United States v. Cowan

32 M.J. 1041, 1991 CMR LEXIS 826, 1991 WL 101394

• Court: U.S. Army Court of Military Review
• Decided: June 10, 1991
• Docket: ACMR 9002323
• Status: Published

Opinions

OPINION OF THE COURT

NAUGHTON, Senior Judge:

The appellant was tried by a military judge sitting as a general court-martial at Fort Hood, Texas. Pursuant to a pretrial agreement, the appellant was convicted of larceny, three specifications of forgery, and two specifications of false swearing, in violation of Articles 121, 123, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 921, 923, and 934 (1982), respectively. Her sentence included a bad-conduct discharge, confinement for fifteen months, forfeiture of all pay and allowances, and reduction to Private E1. The convening authority approved the sentence, but suspended for one year confinement in excess of six months and forfeitures in excess of $724.20. The convening authority specified that the suspension of forfeitures was contingent upon: (1) the initiation of an allotment payable to the appellant’s sister in the amount of $278.40 for the benefit of the appellant’s then six-year-old daughter; and (2) the maintenance of the allotment during the time the appellant is entitled to receive pay and allowances.

Although appellate defense counsel submitted this case without alleging error, we specified the following issue:

WHETHER THE CONVENING AUTHORITY HAS THE AUTHORITY, UNDER THE UNIFORM CODE OF MILITARY JUSTICE AND THE MANUAL FOR COURTS-MARTIAL, 1984, TO APPROVE A SENTENCE WHICH MAKES A SUSPENSION OF FORFEITURES CONTINGENT UPON APPELLANT INITIATING AND MAINTAINING AN ALLOTMENT TO APPELLANT’S SISTER FOR THE BENEFIT OF APPELLANT’S DAUGHTER.

We have concluded that the conditions of suspension imposed on the appellant in this case do not exceed the powers granted to a convening authority under the UCMJ and the Manual for Courts-Martial, United States, 1984.

A convening authority may require as a condition of suspension the support of dependents. The convening authority’s powers regarding conditions of suspension are also broad enough to include the naming of a recipient of the allotment. In other words, because the convening authority has the power to suspend forfeitures on condition the money be used to support the appellant’s dependent, he has the power to require the money be directed specifically to the child’s temporary guardian. We note that the Department of Defense Pay Manual provides, “[a]llotments ... may not be made payable to children under 16 years of age. They may be made payable to the children’s guardian or custodian.” Dep’t of Defense, Military Pay and Allowances-Entitlements Manual, para. 60108 (9 March 1987). Here, the convening authority required that the then guardian of the child be named as that recipient, thus insuring that the money would go directly to the guardian of the appellant’s child.

In the present case, the appellant asked for a method by which she could support her child while she was in confinement. The convening authority provided that method, complete with the safeguards that he thought necessary. In effect, he was permitting her to elect to do what the law requires of all soldiers: to support their dependents. See Army Reg. 608-99, Personal Affairs: Family Support, Child Custody, and Paternity (4 Nov. 1985). Accordingly, we find no violation of Articles 60 and 71, UCMJ, 10 U.S.C. §§ 860, 871, or of Rule for Court-Martial 1108(c), or of public policy in the convening authority’s action.

By this opinion, we do not mean to encourage provisions of suspension such as that utilized in the case before us. We also share the strong reservations of our dissenting Brother that the condition on suspension in this case may present practical problems of interpretation¹ and potential problems of administration, especially if circumstances change regarding the temporary guardian of the appellant’s child.² Although no issues of interpretation, or administration, or changed circumstances have come to our attention in this particular case, a real potential exists with provisions of this sort.

We have considered the assertion raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and find it to be without merit.

The findings of guilty and the sentence are affirmed.³

Judge GRAVELLE concurs.

1 . In the case where such a condition on suspension is made a part of a negotiated plea, transforming the normal two-three page pretrial agreement into a multi-page government-like contract is plain and simple a bad idea, i.e., a court-martial is not a family court.

2 . For example, who monitors the case to insure compliance with the intent of the convening authority? Who can or should modify the provision if circumstances change? How will this be done?

3 . Although total forfeitures were adjudged and approved, the amount forfeited totaled only $724.20 for one month because other forfeitures were suspended. We are unable to determine whether this was the intended result, but will enforce the suspension as written.