                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                      Robert W. EMMINIZER, Specialist
                            U.S. Army, Appellant

                                     No. 01-0712
                            Crim. App. No. 20000201

             United States Court of Appeals for the Armed Forces

                                Argued March 20, 2002

                                 Decided May 10, 2002

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


                                        Counsel

For Appellant: Captain Terri J. Erisman (argued); Colonel Adele H. Odegard,
     Lieutenant Colonel E. Allen Chandler, and Major Imogene M. Jamison (on
     brief).



For Appellee: Captain Tami L. Dillahunt (argued); Colonel Steven T. Salata,
     Major Margaret B. Baines, and Major Paul T. Cygnarowicz (on brief).



Military Judge:   James J. Smith




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Emminizer, No. 01-0712/AR




   Judge EFFRON delivered the opinion of the Court.

   A general court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of larceny by

false pretenses (four specifications) and making a false claim

(three specifications), in violation of Articles 121 and 132,

Uniform Code of Military Justice (UCMJ), 10 USC §§ 921 and 932,

respectively.   He was sentenced to a bad-conduct discharge,

confinement for eighteen months, forfeiture of all pay and

allowances, and reduction to the grade of Private E-1.   The

convening authority approved these results, and the Court of

Criminal Appeals affirmed in an unpublished opinion.

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

issue:

          WHETHER THE STAFF JUDGE ADVOCATE'S ADDENDUM
          AND THE CONVENING AUTHORITY'S ACTION
          ERRONEOUSLY INTERPRETED AND APPLIED ARTICLES
          57(a) AND 58b, UCMJ, AND, IF SO, WHETHER
          APPELLANT WAS PREJUDICED. Compare United
          States v. Kolodjay, 53 MJ 732 (Army
          Ct.Crim.App. 1999), with United States v.
          Owens, 50 MJ 629 (AF Ct.Crim.App. 1998).

For the reasons discussed below, we return the case for a new

convening authority's action.




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United States v. Emminizer, No. 01-0712/AR


         I. BACKGROUND - FORFEITURE OF PAY AND ALLOWANCES

     There are two distinct types of forfeiture of pay and

allowances at issue in this case.     The first category --

adjudged forfeitures -- involves forfeitures that may be

included in a sentence adjudged at a court-martial.     See RCM

1003(b)(2), Manual for Courts-Martial, United States (2000 ed.).

Forfeitures in the second category -- mandatory forfeitures --

are not part of the court-martial sentence, but apply as a

collateral consequence of specified sentences during designated

periods of confinement or parole.     See Art. 58b(a), UCMJ, 10 USC

§ 858b(a).   The following summarizes applicable considerations

with respect to both types of forfeitures.


             A. Forfeitures Adjudged by a Court-Martial

1. Forfeitures that may be adjudged as part of a court-martial
sentence

     The sentence adjudged by a court-martial may include

reprimand, forfeiture of pay and allowances, a fine, reduction

in pay grade, restriction to specified limits, hard labor

without confinement, confinement, punitive separation, and

death.   RCM 1003(b), supra.   The maximum punishment at trial is

subject to the limits set in the punitive articles of the UCMJ

for particular offenses, as well as limits imposed by the

President for each offense under Article 56, UCMJ, 10 USC § 856.




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The President’s limitations are set forth in Part IV of the

Manual, supra, and are summarized in Appendix 12 of the Manual.

     With respect to forfeitures, the Manual establishes a

specific maximum for each offense.   Compare, e.g., para.

10(e)(1), Part IV, Manual, supra (authorizing forfeitures up to

two-thirds' basic pay for one month for the offense of failure

to go to an appointed place of duty), with para. 10(e)(2)(d)

(total forfeiture of pay and allowances for the offense of

unauthorized absence in excess of thirty days terminated by an

apprehension); see also United States v. Warner, 25 MJ 64 (CMA

1987) (linking total forfeiture to periods of adjudged

confinement).   In addition, special courts-martial, which may

adjudge forfeiture of basic pay, may not adjudge forfeiture of

allowances, and may not adjudge forfeiture of basic pay in

excess of two-thirds' basic pay per month for one year.     Art.

19, UCMJ, 10 USC § 819.

