United States v. Adney

61 M.J. 554, 2005 CCA LEXIS 125, 2005 WL 995332
CourtArmy Court of Criminal Appeals
DecidedApril 29, 2005
DocketARMY 20030048
StatusPublished
Cited by5 cases

This text of 61 M.J. 554 (United States v. Adney) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adney, 61 M.J. 554, 2005 CCA LEXIS 125, 2005 WL 995332 (acca 2005).

Opinions

OPINION OF THE COURT

SCHENCK, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of carnal knowledge, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for fourteen months, and reduction to Private El, but disapproved the adjudged forfeiture of all pay and allowances. This case is before the court for review under Article 66(c), UCMJ, 10 U.S.C. § 866(c).

Appellate defense counsel assert two assignments of error. One merits discussion and relief. We agree with appellate defense counsel that the post-trial documentation is ambiguous regarding whether the convening authority waived appellant’s automatic forfeitures.1 2Because the parties agree that the convening authority intended to waive automatic forfeitures at initial action for six [555]*555months, we will implement the convening authority’s intent in our decretal paragraph.2

FACTS

On 16 January 2003, the day appellant’s sentence was adjudged, his trial defense counsel submitted a written request to “defer [appellant’s] adjudged forfeitures ... until final action” in accordance with Article 57(a)(2), UCMJ, 10 U.S.C. § 857(a)(2). That defense request also asked that the convening authority “waive automatic forfeitures for a period of six (6) months and direct [payment to Mrs. Jennifer Adney]” in accordance with Article 58b(b), UCMJ, 10 U.S.C. § 858b(b).3

In a 24 January 2003 memorandum response to trial defense counsel’s request, the convening authority wrote:

1. I have received your request, dated 16 January 2003, to waive the adjudged forfeitures announced as part of PFC Adney’s court-martial sentence until I take final action on this case and to waive the automatic forfeitures under Article 58b(b) for six (6) months.
2. I have considered the factors contained in both [Rule for Courts-Martial [hereinafter R.C.M.]] 1101(c)(3) and (d)(2). Your request to defer the adjudged forfeitures is granted. Additionally, I direct that execution of the automatic forfeitures be deferred until I take final action on this case, but not to exceed a period of six (6) months from the effective date of the sentence pursuant to Article 57(a).
3. Pursuant to Article 58b(b), all pay and allowances will be directed to Jennifer Ad-ney.

(Emphasis added). The Chief of Military Justice, in a 21 February 2003 memorandum to the finance office, forwarded the convening authority’s memorandum and declared that “[t]he convening authority deferred execution of the forfeitures on 24 January 2003 ... and directed pay and allowances to PV1 Adney’s spouse” (emphasis added).

In a 4 April 2003 defense submission made pursuant to R.C.M. 1105, appellant’s trial defense counsel asserted that the convening authority already approved the deferment of appellant’s adjudged forfeitures, directing payment to Mrs. Jennifer Adney. Therein, trial defense counsel again requested that the convening authority “waive the forfeiture of [appellant’s] pay and allowances at ... Action for a period of six months, directing that such pay and allowances be remitted to his wife, Mrs. Jennifer Adney” because Mrs. Adney and her infant daughter’s financial situation had worsened. The defense submission did not raise any issue with respect to the executed deferred forfeitures.

The staff judge advocate’s (SJA) post-trial recommendation (SJAR) and the addendum to the SJAR do not mention the convening authority’s 24 January 2003 memorandum or any of the prior actions taken with respect to appellant’s adjudged and automatic forfeitures. The addendum lists the R.C.M. 1105 request for waiver of forfeitures as an enclosure. The SJA recommended that the convening authority approve the sentence as adjudged. In his initial action dated 2 May 2003, the convening authority disapproved adjudged forfeitures, but otherwise approved the sentence as adjudged.4

[556]*556Appellate counsel agree, in addition to granting a deferment of all forfeitures, the convening authority granted a waiver of automatic forfeitures for six months beginning 2 May 2003. Because the parties have not raised the issue of remuneration with respect to the execution of deferred forfeitures, we herein limit our analysis to the execution of the waiver of automatic forfeitures.

DISCUSSION

There are two distinct types of forfeiture of pay and allowances. “The first category— adjudged forfeitures — involves forfeitures that may be included in a sentence adjudged at a court-martial ... [T]he second category — [automatic] forfeitures — are not part of the court-martial sentence, but apply as a collateral consequence of specified sentences ----” Emminizer, 56 M.J. at 442.

A convening authority may defer adjudged forfeitures until action and then at action may approve, disapprove, suspend, or modify adjudged forfeitures. See id. at 442-45; see also UCMJ arts. 57 and 60,10 U.S.C. §§ 857 and 860. Unlike Article 58b(b), UCMJ, however, Article 57, UCMJ, does not contain any provision for the convening authority to direct payment to dependents when deferring forfeitures.5 In appellant’s ease, the convening authority’s 24 January 2003 memorandum before initial action properly executed a deferment of all forfeitures until action;6 however, the Chief of Military Justice stated that payment of the deferred forfeitures would go to appellant’s spouse.

A convening authority’s discretion over automatic forfeitures is limited to: (1) deferring all or part of the automatic forfeitures for any period of time until initial action; and/or (2) before or after action, waiving all or part of the automatic forfeitures for six months or less, directing payment to an accused’s dependents. Emminizer, 56 M.J. at 443-45. If an accused is still subject to automatic forfeitures at initial action, and the convening authority intends to waive automatic forfeitures for the purpose of directing payment of automatic forfeitures to a dependent, the convening authority cannot approve an adjudged forfeiture of all pay and allowances. See id. at 445; United States v. LaJaunie, 60 M.J. 280, 281 (C.A.A.F.2004).

In appellant’s case, appellant was still subject to automatic forfeitures at initial action because he remained in confinement. See note 3, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 554, 2005 CCA LEXIS 125, 2005 WL 995332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adney-acca-2005.