UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                                           Before
                                                               KERN, YOB, and ALDYKIEWICZ
                                                                  Appellate Military Judges

                                                        UNITED STATES, Appellee
                                                                     v.
                                                    Sergeant PHILLIP T. SWARTS, JR.
                                                       United States Army, Appellant

                                                                      ARMY 20101008

                                          Headquarters, Fort Drum
                                       Andrew Glass, Military Judge
                       Lieutenant Colonel Robert L. Manley, III, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Barbara A. Snow-Martone, JA.

For Appellee: Pursuant to A.C.C.A Rule 15.2, no response filed.


                                                                      24 February 2012

                                                                 ----------------------------------
                                                                  SUMMARY DISPOSITION
                                                                 ----------------------------------

Per Curiam:

       A military judge, sitting as a special court-martial, convicted appellant,
pursuant to his plea, of knowingly possessing child pornography in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, ten months
confinement, forfeiture of $1,937.00 pay per month for ten months, and reduction to
Private E-1.

       The case is before the court for review pursuant to Article 66, UCMJ. After
considering the entire record of trial, appellate counsel’s allegation of error
regarding the adjudged forfeitures in appellant’s case, 1 and the matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

                                                            
1
  The appellant’s case was “submitted on its merits;” however, in a footnote
appellate counsel noted that the adjudged forfeitures, $1,937.00/pay per month for
ten months, exceed the maximum authorized monthly forfeitures in appellant’s case.
Apparently the Military Judge calculated forfeitures at appellant’s trial pay grade of
E-5 as opposed to his adjudged reduced pay grade of E-1, as required by Rule for
Courts-Martial [hereinafter R.C.M.] 1003(b)(2).
SWARTS—ARMY 20101008
 
1982), we find one matter that warrants discussion and relief, specifically the
adjudged forfeitures.

                                                               LAW AND DISCUSSION

       Article 19, UCMJ, limits forfeitures at a special court-martial to two-thirds
pay per month for a maximum period of twelve months. Rule for Courts-Martial
1003(b)(2) states “the maximum forfeiture shall be based on the grade to which the
accused is reduced.” At the time of trial, appellant was a Sergeant E-5 with over ten
years of service. His base pay was $2,906.70 per month. 2 The base pay for a
Soldier with similar time in service serving in the lowest enlisted grade, Private E-1,
was $1,447.20. See 2010 Military Pay Table. We agree with appellate counsel,
finding the military judge erred when calculating two-thirds forfeiture of monthly
pay using appellant’s E-5 base pay as opposed to the base pay associated with his
adjudged reduction to E-1. Applying two-thirds to $1,447.20, appellant’s base pay
at the reduced grade, results in forfeiture of $964.00 pay per month for ten months. 3

                                                                  CONCLUSION

       Having considered appellant’s remaining allegations of error contained in his
Grostefon matters, we conclude they are without merit. The finding of guilty as
approved by the convening authority is affirmed. On consideration of the entire
record, we affirm only so much of the sentence as provides for a bad-conduct
discharge, ten months confinement, forfeiture of $964.00 pay per month for ten
months, and reduction to Private E-1. All rights, privileges, and property of which
appellant has been deprived by virtue of that portion of his approved sentence set
aside by this decision are ordered restored. See Articles 58b(c) and 75(a), UCMJ.

                                                                     FOR   THE COURT:
                                                                      FOR THE COURT: 




                                                                      MALCOLM H. SQUIRES, JR.   
                                                                     MALCOLM         H. SQUIRES                                  
                                                                                                                JR.
                                                                      Clerk of Court                      
                                                                     Clerk of Court
 
                                                            
2
 Two-thirds of $2,906.70 equals $1,937.80; rounding to the nearest whole dollar
without rounding up results in forfeiture, as announced by the court, of $1,937.00
pay per month for ten months. “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.” R.C.M. 1003(b)(2).
3
 Two-thirds of $1,447.20 equals $964.80; rounding to the nearest whole dollar
without rounding up results in forfeiture of $964.00 pay per month for ten months.
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