Chapter 16.
Sentences and Punishments

Section I. Procedure

  1. CLOSING OF COURT AND DELIBERATION. After the data and evidence described in paragraph 109, supra, have been received, the court will again be closed, so that it may determine the sentence. As in the case of findings, the voting may be preceded by a full and free discussion among the members, the junior member being permitted to express himself first to avoid any influence based on superiority of rank. It is proper for the law member of a general court-martial or the president, if the law member is not present or the trial is before a special court-martial, to state at the very outset of the discussion the punishment which is authorized upon the basis of the findings, provided he does not at that stage indicate his views as to what punishment ought to be imposed. A clear statement by him of the permissible punishments will prevent useless discussion or consideration of unauthorized sentences. The matters to be considered in determining the proper punishment are discussed in paragraphs 117 through 120, infra.

  2. DUTIES OF MEMBERS. Every member of the court is required to vote for a proper sentence regardless of his opinion or vote as to the guilt of the accused. Although he personally may have believed the accused not guilty and may have so voted when the court was considering its findings, the question of guilt has been settled by the court and he must accept that conclusion. The only matter he can now consider is what is an adequate and proper punishment for the offense. If the Article of War which the accused has violated prescribes a mandatory punishment (par. 118, infra), then it is the duty of each member to vote for that sentence. If the Article leaves the punishment to the discretion of the court, then he must vote for an appropriate sentence, exercising his own judgment and voting according to his own conscience. He should, however, give due weight to the opinions of others, and if the court becomes sharply divided, he should carefully re-examine his own views to determine the justness of his decision in the light of conflicting opinions.

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  1. METHOD OF VOTING. When the discussion is completed, any member who desires to propose a sentence will write it out on a slip of paper. The junior member will collect these proposed sentences and submit them to the president who will arrange them in order of severity and read them to the court. The court will then vote on the proposed sentences beginning with the lightest. As in the case of findings, the voting will be by secret written ballot, the junior member collecting and counting the ballots in the presence of the president who verifies the count and announces the result of the court. If the first sentence voted on is not adopted, a ballot will then be taken upon the next heavier sentence proposed, and so on until a sentence has received the required number of votes. If none of the sentences proposed are adopted, a new set of proposals may be made and voted upon.

  2. NUMBER OF VOTES REQUIRED. AW 43 prescribes the number of votes which are required to impose a sentence. For a sentence of death, all members present at the time of voting must concur; for a sentence to confinement for more than 10 years (including, of course, life imprisonment) concurrence of three-quarters of those present at the voting is required; for all other sentences concurrence of two-thirds of those present at the voting is required. Thus, an accused may be convicted of wartime desertion by a two-thirds vote, but to sentence him to death a unanimous vote would be necessary, to sentence him to confinement in excess of 10 years a three-quarters vote, and to impose any other sentence a two-thirds vote.

  3. FORM OF SENTENCE.

    1. General. After the court has arrived at a sentence, it should be written out in proper form by the president or law member. The forms for sentences set forth in appendix 9, MCM, should be strictly adhered to. Failure to express the sentence in proper form may result in an illegal or ineffective sentence or one which does not express the result which the court desires.

    2. Sentence must be single. Regardless of the number of offenses of which the accused has been convicted, the court will impose a single sentence. The sentence will not be so phrased as to indicate that part of the punishment is imposed for one offense and part for another offense.

  4. SENTENCES FOR JOINT ACCUSED. If two or more accused are jointly tried and convicted, a separate sentence must be adjudged as to each precisely as if they had been separately tried. A different punishment may be imposed on each if there are extenuating circumstances as to some not existing as to others or if the degree of guilt is different. Even if precisely the same punishment is imposed on all, however the sentence as to each must be separately stated. Thus, if Privates Binz and and Random were jointly convicted of robbery and the court desired to

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    impose confinement for years on both, the sentence would be phrased as follows:

    As to Private Timothy Blinz:
    To be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct for 5 years.

    As to Private Roderick Random:
    To be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct for 5 years.

  1. ANNOUNCEMENT OF SENTENCES; CLEMENCY; ADJOURNMENT. When ready to disclose its sentence, the court should be opened, the accused brought before the table where the court sits, and the president should then announce the findings and sentence of the court. The form for this announcement is set out in appendix 1, pp. 156-157, infra. In announcing the findings and sentence, the president should state only the proportion of members voting for the finding or the sentence which is required by AW 43. Thus, if an accused were found guilty of any offense, except spying in violation of AW 82, the announcement of the findings should be "two-thirds of the members present at the time the vote was taken concurring in each finding of guilty," even if there was actually a unanimous vote or a proportion greater than two-thirds. If the accused were sentenced to 10 years' confinement or less, the announcement should refer to the concurrence of "two-thirds" of the members; if sentenced to more than 10 years to "three-fourths" of the members; and if to death to "all the members." If there is good reason for not disclosing them, the president will state that the court has directed that the findings and sentence by not announced. It is only in a rare case that there are sufficient reasons of policy for not announcing the findings and sentence in open court. Even if not announced, the findings and sentence must be revealed to the trial judge advocate who must record them (app. 6, pp. 268-269, MCM) and notify the commanding officer of the accused of the result of trial (par. 41b, MCM). After the announcement of findings and sentence (or statement that they are not to be announced), the defense counsel may submit any documents or other matters relating to clemency which he desires the court to consider. (See ch. 11, supra.) When all clemency considerations have been disposed of, the court will adjourn unless the trial judge advocate has other cases to present at that time. In the latter case, the court will take up the next case.

