B-143209, JUL. 18, 1960

B-143209, JUL. 18, 1960

TO LIEUTENANT COLONEL J. C. KELLY, F.C., FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 21, 1960, FORWARDED HERE BY THE OFFICE OF CHIEF OF FINANCE ON JUNE 14, 1960, REQUESTING DECISION WHETHER PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO MARCH 16, 1960, IS AUTHORIZED TO BE MADE TO GEORGE E. JORDAN, RA 53-153-611, GRADE E -4, IN THE CIRCUMSTANCES RECITED. THE SUBMISSION WAS ALLOCATED D.O.NO. A- 504 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE SERVICE MEMBER WAS SENTENCED TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE REDUCED TO THE GRADE OF E-1, IN ACCORDANCE WITH GENERAL COURT-MARTIAL ORDER NO. 7, DATED MARCH 17, 1960. THE SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY ON THE SAME DATE AND THE RECORD OF TRIAL FORWARDED FOR APPELLATE REVIEW. YOU SAY THAT DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT SUBSEQUENT TO MARCH 16, 1960, DUE TO THE FACT THAT THE CONVENING AUTHORITY DID NOT ADMINISTRATIVELY AUTHORIZE SUSPENSION OF THE FORFEITURE OR RESTORATION TO DUTY, AND CONFINEMENT WAS NOT IMPOSED. THERE WAS NO CONFINEMENT PRIOR TO TRIAL.

ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, PROVIDES THAT WHENEVER AN APPROVED COURT-MARTIAL SENTENCE INCLUDES A FORFEITURE OF PAY AND ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED, THE FORFEITURE MAY APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY, AND THAT ALL OTHER SENTENCES ARE EFFECTIVE ON THE DATE ORDERED EXECUTED. ARTICLE 66 (B), 10 U.S.C. 866 (B), REQUIRES THE JUDGE ADVOCATE GENERAL TO REFER TO A BOARD OF REVIEW THE RECORD OF EVERY COURT-MARTIAL TRIAL IN WHICH THE APPROVED SENTENCE EXTENDS TO DISHONORABLE OR BAD-CONDUCT DISCHARGE. ARTICLE 71 (C), 10 U.S.C. 871 (C), PROVIDES THAT NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD-CONDUCT DISCHARGE MAY BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE COURT OF MILITARY APPEALS. SINCE THE COURT-MARTIAL SENTENCE IN THIS CASE DID NOT INCLUDE CONFINEMENT AND DID INCLUDE A DISHONORABLE DISCHARGE, THE SENTENCE TO FORFEITURES COULD NOT BECOME EFFECTIVE UNTIL IT IS AFFIRMED UPON REVIEW. SEE IN THAT CONNECTION, UNITED STATES V. VOELKER, CM 355011, 7 CMR 102, HOLDING THE ACTION OF THE CONVENING AUTHORITY IN ORDERING A SENTENCE TO FORFEITURES TO APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF HIS ACTION TO BE ILLEGAL AND VOID IN A CASE WHERE THE SENTENCE DID NOT INCLUDE CONFINEMENT.

ACCORDINGLY, JORDAN IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS GRADE, E -4, UNTIL THE DATE THE SENTENCE IS ORDERED EXECUTED.

THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES BETWEEN THE DATE THE SENTENCE IS ORDERED EXECUTED, IF SO ORDERED, AND THE DATE OF DISCHARGE (SEE OUR DECISION OF MAY 3, 1960, B-141962, TO LIEUTENANT COLONEL R. H. MACPHERSON, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY) UNLESS HE IS RESTORED TO DUTY (COMPARE 37 COMP. GEN. 591).