United States v. Lonnette

UNITED STATES, Appellee
v.
Sharvenckie R. LONNETTE, Sergeant
U.S. Army, Appellant
No. 05-0242
Crim. App. No. 20020349
United States Court of Appeals for the Armed Forces
Argued October 19, 2005
Decided January 24, 2006
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Scott T. Ayers (argued); Colonel Mark
Cremin, Captain Rob W. MacDonald, and Captain Charles L.
Pritchard Jr. (on brief); Lieutenant Colonel Mark Tellitocci,
Lieutenant Colonel Kirsten V. C. Brunson, Major Allyson G.
Lambert, and Major Billy B. Ruhling II.
For Appellee: Captain Isaac C. Spragg (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, and Captain
Edward Wiggers (on brief); Lieutenant Colonel Virginia G.
Beakes.
Military Judges: Debra L. Boudreau and Michael D. Neveu
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lonnette, No. 05-0242/AR
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of indecent assault and false swearing in violation of Article
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2000). The adjudged sentence included a bad-conduct discharge,
confinement for ten months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. The
convening authority approved the findings, reduced the period of
confinement by one month, and approved the balance of the
sentence. In an unpublished opinion, the United States Army
Court of Criminal Appeals affirmed the findings and sentence.
United States v. Lonnette, No. ARMY 20020349 (A. Ct. Crim. App.
Nov. 30, 2004).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE CONVENING AUTHORITY IMPROPERLY
APPROVED FORFEITURE OF ALL PAY AND
ALLOWANCES WHERE APPELLANT HAD ALREADY
COMPLETED HIS SENTENCE TO CONFINEMENT AT THE
TIME THE CONVENING AUTHORITY TOOK ACTION.
For the reasons set forth below, we affirm the decision of the
Army Court of Criminal Appeals.
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United States v. Lonnette, No. 05-0242/AR
I. BACKGROUND
Appellant, who was sentenced on April 8, 2002, was released
from confinement on December 6, 2002. Approximately six weeks
later, on January 16, 2003, the convening authority took his
formal action on the findings and sentence. The sentence, as
approved by the convening authority, included forfeiture of all
pay and allowances.
According to Appellant, the convening authority erred by
approving forfeiture of all pay and allowances after he was
released from confinement. See United States v. Warner, 25 M.J.
64, 67 (C.M.A. 1987); Rule for Courts-Martial (R.C.M.)
1107(d)(2) Discussion (“When an accused is not serving
confinement, the accused should not be deprived of more than
two-thirds pay . . . .”). Noting that he was no longer in
confinement at the time the convening authority approved the
sentence, Appellant contends that he was entitled to “some pay
once he was out of confinement, if in the appropriate leave
status.”
II. DISCUSSION
Under Article 58b(a), UCMJ, 10 U.S.C. § 858b (2000), a
servicemember sentenced by a general court-martial to
confinement for more than six months is subject to forfeiture of
all pay and allowances during the period of confinement. Once
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the servicemember is released from confinement, entitlement to
pay is dependent on a number of factors, such as whether the
servicemember’s term of service expired and whether the
servicemember has been required to take appellate leave. See
United States v. Fischer, 61 M.J. 415, 419 (C.A.A.F. 2005);
Article 76a, UCMJ, 10 U.S.C. § 876a (2000); Dep’t of Defense
Financial Management Regulations (DoD FMR), vol. 7A, subpara.
010301.F.1 (2005); see also United States v. Stewart, 62 M.J. __
(C.A.A.F. 2006)(setting forth considerations applicable to the
imposition of forfeitures following release from confinement).
A forfeiture is not a fine. A forfeiture is deducted from a
servicemember’s pay and allowances only if the member is
otherwise entitled to such compensation. See R.C.M. 1003(b)(2);
R.C.M. 1003(b)(2) Discussion. If a servicemember on appeal
alleges error in the application of a sentence that involves
forfeitures, the servicemember must demonstrate that the alleged
error was prejudicial. See Article 59(a), 10 U.S.C. § 859(a)
(2000). To establish prejudice, an appellant bears the burden
of demonstrating that he or she was entitled to pay and
allowances at the time of the alleged error.
In this case, Appellant has not met this burden. The
critical data regarding entitlement to pay and allowances
involves information that is well within the personal knowledge
of members of the armed forces -- that is, the date of release
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from confinement, the commencement date of any voluntary excess
leave, and the termination date of an obligated period of
service. To the extent that a servicemember is unable to recall
specific dates, the data normally is retained in military
records. Appellant has not alleged that he is unable to recall
these dates, that he attempted to obtain the appropriate
military records, or that he was unable to obtain access to any
records. He has not provided the Court with the information
necessary to determine whether he was entitled to pay and
allowances on the pertinent dates. Accordingly, Appellant has
not established prejudice under Article 59(a).
Following oral argument, the Government submitted to the
Court a document indicating that at 0900 hours on December 6,
2002 -- the date Appellant was released from confinement -- his
duty status was changed to “Present for Duty.” According to a
previously submitted separate document, Appellant was placed on
voluntary excess leave forty-five minutes later. A
servicemember on voluntary excess leave is not entitled to pay
and allowances. DoD FMR, vol. 7A, subpara 010301.E (2005).
Appellant has not presented any evidence that he subsequently
entered a status for which he would have been entitled to pay
and allowances.
Appellant, in support of the Government’s post-oral
argument motion to attach the document concerning his change of
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circumstances on December 6, 2002, suggests that he was placed
in a pay status on that day. Appellant, however, has not
addressed the fact that the documents indicate that he was on
active duty for no more than forty-five minutes. Assuming that
Appellant was on active duty for forty-five minutes on December
6, the burden is on Appellant to demonstrate that he was
entitled to pay and allowances on that date, that forfeitures
were erroneously taken, and that if there was error, it was
prejudicial. Appellant has not done so. If the defense
believes that Appellant was entitled to pay and allowances on
December 6, 2002, that matter can be resolved through
appropriate administrative channels. Under the circumstances of
this case, the speculative possibility that Appellant might have
been entitled to an undefined amount of pay and allowances on a
single day is not sufficient to establish prejudice under
Article 59(a).
III. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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