Forfeiture of pay and allowances. RCM 1003(b)(2)

  • uscourtmartiallawyers147Adjudged Forfeitures. At a general court-martial (GCM), the court may adjudge forfeiture of ALL pay and allowances (a.k.a., “total forfeitures”). At a special court- martial (SPCM), the court may adjudge forfeiture of 2/3 pay only. Allowances at a special court-martial are NOT subject to forfeiture.
  • Automatic Forfeitures (). Confined soldiers from GCMs shall, subject to conditions below, forfeit all pay and allowances due them during confinement or parole. Soldiers confined as a result of SPCMs, subject to conditions below, shall forfeit 2/3 pay during confinement. Sentences covered are those which include:
    1. Confinement of MORE THAN 6 months, or death, or
    2. ANY confinementa punitive discharge.
  • Art. 58b, UCMJ, waiver. If an accused has dependents, the convening authority may any/all AUTOMATIC (i.e., Art. 58b, UCMJ) forfeitures for a period not to exceed six (6) months, with money waived to be paid to the dependents of the accused. Adjudged forfeitures may NOT be waived. See also, RCM 1101(d).
  • Effective date of forfeitures (). ANY forfeiture of pay or allowances (or adjudged reduction) in a court-martial sentence takes effect on the earlier of:
    1. fourteen (14) days after sentencing, or
    2. the date on which the CA approves the sentence.
  • Deferment of forfeitures. On application of accused, CA may forfeiture (and reduction and confinement) until approval of sentence; but CA may rescind such deferral at any time. Deferment ceases automatically at action, unless sooner rescinded. Rescission prior to action entitles accused to minimal due process. See RCM 1101(c).
  • United States v. Short , 48 M.J. 892 (A.F. Ct. Crim. App. 1998). The court finds ineffective assistance of counsel when DC failed to make timely request for deferment or waiver of automatic forfeitures, notwithstanding recommendation of military judge that convening authority waive such forfeitures. Defense counsel relied on SJA office to process action for deferment and waiver.
  • United States v. Clemente , 46 M.J. 715, 719 (A.F. Ct. Crim. App. 1997). The CA has broad discretion in deciding to waive forfeitures, and need not explain his decision to an accused. Unlike a request for deferment of confinement, an accused does not have standing to challenge the CA’s decision as to waiver of forfeitures.
  • United States v. Zimmer , 56 M.J. 869 (Army Ct. Crim. App. 2002). Error for the CA to deny the defense deferment request in a one-sentence action without providing reasons for the denial. Court set aside four months of confinement and the adjudged forfeitures.
  • United States v. Dewald , 39 M.J. 901 (A.C.M.R. 1994). Forfeitures may not exceed two-thirds pay per month during periods of a sentence when an accused is not in confinement. Accordingly, during periods that adjudged confinement is suspended, forfeitures are limited to two-thirds pay per month. See RCM 1107(d)(2), discussion. 10. Partial forfeitures. Unless total forfeitures are adjudged (i.e., forfeiture of ALL pay and allowances), partial forfeitures MUST be stated in whole dollar amounts for a specific number of months and the number of months the forfeitures will last. RCM 1003(b)(2). 11. Forfeitures are calculated at reduced pay grade WHETHER suspended or not. United States v. Esposito , 57 M.J. 608 (C.G. Ct. Crim. App. 2002). See also RCM 1003(b)(2). 12. United States v. Stewart , 62 M.J. 291 (2006). Where a sentence to forfeiture of all pay and allowances is adjudged, such sentence shall run until such time as the servicemember is discharged or returns to a duty status, whichever comes first, unless the sentencing authority expressly provides for partial forfeitures post-confinement.

RCM 1003(b)(2)

United States v. Zimmer