U.S. v. Lonnette, 62 M.J. 296

Trial Stages: Sentence and Punishment: Forfeitures › Generally

1. 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
2. when an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay

Trial Stages: Appeals: Harmless / Prejudicial Error

1. if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error
2. in this case, appellant failed to meet his burden of demonstrating that he was entitled to pay and allowances when the convening authority approved forfeiture of all pay and allowances after he was released from confinement; the critical data regarding entitlement to pay and allowances involves information that is well within the personal knowledge of members of the armed forces -- that is, the date of release from confinement, the commencement date of any voluntary excess leave, and the termination date of an obligated period of service; to the extent that a servicemember is unable to recall specific dates, the data normally is retained in military records; appellant has not alleged that he was unable to recall these dates, that he attempted to obtain the appropriate military records, or that he was unable to obtain access to any records; he has not provided the information necessary to determine whether he was entitled to pay and allowances on the pertinent dates; accordingly, he has not established prejudice under Article 59(a)
3. in this case, on the date appellant was released from confinement, his duty status was changed to present for duty; however, forty-five minutes later, he was placed on voluntary excess leave; a servicemember on voluntary excess leave is not entitled to pay and allowances; appellant has not presented any evidence that he subsequently entered a status for which he would have been entitled to pay and allowances; assuming that appellant was on active duty for forty-five minutes, the burden is on him to demonstrate that he was entitled to pay and allowances on that date, that forfeitures were erroneously taken, and that if there was error, it was prejudicial; appellant has not done so; the speculative possibility that appellant might have been entitled to an undefined amount of pay and allowances on a single day is not sufficient to establish prejudice under Article 59(a)

Trial Stages: Appeals: Law of the Case

1. if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error
2. in this case, appellant failed to meet his burden of demonstrating that he was entitled to pay and allowances when the convening authority approved forfeiture of all pay and allowances after he was released from confinement; the critical data regarding entitlement to pay and allowances involves information that is well within the personal knowledge of members of the armed forces -- that is, the date of release from confinement, the commencement date of any voluntary excess leave, and the termination date of an obligated period of service; to the extent that a servicemember is unable to recall specific dates, the data normally is retained in military records; appellant has not alleged that he was unable to recall these dates, that he attempted to obtain the appropriate military records, or that he was unable to obtain access to any records; he has not provided the information necessary to determine whether he was entitled to pay and allowances on the pertinent dates; accordingly, he has not established prejudice under Article 59(a)
3. in this case, on the date appellant was released from confinement, his duty status was changed to present for duty; however, forty-five minutes later, he was placed on voluntary excess leave; a servicemember on voluntary excess leave is not entitled to pay and allowances; appellant has not presented any evidence that he subsequently entered a status for which he would have been entitled to pay and allowances; assuming that appellant was on active duty for forty-five minutes, the burden is on him to demonstrate that he was entitled to pay and allowances on that date, that forfeitures were erroneously taken, and that if there was error, it was prejudicial; appellant has not done so; the speculative possibility that appellant might have been entitled to an undefined amount of pay and allowances on a single day is not sufficient to establish prejudice under Article 59(a)

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

1. if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error