United States v. Fayson

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM S32491
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UNITED STATES
Appellee
v.
Wesley J. FAYSON
Airman First Class (E-3), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 8 June 2018
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Military Judge: Tiffany J. Williams.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
forfeiture of two-thirds pay per month for 3 months, and reduction to E-
1. Sentence adjudged 11 August 2017 by SpCM convened at Tinker Air
Force Base, Oklahoma.
For Appellant: Captain Meghan R. Glines-Barney, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen
Payne, Esquire.
Before HARDING, SPERANZA, HUYGEN, Appellate Military Judges.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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PER CURIAM:
Appellant submitted his case for review on its merits with no specific as-
signment of error. Upon our review, we noted the trial counsel argued for, the
military judge adjudged, the staff judge advocate recommended, and the con-
vening authority approved forfeiture of two-thirds pay per month for three
months. Rule for Courts-Martial (R.C.M.) 1003(a)(2) requires that “[u]nless a
United States v. Fayson, No. ACM S32491
total forfeiture is adjudged, a sentence to forfeiture shall state the exact amount
in whole dollars to be forfeited and the number of months the forfeitures will
last” (emphasis added). Thus the forfeiture component of the approved sen-
tence is not stated properly.
However, we need not return this case to the convening authority to remedy
the error. Instead, we exercise our authority under Article 66(c), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 866(c), to modify the sentence. We do
so to ensure the sentence is stated properly, reflects what the military judge
and convening authority intended, and does not exceed the authorized maxi-
mum. See United States v. Buford, ___ M.J. ___, No. ACM 39087, 2017 CCA
LEXIS 762, at *7 (A.F. Ct. Crim. App. 2017) (“we may review the actions of
military officials to ensure the severity of the monetary components of a sen-
tence are not unlawfully increased”). We conclude the military judge intended
to adjudge, and the convening authority intended to approve, the maximum
forfeiture of pay per month for three months that could be legally imposed at
a special court-martial. 1
This court is not reticent to engage in public math—at least on this occasion
and albeit limited to simple division and rounding. The calculation is straight-
forward but must also account for the reduction in grade. See R.C.M.
1003(a)(2). In calendar year 2017, the monthly basic pay for an E-1 with
greater than four months of creditable service, which describes Appellant at
the time his sentence was approved, was $1,599.90. 2 Two-thirds of $1,599.90
rounded down to a whole dollar amount is $1,066.00. We, therefore, modify the
forfeiture component of the sentence from a forfeiture of two-thirds pay per
month for three months to a forfeiture of $1,066.00 pay per month for three
months. 3
The approved findings and sentence as modified are correct in law and fact,
and no error materially prejudicial to Appellant’s substantial rights occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
1 Article 19, UCMJ, 10 U.S.C. § 819.
2 Available at https://www.dfas.mil/militarymembers/payentitlements/military-pay-
charts.html (last visited 8 Jun. 2018).
3There is a possibility that an aggregate forfeiture of $1.80 was imposed in excess of
what is permitted by the application of R.C.M. 1003(a)(2) to the jurisdictional maxi-
mum. Appellant, however, has not to our knowledge claimed he is due “two dollars”.
2
United States v. Fayson, No. ACM S32491
Accordingly, the approved findings and sentence as modified are AF-
FIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3