(dissenting):
It is axiomatic that statutes on the same subject matter must be considered together. Accordingly, I do not share the implied view that if the provisions of Section 3636, Title 10 of the United States Code, are in conflict with the Uniform Code of Military Justice, the conflict must be decided in another forum. It is the responsibility of this Court to review the issues of law which affect the legality of the accused’s conviction and his sentence.
Congress has always provided for the amount and conditions under which pay and allowances are granted to military personnel. It has also provided for the imposition of forfeitures by the sentence of a court-martial. See United States v Landers, 92 US 77, 23 L ed 603 (1876) ; Ex parte Mason, 105 US 696, 26 L ed 1213. Before 1914, in a case in which an enlisted accused was sentenced to a dishonorable discharge and confinement, it was the usual practice to execute the discharge so as formally to separate the accused from the Army before he entered upon the service of his confinement. To accomplish that result, the sentence of the court-martial normally provided that the accused be discharged with forfeiture of his pay and allowances and then confined. See ex parte Mason, supra; Winthrop, Military Law and Precedents, 2d ed, 1920 reprint, pages 403-4. In such cases, the sentence became final and was carried into execution immediately upon approval by the officer who convened *87the court. Under existing law, the reviewing authority was empowered to “pardon or mitigate” the punishment adjudged by the court-martial, but he had no authority to suspend execution of the whole or any part of the sentence. Articles of War 104, 105, 109, 112. Cf. Article of War 111 (relating to a sentence of death or to the dismissal of an officer). This situation was changed by the Act of April 27, 1914, 38 Stat 354. By that act, the reviewing authority was authorized to suspend the execution of a dishonorable discharge until the accused’s release from confinement.
Some months after the 1914 act, a question arose as to the effect of the suspension of the discharge on the forfeitures that were adjudged as part of the sentence. The Judge Advocate General of the Army ruled that the suspension of the discharge left the accused entitled to pay during the period of his confinement. He, therefore, recommended that the form of the sentence to forfeitures be changed to read: “To forfeit all pay and allowances due or to become due while undergoing confinement in pursuance of this sentence.” Dig Op JAG 72-214, 1912-1917, page 428. Shortly thereafter, the Comptroller of the Treasury agreed with this ruling “because the sentence to dishonorable discharge to which forfeiture was an incident was not yet effective by reason of suspension during confinement.” The Comptroller went on to say that when, after the suspension, there is execution of the dishonorable discharge, it “carries with it” forfeiture of all pay, including that earned in confinement. In my opinion, Congress intended to settle the ramifications of this problem by the Act of March 4, 1915, 38 Stat 1065. By that act it provided that “hereafter pay and allowances shall not accrue” while the soldier is under a suspended dishonorable discharge. Thus, Congress changed the situation from one of forfeiture of pay earned to one of no pay. It thereby eliminated a useless formality. It no longer required that the accused be credited with pay during the period of suspension, that the pay be kept separate until the end of the suspension, and that it then be returned to the Treasury as a forfeiture upon execution of the discharge. Cf. Dig Op JAG 251, April 1918, page 21.
Common sense indicates that when no pay is earned, there can be no forfeiture of pay. It can, therefore, be argued that the one is not necessarily incompatible with the other. See 25 Comp Gen 26; 24 Comp Dec 621, cited in Dig Op JAG, May 1918, page 74; Dig Op JAG 250.4, August 1918, page 169. However, when both a nonpay status and a forfeiture of pay result from the same sentence, it seems to me that the two are so inextricably interwoven as to require consideration as a single unit.
In an appropriate case, a court-martial must, in my opinion, be advised that, if it adjudges a dishonorable discharge and confinement, the accused is no longer entitled to any pay. Only then can the court know that a determination to adjudge partial forfeitures, and thus preserve for the accused part of his pay until his separation from the service, can have no effect. Only then can the court know that partial forfeitures are, for all practical purposes, inoperative when coupled with a dishonorable discharge and confinement. Of course, the reviewing authority can later disapprove or remit the discharge, restore the accused to a pay status, and thereby give effect to the court-martial’s determination of partial forfeitures. However, a court-martial cannot predicate its sentence upon speculation as to what the reviewing authority will do. It must base its decision upon the law and the facts presented to it in open court. And, if the instructions it receives are inadequate, it cannot make an intelligent determination of an appropriate sentence.
Here, the accused made a strong case for the imposition of less than total forfeitures. His entire effort was doomed to failure unless the court-martial knew that if it adjudged a dishonorable discharge and confinement, it could not give practical and complete effect to its .determination to impose only partial forfeitures because that kind of sentence automatically deprived the ac*88cused of all pay and allowances by putting him into a nonpay status. Had the court-martial received such advice, under the hardship showing made by the accused, it might have decided to impose a bad-conduct discharge instead of a dishonorable discharge. Thus, it could avoid the provisions of 10 USC § 3636 (the successor to Act of March 4,1916) and give practical meaning and effect to its sentence. In my opinion, the circumstances here show clearly that the accused was prejudiced by the law officer’s failure to instruct the court-martial on the provisions of the cited statute. I would, therefore, set aside the sentence and order a rehearing as to it.