United States v. Whitaker

3 M.J. 955, 1977 CMR LEXIS 734

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: July 26, 1977
• Docket: NCM 77 0987
• Status: Published

Opinions

NEWTON, Senior Judge:

The appellant is convicted of an unauthorized absence in excess of 3 years duration. Article 86, Uniform Code of Military Justice.

At trial the appellant was sentenced to a punitive discharge and reduction from pay grade E-4 to pay grade E-l. The convening authority suspended execution of the punitive discharge and ordered the sentence executed. The supervisory reviewing authority approved that sentence, and further suspended the reduction in pay grade for 1 year after his action with provision for automatic remission. He then provided that his action was not to be construed as entitling the accused to pay and allowances for pay grade E-4 between the date of the convening authority’s action and the date of the supervisory reviewing authority’s action-some 5 months.

While there is no doubt that the supervisory reviewing authority may suspend execution of a reduction in pay grade which is part of a court-martial sentence, he has no authority to deprive the appellant of pay when so doing, unless at the same time he commutes the reduction in pay grade to some lesser punishment such as suspended reduction and to forfeitures of pay or a fine. United States v. Johnson, 12 U.S.C.M.A. 640, 31 C.M.R. 226 (1962). The reason: suspension must relate back to the instant of execution of the sentence. It is the execution of a sentence which may be suspended. Articles 71 and 74, UCMJ, 10 U.S.C. §§ 871, 874; Manual for Courts-Martial, United States, 1969 (revised edition), paras. 88, 97 and 105, JAGMAN 0129. If the execution of reduction in pay grade is suspended, the appellant remains in the prior pay grade, and he is entitled to pay and allowances at that grade absent some authorized action requiring forfeiture of pay or fine. MCM, 1969 (Rev.), para. 126.

There is no provision in the law for taking money from an accused at court-martial, except by executed reduction in pay grade which results in lower pay, or forfeiture, or fine, or detention of pay, or commutation of a more severe sentence to one of those actions.¹ None of those lawful procedures were accomplished. Inasmuch as the reviewing authority’s action deprives the appellant of pay to which he was otherwise entitled, without following lawfully authorized procedures, that action is unlawful. Simply stated, a deprivation of property without due process of law will occur if the action is affirmed in its present form. The reviewing authority may only act as authorized by statute relating to suspension of execution of a court-martial sentence. Any strained logic to the contrary totally misconstrues the holding in United States v. Silvernail, No. 76 0314, 1 M.J. 945 (N.C.M.R. 13 May 1976). See dissenting opinion hereto.

The action of the supervisory reviewing authority is, at least, ambiguous. It is unlawful if it deprives the appellant of his property without due process of law, as it will if literally applied, for it does not conform to authorized means of deprivation of money. On the other hand, if commutation of the sentence was intended by the action, it is not indicated with sufficient clarity to overcome the potential illegality. Compare United States v. Freeman, 46 C.M.R. 965 (A.C.M.R. 1972).

Finally, it is noted that the supervisory reviewing authority has not fully complied with the specific recommendation of the staff judge advocate (p. 9), that the reduction in rate be suspended with no mention of pay loss. No justification letter is attached to the record, as required by the holding in United States v. Keller, 23 U.S.C.M.A. 545, 50 C.M.R. 716, 1 M.J. 159 (1975), to explain the divergence from the sentence recommendation.

To clarify the ambiguity in the supervisory reviewing authority’s action, meet the requirements of the law concerning deprivation of pay, and cure the error precipitated by lack of a justification letter concerning the staff judge advocate’s recommendation as to sentence, the sentence will be reassessed and modified.

Accordingly, the findings and only so much of the sentence as provides for a bad conduct discharge and reduction to pay grade E-l, both suspended until 19 August 1977, and forfeiture of $150 per month for 5 months are affirmed.

Judge DUNBAR concurs.

1 . MCM, 1969 (Rev.), paras. 88, 94, 97, 126 and 127; JAGMAN 118; Johnson, supra.