B-127765, AUGUST 3, 1956, 36 COMP. GEN. 79

B-127765, AUGUST 3, 1956, 36 COMP. GEN. 79

MILITARY PERSONNEL - PAY FORFEITURE - COURT-MARTIAL SENTENCE A FORFEITURE OF PAY IMPOSED ON A MEMBER OF THE UNIFORMED SERVICES UNDER THE 1951 MANUAL FOR COURTS-MARTIAL CONSTITUTES A LOSS OF ENTITLEMENT TO PAY RATHER THAN AN INDEBTEDNESS TO THE UNITED STATES, AND SUCH FORFEITURES NOW TAKE PRECEDENCE OVER OTHER ITEMS OF INDEBTEDNESS.

TO THE SECRETARY OF DEFENSE, AUGUST 3, 1956:

REFERENCE IS MADE TO LETTER DATED APRIL 30, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS, RELATING TO FORFEITURE OF PAY AND ALLOWANCES, SET FORTH IN COMMITTEE ACTION NO. 142 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. DOES A COURT MARTIAL SENTENCE TO A TOTAL FORFEITURE OF PAY AND ALLOWANCES CONSTITUTE A LOSS OF ENTITLEMENT TO SUCH FORFEITED PAY, OR IS AN INDEBTEDNESS TO THE UNITED STATES CREATED BY SUCH A SENTENCE?

2. WOULD YOUR ANSWER BE THE SAME IF THE COURT MARTIAL SENTENCE INVOLVED A PARTIAL FORFEITURE OF PAY?

3. IF YOUR ANSWER TO EITHER QUESTION ONE OR TWO IS THAT A COURT MARTIAL SENTENCE TO FORFEITURE OF PAY CREATES AN INDEBTEDNESS TO THE UNITED STATES, WHAT PRIORITY OF STOPPAGE OR CHECK AGE SHOULD BE GIVEN TO SUCH INDEBTEDNESS?

4. ARMY REGULATIONS PRECLUDE THE APPOINTMENT TO A HIGHER PAY GRADE OF MEMBERS WHO HAVE BEEN SENTENCED TO FORFEITURE OF PAY, UNTIL THE FORFEITURE HAS BEEN COLLECTED IN FULL. MAY SUCH MEMBERS WHO ARE SENTENCED TO FORFEITURE OF A FIXED PORTION OF THEIR PAY FOR A CERTAIN NUMBER OF MONTHS AND DAYS, UPON APPOINTMENT TO A HIGHER PAY GRADE PRIOR TO COLLECTION IN FULL OF THE FORFEITURE, BE ENTITLED TO PAY OF THE HIGHER GRADE?

EXECUTIVE ORDER NO. 3864, JUNE 11, 1923, PROVIDED THAT EACH MONTHLY FORFEITURE WILL BE CHARGED AGAINST THE MONTHLY PAY OF THE ENLISTED MEMBER OF THE ARMY, BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH THE SENTENCE IS PROMULGATED, AND WILL BECOME AND REMAIN A FIXED INDEBTEDNESS TO THE UNITED STATES UNTIL SATISFIED. UNDER THE LAWS IN EFFECT PRIOR TO 1950 THE ACCOUNTING OFFICERS CONSISTENTLY HELD THAT A COURT-MARTIAL FORFEITURE WITH RESPECT TO THE ARMY CONSTITUTES AN INDEBTEDNESS TO THE UNITED STATES, AND THE PRACTICE OF THE ARMY HAS BEEN TO COLLECT SUCH FORFEITURES AFTER OTHER DEBTS ARE SATISFIED. 16 COMP. DEC. 811; 10 COMP. GEN. 25; 25 COMP. GEN. 562.

ARTICLES 18, 19, AND 20 OF THE UNIFORM CODE OF MILITARY JUSTICE, APPROVED MAY 5, 1950, 64 STAT. 114, 50 U.S.C. 578-580, DEFINING THE JURISDICTION OF GENERAL, SPECIAL, AND SUMMARY COURTS-MARTIAL, PROVIDE THAT COURTS-MARTIAL MAY "UNDER SUCH LIMITATIONS AS THE PRESIDENT MAY PRESCRIBE" ADJUDGE ANY PUNISHMENT NOT FORBIDDEN BY THE CODE. FORFEITURE OF PAY AS PUNISHMENT IS RECOGNIZED BY THE CODE. HENCE, THE PROVISIONS DEFINING AND EXPLAINING COURT-MARTIAL FORFEITURES APPEARING IN THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PRESCRIBED BY THE PRESIDENT, TO THE EXTENT THAT THEY ARE NOT INCONSISTENT WITH ANY STATUTORY PROVISION, CONSTITUTE THE LAW RESPECTING THE NATURE OF SUCH FORFEITURES.

PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES, IN PERTINENT PART:

(2) FORFEITURE.--- A FORFEITURE IS AN APPROPRIATE PUNISHMENT FOR ALL MILITARY PERSONNEL WHATEVER THEIR RANK OR STATUS. UNLESS A TOTAL FORFEITURE IS ADJUDGED, A SENTENCE TO FORFEITURE DEPRIVES THE ACCUSED OF THE AMOUNT EXPRESSLY STATED IN THE SENTENCE AND APPLIES FOR THE NUMBER OF MONTHS OR DAYS EXPRESSLY STATED. * * *

* * * UNLESS DISHONORABLE OR BAD CONDUCT DISCHARGE IS ADJUDGED, THE MONTHLY CONTRIBUTION OF AN ENLISTED PERSON TO FAMILY ALLOWANCE OR TO BASIC ALLOWANCE FOR QUARTERS WILL BE DEDUCTED PRIOR TO COMPUTING THE NET AMOUNT OF PAY SUBJECT TO FORFEITURE.

PARAGRAPH 126H (3) OF THE MANUAL PROVIDES:

(3) FINE.--- WHEREAS A FORFEITURE DEPRIVES THE ACCUSED OF ALL OR PART OF HIS PAY, A FINE, WHICH IS IN THE NATURE OF A JUDGMENT, MAKES HIM PECUNIARILY LIABLE IN GENERAL TO THE UNITED STATES FOR THE AMOUNT OF THE MONEY SPECIFIED IN THE SENTENCE. * * * IN ORDER TO ENFORCE COLLECTION, A FINE IS USUALLY ACCOMPANIED BY A PROVISION IN THE SENTENCE THAT, IN THE EVENT THE FINE IS NOT PAID, THE PERSON FINED SHALL, IN ADDITION TO ANY PERIOD OF CONFINEMENT ADJUDGED, BE FURTHER CONFINED UNTIL A FIXED PERIOD CONSIDERED AN EQUIVALENT PUNISHMENT TO THE FINE HAS EXPIRED * * *.

IN THE DISCUSSION IN COMMITTEE ACTION NO. 142 IT IS CONCLUDED THAT UNDER THE 1951 MANUAL FOR COURTS-MARTIAL THE DISTINCTION BETWEEN COURT MARTIAL FINES AND COURT-MARTIAL FORFEITURES IS THAT A FINE CONSTITUTES AN INDEBTEDNESS WHILE A FORFEITURE CONSTITUTES A LOSS OF ENTITLEMENT TO PAY. SUCH CONCLUSION APPARENTLY IS BASED UPON THE LANGUAGE OF THE ABOVE-QUOTED PROVISIONS IN THE MANUAL FOR COURTS-MARTIAL RELATING TO FINES AND FORFEITURES AND THE ABSENCE OF ANY PROVISION RELATING TO FORFEITURES MAKING CONFINEMENT A SUBSTITUTE PUNISHMENT FOR A FORFEITURE. WE CONCUR IN THAT VIEW. COMPARE THE ACT OF MAY 17, 1926, 44 STAT. 557, 10 U.S.C. 847A- 847D, SECTION 4 OF WHICH REFERS TO A LOSS OF ENTITLEMENT TO PAY UNDER SECTION 1 OF THE ACT FOR ABSENCE OF MEMBERS OF THE ARMED SERVICES FROM DUTY ON ACCOUNT OF THE EFFECTS OF A DISEASE RESULTING FROM THE INTEMPERATE USE OF ALCOHOLIC BEVERAGES OR HABIT FORMING DRUGS AS BEING "FORFEITED.'

