The JAG JOURNAL CMR DIGESTS THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY WASHINGTON • DC Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel. The editorial policy has been established as one of informality, to insure that articles are presented in interesting form. Its pages are citable in Navy judicial proceedings and will be accorded such weight as the respective courts may determine, when unsupported by official reports of cases referred to therein. Court-martial reports and opinions of the Judge Advocate General remain as the Navy's official sources of precedent. Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General. The purpose of this column is to help you keep abreast of current trends in naval law. To accomplish this purpose, digests have been prepared from some of the most recent Court-Martial Reports and opinions of the Judge Advocate General that have been designated for publication in future Court-Martial Reports. These digests do not necessarily include every point of law covered by the original report or opinion. Matter appearing in this column is for informational purposes only, and is not to be cited as CMR authority in judicial proceedings. PROOF REQUIRED TO SUSTAIN ABSENCE CONVICTION • In United States v. Harjo, decided October 3, 1952, the United States Court of Military Appeals was presented with the question of whether the evidence offered at trial was sufficient to support a finding of guilty of the offense of absence without authority from a place of duty under the Articles for the Government of the Navy. The absence was alleged to have commenced on January 6, 1951, and to have terminated on August 27, 1951. The evidence offered by the Government consisted of three official documents: a copy of the transfer order directing the accused to report to his new duty station not later than January 5, 1951; a copy of the personnel diary of his new duty station for the dates January 5 to 7, 1951, inclusive, which showed that the accused had not reported to that activity on January 5, 6 or 7, 1951; and an administrative entry showing that he was apprehended by civil authorities in Oklahoma on August 26, 1951, wearing civilian clothes. The Court held that in order to support the conviction the evidence must establish tvvo elements: the unauthorized absence, and the date of its inception. It was clear that the absence had been proved. But the Court unanimously held that the evidence failed to establish the date on which the absence commenced. In discussing these questions the Court stated: (Continued on page 22) VB793 SENTENCES OF COURTS-MARTIAL J3 By CDR EUGENE N. CURTIS, USN No part of a court-martial proceeding requires the exercise of a wiser discretion or the discharge of a graver responsibility than the adjudging of a proper sentence. In addition, the punishment imposed must fall within the legal limitations prescribed by Congress and the President for the type of court-martial and offense involved. These limits are not complicated but they must be carefully adhered to. Sometimes they are not. The information summarized below should be of value to every prospective court-martial member. A 1953-56 DOCUMENTS ment, shall not be adjudged by any court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited." For the reason that the law and customs of each service differ, the permissible punishments were not set forth in the Code but were left to be made uniform by regulations prescribed by the President under Article 56. A study of the regulations reveals certain recognized types of punishment which were, in the main, known to the Navy prior to the Code. It is important that each member of the naval service become familiar with the recognized types of punishment and the proper form by which each type of punishment is adjudged. To this end, every effort should be made to follow the terminology used by the Code and the Manual for CourtsMartial, and to avoid terminology applicable under Articles for the Government of the Navy and Naval Courts and Boards. Appendix 13 of the Manual should be adhered to strictly in the awarding of sentences. RTICLES 18, 19, and 20 of the Uniform Code of Military Justice, in setting forth the jurisdiction of general, special, and summary courts-martial, each provide that with. certain limitations each type of court may "adjudge any punishment not forbidden by this code." Thus the Code approaches the nature or type of sentences which may be adjudged by a court in a negative manner and would, at first glance, appear to leave undefined the kind of sentences which may be adjudged. Article 55 of the Code provides: "Punishment by flogging, or by branding, marking or tattooing on the body, or any other cruel or unusual punishAVAILABLE COURT-MARTIAL PUNISHMENTS OF NAVY AND MARINE ENLISTED The following tables present, in an abbreviated form, the types of punishment available for officers and enlisted persons. Numbers after each item refer to footnotes following the table pertinent to each type of punishment in each type of court-martial. 1 Subject to maximum limits set by the President (127, MCM, 1951). Dishonor 2 May be adjudged only if Code and Table of Maximum Punishments make the offense punishable by death. Death may be mandatory. able discharge is included by implication. Death cannot be adjudged if convening authority directs case not be treated as capital, or if prosecution has read into evidence, pursuant to Art. 50, UCMJ, the proceedings of a court of inquiry in presenting the case (126a, MCM, 1951). 