B-161129, JUNE 26, 1967, 46 COMP. GEN. 880

B-161129: Jun 26, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE MEMBER OF THE UNIFORMED SERVICES REDUCED IN GRADE IS ENTITLED TO THE DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN THE GRADES E-5 AND E-6 FOR THE PERIOD OF THE REDUCTION. NOTWITHSTANDING RESTORATION WAS MADE BY THE SUCCESSOR OF THE COMMANDING OFFICER WHO IMPOSED THE SENTENCE. IS ENTITLED TO THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN SERGEANT. STAFF SERGEANT ARTIS WAS REDUCED TO THE GRADE OF SERGEANT ON SEPTEMBER 27. THE DIVISION COMMANDING OFFICER DENIED THE APPEAL AND THE ACTION WAS ACKNOWLEDGED BY THE MEMBER ON THE FOLLOWING DAY. THE REDUCTION WAS ORDERED EFFECTIVE SEPTEMBER 27. STATING THAT IT WAS TAKEN UNDER ARTICLE 15. DOUBT IS EXPRESSED AS TO THE VALIDITY OF PAYMENT OF THE DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN THE GRADES OF E-5 AND E-6.

B-161129, JUNE 26, 1967, 46 COMP. GEN. 880

PAY - REDUCTION - PUNISHMENT OTHER THAN COURT-MARTIAL - RESTORATION TIME UPON RESTORATION 11 MONTHS SUBSEQUENT TO REDUCTION FROM STAFF SERGEANT TO SERGEANT UNDER ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, THE MEMBER OF THE UNIFORMED SERVICES REDUCED IN GRADE IS ENTITLED TO THE DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN THE GRADES E-5 AND E-6 FOR THE PERIOD OF THE REDUCTION, NOTWITHSTANDING RESTORATION WAS MADE BY THE SUCCESSOR OF THE COMMANDING OFFICER WHO IMPOSED THE SENTENCE, THE REFERENCE IN PARAGRAPH 134, ADDENDUM TO THE MANUAL FOR COURTS-MARTIAL TO A 4-MONTH PERIOD FOR THE EXERCISE OF A COMMANDER'S AUTHORITY TO SET ASIDE A PUNISHMENT IMPOSED UNDER ARTICLE 15, PRESCRIBING A GUIDELINE AND NOT A LIMITATION ON THE AUTHORITY TO RESTORE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY A REDUCTION IN GRADE.

TO MAJOR S. M. SWARTS, DEPARTMENT OF THE ARMY, JUNE 26, 1967:

BY LETTER DATED MARCH 21, 1967, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 4, 1966, WITH ENCLOSURES, IN WHICH YOU REQUESTED A DECISION AS TO WHETHER STAFF SERGEANT JOHNNIE R. ARTIS, RA, IS ENTITLED TO THE DIFFERENCE IN PAY AND ALLOWANCES BETWEEN SERGEANT, E-5, AND STAFF SERGEANT, E-6, FOR THE PERIOD FROM SEPTEMBER 27, 1965 TO AUGUST 24, 1966, UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NO. A 946, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

UNDER THE PROVISIONS OF ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 815, STAFF SERGEANT ARTIS WAS REDUCED TO THE GRADE OF SERGEANT ON SEPTEMBER 27, 1965. THE MEMBER APPEALED THE PUNISHMENT, BUT ON OCTOBER 8, 1965, THE DIVISION COMMANDING OFFICER DENIED THE APPEAL AND THE ACTION WAS ACKNOWLEDGED BY THE MEMBER ON THE FOLLOWING DAY. BY PARAGRAPH 24, SPECIAL ORDERS NO. 248, HEADQUARTERS, 82D AIRBORNE DIVISION, FORT BRAGG, NORTH CAROLINA, DATED OCTOBER 20, 1965, THE REDUCTION WAS ORDERED EFFECTIVE SEPTEMBER 27, 1965.

ON AUGUST 25, 1966, THE SUCCESSOR IN COMMAND TO THE OFFICER WHO IMPOSED THE PUNISHMENT OF REDUCTION SET ASIDE THE REDUCTION AND ORDERED THAT ALL RIGHTS, PRIVILEGES AND PROPERTY RIGHTS OF WHICH THE INDIVIDUAL HAD BEEN DEPRIVED UNDER THE REDUCTION BE RESTORED. PARAGRAPH 21, SPECIAL ORDERS NO. 214, SAME HEADQUARTERS, DATED SEPTEMBER 21, 1966, CONFIRMED THIS ACTION, STATING THAT IT WAS TAKEN UNDER ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, AND ARMY REGULATION 27-15.

