B-114054, AUG 25, 1953

B-114054, AUG 25, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL QUENNA A. PEARSON, F.C., U.S. ARMY:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF THE OFFICE OF THE CHIEF OF FINANCE, DATED MARCH 3, 1953, YOUR LETTER OF JANUARY 30, 1953, TRANSMITTING MILITARY PAY ORDERS, WITH SUPPORTING PAPERS, IN THE CASES OF FORMER ENLISTED WOMEN, EDNA H. WHITEMAN, WA 8 104 856 AND JULIETTE V. MENTE, WA 8 401 257, AND REQUESTING DECISION AS TO THE PROPRIETY OF PAYING THEM AS SERGEANT, FIRST CLASS, AND SERGEANT, RESPECTIVELY, FOR THE PERIOD JANUARY 1 TO 19, 1953, AND AS PRIVATES E-1 FOR THE PERIOD JANUARY 20 TO 22, 1953.

BY GENERAL COURT-MARTIAL SENTENCES ADJUDGED NOVEMBER 14, 1951, EDNA H. WHITEMAN, THEN A SERGEANT, FIRST CLASS, AND JULIETTE V. MENTE, THEN A SERGEANT, WERE SENTENCED TO REDUCTION TO THE LOWEST ENLISTED GRADE; TO DISHONORABLE DISCHARGE; TO FORFEITURE OF PAY AND ALLOWANCES; AND TO CONFINEMENT AT HARD LABOR FOR PERIODS OF TWO YEARS AND SIX MONTHS AND TWO YEARS, RESPECTIVELY. BY GENERAL COURT-MARTIAL ORDERS NOS. 62 AND 65, HEADQUARTERS, 101ST AIRBORNE DIVISION, CAMP BRECKINRIDGE, KENTUCKY, DATED DECEMBER 10, 1951, THE CONVENING AUTHORITY APPROVED THE SAID SENTENCES TO THE EXTENT OF REDUCTION TO THE LOWEST ENLISTED GRADE, DISHONORABLE DISCHARGE, FORFEITURE OF PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR ONE YEAR AND SIX MONTHS, WITH THE QUALIFICATION THAT THE FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF SUCH APPROVAL, AND FORWARDED THE RECORD OF THE TRIAL TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW.

THE SENTENCES TO REDUCTION IN GRADE AND CONFINEMENT IN EXCESS OF ONE YEAR WERE REMITTED BY ACTION OF THE JUDGE ADVOCATE GENERAL ON JANUARY 22, 1952; THE UNEXECUTED PORTIONS OF THE SENTENCES PERTAINING TO FORFEITURES WERE SUSPENDED BY GENERAL COURT-MARTIAL ORDERS NO. 104 AND 105, HEADQUARTERS 101ST AIRBORNE DIVISION, DATED SEPTEMBER 2, 1952; AND BY SPECIAL ORDERS NO. 207, HEADQUARTERS 101ST AIRBORNE DIVISION AND CAMP BRECKINRIDGE, DATED SEPTEMBER 2, 1952, THE ENLISTED WOMEN WERE RELEASED FROM CONFINEMENT AND RESTORED TO DUTY STATUS SUBJECT TO FINAL DISPOSITION OF THE CASE.

GENERAL COURT-MARTIAL ORDERS NOS. 61 AND 62, HEADQUARTERS SECOND ARMY, FORT GEORGE G. MEADE, MARYLAND, EACH DATED JANUARY 20, 1953, STATE THAT THE SENTENCES IN THESE CASES, AS APPROVED BY THE CONVENING AUTHORITY, WERE AFFIRMED BY THE BOARD OF REVIEW; THAT SO MUCH OF EACH SENTENCE, AFFIRMED BY THE BOARD OF REVIEW, AS EXCEEDS DISHONORABLE DISCHARGE, FORFEITURE OF PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR ONE YEAR IS REMITTED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY; AND THAT THE SENTENCES AS MODIFIED BY ACTION OF THE JUDGE ADVOCATE GENERAL ARE ORDERED EXECUTED.

ARTICLE 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 131, PROVIDES, IN PERTINENT PART, THAT:

"(C) NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD CONDUCT DISCHARGE *** SHALL BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE COURT OF MILITARY APPEALS.

"(D) ALL OTHER COURT-MARTIAL SENTENCES, UNLESS SUSPENDED, MAY BE ORDERED EXECUTED BY THE CONVENING AUTHORITY WHEN APPROVED BY HIM. THE CONVENING AUTHORITY MAY SUSPEND THE EXECUTION OF ANY SENTENCE, EXCEPT A DEATH SENTENCE."

ARTICLE 57 OF THE SAID CODE, 64 STAT. 126, MAKES CERTAIN PROVISIONS FIXING THE EFFECTIVE DATE OF SENTENCES OF FORFEITURE OF PAY AND ALLOWANCES, AND TO CONFINEMENT, AND PROVIDES THAT:

"(C) ALL OTHER SENTENCES OF COURTS-MARTIAL SHALL BECOME EFFECTIVE ON THE DATE ORDERED EXECUTED."

IT FOLLOWS THAT NO PART OF THE SENTENCES IN THESE CASES RELATING TO DISCHARGE OR REDUCTION COULD BECOME EFFECTIVE UNTIL ORDERED EXECUTED. WHILE THE SENTENCES AS FINALLY APPROVED BY THE BOARD OF REVIEW, INCLUDED REDUCTION TO THE LOWEST ENLISTED GRADE, SUCH PUNISHMENTS WERE REMITTED BY THE JUDGE ADVOCATE GENERAL PRIOR TO JANUARY 20, 1953, "THE DATE ORDERED EXECUTED," AND THEREFORE, THE SENTENCES OF REDUCTION NEVER BECAME EFFECTIVE AS SUCH. HOWEVER, SUCH SENTENCES AS ORDERED EXECUTED DO INCLUDE "CONFINEMENT AT HARD LABOR FOR ONE YEAR" AND PARAGRAPH 126E, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, AS AMENDED BY EXECUTIVE ORDER 10256, JULY 23, 1951, PROVIDES THAT:

"*** IN THE CASE OF AN ENLISTED PERSON OF OTHER THAN THE LOWEST PAY GRADE, A SENTENCE WHICH, AS ORDERED EXECUTED *** INCLUDES *** CONFINEMENT *** IMMEDIATELY, UPON BEING ORDERED EXECUTED

*** SHALL REDUCE SUCH ENLISTED PERSON TO THE LOWEST ENLISTED PAY GRADE

HENCE, IT APPEARS THAT THESE FORMER ENLISTED WOMEN CONTINUED IN THEIR NON -COMMISSIONED GRADES UNTIL REDUCED TO THE LOWEST ENLISTED GRADE ON JANUARY 20, 1953, BY THE SAID PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL. PAYMENTS MAY BE MADE TO THEM ACCORDINGLY IF OTHERWISE CORRECT. THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH.