B-129831, JANUARY 17, 1957, 36 COMP. GEN. 512

B-129831: Jan 17, 1957

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MILITARY PERSONNEL - PAY FORFEITURE - COURT-MARTIAL SENTENCE - PERIOD BETWEEN APPROVAL OF SENTENCE AND APPELLATE REVIEW A COURT-MARTIAL SENTENCE WHICH WAS SET ASIDE FOR APPELLATE REVIEW PRIOR TO THE EXECUTION OF THE PAY AND ALLOWANCE FORFEITURE PROVISIONS OF THE SENTENCE MAY NOT BE CONSIDERED A VALID SENTENCE FOR FORFEITURE PURPOSES AND PAY AND ALLOWANCES MAY ACCRUE TO THE MEMBER UNTIL APPROVAL OF THE SECOND COURT-MARTIAL SENTENCE WHICH REQUIRED FORFEITURE OF PAY AND ALLOWANCES ACCRUING THEREAFTER. 1957: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8. INCLUDED AMONG THE ENCLOSURES IS A MILITARY PAY ORDER WHICH REQUESTS THAT THE MEMBER BE PAID $573. IT BEING STATED THAT "ORDERS PROMULGATING (COURT-MARTIAL) SENTENCE HAVE NOT BEEN PUBLISHED.'.

B-129831, JANUARY 17, 1957, 36 COMP. GEN. 512

MILITARY PERSONNEL - PAY FORFEITURE - COURT-MARTIAL SENTENCE - PERIOD BETWEEN APPROVAL OF SENTENCE AND APPELLATE REVIEW A COURT-MARTIAL SENTENCE WHICH WAS SET ASIDE FOR APPELLATE REVIEW PRIOR TO THE EXECUTION OF THE PAY AND ALLOWANCE FORFEITURE PROVISIONS OF THE SENTENCE MAY NOT BE CONSIDERED A VALID SENTENCE FOR FORFEITURE PURPOSES AND PAY AND ALLOWANCES MAY ACCRUE TO THE MEMBER UNTIL APPROVAL OF THE SECOND COURT-MARTIAL SENTENCE WHICH REQUIRED FORFEITURE OF PAY AND ALLOWANCES ACCRUING THEREAFTER.

TO CAPTAIN T. C. CRABFELDER, JR., UNITED STATES AIR FORCE, JANUARY 17, 1957:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1956, AND ENCLOSURES, FORWARDED HERE BY THE AIR FORCE FINANCE CENTER ON OCTOBER 9, 1956, IN REGARD TO THE RIGHT OF AN OFFICER OF THE AIR FORCE TO PAY AND ALLOWANCES, AND THE EFFECT ON THAT RIGHT BY THE SETTING ASIDE OF A GENERAL COURT- MARTIAL SENTENCE. INCLUDED AMONG THE ENCLOSURES IS A MILITARY PAY ORDER WHICH REQUESTS THAT THE MEMBER BE PAID $573, IT BEING STATED THAT "ORDERS PROMULGATING (COURT-MARTIAL) SENTENCE HAVE NOT BEEN PUBLISHED.'

IT APPEARS THAT ON JUNE 30, 1955, THE MEMBER WAS SENTENCED BY A GENERAL COURT-MARTIAL TO BE DISMISSED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR TEN YEARS. IT FURTHER APPEARS THAT THE SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY ON OCTOBER 18, 1955, WITH DIRECTION THAT THE FORFEITURE SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THAT DATE. ALSO, IT APPEARS THAT IN A GENERAL COURT-MARTIAL ORDER DATED APRIL 24, 1956, IT WAS ANNOUNCED THAT ON APRIL 9, 1956, THE FINDINGS AND SENTENCE, AS PROMULGATED BY THE CONVENING AUTHORITY ON OCTOBER 18, 1955, WERE SET ASIDE, AND A REHEARING ORDERED, BY A BOARD OF REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE, ACTING UNDER THE AUTHORITY OF ARTICLE 66 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 128, 50 U.S.C. 651.

YOU STATE THAT AS OF THE DATE OF YOUR LETTER THE OFFICER WAS IN CONFINEMENT PENDING COMPLETION OF APPELLATE REVIEW, AND THAT THE RESULTS OF THE REHEARING HAD NOT BEEN PROMULGATED AND YOU REQUEST A DECISION AS TO "WHAT PAY AND ALLOWANCES, IF ANY, THE OFFICER IS ENTITLED FOR PERIOD 18 OCTOBER 1955 TO 24 APRIL 1956, AND FOR SUBSEQUENT PERIODS.' HOWEVER, THE RECORD SUBMITTED TO US SHOWS THAT ON SEPTEMBER 23, 1956, SUBSEQUENT TO THE DATE OF YOUR LETTER, THE CONVENING AUTHORITY APPROVED THE SENTENCE ADJUDGED JULY 24, 1956, UPON THE REHEARING, THAT THE OFFICER BE DISMISSED FROM THE SERVICE, THAT HE FORFEIT ALL PAY AND ALLOWANCES AND THAT HE BE CONFINED AT HARD LABOR FOR FIVE YEARS. THE CONVENING AUTHORITY DIRECTED THAT THE ACCUSED WOULD BE CREDITED WITH CONFINEMENT FROM JUNE 30, 1955, TO MAY 3, 1956, UNDER THE SENTENCE ADJUDGED AT HIS FORMER TRIAL, AND THAT FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER SEPTEMBER 23, 1956.

SINCE THE OFFICER'S ORIGINAL SENTENCE 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 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, YOUR QUESTION IS ANSWERED BY SAYING THAT INSOFAR AS THE MATTER OF FORFEITURE IS INVOLVED THE OFFICER IS ENTITLED TO PAY AND ALLOWANCES FROM OCTOBER 18, 1955, TO SEPTEMBER 22, 1956, THE DAY PRECEDING THE BEGINNING OF THE PERIOD OF FORFEITURE AS FIXED IN THE NEW SENTENCE.

THE MILITARY PAY ORDER IS RETURNED. PAYMENT THEREON IS AUTHORIZED TO THE EXTENT THAT IT REPRESENTS PAY AND ALLOWANCES OTHERWISE DUE FOR SOME PORTION OF THE PERIOD OCTOBER 18, 1955, TO SEPTEMBER 22, 1956.