B-156262, APR. 19, 1965, 44 COMP. GEN. 633

B-156262, APR. 19, 1965, 44 COMP. GEN. 633

PAY - COURTS-MARTIAL SENTENCES - FORFEITURE - CLASS Q ALLOTMENT DEDUCTIONS THE MARRIAGE AND ESTABLISHMENT OF A CLASS Q ALLOTMENT BY AN ENLISTED MEMBER OF THE ARMED SERVICES AFTER THE EFFECTIVE DATE OF A FORFEITURE OF TWO-THIRDS OF HIS RATE OF PAY IN THE PAY GRADE TO WHICH REDUCED UNDER A COURT-MARTIAL SENTENCE DOES NOT AFFECT OR INCREASE THE PAY THE MEMBER IS ENTITLED TO AS A RESULT OF THE COURT-MARTIAL SENTENCE AND, THEREFORE, A REFUND OF THE AMOUNT WITHHELD IN EXCESS OF TWO-THIRDS OF THE BASIC PAY OF THE MEMBER AFTER DEDUCTION OF THE MANDATORY MONTHLY CONTRIBUTION TO THE CLASS Q ALLOTMENT MAY NOT BE AUTHORIZED, THE MEMBER NOT HAVING BEEN SUBJECT TO CLASS Q ALLOTMENT DEDUCTIONS ON THE EFFECTIVE DATE OF THE PAY FORFEITURE, THE PAY TO WHICH HE BECAME ENTITLED AS A RESULT OF THE COURT- MARTIAL SENTENCE IS NOT AFFECTED BY THE ALLOTMENT DEDUCTIONS.

TO MAJOR C. T. LYNN, JR., DEPARTMENT OF THE ARMY, APRIL 19, 1965:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1964, WITH ENCLOSURES, FORWARDED HERE ON MARCH 4, 1965, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER A-830, REQUESTING DECISION AS TO PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $140.57 REPRESENTING REFUND OF THE AMOUNTS WITHHELD FROM THE PAY OF A MEMBER AS FORFEITURES UNDER A COURT -MARTIAL SENTENCE. THE AMOUNT STATED ON THE VOUCHER REPRESENTS THE AMOUNT WITHHELD IN EXCESS OF TWO THIRDS OF HIS BASIC PAY AFTER DEDUCTION OF HIS MANDATORY MONTHLY (BASIC PAY) CONTRIBUTION OF CLASS Q ALLOTMENT.

GENERAL COURT-MARTIAL ORDER NO. 27 DATED JUNE 9, 1963, SHOWS THAT THE MEMBER, THEN A SPECIALIST 5 (E-5), WAS CONVICTED OF TWO SPECIFICATIONS OF VIOLATION OF ARTICLE 134, UNIFORM CODE OF MILITARY JUSTICE. THE COURT- MARTIAL ON MAY 9, 1963, ADJUDGED A SENTENCE AGAINST HIM AS FOLLOWS:

TO BE CONFINED AT HARD LABOR FOR SIX MONTHS, AND TO FORFEIT TWO THIRDS PAY PER MONTH FOR A LIKE PERIOD, AND TO BE REDUCED TO THE LOWEST ENLISTED PAY GRADE.

THE APPROVING AUTHORITY ON JUNE 9, 1963, APPROVED BUT SUSPENDED THE CONFINEMENT PORTION OF THE SENTENCE, APPROVED THE GRADE REDUCTION PORTION AS ADJUDGED, APPROVED THE FORFEITURES PORTION AS ,FORFEITURES OF $70.00 PER MONTH FOR SIX MONTHS," AND ORDERED THE SENTENCE TO BE DULY EXECUTED WITH THE EXCEPTION OF THE CONFINEMENT PORTION. THE SENTENCE AS APPROVED APPEARS TO BE A LEGAL SENTENCE, BEING LESS SEVERE THAN THE MAXIMUM PUNISHMENTS AUTHORIZED UNDER 10 U.S.C. 856 AND APPLICABLE REGULATIONS FOR THE OFFENSES FOR WHICH THE MEMBER WAS CONVICTED.

IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 857 THE SENTENCE, AS APPROVED, BECAME EFFECTIVE ON JUNE 9, 1963. AT THAT TIME THE MEMBER WAS NOT MARRIED AND WAS NOT SUBJECT TO THE PROVISIONS OF LAW RELATING TO CLASS Q ALLOTMENT DEDUCTIONS. THE APPROVED FORFEITURE OF$70 PER MONTH EQUALS TWO-THIRDS OF THE RATE OF PAY, EXCLUDING FOREIGN SERVICE PAY, TO WHICH HE WAS ENTITLED ON THE EFFECTIVE DATE OF THE SENTENCE IN THE PAY GRADE TO WHICH HE WAS REDUCED AND SUCH ACTION REDUCED HIS ENTITLEMENT TO THE PAY OF THAT GRADE BY THAT AMOUNT. SEE 36 COMP. GEN. 79. WE FIND NOTHING IN THE CASE OF UNITED STATES V. JOBE, 10 USCMA 276, 27 CMR 350 (SEE 39 COMP. GEN. 637), WHICH IS INCONSISTENT WITH THE WITHHOLDING ACTION TAKEN IN THIS CASE, THE HOLDING IN THE JOBE CASE BEING TO THE EFFECT THAT A GENERAL COURT-MARTIAL SENTENCE IMPOSING FORFEITURES IN EXCESS OF TWO-THIRDS OF PAY (TOTAL FORFEITURES) WITHOUT PUNITIVE DISCHARGE IS NOT ILLEGAL.

THE RECORD SHOWS THAT THE MEMBER WAS MARRIED ON JUNE 28, 1963, 19 DAYS AFTER THE EFFECTIVE DATE OF HIS COURT-MARTIAL SENTENCE. WHILE IT APPEARS THAT EFFECTIVE JULY 1, 1963, HE ESTABLISHED A CLASS Q ALLOTMENT IN FAVOR OF HIS WIFE IN THE AMOUNT OF $95.20, OF WHICH $40 REPRESENTED A DEDUCTION FROM HIS BASIC PAY, SUCH ACTION DID NOT AFFECT OR INCREASE IN ANY WAY THE PAY TO WHICH HE WAS THEN ENTITLED AS A RESULT OF THE COURT-MARTIAL SENTENCE.

SINCE NO ACTION WAS TAKEN BY THE PROPER AUTHORITIES TO MITIGATE THE SENTENCE OF FORFEITURE, THERE IS NO BASIS FOR HOLDING THAT ANY PART OF THE $420 NOT PAID AS A RESULT OF NONENTITLEMENT (DUE TO THE FORFEITURE PROVISION OF THE APPROVED COURT-MARTIAL SENTENCE) MAY NOW BE PAID TO THE ENLISTED MAN. THE VOUCHER FORWARDED WITH YOUR LETTER, NOT BEING APPROVED FOR PAYMENT, IS RETAINED IN THIS OFFICE.