2015 (September Term)
Howell v. United States, 75 M.J. 386 (if a rehearing is ordered after a sentence has been set aside, under Article 75, UCMJ, the government is within its statutory rights to not restore to an accused any forfeiture of pay and allowances an appellant has already suffered as a result of the original conviction and sentence until after a rehearing is completed; but that article does not provide for the withholding of pay during the interim period after the findings and sentence are set aside, and the accused is returned to full duty status and his previous rank).
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).
(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).
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).
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).
2007
(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).