B-153125, APRIL 2, 1964, 43 COMP. GEN. 645

B-153125: Apr 2, 1964

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REDUCTION IN ENLISTED PAY GRADE FROM E-5 TO E-1 IS CONFIRMED. THE MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES WITHHELD FOR THE PERIOD BETWEEN THE ORIGINAL AND REHEARING COURT-MARTIAL ORDERS. THERE IS NO BASIS FOR WITHHOLDING THE PAY AND ALLOWANCES FOR THE PERIOD PRIOR TO AFFIRMATION OF THE FORFEITURE SENTENCE. PROVIDING THAT WHEN A SENTENCE IS SET ASIDE THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD THE WITHHOLDING WAS IN EFFECT AS THOUGH HE HAD NOT BEEN REDUCED IN GRADE. THE PAY AND ALLOWANCES DUE ARE FOR COMPUTATION AT PAY GRADE E-5. 35 COMP. 1964: REFERENCE IS MADE TO YOUR RECENT LETTER. THOMAS WAS CONVICTED OF MURDER AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE.

B-153125, APRIL 2, 1964, 43 COMP. GEN. 645

PAY - COURTS-MARTIAL SENTENCES - STATUS AWAITING APPELLATE REVIEW WHEN UPON REHEARING OF A COURT-MARTIAL SENTENCE, THE ORDER OF FORFEITURE OF PAY AND ALLOWANCES, AND REDUCTION IN ENLISTED PAY GRADE FROM E-5 TO E-1 IS CONFIRMED, THE MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES WITHHELD FOR THE PERIOD BETWEEN THE ORIGINAL AND REHEARING COURT-MARTIAL ORDERS, ARTICLES 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871, PROHIBITING THE EXECUTION OF A DISHONORABLE DISCHARGE PRIOR TO COMPLETION OF REVIEW; THEREFORE, THE INITIAL FORFEITURE NOT BECOMING EFFECTIVE, THERE IS NO BASIS FOR WITHHOLDING THE PAY AND ALLOWANCES FOR THE PERIOD PRIOR TO AFFIRMATION OF THE FORFEITURE SENTENCE, AND ARTICLE 58A, 10 U.S.C. 858A, PROVIDING THAT WHEN A SENTENCE IS SET ASIDE THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD THE WITHHOLDING WAS IN EFFECT AS THOUGH HE HAD NOT BEEN REDUCED IN GRADE, THE PAY AND ALLOWANCES DUE ARE FOR COMPUTATION AT PAY GRADE E-5. 35 COMP. GEN. 204, OVERRULED.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, APRIL 2, 1964:

REFERENCE IS MADE TO YOUR RECENT LETTER, WITH ENCLOSURES, FORWARDED HERE BY INDORSEMENT DATED DECEMBER 23, 1963, OF THE OFFICE OF THE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAY AND ALLOWANCES MAY BE PAID TO PRISONER RICHARD A. THOMAS, RA 17 274 747, FOR THE PERIOD JULY 22, 1960, THROUGH MAY 3, 1962, ON A CLAIM PRESENTED TO YOUR FOR PAYMENT. THE CASE HAS BEEN ALLOCATED DO NO. A-740 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CLAIM RESULTS FROM THE WITHHOLDING OF ALL PAY AND ALLOWANCES FROM THE PRISONER ON AND AFTER JULY 22, 1960, PURSUANT TO GENERAL COURT-MARTIAL ORDER NO. 5, DATED JULY 22, 1960. IT APPEARS THAT SPECIALIST FIVE (E-5) RICHARD A. THOMAS WAS CONVICTED OF MURDER AND WAS SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, TO BE CONFINED AT HARD LABOR FOR 18 YEARS, AND TO BE REDUCED TO THE LOWEST ENLISTED PAY GRADE. THE SENTENCE WAS ADJUDGED ON FEBRUARY 24, 1960, AND ON JULY 22, 1960, ONLY SO MUCH THEREOF WAS APPROVED AS PROVIDED FOR THE DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, CONFINEMENT AT HARD LABOR FOR 15 YEARS AND REDUCTION TO THE LOWEST PAY GRADE. THE GENERAL COURT-MARTIAL ORDER FURTHER PROVIDED THAT:

THE FORFEITURES SHALL APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF THIS ACTION. * * *.

