                         UNITED STATES, Appellee

                                         v.

              Michael D. STEWART, Airman First Class
                     U.S. Air Force, Appellant

                                  No. 05-0381

                           Crim. App. No. 35188

       United States Court of Appeals for the Armed Forces

                         Argued October 19, 2005

                        Decided January 24, 2006

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



                                     Counsel

For Appellant: Captain Kimberly A. Quedensley (argued);
Lieutenant Colonel Mark R. Strickland (on brief); Colonel Carlos
L. McDade, Major Sandra K. Whittington, and Major James M.
Winner.

For Appellee: Major Amy E. Hutchens (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief).

Military Judge:    Jack L. Anderson


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Stewart, No. 05-0381/AF


     Judge BAKER delivered the opinion of the Court.

     While stationed at Edwards Air Force Base, Appellant, an

airman, unlawfully entered the room of a fellow servicemember.

He indecently assaulted her while she lay unconscious and

videotaped her unclothed body.    After a contested general court-

martial before members, Appellant was convicted of one

specification of unlawful entry, one specification of indecent

assault, and one specification of committing an indecent act, in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934 (2000).

     On October 13, 2001, Appellant’s sentence was adjudged by

the members.   He was sentenced to “[r]eduction to the grade of

Airman Basic (E-1), 15 months confinement and forfeiture of all

pay and allowances.”   A punitive discharge was not adjudged.

The convening authority approved the sentence, including total

forfeitures, on March 17, 2002.   Upon his release from

confinement, Appellant returned to active duty where, as

explained below, he was subject to continued forfeitures until

December 31, 2002.   Appellant was discharged from active duty

upon reaching his End of Active Service (EAS).

     We granted review of the following issue upon Appellant’s

petition:

  WHETHER FORFEITURES WERE IMPROPERLY IMPOSED ON THE APPELLANT’S
  PAY AND ALLOWANCES AFTER HE WAS RELEASED FROM CONFINEMENT AND
  RETURNED TO ACTIVE STATUS ON 14 APRIL 2002.
                            BACKGROUND


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     Appellant began his fifteen-month term of confinement on

October 13, 2001.   Forfeiture of all pay and allowances went

into effect on October 27, 2001.       Appellant received 184 days of

pretrial confinement credit.   He was released and returned to

active duty on April 14, 2002.

     Following his return to duty, the Defense Finance and

Accounting Service (DFAS) continued to impose total forfeitures

until August 31, 2002.   DFAS subsequently determined that

Appellant should only have been subject to two-thirds

forfeitures after his release from confinement.      Therefore, DFAS

credited Appellant with one-third the amount of the total

forfeitures taken from May 1, 2002, through August 31, 2002.

DFAS continued to impose forfeitures of two-thirds of

Appellant’s pay until January 2003.      On January 13, 2003, the

convening authority issued General Court-Martial No. 2 and

remitted the uncollected portion of the sentence to forfeitures.

     Appellant argues he should not have been subject to either

total or partial forfeitures after his release from confinement.

He contends that because the members did not specify imposition

of partial forfeitures as an additional punishment following

total forfeitures, his sentence to forfeiture of all pay and

allowances was intended to run only through his period of

confinement.   Further, Appellant claims, DFAS’ continued



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United States v. Stewart, No. 05-0381/AF


imposition of forfeitures subjected him to a sentence more

severe than that adjudged by the members.

     The Government, by contrast, argues that forfeiture of all

pay and allowances transforms automatically into partial

forfeitures upon a servicemember’s release from confinement and

return to active duty, unless the members otherwise delimit the

imposition of such forfeitures.   Such partial forfeitures, the

Government contends, run until the servicemember’s EAS date, or

until such time as the convening authority approves, or the

members expressly provide.   Where a punitive discharge is

adjudged and approved, the servicemember is discharged upon

release from confinement and the concern addressed by Appellant

does not arise.

     The parties’ arguments and the facts of this case raise a

threshold question:   what effect should be given to a sentence

to forfeiture of all pay and allowances where no time limit is

specified and the subject returns to a duty status post-

confinement?

                             DISCUSSION

     Rule for Courts-Martial (R.C.M.) 1003(b)(2) provides:

     Forfeiture of pay and allowances. Unless a total
     forfeiture is adjudged, a sentence to forfeiture shall
     state the exact amount in whole dollars to be forfeited
     each month and the number of months the forfeitures will
     last.

The discussion to R.C.M. 1107(d)(2) states:


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     When an accused is not serving confinement, the accused
     should not be deprived of more than two-thirds pay for any
     month as a result of one or more sentences by court-martial
     and other stoppages or involuntary deductions, unless
     requested by the accused.

     Based on the non-binding discussion to R.C.M. 1107(d)(2),

this Court held in United States v. Warner, 25 M.J. 64 (C.M.A.

1987), that a servicemember released from confinement and still

in a duty status may not be deprived of more than two-thirds of

his or her pay.   See also United States v. Lonnette, 62 M.J. __

(C.A.A.F. 2006)   If a portion of a sentence “provides for”

continued forfeiture of all pay and allowances after a

servicemember is released from confinement but before execution

of the discharge, that portion of the sentence should be amended

to provide for forfeiture of two-thirds pay until the discharge

is executed.   Warner, 25 M.J. at 67.

