U.S. v. Shelton, 53 M.J. 387

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether appellant is legally entitled to back pay between the dates of an initial action which was set aside and a subsequent action is a question of law that is reviewed de novo
2. based upon a review of authorities - Articles 57(a)(1)(B) and 75(a), UCMJ; paragraph 89c(7), MCM 1951; Article of War 50 ½; and paragraph 70509, DoD Pay Manual – court concludes that restoration of forfeitures executed pursuant to an initial action which was set aside would run counter to both congressional intent and the court’s efforts to encourage corrective action of erroneous statements in staff judge advocates’ recommendations
3. to the extent that United States v. Foecking, 22 USCMA 46, 46 CMR 46 (1972), construed Article 57(a), UCMJ, to provide for restoration of forfeitures executed pursuant to an initial action which was set aside, it is inconsistent with the legislative purpose behind Article 75(a), UCMJ, and is overruled; the decision to overrule Foecking case will be prospective only
4. even if the decision to overrule United States v. Foecking, 22 USCMA 46, 46 CMR 46 (1972), is prospective only and not applicable to appellant’s case, appellant was not entitle to restoration of any pay forfeited pursuant to an initial action which was set aside because appellant has provided no documentation to support his claim