B-141950, APR. 28, 1960

B-141950: Apr 28, 1960

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WHICH WERE SUBMITTED BY THE PERSONNEL OFFICER. YOUR REQUEST FOR ADVANCE DECISION WAS FORWARDED UNDER D.O. WAS SENTENCED TO DISHONORABLE DISCHARGE FROM THE SERVICE. EXECUTION OF THE DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL COMPLETION OF APPELLATE REVIEW OR RELEASE FROM CONFINEMENT. 1959 (NINE MONTHS FROM THE DATE THE SENTENCE WAS ORIGINALLY APPROVED BY THE CONVENING AUTHORITY). THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE. "/B) ANY PERIOD OF CONFINEMENT INCLUDED IN A SENTENCE OF A COURT MARTIAL BEGINS TO RUN FROM THE DATE THE SENTENCE IS ADJUDGED BY THE COURT-MARTIAL.

B-141950, APR. 28, 1960

TO MAJOR JOSEPH C. ARMOUR, FINANCE AND ACCOUNTING OFFICER:

BY FOURTH INDORSEMENT DATED FEBRUARY 8, 1960, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF DECEMBER 14, 1959, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF MILITARY PAY VOUCHERS FOR THE PERIOD JUNE 5 THROUGH JULY 17, 1959, IN FAVOR OF NATHAN D. PORTER, RA 25 011 729, WHICH WERE SUBMITTED BY THE PERSONNEL OFFICER, 1ST GUARD COMPANY, U.S. DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS. YOUR REQUEST FOR ADVANCE DECISION WAS FORWARDED UNDER D.O. NO. 477, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT RECRUIT NATHAN D. PORTER, BY GENERAL COURT MARTIAL SENTENCE ADJUDGED ON AUGUST 13, 1958, AS APPROVED SEPTEMBER 5, 1958, BY THE CONVENING AUTHORITY, WAS SENTENCED TO DISHONORABLE DISCHARGE FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES AND TO BE CONFINED AT HARD LABOR FOR TWO YEARS. EXECUTION OF THE DISHONORABLE DISCHARGE WAS SUSPENDED UNTIL COMPLETION OF APPELLATE REVIEW OR RELEASE FROM CONFINEMENT, WHICHEVER WOULD BE THE LATER DATE, AND THE CONVENING AUTHORITY DIRECTED THAT THE FORFEITURE WOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER SEPTEMBER 5, 1958.

IT FURTHER APPEARS THAT ON JULY 1, 1959, THE BOARD OF REVIEW, ACTING PURSUANT TO THE DECISION OF THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. PORTER, 10 USCMA 427, 27 CMR 501, REASSESSED THE SENTENCE AND APPROVED ONLY SO MUCH THEREOF AS PROVIDED FOR DISHONORABLE DISCHARGE (SUSPENDED), TOTAL FORFEITURES AND CONFINEMENT AT HARD LABOR FOR NINE MONTHS.

ALSO, IT APPEARS THAT ON JULY 18, 1959, THE COMMANDING GENERAL, FORT LEAVENWORTH, ORDERED THE SENTENCE AS THUS MODIFIED BY THE BOARD OF REVIEW EXECUTED, REMITTED THE DISHONORABLE DISCHARGE AND DIRECTED THAT "FORFEITURES SHALL NOT APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF THIS ORDER.' YOU STATE, IN EFFECT, THAT BECAUSE BY THIS TIME (JULY 18, 1959) THE ACCUSED HAD SERVED THE APPROVED PORTION OF HIS SENTENCE TO CONFINEMENT, NINE MONTHS, AND HAD IN ADDITION BEEN CONFINED FROM JUNE 5, 1959 (NINE MONTHS FROM THE DATE THE SENTENCE WAS ORIGINALLY APPROVED BY THE CONVENING AUTHORITY), TO JULY 18, 1959, QUESTION ARISES AS TO WHETHER PORTER MAY BE CONSIDERED AS BEING IN A DUTY STATUS BETWEEN THE PERIOD OF JUNE 5 TO 17, 1959, INCLUSIVE, AND WHETHER THE BOARD OF REVIEW MAY RETROACTIVELY PLACE AN INDIVIDUAL IN A PAY STATUS BY ITS ACTION UPON A SENTENCE OF A COURT MARTIAL.

PARAGRAPHS 13-84 A. AND B. OF ARMY REGULATIONS NO. 37-104, DECEMBER 2, 1957, PROVIDE AS OLLOWS:

"13-84. REMISSION OR SUSPENSION OF FORFEITURE OR DETENTION OF PAY. GENERAL.--- THE SECRETARY OF THE ARMY AND, WHEN DESIGNATED BY HIM, THE UNDER SECRETARY, ASSISTANT SECRETARY, JUDGE ADVOCATE GENERAL, OR COMMANDING OFFICER MAY REMIT OR SUSPEND ANY PART OR AMOUNT OF THE UNEXECUTED PORTION OF ANY SENTENCE INCLUDING ALL UNCOLLECTED FORFEITURES, OTHER THAN A SENTENCE APPROVED BY THE PRESIDENT. REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE DOES NOT OPERATE ON PAY WHICH HAS BEEN COLLECTED AS FORFEITURE. SEE 1 COMP. GEN. 291, 3 ID. 653.

