59 M.J. 571 | A.F.C.C.A. | 2003
OPINION OF THE COURT
The appellant, in accordance with his pleas, was convicted of two specifications of wrongful use of a controlled substance, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a, and three specifications of absence without authority from his duty location, in violation of Article 86, UCMJ, 10 U.S.C. § 886. The military judge, sitting alone, sentenced him to a bad-conduct discharge, confinement for 18 months, forfeiture of all pay
First, the appellant asks this Court to disapprove his adjudged forfeitures as a prophylactic remedy in the event he or his wife is asked to repay the waived forfeitures. The genesis for this request is our superior court’s decision in United States v. Emminizer, 56 M.J. 441 (2002), a case decided subsequent to the appellant’s court-martial. After Emminizer, a convening authority must first disapprove, modify, or suspend adjudged forfeitures before waiving mandatory forfeitures under Article 58b, UCMJ. Id. at 444-45. The appellant argues that because the convening authority did not do so in his ease, he or his wife may be required to repay the waived forfeitures at some point in the future.
In Emminizer, the staff judge advocate’s advice was written in a manner that suggested the convening authority could not waive Article 58b, UCMJ, mandatory forfeitures for a 6-month period without first disapproving the adjudged forfeitures for an 18-month period. Id. at 444. The convening authority then denied the appellant’s request to waive the mandatory forfeitures. Id. Our superior court remanded for a new action, reasoning that the convening authority relied on incomplete advice when he rejected the appellant’s request. Id. at 445. The court found a “reasonable possibility that [the convening authority] might have acted otherwise had he been informed that he had the options of suspending adjudged forfeitures for only six months or modifying the adjudged forfeitures in order to waive the resultant mandatory forfeitures for the benefit of appellant’s dependents.” Id.
In the present case, there is no ambiguity in the convening authority’s action as far as what he intended to accomplish. The convening authority granted the appellant’s only post-trial request. The convening authority’s action,
Additionally, the appellant has made no claim that he repaid any of the waived forfeitures. For that matter, he has not even suggested he has received notice of a collection effort requiring him or his wife to return monies to the federal government. Consequently, we see no need for this Court to order remedial action when the appellant has suffered no prejudice. Article 59(a), UCMJ, 10 U.S.C. § 859(a).
Next, the appellant claims his sentence was inappropriately severe and asks that we disapprove his bad conduct discharge. In support of his claim, the appel
The approved findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant occurred. Article 66(c), UCMJ; United States v. Reed, 54 M.J. 37, 41 (2000). Accordingly, the approved findings and sentence are
AFFIRMED.
. Article 58b, UCMJ, forfeitures are often referred to by different terminology. The convening authority's action referred to Article 58b, UCMJ, forfeitures as "required” forfeitures. It is also common to see Article 58b, UCMJ, forfeitures referred to as "automatic” forfeitures. We have followed our superior court’s terminology in Emminizer and refer to Article 58b, UCMJ, forfeitures as “mandatoiy” forfeitures.