United States v. Conley

16 M.J. 898, 1983 CMR LEXIS 805

• Court: United States Court of Military Appeals
• Decided: August 16, 1983
• Docket: CM 443804
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

The appellant was convicted of a series of assaults and communicating threats in violation of Articles 128 and 134, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. §§ 928 and 934 (1976). The adjudged sentence in addition to confinement at hard labor, included “forfeiture of all pay and allowances.” The convening authority approved the sentence but stated in his action, “the forfeitures shall apply to pay becoming due on and after the date of this action”. The issue is whether the forfeitures apply to the appellant’s allowances as well as to his pay. We hold that they do.

Under the provision of Article 57(a), UCMJ, 10 U.S.C. § 857(a), the convening authority is authorized to determine whether forfeitures will be applied at the time of his action. If he does not include in his action any direction concerning his desires as to the application of forfeitures, then the forfeitures are automatically applied on and after the date he approves the sentence. Paragraph 88d(3), Manual for Courts-Martial, United States 1969 (Revised edition) [hereinafter cited as Manual]; United States v. Schumacher, 30 C.M.R. 895 (AFBR), petition denied, 12 U.S.C.M.A. 743, 30 C.M.R. 417 (1961). The convening authority’s omission of comment as to allowances in ordering the forfeitures applied is an inadvertance. His action was not ambiguous in view of his approval of the sentence and the Manual provision that forfeitures will be applied in these circumstances unless the action on the sentence expressly provides otherwise. We find that the forfeitures in this case are applicable to both pay and allowances becoming due on and after the date of the convening authority’s action.

The findings of guilty and the sentence are affirmed.