U.S. v. Emminizer, 56 M.J. 441

Trial Stages: Sentence and Punishment: Forfeitures › Generally

1. 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
2. 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
3. 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
4. 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)
5. 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
6. 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

Trial Stages: Sentence and Punishment: Forfeitures › Adjudged

1. 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
2. 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

Trial Stages: Sentence and Punishment: Forfeitures › Mandatory

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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
7. 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

Trial Stages: Initial Review: Post-trial Recommendation

1. 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
2. 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

Trial Stages: Initial Review: Action

1. 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

Trial Stages: Initial Review: Deferral

1. 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