B-130640, MAY 3, 1957, 36 COMP. GEN. 755

B-130640, MAY 3, 1957, 36 COMP. GEN. 755

MILITARY PERSONNEL - COURT-MARTIAL SENTENCES - PAY FORFEITURES - ABSENCES WITHOUT LEAVE - CONCURRENT FORFEITURES NONPAY STATUS PERIODS (ABSENCE WITHOUT LEAVE, ETC.) OF ARMED FORCES MEMBERS WHO ARE SENTENCED BY COURT-MARTIAL TO PARTIAL FORFEITURES OF PAY FOR SPECIFIC PERIODS ARE REQUIRED TO BE EXCLUDED IN THE COMPUTATION OF FORFEITURE PERIOD. IN COMPUTING PAY FORFEITURES AS THE RESULT OF TWO COURT-MARTIAL SENTENCES WHICH OVERLAP, THE AMOUNT SPECIFIED IN EACH SENTENCE IS FORFEITED FOR THE PARTICULAR PERIOD IN EACH SENTENCE: AND IF THE TOTAL AMOUNT OF THE FORFEITURES DURING ANY PERIOD THE SENTENCES RUN CONCURRENTLY EXCEEDS THE TWO-THIRDS LIMITATION, ONLY TWO-THIRDS OF MEMBER'S PAY IS FORFEITED DURING THE PERIOD AND AFTER THE CONCURRENT PERIOD, PAY IS FORFEITED UNDER THE REMAINING SENTENCE AT THE RATE AND FOR THE TIME SPECIFIED.

TO THE SECRETARY OF DEFENSE, MAY 3, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 6, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON TWO QUESTIONS, SET FORTH IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 168, RELATING TO COURT-MARTIAL FORFEITURE OF PAY.

THE FIRST QUESTION IS AS FOLLOWS:

1. IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO IS SENTENCED BY A COURT-MARTIAL TO PARTIAL FORFEITURE OF HIS PAY FOR A SPECIFIC PERIOD AND WHO IS IN A NONPAY STATUS (ABSENT WITHOUT LEAVE, ABSENT FROM DUTY AS A RESULT OF DISEASE DUE TO ALCOHOL IN CONFINEMENT BEYOND ETS, ETC.) FOR ALL OR A PORTION OF SUCH PERIOD, SHOULD THE PERIOD DURING WHICH THE MEMBER IS IN A NON-PAY STATUS BE EXCLUDED IN COMPUTING THE PERIOD DURING WHICH THE MEMBER'S PAY IS FORFEITED PURSUANT TO THE COURT MARTIAL SENTENCE?

IN OUR DECISION TO YOU DATED AUGUST 3, 1956, 36 COMP. GEN. 79, IT WAS CONCLUDED THAT A COURT-MARTIAL SENTENCE OF FORFEITURE OF PAY RESULTS IN A LOSS OF ENTITLEMENT TO PAY IN THE AMOUNT OF THE FORFEITURE AND THAT, SINCE PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES THAT A FORFEITURE "APPLIES FOR THE NUMBER OF MONTHS OR DAYS EXPRESSLY TED," A FORFEITURE CANNOT EXTEND BEYOND THE PERIOD OF FORFEITURE FIXED BY THE SENTENCE. HOWEVER, WE WERE NOT ASKED AND CONSIDERATION WAS NOT GIVEN TO THE QUESTION WHETHER A PERIOD OF FORFEITURE SPECIFIED IN A COURT-MARTIAL SENTENCE RUNS ON A CALENDAR BASIS IN ALL CASES OR WHETHER IT MAY BE TOLLED BY ACTION OF THE MEMBER CONCERNED WHICH RESULTS IN HIS BEING IN A NONPAY STATUS.

