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ALTHOUGH THE DEFERMENT IS NOT FOR PROBATIONARY PURPOSES WITHIN THE MEANING OF UNITED STATES V. 1962: REFERENCE IS MADE TO LETTER OF SEPTEMBER 25. WHEN APPROVING THE SENTENCE OF A COURT-MARTIAL INCLUDING FORFEITURE OF PAY (1) MAY PROVIDE IN ACCORDANCE WITH REGULATIONS THAT THE EXECUTION OF THE FORFEITURES WILL BE DEFERRED UNTIL THE DATE UPON WHICH THE SENTENCE TO FORFEITURES ADJUDGED BY A PREVIOUS COURT-MARTIAL HAS BEEN FULLY EXECUTED. THE QUESTIONS UPON WHICH DECISION IS REQUESTED. ARE CONTAINED IN COMMITTEE ACTION NO. 309 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. IS ATTACHED TO THE COMMITTEE ACTION. THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY.

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B-130640, DECEMBER 3, 1962, 42 COMP. GEN. 279

PAY - COURTS-MARTIAL SENTENCES - FORFEITURES - TWO OR MORE SENTENCES THE DEFERMENT OF THE EXECUTION OF THE FORFEITURE OF PAY PROVISIONS OF A SECOND COURT-MARTIAL SENTENCE UNTIL THE EXPIRATION OF THE FORFEITURE PROVISIONS OF A PREVIOUS COURT-MARTIAL SENTENCE MAY BE APPROVED BY THE CONVENING AUTHORITY UNDER ARTICLE 71 (D) OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871 (D), IN THE ABSENCE OF A STATUTORY REQUIREMENT THAT TWO OR MORE SENTENCES OF FORFEITURE OF PAY AND ALLOWANCES RUN CONCURRENTLY AND, ALTHOUGH THE DEFERMENT IS NOT FOR PROBATIONARY PURPOSES WITHIN THE MEANING OF UNITED STATES V. MAY, 10 USCMA 358, 27 CMR 432, AND UNITED STATES V. CECIL, 10 USCMA 371, 27 CMR 445, IN VIEW OF ARTICLE 57 (A) OF THE CODE, 10 U.S.C. 857 (A). PROVIDING FOR APPLICATION OF A FORFEITURE OF PAY OR ALLOWANCES ON "OR AFTER" THE DATE OF APPROVAL OF A COURT-MARTIAL SENTENCE, THE CONVENING AUTHORITY MAY DIRECT THAT THE SECOND FORFEITURE SENTENCE APPLY WHEN THE CURRENTLY EXISTING SENTENCE HAS BEEN FULLY EXECUTED, HOWEVER, HE MAY NOT DIRECT THE INTERRUPTION OF THE PREVIOUS SENTENCE OF FORFEITURE UNTIL THE NEW SENTENCE HAS BEEN SATISFIED.

TO THE SECRETARY OF DEFENSE, DECEMBER 3, 1962:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 25, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER THE CONVENING AUTHORITY, WHEN APPROVING THE SENTENCE OF A COURT-MARTIAL INCLUDING FORFEITURE OF PAY (1) MAY PROVIDE IN ACCORDANCE WITH REGULATIONS THAT THE EXECUTION OF THE FORFEITURES WILL BE DEFERRED UNTIL THE DATE UPON WHICH THE SENTENCE TO FORFEITURES ADJUDGED BY A PREVIOUS COURT-MARTIAL HAS BEEN FULLY EXECUTED, OR (2) MAY PROVIDE IN ACCORDANCE WITH REGULATIONS FOR AN INTERRUPTION OF THE EXECUTION OF THE PREVIOUS SENTENCE TO FORFEITURE UNTIL THE NEW SENTENCE TO FORFEITURE HAS BEEN FULLY EXECUTED. THE QUESTIONS UPON WHICH DECISION IS REQUESTED, AND A DISCUSSION OF THE MATTER, ARE CONTAINED IN COMMITTEE ACTION NO. 309 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, A COPY OF WHICH ACCOMPANIED THE LETTER OF SEPTEMBER 25, 1962. A DRAFT OF AN IMPLEMENTING NAVY REGULATION (AN AMENDMENT TO SECTION 10123, JUDGE ADVOCATE GENERAL MANUAL, IS ATTACHED TO THE COMMITTEE ACTION. SUCH PROPOSED REGULATION WOULD GIVE EFFECT TO AN AFFIRMATIVE ANSWER TO THE ABOVE QUESTIONS.

ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, PROVIDES:

WHENEVER A SENTENCE OF A COURT-MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY OR ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE.

(B) ANY PERIOD OF CONFINEMENT INCLUDED IN A SENTENCE OF A COURT MARTIAL BEGINS TO RUN FROM THE DATE THE SENTENCE IS ADJUDGED BY THE COURT-MARTIAL, BUT PERIODS DURING WHICH THE SENTENCE TO CONFINEMENT IS SUSPENDED SHALL BE EXCLUDED IN COMPUTING THE SERVICE OF THE TERM OF CONFINEMENT.

