Opinion of the Court
As presented by the certificate from The Judge Advocate General of the Navy, the question for our decision is:
“Was the Board of Review correct in holding that the president’s instruction prescribing the maximum forfeitures as a ‘forfeiture of two-thirds pay for six months’ placed a legal limitation upon the sentencing power of the court-martial which precluded the imposition of any forfeiture penalty the total amount of which exceeds two-thirds of one months pay?”
Arraigned before a special court-martial, the accused pleaded guilty to, and was found guilty of, a substantial period of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice, 10 USC § 886. In accordance with the standard practice after findings, trial counsel read the personal data about the accused which appeared on the charge sheet. This reflected the accused’s basic pay as $83.20 per month. Defense counsel acknowledged the correctness of the information. Later, the president instructed the court members on the maximum punishment to which the accused was subject. In part, he said it included “forfeiture of two-thirds pay for six months.” Defense counsel indicated he had no objection to the instructions. The court-martial imposed a sentence which, among other penalties, provided that the accused “forfeit $55.00 pay per month for six months.”
On review of the record in the field, the sentence was approved, except that the period of confinement and forfeiture was reduced from six months to five months. However, a board of review in the office of The Judge Advocate General of the Navy held, by a divided vote, that the sentence adjudged by the court-martial was illegal because, under the instruction of the
The board of review indicated in its opinion that the result it reached was supported by our decision in United States v Johnson,
In Johnson, the total amount of the forfeiture was recited in terms of dollars ; here, it is set out as a percentage of the accused’s pay for a specified period. The operative words are “forfeiture of two-thirds pay for six months.” In United States v Gilgallon,
Under Article 19, Uniform Code of Military Justice, 10 USC § 819, a special court-martial cannot impose forfeitures in excess of two-thirds pay per month. Whether a gross forfeiture of $332.00 from the pay accruing to the accused over a period of six months, without actual apportionment on a per month basis by the court, would comply with Article 19 is not before us. Cf. United States v Rios,
As we pointed out earlier, by its terms, the instruction authorized a total forfeiture of approximately $332.00. Manifestly, that amount could not be realized from a single month’s pay. It was obvious, from the evidence before the court that, if it determined to impose the maximum forfeiture, the sentence could be effectuated only if there was apportionment over the period to which the accused’s pay was subject to forfeiture. Under the circumstances, we think the court members adopted the commonsense view that the instruction contemplated, and authorized, apportionment of the forfeiture, if such punishment was adjudged. The sentence indicates the court members construed the instruction in that light. The failure of defense counsel to except to the court’s action indicates that he construed the instruction in the same way. The meaning attributed to an instruction by the personnel at trial is an incentive to adoption of that meaning by an appellate tribunal.' United States v Gordon,
An instruction should be explicit. It would, therefore, have been better if the
We answer the certified issue in the negative. The record of trial is returned to The Judge Advocate General of the Navy for resubmission to the board of review for further proceedings consistent with this opinion.