, EXECUTION OF THE FORFEITURES COULD NOT BE IMPOSED UNTIL FINAL APPELLATE REVIEW. THIS, HOWEVER, DOES NOT MEAN THAT SOME ACTION COULD NOT BE TAKEN BY THE CONVENING AUTHORITY TO ASSURE COLLECTING THE FORFEITURES WHEN THE TIME ARRIVED TO EXECUTE. WE BELIEVE THAT ARTICLE 57 OF THE CODE IS EXPRESSLY WORDED TO AUTHORIZE A SENTENCE WHICH WILL PERMIT AN ORDERLY, AND AT THE SAME TIME, A FAIR METHOD OF COLLECTING FORFEITURES. IT MAY AMOUNT TO NO MORE THAN A BOOKKEEPING ENTRY BUT THERE IS A DIFFERENCE BETWEEN APPLYING FORFEITURES AND EXECUTING THEM. APPLICATION CAN COMMENCE ON THE DATE THE CONVENING AUTHORITY ACTS EVEN THOUGH EXECUTION MUST BE DEFERRED UNTIL COMPLETION OF APPELLATE REVIEW.

SEE ALSO UNITED STATES V. FORESTER, 18 CMR 541.

OF COURSE, IF THE ULTIMATE SENTENCE INCIDENT TO THE REHEARING SHOULD IMPOSE A LESSER FORFEITURE THAN THAT IMPOSED BY THE ORIGINAL SENTENCE, ARTICLE 75 (A) OF THE CODE PROVIDES AN EASY AND EQUITABLE METHOD OF MAKING REFUND TO THE ACCUSED.

IN THE PRESENT CASE THE PAY AND ALLOWANCES WHICH HAVE BEEN WITHHELD SHOULD CONTINUE TO BE WITHHELD PENDING THE RESULTS OF THE REHEARING AND EXECUTION OF THE SENTENCE THEREUNDER.