                           UNITED STATES, Appellee

                                         v.

              Shawn M. PROMIN, Instrumentman Second Class
                          U.S. Navy, Appellant


                                No. 00-0227

                            Crim. App. No. 98-0929


        United States Court of Appeals for the Armed Forces


                           Argued November 15, 2000

                           Decided April 25, 2001

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

                                      Counsel


For Appellant:      Captain Curtis M. Allen, USMC (argued).


For Appellee: Major Mark K. Jamison, USMC (argued); Colonel
Marc W. Fisher, Jr., USMC, and Lieutenant Commander Philip
L. Sundel, JAGC, USNR (on brief); Colonel Kevin M.
Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN.


Military Judge:      Peter J. Straub

   THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Promin, No. 00-0227/NA


        Senior Judge COX delivered the opinion of the Court.

        Appellant was sentenced by a general court-martial to

be confined for 4 years and to receive a dishonorable

discharge.      The court-martial did not impose a forfeiture

of pay and allowances as part of the adjudged sentence.

Subsequently, appellant forfeited all of his pay and

allowances by operation of law.          See Art. 58b, Uniform Code

of Military Justice, 10 USC § 858b.           He claims on appeal

that the subsequent forfeiture of his pay and allowances

violates the Double Jeopardy Clause of the Fifth Amendment

to the Constitution of the United States (see also Art. 44,

UCMJ, 10 USC § 844).1        We hold that neither the Double

Jeopardy Clause nor Article 44 prohibits the forfeiture of

pay and allowances imposed by operation of Article 58b.

        In United States v. Gorski, 47 MJ 370 (1997), we

observed that the forfeiture of pay and allowances has long

been recognized as punishment for military offenders.

Thus, we found that the application of automatic forfeiture

of pay and allowances to crimes and offenses committed

prior to the enactment of Article 58b violated the Ex Post

Facto Clause of Article I, § 9 of the Constitution.              In


1
    The granted issue is:

        WHERE THE COURT-MARTIAL’S SENTENCE DID NOT INCLUDE FINES OR
        FORFEITURES, DOES THE ADDITIONAL PUNISHMENT OF FORFEITURES BY
        OPERATION OF ARTICLE 58b, UCMJ, VIOLATE THE DOUBLE JEOPARDY
        CLAUSE OF THE UNITED STATES CONSTITUTION?
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United States v. Promin, No. 00-0227/NA


dicta, we also recognized that prospective application of

the statute would be permissible.    47 MJ at 374.   This is

because the fact that a statute provides for unlawful ex

post facto punishment does not mean that the punishment

would be unlawful prospectively.    There is no prohibition

against requiring the mandatory forfeiture of pay and

allowances as a consequence of a court-martial sentence.

     “Double Jeopardy” means that an offender is “subject,

for the same offense, to be twice put in jeopardy.”     U.S.

Const. amend V.    In this case, appellant has not been twice

put in jeopardy.    All of the punishment that he has

suffered, including the automatic forfeiture of pay and

allowances, arose out of and was caused by his single

court-martial.    There has been only one proceeding, as a

result of which appellant has received multiple punishments

as authorized and intended by Congress.    “With respect to

cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing

court from prescribing greater punishment than the

legislature intended.”    Missouri v. Hunter, 459 U.S. 359,

366 (1983).

     Because we find no violation of the Double Jeopardy

Clause, we need not consider the Government’s contention

that the imposition of forfeitures required by Article 58b


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United States v. Promin, No. 00-0227/NA


is merely an “administrative consequence” of the court-

martial sentence.   Nor do we address the Government’s

contention that we have no jurisdiction over the case

before us because the forfeiture is a “collateral result”

of the sentence.    We rejected this approach to forfeiture

of pay and allowances in Gorski, and we need not plow that

ground again.

     The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.




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