     As the Warner Court recognized, underlying the discussion

to R.C.M. 1107(d)(2) is a policy concern that an accused should

not be deprived of all means of supporting himself or his family

while on active duty.   Warner, 25 M.J. at 66.   As a result, just

as Warner could not have been subject to more than two-thirds

forfeitures once he was released from confinement and returned

to a duty status, Appellant could not be subject to more than

two-thirds forfeiture following his return to duty status.

Moreover, in light of R.C.M. 1003(b)(2), the discussion to




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United States v. Stewart, No. 05-0381/AF


R.C.M. 1107(d)(2), and Warner, this was the law at the time of

Appellant’s court-martial.

     However, Appellant’s case presents a more fundamental

question:   Did the members, in fact, adjudge a sentence that

would have subjected Appellant to forfeiture following his

release from confinement when they sentenced Appellant to

“forfeiture of all pay and allowances?”

     On the one hand, this sentence could be read to reflect the

members’ intent to sentence Appellant to continuous forfeitures

so long as he was in the armed forces.    The plain language of

the adjudged sentence states forfeiture of all pay and

allowances without limitation.   Thus, the members’ intent is

plain -– total forfeitures hereinafter, subject of course, to

the operation of applicable law and regulation.   This is the

Government’s view.

     On the other hand, in light of R.C.M. 1003(b)(2), the

discussion to R.C.M. 1107(d)(2), and Warner, this sentence could

be read to reflect the members’ intent to sentence Appellant to

forfeiture of all pay and allowances during that period in which

he was in confinement.   Otherwise, the members, knowing that

they had not punitively discharged Appellant, would have been

obliged by law to specify the amount and duration of any partial

forfeiture following his release from confinement.   R.C.M.

1003(b)(2).


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United States v. Stewart, No. 05-0381/AF


     As the Government itself concedes, we cannot be sure what

the members intended.   As the Government stated at oral

argument, the members “at the very least intended for total

forfeitures, either collected at the full total amount or at the

reduced two-thirds administrative amount, to run for at least

fifteen months.”

     Certainly, it is settled law that an accused cannot be

subjected to a sentence greater than that adjudged by the

members.   Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990).

Moreover, where a sentence is ambiguous or uncertain, as a

matter of fundamental fairness an accused cannot be subject to a

sentence greater than that which is clearly indicated.

     The principle that an accused should not be subjected to an

ambiguous, uncertain sentence is grounded in longstanding United

States jurisprudence.   “Sentences in criminal cases should

reveal with fair certainty the intent of the court and exclude

any serious misapprehensions by those who must execute them.”

United States v. Daugherty, 269 U.S. 360, 363 (1926).      A

sentence that is so ambiguous that a reasonable person cannot

determine what the sentence is may be found illegal.    United

States v. Earley, 816 F.2d 1428, 1430 (10th Cir. 1987).

However, not all ambiguous sentences are illegal.   Id. at 1431.

A sentence need not be so clear as to eliminate every doubt, but




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United States v. Stewart, No. 05-0381/AF


sentences should be clear enough to allow an accused to

ascertain the intent of the court or of the members.   See id.

     In this case, we cannot determine with fair certainty the

duration of the total forfeitures that the members intended to

impose upon Appellant, or whether the members intended to impose

partial forfeitures following confinement, and if so, for what

period of time and in what amount.   The plain language of the

sentence as approved by the convening authority provides little

insight.   Appellant’s sentence simply reads:   “Reduction to the

grade of Airman Basic (E-1), 15 months confinement and

forfeiture of all pay and allowances.”   Thus, we shall affirm

only so much of Appellant’s sentence to forfeiture as we can

determine with fair certainty the members intended to adjudge.

     R.C.M. 1003(b)(2) provides that “[u]nless a total

forfeiture is adjudged, a sentence to forfeiture shall state the

exact amount in whole dollars to be forfeited each month and the

number of months the forfeitures will last.”    This was not done

in Appellant’s case.   While Appellant’s sentence need not have

been so clear as to dispel every doubt, it should have contained

enough information to place him on notice that he would be

subjected to partial forfeitures following his release from

confinement.   His sentence should additionally have provided

some indication of how long the partial forfeitures would remain

in effect.   Because Appellant’s sentence did not expressly


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United States v. Stewart, No. 05-0381/AF


provide for partial forfeitures, we shall affirm only those

forfeitures coterminous with the time Appellant spent in

confinement.

     In addition to conforming with the text of R.C.M.

1003(b)(2), such a result is consistent with the legal policy

that informs the discussion to R.C.M. 1107(d)(2).    Where the

sentencing authority intends to deprive an accused in a duty

status to partial forfeitures it should state so with clarity,

so as to avoid any ambiguity or mistake in intent.   Partial

forfeitures are a form of pecuniary punishment that have an

impact on convicted servicemembers as well as their families.

Ambiguous or uncertain sentences to forfeiture are detrimental

because they leave military families unsure of how long wages

will be forfeited, and less able to engage in financial planning

for the future.   We hold that 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.   The sentencing authority shall specify the

duration and the amount of such partial forfeitures, subject to

R.C.M. 1103(b)(2), the discussion accompanying R.C.M.

1107(d)(2), and Warner.




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United States v. Stewart, No. 05-0381/AF


                               DECISION

     For the reasons discussed above, we affirm the decision of

the Air Force Court of Criminal Appeals as to the findings.   We

affirm only so much of Appellant’s sentence as provides for

reduction to the grade of Airman Basic (E-1), fifteen months of

confinement, and forfeiture of all pay and allowances for the

length of time Appellant spent in confinement.




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