United States v. Cleckley

Opinion of the Court George W. Latimer, Judge: The accused pleaded guilty to having deserted the Service from August 6, 1952, to July 7, 1956. He elected to testify in mitigation and extenuation, and he sought to explain his absence by relating conditions at home which, in substance, proved illness to his wife and hardship to his family. Apparently the members of the court-martial were influenced by his difficulties for, in spite of four previous convictions, they sentenced him to a dishonorable discharge, confinement at hard labor for one year, and forfeiture of $28.80 per month for the same period of time. In his petition for review to this Court, he contends the sentence as imposed by the court-martial is inconsistent and that subsequent reviewing authorities erred in not modifying certain portions to cure the ambiguity. We granted the petition for review, and in our order we limited briefs and arguments to three issues. However, because of our conclusion that the sentence is legal, proper, and not inconsistent within its own terms, we find no requirement placed on the law officer or higher authorities compelling them to act as contended for in the second and third issues. Therefore, we eliminate any discussion of the last two questions and direct our remarks to the single contention that the sentence has mutually inconsistent provisions as a matter of law, and the conflict must be resolved in favor of the accused. The sentence on its face is in all respects legal and regular. However, the accused seeks to support his claim of irreconcilable conflict by contending that the court-martial indicated an intent to keep the accused in a pay status when it ordered only a partial forfeiture of pay, but, because of the operation of another Federal statute, the imposition of the dishonorable discharge prevented the accrual of pay and allowances and the desired intent is defeated. The Uniform Code of Military Justice provides that a person convicted of desertion may be punished as a court-martial may direct, and the only limitation on that power to punish is found in the Table of Maximum Punishments in the Manual. In addition to the power conferred by the punitive Articles, the Code has two Articles which are relevant. Article 18 provides: “. . . general courts-martial . . . may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when specifically authorized by this chapter.” Article 19 is as follows: “. . . Special courts-martial may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, — 85 — forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months. A bad-conduct discharge shall not be adjudged unless a complete record of the proceedings and testimony before the court has been made.” In imposing the sentence in this instance, the court-martial stayed well within its limits and, as a matter of fact, one portion of the sentence was relatively light for, instead of forfeiting all pay and allowances, the court-martial provided for forfeiture of only $28.80 per month. Strangely enough, it is the generosity of the court-martial in that regard which creates the question raised by the accused. To support his hypothesis that there are mutually inconsistent parts in the sentence, accused must go beyond the Uniform Code and call to his assistance the Act of Congress of August 10, 1956, 70A Stat 208, 10 USC § 3636, which provides: “Enlisted members: pay and allowances not to accrue during suspended sentence of dishonorable discharge. Pay and allowances do not accrue to an enlisted member of the Army who is in confinement under sentence of dishonorable discharge, while the execution of the sentence to discharge is suspended.” The predecessor statute of the. one quoted above was the Act of March 4, 1915, 38 Stat 1065, 10 USC § 876, and it provided: . . That hereafter pay and allowances shall not accrue to a soldier under sentence of dishonorable discharge, during such period as the execution of the sentence of discharge may be suspended under authority of the Act of Congress approved April twenty-seventh, nineteen hundred and fourteen, . . .” It is to be noted the first quoted statute which was in effect at the time this sentence was imposed modifies the earlier act slightly, for it denies the accrual of pay and allowances only during confinement. However, it is clear from both statutes that the purpose of the law is to impose a limitation upon the expenditure of funds by fiscal agents of the Government. The question then becomes simply whether a fiscal act can be used as a basis for impliedly reading into the Uniform Code inconsistencies which have for their effect the repealing of the specific delegation of power to courts-martial to impose any sentence not forbidden by law. We find no reason why we should interpret the financial statute in derogation of the power of a court-martial. On the contrary, we need not deal with that Act at all, for all we need say is that the authority of a fiscal agent of the Federal Government acting under a separate law to pay or not to pay the accused is a matter which cannot be tossed into military law to befuddle sentences authorized by the Code. Certainly, we are not disposed to interpret the financial statutes to restrict the power of a court to sentence as authorized by military law and, unless we go that far, there is no inconsistency in this sentence. To reach a contrary conclusion would throw the whole system of sentencing in military courts out of balance. The law is, and has been for many years, to the effect that courts-martial could impose punitive discharges together with partial forfeitures of pay and allowances. Certainly, all military authorities, and this Court since its inception, have acted on the assumption that the power to impose sentences of that kind has been delegated to military courts by Congress. The Uniform Code of Military Justice prescribes the complete system of military justice in the Armed Services, and it should not be emasculated by statutes which deal with the financial and civil rights of those convicted of offenses unless the Act relied on for amending purposes discloses a clear Congressional intent to modify the Code. No such intent can be found in the questioned legislation, and invalidity by implication should be avoided. In this instance, the canons of statutory construction can be employed to establish that the Code has been left untouched, and for us to read into the law a limitation on the sentencing power of military courts for the reasons advanced would be contrary to what we — 86 — believe to be the intent of Congress. In addition, undesirable results not anticipated by the lawmakers would result. Great difficulty would be encountered because courts-martial would be circumscribed by all fiscal legislation, and many sentences would be vulnerable to attack if some law in the civil field was found which appeared to be at variance with the intent of the court-martial. To retain that which is necessary to an orderly system, we prefer to rely on the provisions of the Code and hold that the power of the court-martial to render those sentences authorized by the Code and the Manual is not impaired by the fiscal Act herein referred to. One other argument bears answering. Defense counsel assert that, regardless of the authority of the court-martial to assess this sentence, under the doctrine of United States v Flood, 2 USCMA 114, 6 CMR 114, it is inconsistent on its face and it should be modified by some authority possessed of the power to deal with the appropriateness of sentence. Obviously, the argument takes the approach that the punitive discharge provision must be deleted from the sentence so as to make it possible for the accused to remain in a pay status, and it is bottomed upon the premise that the court-martial intended to keep him in a pay status for one year and the execution of the discharge before that time will defeat the assumed intent. The short answer to that is that we find no such intent expressed or implied in the sentence. We assume the court-martial intended to separate the accused from the Service and that the partial forfeitures were imposed so that his family might obtain some assistance until such time as he was returned to civilian life. It would be contrary to sound judgment to conclude the court-martial intended to separate him from the Service with a dishonorable discharge but to require the Government to retain him in the Service for one year so he could be paid for that period of time. The sensible construction of the sentence is that the provision forfeiting the named sum was conditioned on the period of incarceration with the understanding that the law on execution of sentences would take its ordinary course. Our attention has been called to the case of United States v Qualls, CM 392121, in which an Army board of review reached a contrary result. However, in United States v Scott, CM 392208, and the present case, boards of review refused to follow the rule laid down. As indicated above, our views are in keeping with rationale of the latter, and we, therefore, affirm the decision of the board in this instance. Judge FERGUSON concurs.