THE FORFEITURE OF A PORTION OF A MEMBER'S PAY FOR A SPECIFIED PERIOD UPON COURT-MARTIAL CONVICTION OF AN OFFENSE IS PUNISHMENT FOR THE COMMISSION OF SUCH OFFENSE AND A FORFEITURE CAN BE EFFECTIVE AS PUNISHMENT ONLY WHILE THE MEMBER CONCERNED IS IN A PAY STATUS. HENCE, IT WOULD SEEM THAT THE APPLICABLE PROVISIONS OF LAW SHOULD BE VIEWED AS CONTEMPLATING THE EXCLUSION OF THE TIME A MEMBER IS IN A NONPAY STATUS IN COMPUTING THE PERIOD COVERED BY THE SENTENCE OF FORFEITURE UNLESS, OF COURSE, THE LANGUAGE USED REQUIRES A CONTRARY CONCLUSION. IT IS REPORTED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS CONCLUDED THAT PERIODS IN A NONPAY STATUS RESULTING FROM ABSENCES WITHOUT LEAVE, ETC., SHOULD BE EXCLUDED IN COMPUTING THE PERIOD A FORFEITURE IS TO RUN. THAT VIEW DOES NOT SEEM INCONSISTENT WITH THE PROVISION IN PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL THAT THE SENTENCE OF FORFEITURE APPLIES "FOR THE NUMBER OF MONTHS OR DAYS EXPRESSLY STATED.' THAT PROVISION SEEMS TO HAVE BEEN INCLUDED IN THE MANUAL TO MAKE SURE THAT A SENTENCE OF FORFEITURE WAS NOT ENLARGED OR EXTENDED. HOWEVER, THE EXCLUSION OF DAYS WHEN THE MEMBER IS IN A NONPAY STATUS DOES NOT RESULT IN ADDING TO OR EXTENDING THE FORFEITURE. ON THE CONTRARY, THE EXCLUSION OF SUCH DAYS PERMITS THE SENTENCE TO BE EFFECTIVE A FORFEITURE FOR THE NUMBER OF DAYS COVERED BY THE SENTENCE.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS AS FOLLOWS:

2. IF A MEMBER UNDER COURT-MARTIAL SENTENCE TO FORFEIT A PORTION OF HIS PAY FOR A SPECIFIED PERIOD IS, DURING THAT PERIOD, AGAIN SENTENCED BY A DIFFERENT COURT-MARTIAL TO FORFEIT ANOTHER PORTION OF HIS PAY FOR AN ADDITIONAL PERIOD, AND IF THE TWO SENTENCES OVERLAP TO SUCH AN EXTENT THAT BOTH CANNOT BE SATISFIED WITHOUT EXCEEDING THE TWO THIRDS MAXIMUM WHICH CAN BE FORFEITED, SHOULD EITHER OF THE PERIODS COVERED BY THE SENTENCES BE EXTENDED FOR A TIME SUFFICIENT TO SATISFY BOTH SENTENCES?

WHEN TWO COURT-MARTIAL SENTENCES DECREE PARTIAL FORFEITURES OF PAY FOR PERIODS WHICH RUN CONCURRENTLY, THE MAXIMUM PUNISHMENT BY WAY OF FORFEITURE OF PAY TO WHICH THE MEMBER IS SUBJECT AT ANY TIME IS FIXED BY 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. THE AMOUNT STATED IN EACH SENTENCE IS FORFEITED ONLY FOR THE SPECIFIED PERIOD MENTIONED IN EACH AND IF THE TOTAL AMOUNT OF FORFEITURES DURING ANY PERIOD THE SENTENCES RUN CONCURRENTLY EXCEEDS THE TWO-THIRDS LIMITATION, ONLY TWO-THIRDS OF THE MEMBER'S PAY IS FORFEITED DURING SUCH PERIOD. AFTER THE CONCURRENT PERIOD HAS EXPIRED, PAY IS FORFEITED UNDER THE ONE REMAINING SENTENCE ONLY AT THE RATE AND FOR THE TIME REMAINING IN THAT SENTENCE.