ARTICLES 19 AND 20 OF THE CODE LIMIT THE FORFEITURE OF PAY THAT MAY BE ADJUDGED BY SPECIAL AND SUMMARY COURTS-MARTIAL TO TWO-THIRDS OF THE MONTHLY PAY, AND PARAGRAPH 126H (2) OF THE 1951 MANUAL FOR COURTS MARTIAL PROVIDES THAT IN THE CASE OF AN ENLISTED PERSON A GENERAL COURT MARTIAL MAY NOT ADJUDGE A FORFEITURE OF MORE THAN TWO-THIRDS PAY PER MONTH FOR SIX MONTHS UNLESS IT ALSO SENTENCES THE ACCUSED TO DISHONORABLE OR BAD CONDUCT DISCHARGE. THAT PARAGRAPH ALSO PROVIDES THAT IN CASES WHERE SUCH A DISCHARGE IS NOT ADJUDGED THE MONTHLY CONTRIBUTION OF THE ENLISTED MEMBER TO THE FAMILY ALLOWANCE OR THE BASIC ALLOWANCE FOR QUARTERS (UNDER SECTION 302 (H) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 795), 50 U.S.C. 2204, WILL BE DEDUCTED PRIOR TO COMPUTING THE NET AMOUNT OF PAY SUBJECT TO FORFEITURE. SUCH STATUTORY DEDUCTIONS ARE NOT VIEWED AS DEBTS THAT TAKE PRECEDENCE OVER FORFEITURES BUT AS LIMITATIONS RESPECTING THE AMOUNT OF PARTIAL FORFEITURES. CONSIDERING THE QUOTED PROVISIONS CONCERNING FINES AND FORFEITURES AND THE FACT THAT PARTIAL FORFEITURES ARE NOT LIMITED EXCEPT BY THE TWO-THIRDS RULE AND BY THE PROVISIONS FOR SUCH STATUTORY DEDUCTIONS, THE CONCLUSION APPEARS REQUIRED THAT A FORFEITURE OF PAY ADJUDGED UNDER THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, IS TO BE REGARDED AS A LOSS OF ENTITLEMENT TO PAY IN THE AMOUNT OF THE FORFEITURE. IT FOLLOWS THAT COURT-MARTIAL FORFEITURES, WHETHER TOTAL OR PARTIAL, NOW TAKE PRECEDENCE OVER ITEMS OF INDEBTEDNESS. SUCH ANSWER TO QUESTIONS 1 AND 2 MAKES AN ANSWER TO QUESTION 3 UNNECESSARY.

ARMY REGULATIONS 624-200, DATED JUNE 8, 1956, RELATING TO PROMOTIONS, DEMOTIONS, AND REDUCTIONS, PRECLUDE THE APPOINTMENT TO A HIGHER PAY GRADE OF MEMBERS WHO HAVE BEEN SENTENCED TO FORFEITURE OF PAY UNTIL THE FORFEITURE HAS BEEN COLLECTED IN FULL. SUCH REGULATIONS PROVIDE:

6. APPOINTABLE STATUS. AN INDIVIDUAL MUST BE IN AN APPOINTABLE STATUS TO BE ELIGIBLE FOR APPOINTMENT. AN INDIVIDUAL WILL BE IN APPOINTABLE STATUS WHEN SUCH INDIVIDUAL IS---

B. SERVING A COURT-MARTIAL SENTENCE, INCLUDING FORFEITURE OR DETENTION OF PAY, OR IS UNDER SUSPENDED SENTENCE. COLLECTION OF COURT MARTIAL FORFEITURES IS MADE ON A DAILY BASIS. AN INDIVIDUAL SERVING A COURT- MARTIAL SENTENCE REQUIRING FORFEITURE OF PAY REGAINS APPOINTABLE STATUS THE DAY FOLLOWING THE DAY ON WHICH HIS FORFEITURE HAS BEEN COLLECTED IN FULL.

A DISCUSSION IN THE COMMITTEE ACTION INDICATES THE VIEW THAT, IF A COURT- MARTIAL FORFEITURE WERE THE LAST ITEM TO BE COLLECTED (ORDINARY ITEMS OF INDEBTEDNESS BEING GIVEN PRECEDENCE), IN CASE OF A LARGE INDEBTEDNESS A PROMOTION WOULD BE DEFERRED FOR A PERIOD LONGER THAN THE PERIOD CONTEMPLATED BY THE REGULATIONS BECAUSE OF THE DELAY IN COMPLETING THE COLLECTION OF THE FORFEITURE. SINCE THE FORFEITURE CANNOT EXTEND BEYOND THE FORFEITURE PERIOD FIXED BY THE SENTENCE, THERE COULD BE NO UNSATISFIED FORFEITURE EXTENDING BEYOND THAT PERIOD. ON THAT BASIS QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE, IT BEING ASSUMED THAT THE QUESTION RELATES TO CASES IN WHICH THE APPOINTMENT TO THE GRADE IS MADE AFTER THE FORFEITURE PERIOD SPECIFIED IN THE COURT MARTIAL SENTENCE.