TRIAL STAGES: Sentence and Punishment:  Forfeitures

Generally:

2006

United States v. Stewart, 62 M.J. 291 (a servicemember released from confinement and still in a duty status may not be deprived of more than two-thirds of his or her pay).


(if a portion of a sentence provides for continued forfeiture of all pay and allowances after a servicemember is released from confinement but before execution of the discharge, that portion of the sentence should be amended to provide for forfeiture of two-thirds pay until the discharge is executed).


(in this case, where it could not be determined with fair certainty the duration of the total forfeitures that the members intended to impose upon appellant, or whether the members intended to impose partial forfeitures following confinement, and if so, for what period of time and in what amount [the plain language of the sentence as approved by the convening authority provides little insight -- reduction to the grade of E-1, 15 months confinement, and forfeiture of all pay and allowances], an appellate court can affirm only so much of appellant’s sentence to forfeiture as it can determine with fair certainty the members intended to adjudge).


(where appellant’s sentence of forfeiture of all pay and allowances did not expressly provide for partial forfeitures following his release from confinement, only those forfeitures coterminous with the time he spent in confinement would be affirmed; his sentence should have contained enough information to place him on notice that he would be subjected to partial forfeitures following his release from confinement and should additionally have provided him some indication of how long the partial forfeitures would remain in effect). 


(where the sentencing authority intends to deprive an accused in a duty status to partial forfeitures it should state so with clarity, so as to avoid any ambiguity or mistake in intent; partial forfeitures are a form of pecuniary punishment that have an impact on convicted servicemembers as well as their families; ambiguous or uncertain sentences to forfeiture are detrimental because they leave military families unsure of how long wages will be forfeited, and less able to engage in financial planning for the future).


(where a sentence to forfeiture of all pay and allowances is adjudged, such sentence shall run until such time as the servicemember is discharged or returns to a duty status, whichever comes first, unless the sentencing authority expressly provides for partial forfeitures post-confinement and specifies their duration and amount).

United States v. Lonnette, 62 M.J. 296 (under Article 58b(a), UCMJ, a servicemember sentenced by a general court-martial to confinement for more than six months is subject to forfeiture of all pay and allowances during the period of confinement; once the servicemember is released from confinement, entitlement to pay is dependent on a number of factors, such as whether the servicemember’s term of service expired and whether the servicemember has been required to take appellate leave; a forfeiture is not a fine; a forfeiture is deducted from a servicemember’s pay and allowances only if the member is otherwise entitled to such compensation). 

(when an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay).

2004

 United States v. Lundy, 60 MJ 52  (a court-martial may lead to two distinct types of forfeiture of pay and allowances: (1) an adjudged forfeiture included in the sentence imposed by a court-martial under RCM 1003(b)(2); and (2) mandatory forfeitures under Article 58b(a)). 

 

(adjudged and mandatory forfeitures take effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged,  or (2) the date on which the sentence is approved by the convening authority; however, the convening authority has discretion to defer the effective date for all or part of the period leading up to the convening authority’s formal action on the sentence under Article 60(c), UCMJ). 

 

(under Article 58b(b), the responsibility for directing payments of waived forfeitures to the dependent rests with the government, not with appellant). 

2002

United States v. Emminizer, 56 MJ 441 (there are two distinct types of forfeiture of pay and allowances: (1) adjudged forfeitures - forfeitures that may be included in a sentence adjudged at a court-martial; and (2) mandatory forfeitures - not part of the court-martial sentence, but applied as a collateral consequence of specified sentences during designated periods of confinement or parole).

(as amended, Article 57 provides that adjudged forfeitures take effect on the earlier of: (1) fourteen days after the date on which the sentence was adjudged at trial; or (2) the date on which the sentence was approved by the convening authority).

(when a qualifying sentence under Article 58b(a)(2) has been adjudged, the convening authority may provide transitional compensation to dependents through the waiver authority under Article 58b(b) only to the extent that pay and allowances are due and subject to mandatory forfeiture).

(To the extent that adjudged forfeitures are deferred, there is a corresponding increase in compensation subject to mandatory forfeitures available to be waived on behalf of a servicemember’s dependents for up to six months under Article 58b(b); likewise, when acting on the sentence under Article 60, the convening authority may reduce or suspend adjudged forfeitures, thereby increasing the compensation that is subject to mandatory forfeitures, which in turn may be waived for up to six months for the servicemember’s dependents under Article 58b(b)).

(SJA’s advice concerning the relationship between adjudged and mandatory forfeitures was incomplete in two respects: (1) in addition to his correct advice that if the convening authority disapproved the adjudged forfeitures, he could waive the resultant mandatory forfeitures, he also should have stated that if the convening authority modified or suspended the adjudged forfeitures, he could then waive the resultant mandatory forfeitures; and (2), in light of appellant’s eighteen-month sentence, the SJA’s advice reasonably could have been construed by the convening authority to mean that it was necessary to disapprove the forfeitures for the entire eighteen-month period in order to grant appellant’s waiver request – therefore, he should have stated that the convening authority could grant appellant’s request by suspending the adjudged forfeitures for six months and then waiving the resultant mandatory forfeitures for the six-month period).