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

ARTICLE 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871, PROVIDES (A) THAT NO COURT-MARTIAL SENTENCE EXTENDING TO DEATH OR INVOLVING A GENERAL OR FLAG OFFICER MAY BE EXECUTED UNTIL APPROVED BY THE PRESIDENT; (B) THAT NO SENTENCE EXTENDING TO THE DISMISSAL OF A COMMISSIONED OFFICER (OTHER THAN A GENERAL OR FLAG OFFICER), CADET, OR MIDSHIPMAN MAY BE EXECUTED UNTIL APPROVED BY THE SECRETARY CONCERNED, OR SUCH UNDER SECRETARY OR ASSISTANT SECRETARY AS MAY BE DESIGNATED BY HIM; AND (C) THAT NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD-CONDUCT DISCHARGE, OR CONFINEMENT FOR 1 YEAR OR MORE, MAY BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE COURT OF MILITARY APPEALS. THAT ARTICLE FURTHER PROVIDES (D) THAT ALL OTHER COURT-MARTIAL SENTENCES, UNLESS SUSPENDED, MAY BE ORDERED EXECUTED BY THE CONVENING AUTHORITY WHEN APPROVED BY HIM; AND THAT THE CONVENING AUTHORITY MAY SUSPEND THE EXECUTION OF ANY SENTENCE, EXCEPT A DEATH SENTENCE. ARTICLE 14, 10 U.S.C. 814, PROVIDES THAT DELIVERY OF AN OFFENDER TO THE CIVIL AUTHORITIES, IF FOLLOWED BY CONVICTION IN A CIVIL TRIBUNAL, INTERRUPTS THE EXECUTION OF THE SENTENCE OF THE COURT-MARTIAL.

(A) THE SECRETARY CONCERNED AND, WHEN DESIGNATED BY HIM, ANY UNDER SECRETARY, ASSISTANT SECRETARY, JUDGE ADVOCATE GENERAL, OR COMMANDING OFFICER MAY REMIT OR SUSPEND ANY PART OR AMOUNT OF THE UNEXECUTED PART OF ANY SENTENCE, INCLUDING ALL UNCOLLECTED FORFEITURES OTHER THAN A SENTENCE APPROVED BY THE PRESIDENT.

IN OUR DECISION OF MAY 3, 1957, B-130640, 36 COMP. GEN. 755, WE HELD THAT IN COMPUTING FORFEITURES OF PAY OF A MEMBER OF THE ARMED FORCES AS THE RESULT OF TWO COURT-MARTIAL SENTENCES WHICH OVERLAP, THE AMOUNT SPECIFIED IN EACH SENTENCE IS FORFEITED ONLY FOR THE PARTICULAR PERIOD MENTIONED IN EACH SENTENCE AND THAT IF THE TOTAL AMOUNT OF THE FORFEITURES DURING ANY PERIOD THE SENTENCES RUN CONCURRENTLY EXCEEDS THE TWO-THIRDS LIMITATION PROVIDED IN ARTICLES 19 AND 20 OF THE UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C. 819, 820) AND PARAGRAPH 126H (2)OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, ONLY TWO-THIRDS OF THE MEMBER'S PAY IS FORFEITED DURING SUCH PERIOD. WE ALSO HELD THAT, AFTER THE CONCURRENT PERIOD HAS EXPIRED, PAY IS FORFEITED UNDER THE REMAINING SENTENCE ONLY AT THE RATE AND FOR THE TIME REMAINING IN THAT SENTENCE; THAT IF THE SENTENCES OVERLAP TO SUCH AN EXTENT THAT BOTH CANNOT BE SATISFIED WITHOUT EXCEEDING THE TWO- THIRDS MAXIMUM WHICH CAN BE FORFEITED, NEITHER OF THE PERIODS COVERED BY THE SENTENCES SHOULD BE EXTENDED FOR A TIME SUFFICIENT TO SATISFY BOTH SENTENCES; BUT THAT APPLICABLE PROVISIONS OF LAW SHOULD BE VIEWED AS CONTEMPLATING THE EXCLUSION OF THE TIME A MEMBER IS IN A NONPAY STATUS ON ACCOUNT OF ABSENCE WITHOUT LEAVE, ETC., IN THE COMPUTATION OF A FORFEITURE PERIOD UNLESS THE LANGUAGE USED REQUIRES A CONTRARY CONCLUSION.