2. The effective date of forfeitures adjudged at trial

     As originally enacted, the UCMJ provided in Article 57 that

forfeitures could not extend to pay or allowances accrued before

the date on which the sentence was approved by the convening

authority.   Act of May 5, 1950, ch. 169, 64 Stat. 107, 126.    As

a result, a person whose sentence included forfeitures could

continue to draw full pay and allowances for many weeks or




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United States v. Emminizer, No. 01-0712/AR


months after the sentence was adjudged, pending action on the

findings and sentence by the convening authority.

     The delay in the effective date of forfeitures pending

convening authority action remained in effect until 1996, when

Congress substantially revised Article 57.    National Defense

Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106,

§ 1121, 110 Stat. 186, 462.    As amended, Article 57 provides

that forfeitures take effect on the earlier of:    (1) fourteen

days after the date on which the sentence was adjudged at trial;

or (2) the date on which the sentence was approved by the

convening authority.

3. The convening authority’s action on forfeitures adjudged at
trial

     Article 57, as amended, enables the convening authority,

upon application by the accused, to defer forfeitures prior to

taking formal action on the sentence under Article 60, UCMJ, 10

USC § 860.   When taking formal action on the sentence, the

convening authority has broad discretion to “approve,

disapprove, commute, or suspend the sentence in whole or in

part.”   Art. 60(c)(2).   With respect to forfeitures, this

provision empowers the convening authority to approve,

disapprove, or modify forfeiture of pay and allowances.    In

addition, it permits the convening authority to suspend any




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United States v. Emminizer, No. 01-0712/AR


forfeitures included in the sentence approved by the convening

authority.


 B. Mandatory Forfeitures Applicable to Persons in Confinement

1. Legislative background

     The UCMJ, as enacted, followed prior military practice

under which servicemembers sentenced to confinement continued to

draw pay and allowances while in prison, except to the extent

that adjudged forfeitures were included in the approved

sentence.    This practice continued for more than four decades

until sharply restricted in the National Defense Authorization

Act for Fiscal Year 1996, supra at § 1122 (art. 58b, UCMJ, 10

USC § 858b).

     The legislative history of the restriction in Article 58b

reflects congressional concern “that some military service

members continue[d] to receive active duty pay and allowances

while serving extended prison sentences.”    H.R. Rep. No. 104-

131, at 218 (1995).    At the same time, in recognition of the

hardship that mandatory forfeitures might work on dependents,

Congress included discretionary authority “to provide

transitional compensation for the dependents of the accused.”

H.R. Conf. Rep. No. 104-450, at 853 (1996).




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United States v. Emminizer, No. 01-0712/AR


2. Circumstances triggering mandatory forfeitures

     Mandatory forfeitures apply only under the following

circumstances.    First, mandatory forfeitures apply only if the

court-martial sentence falls within one of the following

qualifying categories: (1) confinement for more than six months;

(2) confinement for six months or less, but only if the sentence

also includes a punitive discharge; and (3) death.    Art.

58b(a)(2).    Second, mandatory forfeitures apply only during

periods in which a servicemember is in confinement or on parole

as a result of the applicable court-martial sentence.    Art.

58b(a)(1).    Third, mandatory forfeitures apply only when pay and

allowances are "due that member."     See Part I.B.3, infra.

Mandatory forfeitures take effect on the earlier of: (1)

fourteen days after the date on which the sentence is adjudged;

or (2) the date on which the sentence is approved by the

convening authority.    See Art. 58b(a)(1) and Art. 57(a)(1),

UCMJ, 10 USC § 857(a)(1).

     Because mandatory forfeitures are keyed to specific types

of sentences set forth in the statute, there is provision for

repayment if appellate review results in a change in the

sentence.    If the sentence is subsequently set aside or

disapproved, or if it is modified so that it no longer provides

for a qualifying punishment under Article 58b(a)(2), any amounts




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United States v. Emminizer, No. 01-0712/AR


taken for purposes of mandatory forfeitures are returned to the

member.   Art. 58b(c).

3. Scope of mandatory forfeitures

     In the case of confinement or parole resulting from a

qualifying special court-martial sentence, mandatory forfeitures

apply only to any basic pay due during the period of confinement

or parole.   Art. 58b(a)(1).   In the case of a qualifying general

court-martial sentence, mandatory forfeitures apply to all pay

and allowances "due that member during" the period of

confinement or parole.   Id.