3 May be adjudged only if Code and Table of Maximum Punishments make the offense punishable by life imprisonment. Life imprisonment may be mandatory. Dishonorable discharge and total forfeiture of pay and allowances must be adjudged in conjunction (126a, MCM, 1951). Navy Department policy provides that this punishment should be accompanied by the express adjudging of reduction to the lowest enlisted pay grade if enlisted person is other than lowest pay grade (Sec. 0122 NS MCM). Navy Department policy provides that if confinement awarded exceeds three months, the enlisted person, if not of the lowest pay grade, should also expressly be sentenced to reduction to the lowest pay grade (Sec. 0122 NS MCM). 6 Only under unusual circumstances should confinement be adjudged without a forfeiture or fine (126j, MCM, 1951). Limited to six months unless BCD or DD also adjudged (127b, MCM, 1951). Limited to six months (15b, MCM, 1951). ? Limited to one month (16b, MCM, 1951). 10 Not permitted in case of noncommissioned officer or petty officer above fourth enlisted pay grade (16b, MCM, 1951). 11 Not to exceed three months (126k, MCM, 1951). 12 Not to exceed 45 days (16b, MCM, 1951). Limits of restriction must be specified. 13 Persons above fourth enlisted pay grade can be reduced only to the next inferior grade by SCM (16b, MCM, 1951). 14 Not to exceed two months and will not operate to exempt person from military duties (126g, MCM, 1951). The time specified relates to a consecutive period of time and not to any particular number of liberties. 15 Not to exceed two-thirds pay per month for six months unless DD or BCD is also adjudged (127b, MCM, 1951). 10 Must be stated in dollars and cents and not as a percentage (126h (1), MCM, 1951). 17 Based on base pay plus sea or foreign duty pay, unless confinement at hard labor also adjudged, in which event, it is based on base pay only (126h (2), MCM, 1951). 18 Unless DD or BCD also awarded, required monthly contribution for family allowance or basic quarters allowance, if any, must be deducted from basic pay prior to computing two-thirds forfeiture or detention (126h (2), MCM, 1951). 19 Not to exceed two-thirds pay per month for six months (15b, MCM, 1951). 20 Not to exceed two-thirds pay per month for one month (16b, MCM, 1951). May be apportioned over more than one month, but Navy policy requires apportionment not to exceed three months (ALNAV 68-51; 51-528 NDB of 31 July 1951). 21 Not to exceed two-thirds pay per month for three months (127b, MCM, 1951). 22 May be awarded in lieu of forfeiture only if a DD or BCD is also awarded. To be used where accused has been unjustly enriched (127c, Sec. B, MCM, 1951). Confinement at hard labor, to the extent of jurisdiction of the court, may be awarded as an alternative to the fine to enforce collection (126h (3), MCM, 1951). 23 Except for contempt (127c, Sec. B, MCM, 1951). 24 Should be imposed only on insubordinate or recalcitrant offenders (125, MCM, 1951). 25 Not to exceed 30 days and full ration must be allowed at least every three days (125, MCM, 1951). 26 Not to exceed 15 days and full ration must be allowed at least every three days. 27 Sentence shall not specify terms or wording (126f, MCM 1951). 25 Not to exceed 30 days (125, MCM, 1951). AVAILABLE COURT-MARTIAL PUNISHMENTS OF NAVY AND MARINE OFFICERS 1 2 1 Table of Maximum Punishments is not binding as to officers, warrant officers, aviation cadets, cadets, midshipmen, and civilians subject to the Code except as provided in 126d and Sec. B, 127c, MCM, 1951, but may be used as a guide (127a, MCM, 1951). 2 For applicability to warrant officers, see 126d, MCM, 1951. The punitive separation from the service of a warrant officer is accomplished by a dishonorable discharge rather than dismissal. 3 May be adjudged only if Code makes offense punishable by death. Death may be mandatory. Death cannot be adjudged if convening authority directs case not be treated as capital (126a, MCM, 1951). * Cannot be adjudged if prosecution has read into evidence, pursuant to Art. 50, UCMJ, the proceeding of a court of inquiry in presenting the case 126a, MCM, 1951). 5 Not permitted unless coupled with dismissal (126d, MCM, 1951). Forfeiture of all pay and allowances not permitted unless coupled with dismissal (126h (2), MCM, 1951). 7 Not over two-thirds pay per month for six months (15b, MCM, 1951). 8 Must be stated in dollars and cents and not as a percentage (126h (1), MCM, 1951). "Not in excess of two months, and will not operate to exempt person from military duty (126g, MCM, 1951). The time specified relates to a consecutive period of itme and not to any particular number of liberties. 10 Should be used where accused was unjustly enriched (127c, Sec. B, MCM, 1951). 11 Court will not specify terms or wording (126f, MCM, 1951). 