United States v. Phillips, 64 M.J. 410 (as part of the sentence, a court-martial may adjudge a fine in lieu of or in addition to forfeitures; RCM 1003(b)(3) provides that in order to enforce collection, a fine may be 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).
(a fine does not become due until ordered into execution by the convening authority; unless a different date or payment schedule is set forth in the convening authority’s action or otherwise agreed to by the convening authority, payment of the fine is due on the date that the convening authority takes action on the sentence).
(confinement may not be executed for failure to pay a fine if the accused demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the authority considering imposition of confinement determines, after giving the accused notice and opportunity to be heard, that there is no other punishment adequate to meet the government’s interest in appropriate punishment).
(a commanding officer empowered to order contingent confinement is not acting in the capacity of the convening authority who approved the results of the court-martial under Article 60(c), UCMJ, but as the authority considering imposition of confinement for nonpayment of the fine under RCM 1113(d)(3); exercise of the authority to impose contingent confinement by the officer serving as a person’s commanding officer subsequent to action under Article 60(c), UCMJ, does not violate the MCM).
(under RCM 1113(d)(3), an accused who fails to pay an executed fine is entitled to the opportunity to show indigence and demonstrate past good faith efforts to pay before being ordered into confinement for failure to pay; if the accused demonstrates indigence, the authority considering confinement must determine, after notice to the accused and a hearing, that no alternative punishment is adequate to meet the government’s interest in punishment; if an accused cannot demonstrate indigence, the authority considering confinement need not consider alternatives before executing contingent confinement; the authority considering confinement may choose to consider alternative punishments as a matter of discretion in the case of a nonindigent accused, but is not required to do so).
(contingent confinement is an enforcement mechanism that may be included in a sentence to a fine, allowing the proper authority to order into confinement an accused who fails to pay the fine; RCM 1113(d)(3) makes it clear that the predicate to converting contingent to actual confinement is the failure by a servicemember to pay a fine that is due; inasmuch as a fine is not due until the sentence is executed, contingent confinement may be executed only after: (1) the fine is executed, (2) the accused has an opportunity to pay, and (3) fails to do so).
(a convening authority’s action approving a sentence that includes contingent confinement for the failure to pay a fine does not preclude a different officer from converting the contingent confinement provision of the sentence into actual confinement when appellant fails to pay the fine; in this case, when appellant failed to pay the fine, his commanding officer properly ordered a fine enforcement hearing, determined that appellant was not indigent, and ordered him into contingent confinement for willful failure to pay; although appellant characterizes his commanding officer as a “substitute” convening authority, the commanding officer did not execute contingent confinement in the capacity of a “substitute” for the convening authority over appellant’s court-martial; rather, he acted as “the authority considering imposition of confinement” under RCM 1113(d)(3), and as such, there was no error in the execution of contingent confinement).
(where an appellant who has failed to pay a fine does not establish that he is indigent at his fine enforcement hearing, the authority considering the imposition of contingent confinement is not required by RCM 1113(d)(3) or any other provision of the MCM to consider alternatives to confinement before ordering appellant into contingent confinement; in this case, because appellant failed to establish that he was indigent, his commanding officer was not required to consider whether his proposed payment plan or any alternative punishment would be adequate to meet the government’s interests).
United States v. Palmer, 59 MJ 362 (pursuant to the authority Congress has given him to establish punishments, Article 56, UCMJ, the President has provided that a court-martial may adjudge a fine in lieu of or in addition to forfeitures; RCM 1003(b)(3) provides that in order to enforce collection, a fine may be 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).
(before contingent confinement can be executed, the convening authority must afford the person fined notice and an opportunity to be heard; at this contingent confinement hearing, a convicted service member subject to a fine has the burden of demonstrating that, despite good faith efforts, he has been unable to pay the fine because of indigency; if the service member demonstrates that he cannot pay the fine because of indigency, the contingent confinement may not be executed for failure to pay a fine unless the authority considering imposition of confinement determines that there is no other punishment adequate to meet the Government’s interest in appropriate punishment).
(in this case, appellant was afforded those due process rights to which he was entitled before the convening authority remitted the unpaid balance of the fine and executed the contingent confinement proportional to the amount of the fine remaining unpaid when the convening authority acted; there is a substantial basis in the hearing record to conclude that, rather than making good faith efforts to timely pay the fine, appellant engaged in conduct designed to remove assets from his control and did not take reasonable steps to liquidate assets to make timely payment; further, appellant’s history of payment on the fine does not support his contention that he made payments in good faith).
(we find nothing in the record to cause us to question the finding that appellant was not indigent; additionally, at the time the fine was approved appellant did not approach the convening authority and request a payment plan or schedule to accommodate his financial situation; under these circumstances, the convening authority was not obligated to withdraw or amend his action remitting the fine and executing the contingent confinement when appellant made an additional, untimely, partial payment after the action was taken; this belated payment did nothing to alter or excuse the fact that appellant did not comply with the payment terms established by the convening authority; the temporary administrative “acceptance” of this belated payment by the finance office did not vest appellant with any new substantive rights, resurrect the fine, or alter the convening authority’s action; there was simply no fine against which to apply the untimely payment).
(after appellant made an
partial payment following the convening authority’s action remitting
and executing the contingent confinement, the convening authority gave
consideration to whether the ends of justice would be served by
action and substituting some other appropriate action; given the facts
case, we do not believe that the convening authority abused his
adhering to his original decision and returning the proffered payment,
deductions for debts to the United States; absent indigence,
unilateral efforts to make partial payment on his fine did not create
obligation on the part of the convening authority to accept that
amend his prior action remitting the fine and executing the contingent
confinement; a contrary ruling would permit appellant to repeatedly
the effective administration of justice without fulfilling the
imposed upon him pursuant to a lawful sentence and process).