4. Action on mandatory forfeitures by the convening authority

     In contrast to the power that a convening authority may

exercise with respect to forfeitures adjudged as part of a

court-martial sentence, the convening authority is not empowered

to disapprove, modify, or suspend mandatory forfeitures required

by Article 58b during periods of confinement or parole.    The

convening authority has two limited powers with respect to

mandatory forfeitures.   First, upon application of the accused,

the convening authority may defer a mandatory forfeiture until

the date on which the convening authority approves the sentence

under Article 60, and may rescind such deferment at any time.

Art. 58b(a)(1); see Art. 57(a)(2).    Second, if the accused has

dependents, the convening authority has discretion to provide

transitional compensation to such dependents for a limited


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United States v. Emminizer, No. 01-0712/AR


period of time.     In such a case, the convening authority may

waive all or part of any mandatory forfeitures required by

Article 58b(a) for a period not to exceed six months, and the

mandatory forfeitures subject to such a waiver are paid directly

to dependents of the accused.       Art. 58b(b).



        II.   APPELLANT’S REQUEST OF THE CONVENING AUTHORITY

     As noted at the outset, appellant’s sentence included a

bad-conduct discharge, confinement for eighteen months,

forfeiture of all pay and allowances, and reduction to the

lowest enlisted grade.      Pursuant to RCM 1105, appellant’s

defense counsel submitted a post-trial “petition for clemency,”

which included a request that the convening authority “consider

utilizing Article [58b] of the UCMJ to waive the forfeitures of

SPC Emminizer’s pay and allowances and direct that money to be

provided directly to SPC Emminizer’s young son.”∗

     With respect to appellant’s request, the staff judge

advocate (SJA) advised the convening authority:           “In order to

grant the requested relief on forfeitures, you would have to

disapprove the adjudged forfeitures and then grant the accused’s



∗
  In an apparent typographical error, defense counsel cited Article 58(b),
which addresses execution of confinement, rather than Article 58b, which
addresses forfeitures. It is clear from the record and proceedings on appeal
that all parties involved in the post-trial review and appellate proceedings
have understood that appellant was asking the convening authority to waive
forfeitures under Article 58b.


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United States v. Emminizer, No. 01-0712/AR


request for waiver of automatic forfeitures pursuant to Article

58b(b), UCMJ, for a period of up to six months.”   The SJA

recommended that the convening authority deny the request for

waiver of forfeitures, and the convening authority followed that

recommendation.



                         III.   DISCUSSION

     In the present appeal, appellant asserts that the SJA erred

by advising the convening authority that he could not exercise

waiver authority under Article 58b(b) without first disapproving

the forfeitures that had been adjudged as part of the court-

martial sentence.   Appellant relies on United States v. Owen, 50

MJ 629 (AF Ct. Crim. App. 1998), in which the Air Force Court of

Criminal Appeals held that mandatory forfeitures are triggered -

- and may be waived -- under Article 58b regardless of whether

the sentence includes adjudged forfeitures.   Id. at 631-32.   The

parties note that a different view was expressed in United

States v. Kolodjay, 53 MJ 732, 736 (Army Ct. Crim. App. 1999),

in which the Army Court of Criminal Appeals concluded that “if

adjudged forfeitures are not deferred prior to [the convening

authority’s] action, and are approved without suspension at the

time of the Article 60, UCMJ, action, then Article 58b waiver is

unavailable because the adjudged forfeitures will be executed,

and there will be no automatic forfeitures to waive.”


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United States v. Emminizer, No. 01-0712/AR


     Although the position of the Air Force court reflects a

thoughtful attempt to facilitate the provision of transitional

compensation to dependents, Congress chose a different approach.

The purpose of the statute, as set forth in its plain language

and legislative history, is to restrict payments to

servicemembers who are in confinement or on parole under a

qualifying sentence.   See Part I.B.1, supra.   The discretionary

authority under Article 58b(b) to ameliorate mandatory

forfeitures for a brief period of time applies only when the

statute triggers mandatory forfeitures.   This provision does not

constitute general authority to provide transitional

compensation to dependents of convicted servicemembers, and it

does not provide authority to waive adjudged forfeitures.

Compare 10 USC § 1059 (transitional compensation for victims of

dependent-abuse offenses).