DOUBT IS EXPRESSED AS TO THE VALIDITY OF PAYMENT OF THE DIFFERENCE IN BASIC PAY AND ALLOWANCES BETWEEN THE GRADES OF E-5 AND E-6, FOR THE PERIOD FROM SEPTEMBER 27, 1965 TO AUGUST 24, 1966, FOR THE REASON THAT PARAGRAPH 134, ADDENDUM TO THE MANUAL FOR COURTS-MARTIAL, EFFECTIVE JANUARY 1963, PROVIDES THAT THE POWER TO SET ASIDE AN EXECUTED PUNISHMENT SHOULD ORDINARILY BE EXERCISED ONLY WITHIN A REASONABLE TIME AFTER THE PUNISHMENT HAS BECOME EXECUTED, AND THAT A REASONABLE TIME IS STATED TO BE 4 MONTHS IN THE ABSENCE OF UNUSUAL CIRCUMSTANCES. YOU STATE THAT NO COMMAND LEVEL HAS BEEN DESIGNATED TO DETERMINE WHAT ARE "UNUSUAL CIRCUMSTANCES" AND THAT NO SHOWING OF SUCH CIRCUMSTANCES HAS BEEN SUBMITTED IN THIS CASE. YOU THEREFORE ASK WHETHER A REDUCTION UNDER THE PROVISIONS OF ARTICLE 15, UCMJ, CAN BE SET ASIDE AFTER ANY PERIOD AT THE DISCRETION OF THE COMMANDER.

INDORSEMENTS TO YOUR REQUEST INCLUDE A REQUEST DATED NOVEMBER 7, 1966, FOR AN EXPLANATION OF THE LENGTH OF TIME BETWEEN THE EXECUTED PUNISHMENT AND THE EXERCISE OF THE POWER TO SET IT ASIDE, IN VIEW OF THE PROVISIONS OF PARAGRAPH 26, ARMY REGULATIONS 27-15, PRESCRIBING A TIME LIMIT FOR APPEALS IN THE ABSENCE OF EXTRAORDINARY CIRCUMSTANCES. BY 6TH INDORSEMENT, DATED NOVEMBER 30, 1966, THE COMMANDER WHO SET ASIDE THE PUNISHMENT STATED THAT THE REDUCTION WAS EFFECTED UNDER A PREVIOUS COMMANDER AND THAT SHORTLY AFTER ASSUMING COMMAND ON JULY 12, 1966, HE HAD DETERMINED THAT THE MEMBER WAS CONDUCTING HIS AFFAIRS AND PERFORMING HIS DUTIES IN SUCH A MANNER AS TO JUSTIFY REINSTATEMENT AS AN E-6. A FURTHER INDORSEMENT SAYS THE ACTION TO SET ASIDE THE REDUCTION WAS REPORTEDLY TAKEN UNDER THE PROVISIONS OF PARAGRAPH 134, ADDENDUM TO THE MANUAL FOR COURTS-MARTIAL, 1951, DATED JANUARY 1963, AND PARAGRAPHS 15, 19, AND 20, ARMY REGULATIONS 27-15, DATED APRIL 12, 1965, AS AMENDED.

THE FILE CONTAINS AN OPINION BY THE JUDGE ADVOCATE GENERAL DATED MARCH 2, 1967, IN WHICH IT IS STATED THAT UNDER ARTICLE 15 (D), UNIFORM CODE OF MILITARY JUSTICE, THE EXERCISE OF AUTHORITY TO SET ASIDE A PUNISHMENT IMPOSED UNDER SUBSECTION (B) IS ENTIRELY WITHIN THE DISCRETION OF THE COMMANDER AND THAT PARAGRAPH 134, ADDENDUM TO THE MANUAL FOR COURTS- MARTIAL, UNITED STATES, 1951, MERELY PRESCRIBES FACTORS TO BE CONSIDERED BY COMMANDERS IN EXERCISING THEIR DISCRETION.

ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, AS AMENDED BY PUBLIC LAW 87 -648, DATED SEPTEMBER 7, 1962, 76 STAT. 447, 10 U.S.C. 815, PROVIDES IN EFFECT IN SUBPARAGRAPH (A) THEREOF THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AND UNDER SUCH ADDITIONAL REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED, LIMITATIONS MAY BE PLACED ON THE POWERS GRANTED TO COMMANDING OFFICERS BY THAT ARTICLE TO IMPOSE NONJUDICIAL PUNISHMENT, INCLUDING SPECIFICALLY THE KIND AND AMOUNT OF PUNISHMENT AUTHORIZED. IT ALSO PROVIDES THAT UNDER SIMILAR REGULATIONS, RULES MAY BE PRESCRIBED WITH RESPECT TO THE SUSPENSION OF PUNISHMENTS AUTHORIZED THEREUNDER.

