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THAT IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT-MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE OF MILITARY JUSTICE HAS THE EFFECT OF DECLARING A SENTENCE OF TOTAL FORFEITURE OF PAY AND ALLOWANCES WITHOUT A PUNITIVE DISCHARGE A LEGAL SENTENCE SO THAT THE RIGHT OF A SERVICE MEMBER TO HAVE RESERVED ONE THIRD OF THE PAY AND ALLOWANCES FOR THE PERIOD COVERED BY A SENTENCE OF A GENERAL COURT-MARTIAL TO TOTAL FORFEITURES BUT NOT INCLUDING A PUNITIVE DISCHARGE IS TOO DOUBTFUL TO WARRANT PAYMENT. 1960: REFERENCE IS MADE TO LETTER DATED JANUARY 23. JOBE THAT "IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT-MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE" OR THE RULING IN OUR DECISION OF JULY 21.

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B-138882, MARCH 10, 1960, 39 COMP. GEN. 637

MILITARY PERSONNEL - COURT-MARTIAL SENTENCES - FORFEITURE - SENTENCES WITHOUT DISCHARGE THE RULING OF THE UNITED STATES COURT OF MILITARY APPEALS IN UNITED STATES V. JOBE, 27 C.M.R. 350, 10 U.S.C.M.A. 276, ON MARCH 13, 1959, THAT IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT-MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE OF MILITARY JUSTICE HAS THE EFFECT OF DECLARING A SENTENCE OF TOTAL FORFEITURE OF PAY AND ALLOWANCES WITHOUT A PUNITIVE DISCHARGE A LEGAL SENTENCE SO THAT THE RIGHT OF A SERVICE MEMBER TO HAVE RESERVED ONE THIRD OF THE PAY AND ALLOWANCES FOR THE PERIOD COVERED BY A SENTENCE OF A GENERAL COURT-MARTIAL TO TOTAL FORFEITURES BUT NOT INCLUDING A PUNITIVE DISCHARGE IS TOO DOUBTFUL TO WARRANT PAYMENT, AND, THEREFORE, DISBURSING OFFICERS MAY NOT EFFECT PAYMENT IN SUCH CASES. 39 COMP. GEN. 46, MODIFIED.

TO THE SECRETARY OF DEFENSE, MARCH 10, 1960:

REFERENCE IS MADE TO LETTER DATED JANUARY 23, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO WHETHER DISBURSING OFFICERS SHOULD FOLLOW THE RULING OF MARCH 13, 1959, BY THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. JOBE THAT "IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT-MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE" OR THE RULING IN OUR DECISION OF JULY 21, 1959, 39 COMP. GEN. 46, THAT ENLISTED MEMBERS MAY NOT FORFEIT MORE THAN TWO-THIRDS PAY IN SUCH CASES. THE QUESTION UPON WHICH DECISION IS REQUESTED, AND A DISCUSSION OF THE MATTER, ARE CONTAINED IN COMMITTEE ACTION NO. 257 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, A COPY OF WHICH WAS TRANSMITTED WITH THE LETTER OF JANUARY 23, 1960.

THE QUESTION PRESENTED IS STATED IN THE COMMITTEE ACTION AS FOLLOWS:

IS THE DECISION OF THE UNITED STATES COURT OF MILITARY APPEALS OF 13 MARCH 1959, STATING ,IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT- MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE," INAPPLICABLE IN VIEW OF THE RULE IN COMPTROLLER GENERAL DECISION B-138882, 21 JULY 1959, INDICATING ENLISTED MEMBERS MAY NOT FORFEIT MORE THAN TWO-THIRDS PAY IN THOSE INSTANCES?

ARTICLE 18 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 818, PROVIDES THAT GENERAL COURTS-MARTIAL "MAY, UNDER SUCH LIMITATIONS AS THE PRESIDENT MAY PRESCRIBE, ADJUDGE ANY PUNISHMENT NOT FORBIDDEN BY THIS CHAPTER," THAT IS, NOT FORBIDDEN BY THE UNIFORM CODE OF MILITARY JUSTICE. THE UNITED STATES COURT OF MILITARY APPEALS HELD IN THE CASE OF UNITED STATES V. JOBE, 10 USCMA 276, 27 CMR 350, ON MARCH 13, 1959, AS FOLLOWS:

IMPOSITION OF TOTAL FORFEITURES BY A GENERAL COURT-MARTIAL WITHOUT A PUNITIVE DISCHARGE IS NOT EXPRESSLY FORBIDDEN BY THE UNIFORM CODE. CONSEQUENTLY, IF THE ACCUSED IS CONVICTED OF AN OFFENSE AND THE MAXIMUM SENTENCE "FOR THAT OFFENSE" (SEE ARTICLE 56, UNIFORM CODE * * *) INCLUDES TOTAL FORFEITURES, THE COURT CAN ADJUDGE FORFEITURE OF ALL PAY AND ALLOWANCES, WITHOUT A PUNITIVE DISCHARGE.

QUESTION 1 IS QUOTED FROM OUR DECISION OF JULY 21, 1959, AS FOLLOWS:

WHAT IS THE MAXIMUM AMOUNT OF MONTHLY BASIC PAY OF AN ENLISTED MEMBER THAT MAY BE FORFEITED BY A GENERAL OR SPECIAL COURT-MARTIAL, WHEN THE ACCUSED IS NOT SENTENCED TO A DISHONORABLE OR BAD CONDUCT DISCHARGE, I.E., MUST ONE-THIRD OF SUCH PAY BE ACTUALLY RESERVED AND PAID TO THE ENLISTED MEMBER OR IS TWO-THIRDS OF HIS GROSS MONTHLY BASIC PAY SUBJECT TO FORFEITURE?

IN THE CONSIDERATION OF QUESTION 1 WE STATED THAT

PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PRESCRIBED BY THE PRESIDENT, PROVIDES THAT WHILE A GENERAL COURT MARTIAL IS NOT LIMITED BY STATUTE AS TO THE AMOUNT OF FORFEITURES IT MAY ADJUDGE, IN THE CASE OF AN ENLISTED MEMBER IT 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 PART OF PARAGRAPH 127B, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, UPON WHICH THE HOLDING IN THE CASE OF UNITED STATES V. JOBE WAS BASED, PROVIDES AS FOLLOWS:

A COURT SHALL NOT, BY A SINGLE SENTENCE WHICH DOES NOT INCLUDE DISHONORABLE OR BAD CONDUCT DISCHARGE, ADJUDGE AGAINST AN ACCUSED:

FORFEITURE OF PAY AT A RATE GREATER THAN TWO-THIRDS OF HIS PAY PER MONTH.

AS SUGGESTED IN THE COMMITTEE ACTION, THE HOLDING OF THE COURT OF MILITARY APPEALS IN THE JOBE CASE WAS NOT CONSIDERED IN RENDERING OUR DECISION OF JULY 21, 1959. THE EFFECT OF THE DECISION IN THE JOBE CASE IS TO DECLARE A SENTENCE OF TOTAL FORFEITURE OF PAY AND ALLOWANCES WITHOUT A PUNITIVE DISCHARGE A LEGAL SENTENCE. WHILE WE ARE INCLINED TO AGREE WITH THE VIEWS EXPRESSED IN THE DISSENTING OPINION IN THE JOBE CASE HARMONIZING THE PRESIDENTIAL REGULATIONS WITH THE STATUTORY PROVISIONS OF THE UNIFORM CODE, WE THINK THAT IN VIEW OF THE MAJORITY HOLDING THE RIGHT OF A SERVICE MEMBER TO RECEIVE PAY AND ALLOWANCES FOR A PERIOD COVERED BY A SENTENCE TO TOTAL FORFEITURES BUT NOT INCLUDING A PUNITIVE DISCHARGE IS TOO DOUBTFUL TO WARRANT PAYMENT. ACCORDINGLY, WE WILL NOT AUTHORIZE PAYMENT OF PAY AND ALLOWANCES IN ANY CASE WHERE A GENERAL COURT-MARTIAL SENTENCE INCLUDES TOTAL FORFEITURES OF PAY AND ALLOWANCES EVEN THOUGH THE SENTENCE DOES NOT INCLUDE A PUNITIVE DISCHARGE, AND IN VIEW OF THE DOUBTFUL PROPRIETY OF ANY SUCH PAYMENTS, DISBURSING OFFICERS MAY NOT EFFECT PAYMENT IN SUCH CASES. OUR DECISION OF JULY 21, 1959, 39 COMP. GEN. 46, IS MODIFIED ACCORDINGLY.

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