GENERAL COURT-MARTIAL ORDER NO. 4, DATED JANUARY 25, 1962, INDICATES THAT THE BOARD OF REVIEW UPHELD SUCH FINDINGS OF GUILTY AND SENTENCE ON MARCH 10, 1961, PURSUANT TO ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE, THAT THE SENTENCE WAS SET ASIDE ON DECEMBER 22, 1961, BY THE COURT OF MILITARY APPEALS (CM 14961, THOMAS, 31 CMR 169) PURSUANT TO ARTICLE 67, 10 U.S.C. 867, AND THAT A REHEARING AS TO THE SENTENCE WAS ORDERED BEFORE ANOTHER COURT-MARTIAL TO BE THEREAFTER DESIGNATED.

UPON REHEARING, GENERAL COURT-MARTIAL ORDER NO. 297, DATED MAY 4, 1962, SENTENCED THE PRIOSNER TO FORFEITURE OF ALL PAY AND ALLOWANCES, CONFINEMENT AT HARD LABOR FOR 9 YEARS, REDUCTION TO THE GRADE OF PRIVATE E -1, AND THE DISHONORABLE DISCHARGE. THAT ORDER FURTHER DIRECTED THAT:

* * * THE ACCUSED WILL BE CREDITED WITH CONFINEMENT SERVED FROM 24 FEBRUARY 1960 TO 22 DECEMBER 1961, AND ANY OTHER PORTION OF THE PUNISHMENT SERVED OR EXECUTED FROM 24 FEBRUARY 1960 TO 22 DECEMBER 1961, UNDER THE SENTENCE ADJUDGED IN THE FORMER TRIAL OF THIS CASE. * * *.

IT IS STATED THAT THE CASE DOES NOT INVOLVE CONFINEMENT BEYOND THE EXPIRATION OF TERM OF SERVICE. DOUBT IS SAID TO EXIST AS TO ENTITLEMENT TO PAY AND ALLOWANCES FROM JULY 22, 1960, THROUGH MAY 3, 1962, BECAUSE OF CONFLICT BETWEEN PROVISIONS OF ARMY REGULATIONS. PARAGRAPHS 13-121D AND 13-123H, AR 37-104, BASED ON 35 COMP. GEN. 204, CONCERNING THE CONTINUANCE OF WITHHOLDING PAY AND ALLOWANCES FORFEITED UNDER A SENTENCE THAT WAS SET ASIDE UPON APPELLATE REVIEW PENDING THE OUTCOME OF A REHEARING, ARE SAID TO BE IN DIRECT CONFLICT WITH PARAGRAPH 13-123G, OF THE SAME REGULATIONS, BASED ON 36 COMP. GEN. 512, TO THE EFFECT THAT WHERE THE ORIGINAL SENTENCE OF DISMISSAL AND TOTAL FORFEITURES IS SET ASIDE UPON APPELLATE REVIEW AND A REHEARING ORDERED, THE ONLY PAY SUBJECT TO FORFEITURE IS THAT WHICH MIGHT ACCRUE ON OR AFTER THE DATE THE CONVENING AUTHORITY APPROVES THE SENTENCE IMPOSED ON CONCLUSION OF THE REHEARING. IT IS STATED FURTHER THAT NEITHER THE REGULATIONS NOR THE DECISIONS UPON WHICH THEY ARE BASED CAN BE RECONCILED.

YOU SET FORTH FOR RESOLUTION THE FOLLOWING QUESTIONS:

(A) IS THE MEMBER ENTITLED TO PAY AND ALLOWANCES FOR ANY PORTION OF THE PERIOD FROM 22 JULY 1960 THROUGH 3 MAY 1962?

(B) IF ENTITLED, WHAT IS THE ENTIRE PERIOD OF ENTITLEMENT AND AT WHAT GRADE IS BASIC PAY TO BE COMPUTED?

IN B-129831, DATED JANUARY 17, 1957, 36 COMP. GEN. 512, A GENERAL COURT- MARTIAL SENTENCE WHICH PROVIDED FOR DISMISSAL, CONFINEMENT AND TOTAL FORFEITURES WAS APPROVED BY THE CONVENING AUTHORITY ON OCTOBER 18, 1955, WITH DIRECTIONS THAT THE FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THAT DATE. ACTING UNDER AUTHORITY OF ARTICLE 66 OF THE UNIFORM CODE OF MILITARY JUSTICE, APPROVED MAY 5, 1950, CH. 169, 64 STAT. 128, 10 U.S.C. 866, A BOARD OF REVIEW SET ASIDE THE FINDINGS AND SENTENCE AND ORDERED A REHEARING. THE SENTENCE ON REHEARING ALSO PROVIDED FOR DISMISSAL, CONFINEMENT AND TOTAL FORFEITURES. THIS SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY ON SEPTEMBER 23, 1956, WITH DIRECTIONS THAT THE FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THAT DATE. IT WAS HELD THAT, SINCE THE ORIGINAL SENTENCE WAS NEVER EXECUTED, MONEYS WITHHELD FROM HIM UNDER THAT SENTENCE, PENDING COMPLETION OF APPELLATE REVIEW, WERE NOT EXECUTED FORFEITURES. THE ONLY VALID EXISTING SENTENCE WAS THAT WHICH WAS APPROVED BY THE CONVENING AUTHORITY ON SEPTEMBER 23, 1956, AND BY THE TERMS OF THAT SENTENCE THE ONLY PAY FORFEITED WAS THAT WHICH OTHERWISE MIGHT ACCRUE ON AND AFTER SEPTEMBER 23, 1956. WE HELD THAT THE OFFICER WAS 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.