IN THE DISCUSSION CONTAINED IN COMMITTEE ACTION NO. 309, IT IS STATED THAT IN THE CASE OF UNITED STATES V. HARMON (SPCM NCM 61 101320), A BOARD OF REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY UPHELD THE ACTION OF THE CONVENING AUTHORITY IN DEFERRING APPLICATION OF THE FORFEITURE-OF-PAY PORTION OF THE SENTENCE UNTIL EXPIRATION OF FORFEITURES RESULTING FROM A PREVIOUS COURT-MARTIAL. REFERENCE IS ALSO MADE TO THE HOLDING OF THE COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. BRYANT (12 USCMA 133, 39 CMR 133) THAT THE TWO EXCEPTIONS FOUND IN ARTICLES 14 AND 57 (B) OF THE UNIFORM CODE OF MILITARY JUSTICE ARE NOT EXCLUSIVE AND THAT REGULATIONS OF THE ARMED FORCES MAY PROVIDE FOR SIMILAR INTERRUPTION OF A PREVIOUS COURT MARTIAL SENTENCE OF CONFINEMENT WHEN THE SENTENCE OF A SUBSEQUENT COURT-MARTIAL INCLUDING CONFINEMENT IS ORDERED EXECUTED. IT IS FURTHER STATED THAT THE OPINION OF THE COURT POINTS OUT THAT IT HAS BEEN RECOGNIZED FOR OVER 150 YEARS IN THE MILITARY SERVICE THAT SENTENCES INVOLVING CONFINEMENT DO NOT RUN CONCURRENTLY BUT ARE TO BE SERVED CONSECUTIVELY AND THAT THE COURT QUOTES "WINTHROP, MILITARY LAW AND PRECEDENTS, 2D ED., 1920 REPRINT, PAGE 404," WHICH APPLIES THE SAME RULE TO TWO SENTENCES INCLUDING FORFEITURE AS WELL AS TWO SENTENCES INCLUDING CONFINEMENT.

THE COMMITTEE ACTION DISCUSSION INVITES ATTENTION TO THE RULING IN 36 COMP. GEN. 755 THAT ANY PERIOD DURING WHICH THE MEMBER IS IN A NONPAY STATUS BECAUSE OF HIS OWN MISCONDUCT IS TO BE EXCLUDED FROM THE FORFEITURE PERIOD, AND POINTS OUT THAT IN THE SITUATION HERE INVOLVED THE NEW FORFEITURE IS LIKEWISE CAUSED BY THE MEMBER'S OWN MISCONDUCT FOR WHICH THE SECOND SENTENCE IS ADJUDGED. IT IS STATED FURTHER THAT THE DRAFT REGULATION ASSIMILATES THE SITUATION UNDER TWO SENTENCES INCLUDING FORFEITURE TO THE EXISTING REGULATIONS DEALING WITH TWO SENTENCES TO CONFINEMENT AS UPHELD IN THE BRYANT CASE; AND THAT THE DRAFT REGULATION DOES NOT USE OR APPLY STATUTORY PROVISIONS RELATING TO SUSPENSION SINCE IT HAS BEEN HELD (CITING UNITED STATES V. MAY, 10 USCMA 358, 27 CMR 432, AND UNITED STATES V. CECIL, 10 USCMA 371, 27 CMR 445) THAT THE LAW INTENDS THAT SUSPENSION BE USED ONLY FOR PROBATIONARY PURPOSES. 36 COMP. GEN. 755 IS DISTINGUISHED ON THE GROUND THAT IT DEALT WITH A SITUATION UNLIKE THAT HERE CONSIDERED, IN WHICH TWO SENTENCES TO FORFEITURE WERE ORDERED EXECUTED SO THAT THE PERIODS OF FORFEITURE COVERED BY THE SENTENCES OVERLAPPED.

WHILE IT APPEARS THAT, IN VIEW OF THE HOLDINGS IN THE MAY AND CECIL CASES, THE SUSPENSION AUTHORITY CONTAINED IN ARTICLES 71 (D) AND 74 (A) OF THE UNIFORM CODE OF MILITARY JUSTICE MAY BE USED ONLY FOR PROBATIONARY PURPOSES, THERE IS NO STATUTORY REQUIREMENT THAT TWO OR MORE SENTENCES OF FORFEITURE OF PAY AND ALLOWANCES MUST RUN CONCURRENTLY. ALTHOUGH NO PROBATIONARY PURPOSE IS SERVED BY MERELY DEFERRING THE EXECUTION OF A SENTENCE OF FORFEITURE, IT IS OUR VIEW THAT THE PROVISION IN ARTICLE 57 (A) THAT THE FORFEITURE MAY APPLY TO PAY AND ALLOWANCES BECOMING DUE ON ,OR AFTER" THE DATE THE SENTENCE IS APPROVED, PERMITS THE CONVENING AUTHORITY TO DIRECT THAT THE FORFEITURE PROVISIONS OF A SENTENCE SHALL APPLY TO A PERIOD COMMENCING WHEN A CURRENTLY EXISTING SENTENCE OF FORFEITURE HAS BEEN FULLY EXECUTED. HOWEVER, WE HAVE GRAVE DOUBT THAT THE POWER OF A CONVENING AUTHORITY SHOULD BE CONSIDERED TO EXTEND TO A SENTENCE OTHER THAN THE ONE IT IS ORDERING EXECUTED. HENCE, IT IS BELIEVED THAT THE PROPOSED REGULATIONS SHOULD NOT INCLUDE A PROVISION GIVING THE CONVENING AUTHORITY AN ALTERNATE CHOICE OF PROVIDING FOR AN INTERRUPTION OF THE EXECUTION OF A PREVIOUS SENTENCE OF FORFEITURE UNTIL THE NEW SENTENCE HAS BEEN FULLY EXECUTED.

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