"CONFINEMENT AND FORFEITURE.--- A SENTENCE IMPOSING BOTH CONFINEMENT AND FORFEITURE INFLICTS TWO SEPARATE AND DISTINCT PUNISHMENTS AND REMISSION OF ONE DOES NOT NECESSARILY AFFECT THE OTHER. SATISFIED FORFEITURE CANNOT BE REMITTED. SEE DIG. OP. JAG., 1912-40; P. 841.'

ARTICLE 57/A) (B) AND (C) OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ART. 57. EFFECTIVE DATE OF SENTENCES.

"/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 THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE.

"/B) ANY PERIOD OF CONFINEMENT INCLUDED IN A SENTENCE OF A COURT MARTIAL BEGINS 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 ARE EFFECTIVE ON THE DATE ORDERED EXECUTED.'

BY HIS ACTION OF SEPTEMBER 5, 1958, THE CONVENING AUTHORITY 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 THE EXECUTION OF THAT PORTION ADJUDGING DISHONORABLE DISCHARGE UNTIL THE ACCUSED'S RELEASE FROM CONFINEMENT OR UNTIL COMPLETION OF APPELLATE REVIEW, WHICHEVER WAS THE LATER DATE. THE BOARD OF REVIEW, IN REASSESSING THE SENTENCE ON JULY 1, 1959, PURSUANT TO THE DECISION IN THE CASE BY THE UNITED STATES COURT OF MILITARY APPEALS, REDUCED THE PERIOD OF CONFINEMENT TO NINE MONTHS AND, AS THUS MODIFIED, AFFIRMED THE SENTENCE AS APPROVED BY THE CONVENING AUTHORITY ON SEPTEMBER 5, 1958. GENERAL COURT-MARTIAL ORDER NO. 462, DATED JULY 18, 1959, ISSUED BY THE COMMANDING GENERAL, FORT LEAVENWORTH, KANSAS, PROVIDES THAT THE SENTENCE, AFFIRMED AS MODIFIED BY THE BOARD OF REVIEW, WILL BE DULY EXECUTED, BUT REMITTED THE PORTION ADJUDGING DISHONORABLE DISCHARGE AND PROVIDED THAT FORFEITURES SHALL NOT APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF THAT ORDER.

IT HAS BEEN HELD THAT AN ORDER SUSPENDING EXECUTION OF A DISHONORABLE DISCHARGE FOLLOWED BY RELEASE FROM CONFINEMENT AND RESTORATION TO DUTY OPERATES BY IMPLICATION TO SUSPEND THE EXECUTION OF THAT PORTION OF THE SENTENCE ADJUDGING TOTAL FORFEITURES OF PAY AND ALLOWANCES REMAINING UNEXECUTED AT THE TIME OF THE MEMBER'S RESTORATION TO DUTY. OPS. JAGAF 1957/1958/285, 7 DIG. PS., SENT AND PUN, SECTION 7.1; 2 BULL. JAG 425. ALSO, SEE 37 COMP. GEN. 591.

THE SENTENCE APPROVED BY THE CONVENING AUTHORITY IN THIS CASE INCLUDED A FORFEITURE OF PAY IN ADDITION TO CONFINEMENT NOT SUSPENDED, AND THUS IN ACCORDANCE WITH ARTICLE 57 (A) UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, THE FORFEITURES COULD BE APPLIED TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF APPROVAL BY THE CONVENING AUTHORITY SINCE THE SENTENCE AS FINALLY APPROVED AND ORDERED EXECUTED SO PROVIDED. CF. 35 COMP. GEN. 204. WHILE THE PROVISION IN THE SENTENCE FOR FORFEITURE OF ALL PAY AND ALLOWANCES BECOMING DUE ON OR AFTER SEPTEMBER 5, 1958, WAS NOT SPECIFICALLY TERMINATED UNTIL JULY 18, 1959, THE PERIOD OF CONFINEMENT PROVIDED FOR IN THE SENTENCE AS MODIFIED BY THE BOARD OF REVIEW AND ORDERED EXECUTED TERMINATED ON JUNE 4, 1959. HOWEVER, THE MEMBER REMAINED IN CONFINEMENT AND WAS NOT RESTORED TO A DUTY STATUS FOR ANY PORTION OF THE PERIOD FROM JUNE 5 TO JULY 17, 1959. IN SUCH CIRCUMSTANCES, THE APPROVAL OF A SENTENCE OF CONFINEMENT MODIFIED BY A BOARD OF REVIEW TO TERMINATE ON A DATE THAT HAS ALREADY EXPIRED MAY NOT BE CONSIDERED AS OPERATING TO RESTORE THE MEMBER TO A DUTY STATUS, AS OF SUCH EXPIRATION DATE, WHEN IN FACT HE WAS NOT RESTORED TO THAT STATUS, SO AS TO SUSPEND BY IMPLICATION A VALID SENTENCE OF FORFEITURE OF ALL PAY AND ALLOWANCES. THEREFORE, IT MUST BE HELD THAT THE MEMBER IS NOT ENTITLED TO RESUMPTION OF PAYMENT OF PAY AND ALLOWANCES BEFORE JULY 18, 1959. THE VOUCHERS SUBMITTED WILL BE RETAINED HERE.