United States v. Nelson

22 M.J. 550, 1986 CMR LEXIS 2728

• Court: U.S. Army Court of Military Review
• Decided: March 10, 1986
• Docket: CM 447802
• Status: Published

Opinions

OPINION OF THE COURT

RABY, Senior Judge:

Pursuant to his plea, appellant was convicted of two specifications of fraternization, one specification of conduct unbecoming an officer by engaging in sexual intercourse with the wife of a subordinate, and one specification of conduct unbecoming an officer by wrongfully endeavoring to fraternize by soliciting a male soldier of his command to arrange social engagements with an enlisted female soldier under his command, in violation of Articles 134 and 133, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. §§ 934 and 933 (1982), respectively. Appellant was sentenced to dismissal and to forfeiture of all pay and allowances.

Appellant asserts that the convening authority erred by approving a sentence that included total forfeitures when confinement was not adjudged. Rule for Courts-Martial 1107(d)(2), Discussion, provides, in part, that:

When an accused is not serving confinement, the accused should not be deprived of more than two-thirds pay for any month as a result of one or more sentences by court-martial and other stoppages or involuntary deductions, unless requested by the accused.

(Emphasis added.)

This court recognizes that, although the discussion portion of the Manual for Courts-Martial, United States, 1984 [hereinafter cited as MCM], “does not have the force of law”, it “may be used as secondary authority”. MCM, App. 21, Introduction, A21-3. Unpublished opinions of this court have concluded that it generally is error to deprive an accused of more than two-thirds pay for any month, except as the above MCM Discussion provides. See United States v. Nelson, CM 446858 (A.C.M.R. 7 Aug. 1985) (unpub.); United States v. Johnson, CM 447090 (A.C.M.R. 20 Dec. 1985) (unpub.). However, this court has refused to grant relief in a partial forfeiture case which, although involving forfeitures in excess of the two-thirds limitation, was within the terms of a permissible sentence as contained in a pretrial agreement voluntarily entered between the accused and the convening authority. United States v. Proctor, CM 447120 (A.C.M.R. 19 Aug. 1985) (unpub.).

An accused is not required to use any special format for submitting a request to be deprived of more than two-thirds pay per month for any given month. There exists no fundmentally fairer procedure for submitting such a request than that of a formally-executed and court-examined pretrial agreement.¹ Thus, normally when an accused negotiates with a convening authority for a more severe forfeiture than that allowed by the Department of Defense policy, as reflected in the above MCM Discussion, this court will not interfere.²

However, the Eighth Amendment to the United States Constitution and Article 55, UCMJ, 10 U.S.C.A. § 855, both prohibit the infliction of cruel and unusual punishment. See generally, United States v. Martinez, 19 M.J. 744 (A.C.M.R.1984), pet. denied, 21 M.J. 27 (C.M.A.1985). It is per se cruel and unusual under contemporary standards of decency, within the meaning of Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), to deprive an officer of all pay and allowances without either subjecting him to confinement or immediately releasing him from active duty (under conditions in which he is free to provide to the best of his ability for his own basic human needs).³ Cf. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (If the totality of the circumstances establishes “unquestioned and serious deprivations of basic human needs,” that is, a deprivation of “the minimal civilized measure of life’s necessities,” the Eight Amendment is violated).

An examination of the administrative orders pertaining to appellant, and duly included within the allied papers of the trial record, establish that appellant has been in a “voluntary excess leave” status for several months. An appellant in such a no-pay status is free to seek outside employment; however, an excess leave status — even an involuntary one — can be terminated virtually at will by appropriate military authority, and the appellant promptly returned to active duty. See, e.g., 10 U.S.C. § 876a (Supp. I 1983); Army Regulation 630-5, Personnel Absences: Leaves, Passes, Permissive Temporary Duty, and Public Holidays, paras. 4-7a, 5-4d, 5-4g (C4, 15 Feb. 1982). Therefore, it is appropriate to reassess the sentence to guarantee that appellant will not hereafter be subjected to a return to active duty while laboring under a forfeiture of all pay and allowances.

The findings of guilty are affirmed.

Only so much of the sentence is affirmed as provides for dismissal and forfeiture of $1500.00 pay per month for 36 months.

1 . In his Offer to Plead Guilty, appellant agreed to plead guilty "provided that the convening authority will approve no sentence to confinement. All other punishment imposed may be approved.”

2 . Judge Carmichael is concerned that appellant could not reasonably anticipate this court's decision that the terms of his pretrial agreement would also constitute a request for an exception to the policy limiting forfeitures contained in RCM 1107(d)(2), Discussion. His concern is appreciated, but this opinion remains unaltered. We will, however, publish this opinion to insure that our decision receives maximum distribution to judge advocate and other legal personnel. It is suggested, but not required that future pretrial agreements containing provisions for forfeitures in excess of the policy contained in RCM 1107(d)(2), Discussion, expressly request an exception to this policy.

3 . An officer must pay for his food, uniforms, and quarters, normally using his military pay and allowances to do so.