                         UNITED STATES, Appellee

                                         v.

                   Sharvenckie R. LONNETTE, Sergeant
                          U.S. Army, Appellant

                                  No. 05-0242
                         Crim. App. No. 20020349

       United States Court of Appeals for the Armed Forces

                         Argued October 19, 2005

                        Decided January 24, 2006

EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.


                                     Counsel


For Appellant: Captain Scott T. Ayers (argued); Colonel Mark
Cremin, Captain Rob W. MacDonald, and Captain Charles L.
Pritchard Jr. (on brief); Lieutenant Colonel Mark Tellitocci,
Lieutenant Colonel Kirsten V. C. Brunson, Major Allyson G.
Lambert, and Major Billy B. Ruhling II.


For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Captain
Edward Wiggers (on brief); Lieutenant Colonel Virginia G.
Beakes.


Military Judges:    Debra L. Boudreau and Michael D. Neveu



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lonnette, No. 05-0242/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of indecent assault and false swearing in violation of Article

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934

(2000).   The adjudged sentence included a bad-conduct discharge,

confinement for ten months, forfeiture of all pay and

allowances, and reduction to the lowest enlisted grade.    The

convening authority approved the findings, reduced the period of

confinement by one month, and approved the balance of the

sentence.   In an unpublished opinion, the United States Army

Court of Criminal Appeals affirmed the findings and sentence.

United States v. Lonnette, No. ARMY 20020349 (A. Ct. Crim. App.

Nov. 30, 2004).

     On Appellant’s petition, we granted review of the following

issue:

            WHETHER THE CONVENING AUTHORITY IMPROPERLY
            APPROVED FORFEITURE OF ALL PAY AND
            ALLOWANCES WHERE APPELLANT HAD ALREADY
            COMPLETED HIS SENTENCE TO CONFINEMENT AT THE
            TIME THE CONVENING AUTHORITY TOOK ACTION.

For the reasons set forth below, we affirm the decision of the

Army Court of Criminal Appeals.




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                             I. BACKGROUND

     Appellant, who was sentenced on April 8, 2002, was released

from confinement on December 6, 2002.    Approximately six weeks

later, on January 16, 2003, the convening authority took his

formal action on the findings and sentence.   The sentence, as

approved by the convening authority, included forfeiture of all

pay and allowances.

     According to Appellant, the convening authority erred by

approving forfeiture of all pay and allowances after he was

released from confinement.    See United States v. Warner, 25 M.J.

64, 67 (C.M.A. 1987); Rule for Courts-Martial (R.C.M.)

1107(d)(2) Discussion (“When an accused is not serving

confinement, the accused should not be deprived of more than

two-thirds pay . . . .”).    Noting that he was no longer in

confinement at the time the convening authority approved the

sentence, Appellant contends that he was entitled to “some pay

once he was out of confinement, if in the appropriate leave

status.”



                            II. DISCUSSION

     Under Article 58b(a), UCMJ, 10 U.S.C. § 858b (2000), a

servicemember sentenced by a general court-martial to

confinement for more than six months is subject to forfeiture of

all pay and allowances during the period of confinement.   Once


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the servicemember is released from confinement, entitlement to

pay is dependent on a number of factors, such as whether the

servicemember’s term of service expired and whether the

servicemember has been required to take appellate leave.    See

United States v. Fischer, 61 M.J. 415, 419 (C.A.A.F. 2005);

Article 76a, UCMJ, 10 U.S.C. § 876a (2000); Dep’t of Defense

Financial Management Regulations (DoD FMR), vol. 7A, subpara.

010301.F.1 (2005); see also United States v. Stewart, 62 M.J. __

(C.A.A.F. 2006)(setting forth considerations applicable to the

imposition of forfeitures following release from confinement).

A forfeiture is not a fine.   A forfeiture is deducted from a

servicemember’s pay and allowances only if the member is

otherwise entitled to such compensation.    See R.C.M. 1003(b)(2);

R.C.M. 1003(b)(2) Discussion.   If a servicemember on appeal

alleges error in the application of a sentence that involves

forfeitures, the servicemember must demonstrate that the alleged

error was prejudicial.   See Article 59(a), 10 U.S.C. § 859(a)

(2000).   To establish prejudice, an appellant bears the burden

of demonstrating that he or she was entitled to pay and

allowances at the time of the alleged error.

     In this case, Appellant has not met this burden.     The

critical data regarding entitlement to pay and allowances

involves information that is well within the personal knowledge

of members of the armed forces -- that is, the date of release


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from confinement, the commencement date of any voluntary excess

leave, and the termination date of an obligated period of

service.   To the extent that a servicemember is unable to recall

specific dates, the data normally is retained in military

records.   Appellant has not alleged that he is unable to recall

these dates, that he attempted to obtain the appropriate

military records, or that he was unable to obtain access to any

records.   He has not provided the Court with the information

necessary to determine whether he was entitled to pay and

allowances on the pertinent dates.   Accordingly, Appellant has

not established prejudice under Article 59(a).

     Following oral argument, the Government submitted to the

Court a document indicating that at 0900 hours on December 6,

2002 -- the date Appellant was released from confinement -- his

duty status was changed to “Present for Duty.”   According to a

previously submitted separate document, Appellant was placed on

voluntary excess leave forty-five minutes later.   A

servicemember on voluntary excess leave is not entitled to pay

and allowances.   DoD FMR, vol. 7A, subpara 010301.E (2005).

Appellant has not presented any evidence that he subsequently

entered a status for which he would have been entitled to pay

and allowances.

     Appellant, in support of the Government’s post-oral

argument motion to attach the document concerning his change of


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circumstances on December 6, 2002, suggests that he was placed

in a pay status on that day.   Appellant, however, has not

addressed the fact that the documents indicate that he was on

active duty for no more than forty-five minutes.   Assuming that

Appellant was on active duty for forty-five minutes on December

6, the burden is on Appellant to demonstrate that he was

entitled to pay and allowances on that date, that forfeitures

were erroneously taken, and that if there was error, it was

prejudicial.   Appellant has not done so.   If the defense

believes that Appellant was entitled to pay and allowances on

December 6, 2002, that matter can be resolved through

appropriate administrative channels.   Under the circumstances of

this case, the speculative possibility that Appellant might have

been entitled to an undefined amount of pay and allowances on a

single day is not sufficient to establish prejudice under

Article 59(a).



                          III. CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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