UNITED STATES, Appellee, v. Shawn M. PROMIN, Instrumentman Second Class, U.S. Navy, Appellant.
No. 00-0227. Crim.App. No. 98-0929.
U.S. Court of Appeals for the Armed Forces.
Argued Nov. 15, 2000. Decided April 25, 2001.
54 M.J. 467
For Appellant: Captain Curtis M. Allen, USMC (argued).
For Appellee: Major Mark K. Jamison, USMC (argued); Colonel Marc W. Fisher, Jr., USMC, and Lieutenant Commander Philip L. Sundel, JAGC, USNR (on brief); Colonel Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN.
Senior Judge COX delivered the opinion of the Court.
Appellant was sentenced by a general court-martial to be confined for 4 years and to receive a dishonorable discharge. The court-martial did not impose a forfeiture of pay and allowances as part of the adjudged sentence. Subsequently, appellant forfeited all of his pay and allowances by operation of law. See
In United States v. Gorski, 47 MJ 370 (1997), we observed that the forfeiture of pay and allowances has long been recognized as punishment for military offenders. Thus, we found that the application of automatic forfeiture of pay and allowances to crimes and offenses committed prior to the enactment of Article 58b violated the Ex Post Facto Clause of Article I, § 9 of the Constitution. In dicta, we also recognized that prospective application of the statute would be permissible. 47 MJ at 374. This is because the fact that a statute provides for unlawful ex post facto punishment does not mean that the punishment would be unlawful prospectively. There is no prohibition against requiring the mandatory forfeiture of pay and allowances as a consequence of a court-martial sentence.
“Double Jeopardy” means that an offender is “subject, for the same offense, to be twice put in jeopardy.”
Because we find no violation of the Double Jeopardy Clause, we need not consider the Government‘s contention that the imposition of forfeitures required by
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