IN 39 COMP. GEN. 42 WE CONSIDERED THE CASE OF A SERGEANT FIRST CLASS IN THE ARMY WHO WAS SENTENCED BY A GENERAL COURT-MARTIAL TO A DISHONORABLE DISCHARGE, TOTAL FORFEITURES, AND CONFINEMENT AT HARD LABOR FOR 10 YEARS. THE REVIEWING AUTHORITY APPROVED THE SENTENCE AND DIRECTED THAT THE FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF HIS ACTION. UPON APPELLATE REVIEW THE COURT OF MILITARY APPEALS SET ASIDE THE ACTION OF THE CONVENING AUTHORITY AND DIRECTED THAT THE CASE BE RETURNED TO A NEW CONVENING AUTHORITY FOR CONSIDERATION. THE NEW CONVENING AUTHORITY APPROVED ONLY SO MUCH OF THE COURT-MARTIAL SENTENCE AS PROVIDED FOR TOTAL FORFEITURES, DISHONORABLE DISCHARGE, AND CONFINEMENT AT HARD LABOR FOR TWO YEARS. WE THERE HELD THAT, SINCE THE FIRST ACTION OF THE CONVENING AUTHORITY HAD BEEN SET ASIDE AND HENCE THAT THERE WAS NO APPROVED SENTENCE FOR THE PERIOD PRIOR TO THE ACTION OF THE NEW CONVENING AUTHORITY, NO EFFECT COULD BE GIVEN TO THE FIRST SENTENCE TO TOTAL FORFEITURES OR TO THE PROVISION OF THE MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, WHICH PROVIDED FOR AUTOMATIC REDUCTION IN GRADE EFFECTIVE IMMEDIATELY UPON APPROVAL OF A SENTENCE BY THE CONVENING AUTHORITY TO DISHONORABLE OR BAD CONDUCT DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT. ACCORDINGLY, WE HELD THAT THE ACTION OF THE FIRST CONVENING AUTHORITY DID NOT DEPRIVE THE MEMBER OF ENTITLEMENT TO THE PAY AND ALLOWANCES OF A SERGEANT FIRST CLASS AND THAT HE CONTINUED TO BE ENTITLED TO THE PAY AND ALLOWANCES OF THAT GRADE UNTIL OTHERWISE DEPRIVED THEREOF BY EXPIRATION OF HIS ENLISTMENT OR UNTIL THE SENTENCE BECAME EFFECTIVE BY VIRTUE OF VALID SUBSEQUENT ACTION ON THE SENTENCE.

IN B-124087, DATED OCTOBER 13, 1955, 35 COMP. GEN. 204, A NAVY GENERAL COURT-MARTIAL SENTENCE INCLUDED FORFEITURE OF ALL PAY AND ALLOWANCES, CONFINEMENT, AND DISHONORABLE DISCHARGE. THE CONVENING AUTHORITY'S APPROVING ACTION PROVIDED 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 A 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.' THEREAFTER, UPON PETITION OF THE ACCUSED, THE COURT OF MILITARY APPEALS REVERSED THE DECISION OF THE BOARD OF REVIEW AND ORDERED A REHEARING.

THE DECISION OF OCTOBER 13, 1955, HELD THAT THE ACCUSED WAS NOT ENTITLED TO IMMEDIATE REPAYMENT OF THE PAY AND ALLOWANCES WHICH WERE WITHHELD PURSUANT TO THE ORDER OF THE CONVENING AUTHORITY; THAT THE FORFEITURES WHICH WERE WITHHELD COULD PROPERLY CONTINUE TO BE WITHHELD PENDING THE OUTCOME OF THE REHEARING PROCEEDINGS. IT WAS HELD FURTHER THAT RETENTION OF FORFEITURES PENDING A REHEARING 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 A NUNC PRO TUNC CREDIT AGAINST ANY SENTENCE WHICH MAY BE IMPOSED AT THE REHEARING AND HENCE AVOIDS REPETITIOUS ADMINISTRATIVE ACTION IN THOSE CASES WHERE THE ULTIMATE SENTENCE, UPON REHEARING, INCLUDES THE SAME LOSS OF PAY AND ALLOWANCES ADJUDGED IN THE ORIGINAL SENTENCE.

OUR DECISION FURTHER SAID THAT, 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 UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 875 (A), PROVIDES AN EASY AND EQUITABLE METHOD OF MAKING REFUND TO THE ACCUSED. THAT DECISION IMPLIED THAT SOME EFFECT MIGHT BE GIVEN TO THE SENTENCE IN THAT CASE WHICH WAS SET ASIDE BUT IT DID NOT REACH THAT CONCLUSION INASMUCH AS ON THE RECORD BEFORE THIS OFFICE APPELLATE REVIEW HAD NOT BEEN COMPLETED ON THE ACTION TAKEN UPON THE REHEARING THERE GRANTED UNDER ARTICLE 67 OF THE UNIFORM CODE OF MILITARY JUSTICE.

ARTICLE 73, 10 U.S.C. 873, PROVIDES THAT, AT ANY TIME WITHIN ONE YEAR AFTER APPROVAL BY THE CONVENING AUTHORITY OF A COURT-MARTIAL SENTENCE WHICH EXTENDS TO DISHONORABLE OR BAD-CONDUCT DISCHARGE, THE ACCUSED MAY PETITION THE JUDGE ADVOCATE GENERAL FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE OR FRAUD ON THE COURT. ARTICLE 75, 10 U.S.C. 875, AUTHORIZES THE RESTORATION OF ALL RIGHTS AND PROPERTY AFFECTED BY AN EXECUTED PART OF A COURT-MARTIAL SENTENCE WHICH HAS BEEN SET ASIDE OR DISAPPROVED,"EXCEPT AN EXECUTED DISMISSAL OR DISCHARGE," UNLESS A NEW TRIAL OR REHEARING IS ORDERED AND SUCH EXECUTED PART IS INCLUDED IN A SENTENCE IMPOSED UPON THE NEW TRIAL OR REHEARING. IF A PREVIOUSLY EXECUTED SENTENCE OF DISHONORABLE OR BAD-CONDUCT DISCHARGE IS NOT IMPOSED ON A NEW TRIAL, ARTICLE 75 DIRECTS THE SECRETARY CONCERNED TO SUBSTITUTE A FORM OF DISCHARGE AUTHORIZED FOR ADMINISTRATIVE ISSUANCE UNLESS THE ACCUSED IS TO SERVE OUT THE REMAINDER OF HIS ENLISTMENT. SINCE NEITHER THE FORFEITURES NOR THE PUNITIVE DISCHARGE COULD HAVE BEEN LAWFULLY EXECUTED IN THAT CASE PRIOR TO COMPLETION OF APPELLATE REVIEW OF THE REHEARING, RELIANCE UPON ARTICLE 75 IN THE DECISION OF OCTOBER 13, 1955, 35 COMP. GEN. 204, FOR THE HOLDING IN THAT DECISION WAS INAPPOSITE. THAT DECISION SHOULD NO LONGER BE FOLLOWED.

ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, PROVIDES THAT A SENTENCE TO FORFEITURE OF PAY OR ALLOWANCES 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.'

ARTICLE 66 REQUIRES ALL SENTENCES WHICH INCLUDE A BAD-CONDUCT OR DISHONORABLE DISCHARGE TO BE AUTOMATICALLY REVIEWED BY A BOARD OF REVIEW. ARTICLE 67 PROVIDES THAT CASES INVOLVING SUCH DISCHARGES MAY ALSO BE REVIEWED BY THE COURT OF MILITARY APPEALS. IN THE REGULAR COURSE OF REVIEW BEFORE THE EXECUTION OF THE SENTENCE TO PUNITIVE DISCHARGE, A REHEARING MAY BE ORDERED BY A BOARD OF REVIEW OR BY THE COURT OF MILITARY APPEALS AFTER APPROVAL BY THE CONVENING AUTHORITY OF A COURT-MARTIAL SENTENCE. SEE ARTICLES 66 AND 67.

