              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                  Before
                R.Q. WARD, J.A. FISCHER, K.J. BRUBAKER
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        KENNETH O. HINER
                   SEAMAN RECRUIT (E-1), U.S. NAVY

                            NMCCA 201400211
                        SPECIAL COURT-MARTIAL


Sentence Adjudged: 13 March 2014.
Military Judge: CDR Ian Thornhill, JAGC, USN.
Convening Authority: Commanding Officer, Recruit Training
Command, Great Lakes, IL.
Staff Judge Advocate's Recommendation: LCDR M.J. Wooten,
JAGC, USN.
For Appellant: Capt Michael Magee, USMC.
For Appellee: Mr. Brian Keller, Esq.

                          30 September 2014

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge convicted the appellant, pursuant to his
pleas, at a special court-martial of two specifications of
abusive sexual contact and one specification of assault
consummated by a battery in violation of Articles 120 and 128,
Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 928. The
military judge sentenced him to confinement for nine months,
forfeiture of “two-thirds pay and allowances for a period of 9
months,” and a bad-conduct discharge.

     In his initial action, the convening authority (CA)
approved the sentence as adjudged and, except for the bad-
conduct discharge, ordered it executed. After the case was
docketed with this Court, the appellant filed a motion for
relief from post-trial processing error, citing erroneous advice
in the staff judge advocate’s recommendation (SJAR) and failure
of the CA to state in his action that pursuant to a pretrial
agreement, all confinement in excess of 89 days was suspended
for the period of confinement served plus six months thereafter.1
In his motion, the appellant also identified that the sentence
as adjudged and approved exceeded the maximum authorized because
it included allowances and failed to state a whole dollar
amount.

     We granted the appellant’s motion, set aside the original
CA’s action, and remanded the case for a new SJAR and CA’s
action.

    The case now returns to us with a new SJAR and CA’s action
and without further assignment of error. The erroneous advice
in the previous SJAR has been corrected and the amended CA’s
action properly states that under the terms of the pretrial
agreement, all confinement in excess of 89 days is suspended.
The CA’s amended action, however, fails to take any corrective
action regarding the forfeitures and instead approves them as
adjudged.

      We find that the adjudged and approved sentence of
forfeiture of “two-thirds pay and allowances for a period of 9
months” exceeded the maximum allowed by law at a special court-
martial. Forfeitures at a special court-martial may not exceed
two-thirds pay per month for one year. Art. 19, UCMJ.
Allowances are subject to forfeiture only when the sentence
includes forfeiture of all pay and allowances. RULE FOR COURTS-
MARTIAL 1001(b)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Extending forfeitures to allowances was, accordingly, error.
Furthermore, except in the case of total forfeitures (applicable
at general courts-martial), the sentence must state the exact
amount in whole dollars to be forfeited each month. Id. The
maximum amount of forfeitures that could have been adjudged and



1
  The appellant was, nonetheless, released from confinement under the terms of
the pretrial agreement prior to the CA’s initial action.
                                      2
approved was $1021.00 pay per month for 12 months.   We will
correct these errors in our decretal paragraph.

     After taking corrective action, we conclude that the
findings and sentence are otherwise correct in law and fact, and
that no error materially prejudicial to the substantial rights
of the appellant remains. Arts. 59(a) and 66(c), UCMJ.

     Accordingly, the findings of guilty and only so much of the
sentence as provides for confinement for nine months, forfeiture
of $1021.00 pay per month for a period of nine months, and a
bad-conduct discharge are affirmed. All rights, privileges, and
property to which the appellant may have been deprived by virtue
of execution of forfeitures in excess of $1,021.00 pay per month
for nine months shall be restored to the appellant.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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