United States v. Walker

DECISION

PER CURIAM:

Consistent with his pleas, the accused was convicted by special court- -martial, including members, of two offenses of larceny. The sentence announced was “to be discharged from the service with a bad conduct discharge, to be confined at hard labor for three months, to forfeit $299.00 of your pay for three months, and to be reduced to the grade of E 1.” The convening authority suspended the bad conduct discharge and changed the amount of forfeitures to $200.00 per month for three months but otherwise approved the sentence and ordered it executed. The supervisory authority approved the action of the convening authority.

Appellate defense counsel cite the action of the convening authority as error, contending that the announcement “to forfeit $299.00 of your pay for three months” sets the maximum total amount of forfeiture at $299.00 which the convening authority may not increase. Appellate Government counsel concur and we agree. When an announced forfeiture which does not include the phrase “per month,” is not corrected or clarified on the record; the amount announced is construed to be the total amount *893to be forfeited. United States v. Johnson, 13 U.S.C.M.A. 127, 32 C.M.R. 127 (1962); United States v. Smith, 43 C.M.R. 660 (A.C.M.R.1971).

Consistent with the announced sentence, only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for three months, forfeiture of $299.00, and reduction to airman basic is approved.

The findings of guilty and the sentence, as modified herein, are

AFFIRMED.

DECISION UPON RECONSIDERATION

POWELL, Judge:

This case is now before us on motion by appellate defense counsel for reconsideration of our decision of 20 June 1980.1 There we agreed with an assigned error which was concurred in by the Government counsel. We approved, among other punishments, a forfeiture of $299.00, thus granting the relief requested by the defense. Appellate defense counsel now contend that this amount is excessive and request that the affirmed forfeiture be reduced from $299.00 to $200.00. We reconsider our decision but adhere to it and again affirm.

At trial, the court president announced the sentence of the court as follows:

To be discharged from the service with a bad conduct discharge, to be confined at hard labor for three months, to forfeit $299.00 of your pay for three months, and to be reduced the grade of E — 1.

The sentence worksheet, which was examined by the military judge prior to announcement, reflects as the portion pertaining to forfeitures a sentence “To forfeit $299.00 of your pay per month for 3 months.” The convening authority, without indicating his rationale, approved only so much of the sentence as provided for “a bad conduct discharge, confinement at hard labor for three months, forfeitures of $200.00 per month for three months and reduction to the grade of Airman Basic.” He suspended the discharge until 15 August 1980 with provision for automatic remission thereafter.

The review of the staff judge advocate of the supervisory authority failed to note the omission of the words “per month” from the announced sentence and considered the adjudged sentence to include “forfeiture of $299.00 per month for three months.” The action of the convening authority reducing the forfeitures to $200.00 per month for three months was acknowledged. The review and the court-martial order incorrectly reflect the adjudged sentence as including forfeitures of $299.00 per month for three months. In his action, the supervisory authority approved the sentence as approved by the convening authority.

The defense’s contention is essentially that the maximum forfeiture that this Court may affirm is $200.00, the monthly amount approved by the convening and supervisory authorities. They offer two propositions in support of their contention. One is that the convening authority cannot approve a sentence more severe than that adjudged and this Court can act only with respect to the sentence as approved by the convening authority.2 The second proposition is that the Court’s approval of a forfeiture of $299.00 precluded any mitigating effect on the accused’s sentence which the convening authority intended by his action.

In our initial decision, we were constrained under the facts of this case and the authority of United States v. Johnson, 13 U.S.C.M.A. 127, 32 C.M.R. 127 (1962), to construe the forfeiture portion of the adjudged sentence as setting the maximum amount which could be forfeited at $299.00. Appellate defense counsel now reason that the action of the convening authority limits the maximum amount which can be forfeited to $200.00 because the adjudged sentence, in omitting the words “per month” *894not only defined a monetary limit ($299.00), but also a time limit (one month). Although early Air Force Board of Review cases were in accord with this position, they were overruled by the Court of Military Appeals in United States v. Rios, 15 U.S.C.M.A. 116, 35 C.M.R. 88 (1964). Legally, the convening authority could have ordered the $299.00 forfeited all in one month, or he could have apportioned it over any period of time up to that specified by the adjudged sentence. Id. His election to apportion forfeitures over the three month period specified by the court-martial did not increase the severity of the adjudged sentence. What increased the severity of the adjudged sentence was the approval of forfeitures in excess of $99.00 after the forfeiture of $200.00 in the first month. By inserting the words “per month,” the convening authority approved aggregate forfeitures of $600.00.3 This amount, subsequently approved by the supervisory authority, did not reduce the aggregate forfeitures in the adjudged sentence. Thus, in our earlier decision we approved no greater forfeitures than the lesser of that adjudged or approved.

The next defense proposition does not detain us long. We are convinced that the convening authority, if either intending to mitigate the effect of the sentence or to exercise clemency, was doing so only in relation to a sentence which he believed included a forfeiture of $299.00 per month for three months-forfeitures totaling $897.00. This Court was the first reviewing authority to give legal definition to the effect of the sentence adjudged as announced. Had the convening authority been similarly advised of these limits on the sentence, and what action he could take in regard thereto, we have no hesitancy in concluding that his action on the sentence would not have been in the form in which it presently appears. At this time, we will not speculate as to the convening authority’s intention as influenced by such incorrect and incomplete information.

In view of the foregoing, the Motion for Reconsideration is granted. Having reconsidered, we adhere to our decision of 20 June 1980. The findings, and so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for three months, forfeiture of $299.00, and reduction to airman basic are

AFFIRMED.

EARLY, Chief Judge, concurs.

. Appellate Government counsel do not oppose the motion for reconsideration.

. Manual for Courts-Martial, 1969 (Rev.), paragraph 88a; Uniform Code of Military Justice, Article 66(c), 10 U.S.C. § 866(c).

. In view of the legal effect of the adjudged sentence, and with due regard for the Air Force policy requiring partial forfeitures to be stated in whole-dollar amounts, the convening authority could have approved three equal monthly forfeitures in an amount no greater than $99.00.