ARTICLE 71, 10 U.S.C. 871, 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, AND THAT ALL COURT-MARTIAL SENTENCES OTHER THAN THOSE THERE ENUMERATED (NOT HERE MATERIAL), UNLESS SUSPENDED, MAY BE ORDERED EXECUTED BY THE CONVENING AUTHORITY WHEN APPROVED BY HIM.

IN VIEW OF THE EXPRESS STATUTORY PROHIBITION IN ARTICLE 71 AGAINST EXECUTION OF A BAD-CONDUCT OR DISHONORABLE DISCHARGE PRIOR TO COMPLETION OF REVIEW BY A BOARD OF REVIEW OR THE COURT OF MILITARY APPEALS, OR BOTH, AS APPROPRIATE, IT SEEMS CLEAR THAT THE REFERENCE IN ARTICLE 75 TO ,EXECUTED * * * DISCHARGE" RELATES TO CASES WHERE ACTION HAS BEEN TAKEN PURSUANT TO ARTICLE 73 ON A PETITION FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE OR FRAUD ON THE COURT, AND NOT TO A CASE WHERE THE COURT-MARTIAL PROCEEDINGS HAVE NOT BEEN COMPLETED (APPROVED BY A BOARD OF REVIEW AND/OR THE COURT OF MILITARY APPEALS). SEE SECTION 1909,"MILITARY JUSTICE UNDER THE UNIFORM CODE," BY JAMES SNEDEKER, AND PAGES 157-164,"LEGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951.'

SINCE THE ORIGINAL SENTENCE APPROVED ON JULY 22, 1960, IN THIS CASE WAS SET ASIDE BY THE COURT OF MILITARY APPEALS PURSUANT TO ARTICLE 66 IN THE COURSE OF REGULAR APPELLATE REVIEW BEFORE THE SENTENCE COULD BE EXECUTED (SEE ARTICLE 71), EVEN THOUGH THE CONVENING AUTHORITY THEN DIRECTED APPLICATION OF THE FORFEITURES TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER JULY 22, 1960 (SEE ARTICLE 57), NO FORFEITURE EVER BECAME EFFECTIVE, AND HENCE THERE EXISTS NO BASIS FOR WITHHOLDING PAY AND ALLOWANCES PURSUANT TO THAT SENTENCE. ACCORDINGLY, IF OTHERWISE PROPER, THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD FROM JULY 22, 1960, THROUGH MAY 3, 1962. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY. SEE 36 COMP. GEN. 512, 39 COMP. GEN. 42, AND 2 AND 6, DIG.OPS. JAGAF, SENTENCE AND PUNISHMENT, SEC. 35.7. ARTICLE 58A OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 858A, ADDED BY THE ACT OF JULY 12, 1960, PUBLIC LAW 86- 633, 74 STAT. 468, PROVIDES THAT, UNLESS OTHERWISE PROVIDED IN REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A COURT-MARTIAL SENTENCE OF AN ENLISTED MEMBER IN A PAY GRADE ABOVE E-1, AS APPROVED BY THE CONVENING AUTHORITY, INCLUDING A BAD-CONDUCT OR DISHONORABLE DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT, REDUCES THE MEMBER TO PAY GRADE E-1, EFFECTIVE ON THE DATE OF THAT APPROVAL. IT FURTHER PROVIDES THAT IF SUCH SENTENCE IS SET ASIDE OR DISAPPROVED, THE MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED, FOR THE PERIOD THE REDUCTION WAS IN EFFECT, HAD HE NOT BEEN SO REDUCED.

IT IS OUR OPINION THAT, SINCE THE SENTENCE APPROVED ON JULY 22, 1960, WAS SET ASIDE BY THE COURT OF MILITARY APPEALS BEFORE IT COULD BE EXECUTED, THE MEMBER IS ENTITLED, IF OTHERWISE CORRECT, TO THE PAY AND ALLOWANCES OF THE GRADE FROM WHICH THAT SENTENCE PURPORTED TO REDUCE HIM UNTIL HE WAS OTHERWISE PROMOTED OR REDUCED IN GRADE, OR FORFEITED PAY OR ALLOWANCES PURSUANT TO A VALID COURT-MARTIAL SENTENCE. 39 COMP. GEN. 42. COMPARE 36 COMP. GEN. 512. ACCORDINGLY, IF OTHERWISE CORRECT THE MEMBER IS ENTITLED TO THE PAY AND ALLOWANCES OF A SPECIALIST FIVE (E-5) FROM JULY 22, 1960, THROUGH MAY 3, 1962. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY. THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH.

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