(SJA should have advised the convening authority that compensation for dependents under the waiver authority may be paid only for a transitional six-month period, and that the convening authority could grant appellant’s request by suspending adjudged forfeitures for six months, and then waiving the resulting mandatory forfeitures for the six-month period).

2001

United States v. Brown, 54 MJ 289 (although the Court of Appeals for the Armed Forces declined to determine whether the convening authority is required to receive an SJA’s recommendation (served on the defense for comment) before acting on a request to defer the effective date of forfeitures or to waive automatic forfeiture of pay, the court holds that, even if appellant was entitled to notice and an opportunity to comment on such an SJA’s advice, appellant failed to make a colorable showing of prejudice as a result of this alleged post-trial error).


Adjudged:

2003

United States v. Rendon, 58 MJ 221 (Rule for Courts-Martial 1003(b)(2) requires that, unless total forfeiture is adjudged, the amount of forfeitures adjudged be stated in exact dollars).

2002

United States v. Emminizer, 56 MJ 441 (Article 57, as amended, enables the convening authority, upon application by the accused, to defer adjudged forfeitures prior to taking formal action on the sentence).

(with respect to adjudged forfeitures, the convening authority is empowered at action to approve, disapprove, or modify forfeiture of pay and allowances; this authority includes the authority to suspend any forfeitures included in the sentence approved by the convening authority).


Mandatory:

2007

United States v. Pflueger, 65 M.J. 127 (a court-martial sentence that includes specified punishments, including a bad-conduct discharge, triggers automatic forfeitures of pay and allowances under Article 58b, UCMJ).


(just as automatic forfeitures are triggered by specific types of court-martial sentences, there is a comparable provision for the return of automatic forfeitures to the servicemember under specified circumstances; amounts that were subject to automatic forfeitures shall be paid to the servicemember if the sentence is:  (1) set aside, (2) disapproved, or (3) as finally approved, does not provide for one of the punishments that triggers automatic forfeitures -- death, confinement for more than six months, or confinement for six months or less and a punitive separation; Article 58b, UCMJ, does not expressly identify the stage of the court-martial review process at which a sentence is finally approved, or no longer provides for a punishment that triggers mandatory forfeitures; however, the statutory requirement for return of forfeitures in Article 58b is not limited to actions by judicial authorities or a determination that a punishment has been disapproved; the statute also provides for return of forfeitures when the sentence as finally approved, does not provide for the punishment that triggered the automatic forfeitures).

2004

United States v. Lundy, 60 MJ 52  (mandatory forfeitures are not part of the court-martial sentence, but apply during periods of confinement or parole as a consequence of certain statutorily designated sentences, such as a sentence to confinement for more than six months).

2002

United States v. Emminizer, 56 MJ 441 (mandatory forfeitures apply only under the following circumstances: (1) the court-martial sentence includes (a) confinement for more than six months, (b) confinement for six months or less if the sentence also includes a punitive discharge, and (c) death; (2) during periods in which a servicemember is in confinement or on parole as a result of the applicable court-martial sentence; and (3) when pay and allowances are due that member).

(mandatory forfeitures take effect on the earlier of: (1) fourteen days after the date on which the sentence is adjudged; or (2) the date on which the sentence is approved by the convening authority).

(if the sentence is subsequently set aside or disapproved, or if it is modified so that it no longer provides for a qualifying punishment under Article 58b(a)(2), any amounts taken for purposes of mandatory forfeitures are returned to the member).

(in the case of confinement or parole resulting from a qualifying special court-martial sentence, mandatory forfeitures apply only to any basic pay due during the period of confinement or parole; in the case of a qualifying general court-martial sentence, mandatory forfeitures apply to all pay and allowances due that member during the period of confinement or parole).

(the convening authority has two limited powers with respect to mandatory forfeitures: (1) upon application of the accused, the convening authority may defer a mandatory forfeiture until the date on which the convening authority approves the sentence under Article 60, and may rescind such deferment at any time; and (2) if the accused has dependents, the convening authority has discretion to provide transitional compensation to such dependents for a limited period of time by waiving all or part of any mandatory forfeitures required by Article 58b(a) for a period not to exceed six months, and the mandatory forfeitures subject to such a waiver are paid directly to dependents of the accused).

(the purpose of mandatory forfeitures is to restrict payments to servicemembers who are in confinement or on parole under a qualifying sentence; the discretionary authority under Article 58b(b) to ameliorate mandatory forfeitures for a brief period of time applies only when the statute triggers mandatory forfeitures).

(when a servicemember is not entitled to compensation covered by the mandatory forfeiture provisions of Article 58b, there is nothing to waive - for example: (1) when a servicemember’s term of enlistment has expired; (2) when total forfeitures become effective under Article 57(a) as a result of a qualifying general court-martial sentence; (3) when two-thirds' forfeitures become effective as a result of qualifying special court-martial sentence; or (4), if partial forfeitures take effect under Article 57(a), the waiver authority applies only to any mandatory forfeitures required under Article 58b).


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