UNITED STATES, Appellee
v.
Shawn M. PROMIN, Instrumentman Second Class
U.S. Navy, Appellant
No. 00-0227
Crim. App. No. 98-0929
United States Court of Appeals for the Armed Forces
Argued November 15, 2000
Decided April 25, 2001
COX, S.J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and BAKER, JJ.,
joined.
Counsel
For Appellant: Captain Curtis M. Allen, USMC (argued).
For Appellee: Major Mark K. Jamison, USMC (argued); Colonel
Marc W. Fisher, Jr., USMC, and Lieutenant Commander Philip
L. Sundel, JAGC, USNR (on brief); Colonel Kevin M.
Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN.
Military Judge: Peter J. Straub
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Promin, No. 00-0227/NA
Senior Judge COX delivered the opinion of the Court.
Appellant was sentenced by a general court-martial to
be confined for 4 years and to receive a dishonorable
discharge. The court-martial did not impose a forfeiture
of pay and allowances as part of the adjudged sentence.
Subsequently, appellant forfeited all of his pay and
allowances by operation of law. See Art. 58b, Uniform Code
of Military Justice, 10 USC § 858b. He claims on appeal
that the subsequent forfeiture of his pay and allowances
violates the Double Jeopardy Clause of the Fifth Amendment
to the Constitution of the United States (see also Art. 44,
UCMJ, 10 USC § 844).1 We hold that neither the Double
Jeopardy Clause nor Article 44 prohibits the forfeiture of
pay and allowances imposed by operation of Article 58b.
In United States v. Gorski, 47 MJ 370 (1997), we
observed that the forfeiture of pay and allowances has long
been recognized as punishment for military offenders.
Thus, we found that the application of automatic forfeiture
of pay and allowances to crimes and offenses committed
prior to the enactment of Article 58b violated the Ex Post
Facto Clause of Article I, § 9 of the Constitution. In
1
The granted issue is:
WHERE THE COURT-MARTIAL’S SENTENCE DID NOT INCLUDE FINES OR
FORFEITURES, DOES THE ADDITIONAL PUNISHMENT OF FORFEITURES BY
OPERATION OF ARTICLE 58b, UCMJ, VIOLATE THE DOUBLE JEOPARDY
CLAUSE OF THE UNITED STATES CONSTITUTION?
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United States v. Promin, No. 00-0227/NA
dicta, we also recognized that prospective application of
the statute would be permissible. 47 MJ at 374. This is
because the fact that a statute provides for unlawful ex
post facto punishment does not mean that the punishment
would be unlawful prospectively. There is no prohibition
against requiring the mandatory forfeiture of pay and
allowances as a consequence of a court-martial sentence.
“Double Jeopardy” means that an offender is “subject,
for the same offense, to be twice put in jeopardy.” U.S.
Const. amend V. In this case, appellant has not been twice
put in jeopardy. All of the punishment that he has
suffered, including the automatic forfeiture of pay and
allowances, arose out of and was caused by his single
court-martial. There has been only one proceeding, as a
result of which appellant has received multiple punishments
as authorized and intended by Congress. “With respect to
cumulative sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359,
366 (1983).
Because we find no violation of the Double Jeopardy
Clause, we need not consider the Government’s contention
that the imposition of forfeitures required by Article 58b
3
United States v. Promin, No. 00-0227/NA
is merely an “administrative consequence” of the court-
martial sentence. Nor do we address the Government’s
contention that we have no jurisdiction over the case
before us because the forfeiture is a “collateral result”
of the sentence. We rejected this approach to forfeiture
of pay and allowances in Gorski, and we need not plow that
ground again.
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.
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