THE LISTING OF PUNISHMENTS THAT MAY BE IMPOSED WITHOUT THE INTERVENTION OF A COURT-MARTIAL AS SET OUT IN ARTICLE 15 (B) INCLUDES, IN PERTINENT PART, A REDUCTION TO THE NEXT INFERIOR PAY GRADE, IF THE GRADE FROM WHICH DEMOTED IS WITHIN THE PROMOTION AUTHORITY OF THE OFFICER IMPOSING THE REDUCTION OR ANY OFFICER SUBORDINATE TO THE ONE WHO IMPOSES THE REDUCTION. SUBSECTION (D) OF ARTICLE 15 PROVIDES, IN PERTINENT PART, THAT THE OFFICER WHO IMPOSES THE PUNISHMENT AUTHORIZED IN SUBSECTION (B) OR HIS SUCCESSOR IN COMMAND, MAY, AT ANY TIME, REMIT OR MITIGATE ANY PART OR AMOUNT OF THE UNEXECUTED PUNISHMENT IMPOSED AND MAY SET ASIDE IN WHOLE OR IN PART THE PUNISHMENT, WHETHER EXECUTED OR UNEXECUTED, AND RESTORE ALL RIGHTS, PRIVILEGES AND PROPERTY AFFECTED.

EXECUTIVE ORDER NO. 11081, DATED JANUARY 29, 1963, 28 F.R. 945, PROMULGATED PURSUANT TO THAT AUTHORITY, AMENDED THE MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, BY PROVIDING IN SECTION 10 FOR PARAGRAPH 134 OF THE MANUAL TO READ IN PERTINENT PART AS FOLLOWS:

THE POWER TO SET ASIDE THE PUNISHMENTS AND RESTORE RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY THE EXECUTED PORTION OF A PUNISHMENT SHOULD ORDINARILY BE EXERCISED ONLY WHEN THE AUTHORITY CONSIDERING THE CASE BELIEVES THAT, UNDER ALL THE CIRCUMSTANCES OF THE CASE, THE PUNISHMENT HAS RESULTED IN A CLEAR INJUSTICE. ALSO, THE POWER TO SET ASIDE AN EXECUTED PUNISHMENT AND MITIGATE A REDUCTION IN GRADE TO A FORFEITURE OR DETENTION OF PAY SHOULD ORDINARILY BE EXERCISED ONLY WITHIN A REASONABLE TIME AFTER THE PUNISHMENT HAS BECOME EXECUTED. IN THIS CONNECTION, FOUR MONTHS IS A REASONABLE TIME IN THE ABSENCE OF UNUSUAL CIRCUMSTANCES.

IMPLEMENTING REGULATIONS CONTAINED IN ARMY REGULATIONS 27-15, DATED APRIL 12, 1965, PROVIDE IN PARAGRAPH 19 THAT THE SETTING ASIDE AND RESTORATION IS AN ACTION WHEREBY THE PUNISHMENT OR ANY PART OR AMOUNT THEREOF, WHETHER EXECUTED OR UNEXECUTED, IS SET ASIDE AND ANY PROPERTY, PRIVILEGES OR RIGHTS AFFECTED BY THE PORTION OF THE PUNISHMENT SET ASIDE ARE RESTORED. IT STATES FURTHER THAT THE BASIS FOR THAT ACTION IS ORDINARILY A DETERMINATION THAT, UNDER ALL THE CIRCUMSTANCES OF THE CASE, THE PUNISHMENT HAS RESULTED IN A CLEAR INJUSTICE. PARAGRAPH 20 PROVIDES THAT AN UNSUSPENDED REDUCTION IN GRADE IMPOSED AS NONJUDICIAL PUNISHMENT BECOMES FULLY EXECUTED AT THE TIME IT IS IMPOSED AND THERE CAN BE NO REMISSION OF AN UNSUSPENDED REDUCTION. ALSO, IT PROVIDES THAT AN UNSUSPENDED REDUCTION OF MORE THAN ONE GRADE MAY NOT BE MITIGATED TO A REDUCTION TO AN INTERMEDIATE GRADE. HOWEVER, IT STATES THAT IT MAY BE MITIGATED TO A FORFEITURE OR DETENTION OF PAY, OR SUSPENDED IN WHOLE OR IN PART OR MAY BE SET ASIDE IN WHOLE OR IN PART AND THAT THE SAME POSSIBILITIES EXIST WITH RESPECT TO A REDUCTION OF ONLY ONE GRADE.

