U.S. v. Stewart, 62 M.J. 291

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. it is settled law that an accused cannot be subjected to a sentence greater than that adjudged by the members; moreover, where a sentence is ambiguous or uncertain, as a matter of fundamental fairness an accused cannot be subject to a sentence greater than that which is clearly indicated
2. sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them; a sentence that is so ambiguous that a reasonable person cannot determine what the sentence is may be found illegal; however, not all ambiguous sentences are illegal; a sentence need not be so clear as to eliminate every doubt, but sentences should be clear enough to allow an accused to ascertain the intent of the court or of the members

Trial Stages: Sentence and Punishment: Forfeitures › Generally

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