12 Loss of numbers will be numbers in the appropriate lineal list (126i, MCM, 1951). The types of punishment having been set forth above in table form, additional information on certain types of punishment will be discussed below. A portion of the following information is designed to prevent common errors noted in connection with the adjudging of sentences of courts martial and action of the convening authority thereon. Death The court will not prescribe the method of execution. Where testimony from a court of Limits of restriction must be specified. inquiry used by the prosecution does not enter into proof of all the specifications, the limitation against adjudging a death penalty applies only to those specifications into which it enters (126a, MCM, 1951). For form of the sentence to death, see form 24, App. 13, MCM, 1951. Confinement at hard labor A sentence to confinement does not of itself automatically result in any fine or forfeiture. The place of confinement is not designated by the court but by the authority ordering the sen tence into execution (126) and 93, MCM, 1951). A sentence to "confinement" should always include the words "at hard labor" (126j, MCM, 1951). Confinement at hard labor connotes imprisonment; accordingly, a convening authority should not "extend the limits of confinement" to a ship or station. Extension of the limits of confinement in this manner amounts only to a mitigation of the sentence to restriction (NCM 24, Goldie, 1 CMR 495). If the convening authority wishes to mitigate a sentence of confinement at hard labor to restriction or hard labor without confinement, this should be accomplished by approving "only so much of" the sentence to confinement at hard labor as provides for "restriction to the limits of" a specified place, or the "performance of hard labor" for a specified time. See appendix 13, MCM, 1951, for forms of sentences to be used in adjudging confinement at hard labor. Hard labor without confinement Hard labor without confinement was known to the Navy under Naval Courts and Boards as "extra police duties," but should not be referred to under the latter terminology under the Code. A description of what constitutes this punishment is outlined under paragraph 126k, MCM, 1951. While the Manual states that "Normally, the immediate commanding officer of the accused will designate the amount and character of the labor to be performed," it is not necessary that this designation be made a part of the action of the convening authority on the record. It is to be noted that upon completion of the daily assignment of labor required by the accused's commanding officer, the accused should be permitted to take leave or liberty to which he properly is entitled. Forfeiture of pay Sentences to forfeiture have been the cause of more errors than any other type of punishment. The utmost care should be taken first to determine that the pay of the accused as shown on page one of the charge sheet is correct, together with the amount of the accused's contribution to family allowance or basic quarters allowance, if any. There is provision on the charge sheet for the accused's basic pay and his sea or foreign duty pay, if any, and the total of both. Other amounts, such as hazard ous pay should not be shown. The correct amounts, under current pay standards, for "Contribution to family or quarters allowance" must be $40 for pay grades E 1-2-3, $60 for pay grades E 4-5, and $80 for pay grades E 6-7. These figures refer to that amount which an enlisted person is required to allot in order to obtain the family or quarters allowance and has no reference to an amount which an enlisted person might by other arrangement be allotting to a dependent. Let us assume that an accused before a summary court-martial is a seaman with over two years service and his basic pay is therefore $107.02. He is serving on board ship and receiving $9 sea pay, or a total of $116.02. He is married and contributes $40 per month for family allowance. The court, if it does not confine the accused or reduce him in grade would arrive at the maximum forfeiture under the provisions of 126h (2), MCM, 1951, in the following manner: $116.02 less $40 leaves $76.02 basic pay subject to forfeiture. The court's jurisdiction as to forfeiture is two-thirds of one month's pay. Two-thirds of $76.02, or $50.68 would therefore be the maximum forfeiture permissible. The court might express this by a sentence of "to forfeit $50.68," "to forfeit $50.68 per month for one month," or "to forfeit $25.34 per month for two months." Now let us suppose that the court wishes to sentence this accused to a period of confinement at hard labor as well as to a forfeiture. In this event, the sea or foreign duty pay of the accused must be excluded in computing the basic pay subject to forfeiture (126h (2), MCM, 1951). Accordingly, $107.02 less $40, or $67.02 would be the pay of the accused subject to forfeiture, twothirds of which is $44.68. Should the court. wish to sentence the accused to reduction to the grade of seaman apprentice, as well as confinement and forfeiture, the court must then commence with a basic pay of the accused for the reduced rate (see 126h, MCM, 1951), or $93.60. Forty dollars would then be subtracted for the accused's contribution to family allowance, leaving $53.60 subject to forfeiture. Twothirds of this amount would be $35.74. A member of any court martial should make a thorough study of 126h (2), MCM, 1951, in order to avoid the pitfalls of illegal sentences to excessive forfeiture. A court should, in adjudging a for |