     Mandatory forfeitures are triggered only when three

separate conditions occur at the same time: (1) the sentence

falls within the qualifying sentences described in Article

58b(a)(2); (2) the member is in confinement or on parole; and

(3) the member is otherwise entitled to pay and allowances that

are subject to mandatory forfeiture.   See Part I.B.2, supra.

When a servicemember is not entitled to compensation covered by

the mandatory forfeiture provisions of Article 58b, there is

nothing to waive.   For example, if a servicemember’s term of


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United States v. Emminizer, No. 01-0712/AR


enlistment has expired, the waiver authority cannot be used to

provide compensation to dependents.     Likewise, when total

forfeitures become effective under Article 57(a) as a result of

a qualifying general court-martial sentence, or when two-thirds'

forfeitures become effective as a result of qualifying special

court-martial sentence, there are no mandatory forfeitures that

can be waived.   Similarly, if partial forfeitures take effect

under Article 57(a), the waiver authority applies only to any

mandatory forfeitures required under Article 58b.

     Traditionally, convening authorities have exercised broad

discretion under Article 60 to ameliorate forfeitures as a means

of addressing the needs of a servicemember’s family.     When a

qualifying sentence under Article 58b(a)(2) has been adjudged,

the convening authority may provide transitional compensation to

dependents through the waiver authority under Article 58b(b)

only to the extent that pay and allowances are due and subject

to mandatory forfeiture.   The convening authority, prior to

action under Article 60, may affect the amount of compensation

subject to mandatory forfeiture by deferring adjudged

forfeitures in whole or in part.     To the extent that adjudged

forfeitures are deferred, there is a corresponding increase in

compensation subject to mandatory forfeitures -- and available

to be waived on behalf of a servicemember’s dependents for up to

six months under Article 58b(b).     Likewise, when acting on the


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United States v. Emminizer, No. 01-0712/AR


sentence under Article 60, the convening authority may reduce or

suspend adjudged forfeitures, thereby increasing the

compensation that is subject to mandatory forfeitures, which in

turn may be waived for up to six months for the servicemember’s

dependents under Article 58b(b).

      The interaction between adjudged and mandatory forfeitures

involves technical and complicated relationships between

statutory provisions, made all the more difficult by the tension

between the convening authority’s broad discretion over the

adjudged forfeitures and restricted discretion over mandatory

forfeitures.   The Executive Branch should consider the

desirability of providing the services with uniform guidance,

either in the Manual or through appropriate regulations, that

would address differing scenarios.    For purposes of the issue

before us, however, we simply note that under Article 58b(b),

convening authorities have the power to provide up to six

months’ transitional compensation for dependents when mandatory

forfeitures are required, and that they may use their powers to

defer, reduce, or suspend adjudged forfeitures in order to

establish the basis for mandatory forfeitures.

     In the present case, the SJA was correct insofar as he

advised the convening authority that if the convening authority

disapproved the adjudged forfeitures, he could then waive the

resultant mandatory forfeitures.     The SJA’s advice, however, was


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United States v. Emminizer, No. 01-0712/AR


incomplete in two important respects.     First, he also should

have stated that if the convening authority modified or

suspended the adjudged forfeitures, he could then waive the

resultant mandatory forfeitures.     Second, in light of

appellant’s eighteen-month sentence, the SJA’s advice reasonably

could have been construed by the convening authority to mean

that it was necessary to disapprove the forfeitures for the

entire eighteen-month period in order to grant appellant’s

waiver request.   The SJA should have advised the convening

authority that compensation for dependents under the waiver

authority may be paid only for a transitional six-month period,

and that the convening authority could grant appellant’s request

by suspending adjudged forfeitures for six months, and then

waiving the resulting mandatory forfeitures for the six-month

period.

     In light of the incomplete advice, the convening authority

may have denied the request on the grounds that he did not want

to disapprove appellant’s entire forfeitures for the full

eighteen-month period.   There is a reasonable possibility that

he might have acted otherwise had he been informed that he had

the options of suspending adjudged forfeitures for only six

months or modifying the adjudged forfeitures in order to waive

the resultant mandatory forfeitures for the benefit of




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United States v. Emminizer, No. 01-0712/AR


appellant’s dependents.   In view of this error, we remand the

case for a new recommendation and convening authority’s action.



                           IV.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is set aside, as is the convening authority's action.

The record of trial is returned to the Judge Advocate General of

the Army for a remand for a new recommendation and convening

authority action.




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