THE LEGISLATIVE HISTORY OF THE AMENDMENT TO ARTICLE 15 BY PUBLIC LAW 87- 648, DATED SEPTEMBER 7, 1962, INDICATES ITS PURPOSE IS TO GIVE INCREASED AUTHORITY TO DESIGNATED COMMANDERS IN THE ARMED FORCES TO IMPOSE NONJUDICIAL PUNISHMENT, THUS ENABLING THEM TO DEAL WITH MINOR DISCIPLINARY PROBLEMS AND OFFENSES WITHOUT RESORT TO TRIAL BY COURT MARTIAL. FURTHER INDICATES THAT EXPRESS AUTHORITY IS GIVEN TO THE OFFICER IMPOSING THE PUNISHMENT, OR HIS SUCCESSOR, TO SUSPEND PROBATIONALLY, MITIGATE, REMIT, OR SET ASIDE IN WHOLE OR IN PART, ANY PUNISHMENT, WHETHER EXECUTED OR UNEXECUTED.

PURSUANT TO THE AUTHORITY CONTAINED IN THE AMENDED ARTICLE 15, PARAGRAPH 134, ADDENDUM TO THE MANUAL FOR COURTS-MARTIAL, 1951, AS PROMULGATED IN EXECUTIVE ORDER NO. 11081, LISTS RULES CONCERNING THE SUSPENSION OR MITIGATION OF PUNISHMENT AS AUTHORIZED BY THAT ARTICLE. IT FURTHER STATES, AS INDICATED ABOVE, THAT THE POWER TO SET ASIDE AN EXECUTED PUNISHMENT AND MITIGATE A REDUCTION IN GRADE TO A FORFEITURE OR DETENTION OF PAY SHOULD ORDINARILY BE EXERCISED ONLY WITHIN REASONABLE TIME AFTER THE PUNISHMENT HAS BECOME EXECUTED, AND THAT 4 MONTHS IS A REASONABLE TIME IN THE ABSENCE OF UNUSUAL CIRCUMSTANCES. THE PERTINENT ARMY REGULATIONS IMPLEMENTING ARTICLE 15 AND THE EXECUTIVE ORDER DO NOT CONTAIN SIMILAR PROVISIONS PERTAINING TO THE 4 MONTH PERIOD, BUT THEY DO PROVIDE THAT AN APPEAL NOT MADE BY A MEMBER WITHIN 15 DAYS AFTER THE PUNISHMENT WAS IMPOSED, MAY, IN THE ABSENCE OF EXTRAORDINARY CIRCUMSTANCES, BE CONSIDERED AS NOT HAVING BEEN MADE WITHIN A REASONABLE TIME.

SINCE ARTICLE 15 (D) SPECIFICALLY PROVIDES THAT THE OFFICER WHO IMPOSES THE PUNISHMENT, OR HIS SUCCESSOR IN COMMAND, MAY, AT ANY TIME, SET ASIDE THE PUNISHMENT AND RESTORE ALL RIGHTS, PRIVILEGES AND PROPERTY AFFECTED, AND SINCE THE ARTICLE DOES NOT APPEAR TO CONTEMPLATE THE ISSUANCE OF REGULATIONS WHICH WOULD LIMIT THE PERIOD DURING WHICH THE APPROPRIATE COMMANDING OFFICER OF THE MEMBER MIGHT EXERCISE SUCH AUTHORITY, WE DO NOT DISAGREE WITH THE CONCLUSIONS REACHED BY THE JUDGE ADVOCATE GENERAL. THE 4-MONTH PERIOD MENTIONED IN PARAGRAPH 134 FOR EXERCISING THE AUTHORITY TO SET ASIDE A PUNISHMENT IMPOSED UNDER ARTICLE 15 WOULD SEEM TO BE IN THE NATURE OF A GUIDELINE TO BE CONSIDERED BY COMMANDERS IN EXERCISING THEIR AUTHORITY AND DISCRETION RATHER THAN A DEFINITE LIMITATION OF SUCH AUTHORITY.

THEREFORE, IN ANSWER TO THE QUESTION PRESENTED, IT IS OUR VIEW THAT THE COMMANDING OFFICER WHO IMPOSED THE SENTENCE MAY, IN HIS DISCRETION, SET IT ASIDE AT ANY TIME WHILE THE MEMBER INVOLVED REMAINS UNDER HIS COMMAND. THE MEMBER IS NO LONGER UNDER THE COMMAND OF SUCH OFFICER, THEN THE APPROPRIATE SUCCESSOR PRESENTLY IN COMMAND OF THE MEMBER MAY EXERCISE SUCH AUTHORITY. SEE PARAGRAPH 15 OF ARMY REGULATIONS 27-15 AS TO THE MEANING OF "SUCCESSOR IN COMMAND.' SEE, ALSO, 36 COMP. GEN. 137 AND B-131093, JUNE 12, 1957.

ACCORDINGLY, IF OTHERWISE CORRECT, PAYMENT MAY BE MADE ON THE VOUCHER PRESENTED WHICH IS ENCLOSED.