ACM 22634 (recon.) | U S Air Force Court of Military Review | Nov 19, 1980
DECISION UPON RECONSIDERATION
Upon original review of the record of trial in the above-entitled case, this Court by its decision dated 22 October 1980, affirmed the findings of guilty and the sentence. On our own motion we have chosen to reconsider the case in order to correct two errors made by the convening authority in his action.
First, the convening authority’s action not only approves the findings and sentence, but also orders the sentence executed. Since he does not have the authority to order a sentence to confinement at hard labor for a year into execution until it is reviewed by this Court, the portion of his action purporting to do so is illegal as premature and, hence, void. Manual for Courts-Martial, 1969 (Rev.), paragraph 98; United States v. Parker, 45 C.M.R. 546 (A.C.M.R.1972), pet. denied, 45 C.M.R. 928 (C.M.A.1972); United States v. White, 25 C.M.R. 733 (N.B.R.1957).
Second, the convening authority erroneously directed the forfeitures applicable to allowances as well as pay becoming due on and after the date of his action. United States v. Lovejoy, 39 C.M.R. 774 (A.C.M.R. 1968), pet. denied, 39 C.M.R. 293 (C.M.A.1969) .
The Court adheres to its original decision of 22 October 1980.
The findings of guilty and the sentence are affirmed. However, the forfeitures shall apply to pay becoming due on and after the date of the convening authority’s action.