B-115577, NOVEMBER 2, 1953, 33 COMP. GEN. 195

B-115577, NOVEMBER 2, 1953, 33 COMP. GEN. 195

PAY - FORFEITURES - COURT MARTIAL SENTENCES - PENDING REVIEW OF DEATH SENTENCE A MEMBER OF THE ARMED FORCES UNDER SENTENCE OF DEATH IS ENTITLED TO RECEIVE PAY AND ALLOWANCES PENDING COMPLETION OF THE APPELLATE REVIEW OF THE RECORD OF TRAIL UNLESS THE SENTENCE EXPRESSLY PROVIDES FOR FORFEITURE OF PAY AND ALLOWANCES; HOWEVER, PAY AND ALLOWANCES DO NOT ACCRUE AFTER THE EXPIRATION OF SUCH MEMBER'S ENLISTMENT UNLESS THE MEMBER IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, NOVEMBER 2, 1953:

REFERENCE IS MADE TO LETTER OF MAY 29, 1953, FROM THE ASSISTANT SECRETARY OF DEFENSE, TRANSMITTING COPIES OF COMMITTEE ACTION NO. 67 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND REQUESTING DECISION AS TO WHETHER A MEMBER OF THE ARMED FORCES UNDER SENTENCE TO DEATH IS ENTITLED TO RECEIVE PAY AND ALLOWANCES PENDING COMPLETION OF THE APPELLATE REVIEW OF HIS RECORD OF TRIAL WHEN THE SENTENCE DOES NOT EXPRESSLY PROVIDE FOR FORFEITURE OF PAY AND ALLOWANCES.

IN THE SAID COMMITTEE ACTION IT IS INDICATED THAT SINCE PARAGRAPH 126A, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES THAT " A DISHONORABLE DISCHARGE IS BY IMPLICATION INCLUDED IN A DEATH SENTENCE," DOUBT EXISTS AS TO THE RIGHT OF A MEMBER HERE CONCERNED TO ACCRUE PAY AND ALLOWANCES BY REASON OF SECTION 1 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1065, 10 U.S.C. 876, WHICH PROVIDES THAT PAY AND ALLOWANCES SHALL NOT ACCRUE TO A SOLDIER UNDER SENTENCE OF DISHONORABLE DISCHARGE DURING SUCH PERIOD AS THE EXECUTION OF THE SENTENCE MAY BE SUSPENDED UNDER AUTHORITY OF THE ACT OF APRIL 27, 1914, 38 STAT. 354.

THE EFFECT WHICH MIGHT NOW BE GIVEN TO THE SAID SECTION 1 WOULD BE LIMITED TO THE PERIOD THE EXECUTION OF A SENTENCE MAY BE SUSPENDED UNDER CURRENT PROVISIONS OF LAW COMPARABLE TO THE SUPERSEDED PROVISIONS OF THE ACT OF APRIL 27, 1914. SINCE ARTICLE 71, UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. 658, PROHIBITS THE SUSPENSION OF THE EXECUTION OF A DEATH SENTENCE, THE SAID SECTION 1 OF THE ACT OF MARCH 4, 1915, HAS NO APPLICATION TO THE TYPE OF SENTENCE HERE INVOLVED. SEE PARAGRAPH 88E, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951.

TRADITIONALLY, THE VIEW HAS PREVAILED IN MILITARY LAW THAT A SENTENCE OF DEATH CANNOT OF ITSELF AFFECT THE RIGHT TO SUCH PAY AS MAY BE DUE AT DATE OF APPROVAL OR EXECUTION OF THE SENTENCE, AND THAT WHERE THE COURT INTENDS TO ADJUDGE A FORFEITURE OF PAY, IT MUST BE ADJUDGED IN EXPRESS TERMS. WINTHROP'S MILITARY LAW AND PRECEDENTS, 2D USED., PAGE 428; 4 BULL. JAG ( AUGUST 8, 1945) 337; LEGAL AND LEGISLATIVE BASIS, MANUAL FOR COURTS- MARTIAL, UNITED STATES, 1951, 179, 180; DIGEST OF OPINIONS--- THE JUDGE ADVOCATES GENERAL OF THE ARMED FORCES, VOL. 1, SENT. AND PUN., SECTION 35.3; 13 OP. ATTY. GEN. 103, 104. WHILE THE UNIFORM CODE OF MILITARY JUSTICE WOULD NOT APPEAR TO PROHIBIT THE IMPOSING OF A TOTAL FORFEITURE, IN CONNECTION WITH A DEATH SENTENCE, MADE APPLICABLE TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE SUCH SENTENCE IS APPROVED BY THE CONVENING AUTHORITY IN ACCORDANCE WITH ARTICLE 57A, IT SEEMS CLEAR THAT SUCH A FORFEITURE MAY NOT BE INCORPORATED IN A DEATH SENTENCE BY IMPLICATION, THEREBY INCREASING THE PUNISHMENT IMPOSED BY THE COURT. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

NOTHING STATED HEREIN SHOULD BE CONSIDERED AS APPLICABLE TO A MEMBER SERVING IN CONFINEMENT UNDER A DEATH SENTENCE, PENDING COMPLETION OF APPELLATE REVIEW OF HIS RECORD OF TRIAL, AFTER THE EXPIRATION OF HIS ENLISTMENT WHEN PAY AND ALLOWANCES DO NOT ACCRUE UNLESS THE MEMBER IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST. CF. 9 COMP. GEN. 323; 11 ID. 343; 23 ID. 786; 26 ID. 702; 28 ID. 114; 30 ID. 449.