Section II. Punishments--General Limitations

  1. CONSIDERATIONS IN DETERMINING PUNISHMENT.

    1. Sentence should be adequate and appropriate. So far as the sentence is discretionary,

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      the court should impose a punishment which is adequate for the offense and appropriate for the offender, avoiding on the one hand undue leniency and on the other excessive harshness. Any extenuating or aggravating circumstances involved in the commission of the offense, together with the character and record of the accused, as shown by previous convictions and previous service, should be taken into account. A court which automatically imposes the maximum sentence in every case is not performing its proper function. On the other hand, inadequate sentences may have even more serious consequences. The reviewing authority has power to reduce an excessively severe sentence, but he cannot add to the punishment no matter how inadequate it may be. Undue leniency completely ties the reviewing authority's hands and, where the offense is of a civil nature which would be punished severely by the civil courts, may bring the entire system of military justice into disrepute.

    1. Limitations on court's discretion. The court does not in any case have a completely uncontrolled discretion. First, it must consider what punishment is authorized for the particular offense, since punishment for that offense may be mandatory--i.e., specifically prescribed by the Article of War, or it may be limited by the Table of Maximum Punishments. Second, if the case is tried by an inferior court, it must consider whether it has jurisdiction to impose the kind and amount of punishment which is authorized for that offense. Third, it must consider the status and rank of the accused, since all types of punishment are not applicable or appropriate to all types of accused. Fourth, it must select an authorized kind of punishment and consider the possible limitations on the amount of that punishment and the circumstances under which it can be adjudged.

  1. MANDATORY SENTENCES. Some offenses carry a mandatory punishment, that is, the Article of War denouncing that offense provides the specific punishment which must be imposed upon conviction. For spying in violation of AW 82, the death penalty must be imposed; for conduct unbecoming an officer and a gentleman in violation of AW 95, dismissal from the service is mandatory. As to these offenses the court has absolutely no discretion in determining the sentence, its only function being to adjudge the sentence which the statue requires.It cannot add anything to the prescribed punishment, nor give anything less. For murder or rape in violation of AW 92, death or life imprisonment are the only possible punishments, the court having simply the power to choose one or the other. For other offenses (AW AW 56, AW 57, AW 85, and AW 87) the punishment is partly mandatory and partly discretionary, that is, those articles require dismissal, but permit the court to adjudge such additional punishment as it sees fit. An officer convicted of being drunk on duty in time of war (AW 85), for example, must be sentenced to dismissal, but, unlike the case of a conviction for conduct unbecoming an officer and a gentleman

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    (AW 95), the court may add a further punishment if it chooses. Where the sentence is mandatory or partly mandatory, failure of the court to adjudge the punishment which the statue requires makes its sentence illegal and of no effect.

  1. TABLE OF MAXIMUM PUNISHMENTS.

    1. Definition. The punishment of offenses other than those referred to in paragraph 118 is left by the Articles of War to the discretion of the court, the Articles generally providing that the offense should be punished "as a court-martial may direct." However, by AW 45, the President was authorized to establish limits of punishment for such offenses. By the Table of Maximum Punishments set out in paragraph 104c, MCM, the Presdient established such limits for many offenses. The punishment provided in that table for any offense is simply the maximum that may be imposed. It is not a required punishment,and the court may adjudge less than that set out in the table in any case.

    2. To whom applicable. The limitations provided in the table are applicable only to offenses committed by enlisted men, including prisoners under a suspended sentence of dishonorable discharge. As to offenses committed by other persons triable by courts-martial, commissioned officers, warrant and flight officers, aviation cadets, prisoners whose dishonorable discharge has been executed, and civilians, there is no legal maximum other than that provided in the Articles of War. However, the maximum established in the table may be used as a standard for determining the appropriate amount of punishment for such persons. In the case of civilians, adherence to that maximum should be the rule (see WD Cir. 175, 1943).

    3. Offenses covered by table. The maximum provided in the table as to a particular offense is also applicable to any included offense not listed or to any closely related offense which is not listed. For example, the table does not provide any punishment for wrongful taking of property in violation of AW 96. That does not mean that there is no limit to the punishment for wrongful taking, however, since wrongful taking is included in the offense of larceny. Therefore, it cannot be punished any more severely than can larceny of the same amount of property. Similarly, there is no punishment provided for the offense of knowingly receiving stolen goods in violation of AW 96. That offense is not included in any offense listed, but it is closely related to the offense of larceny. It is, therefore, governed by the maximum applicable to larceny.

    4. Offenses to which limitation in table no longer applies. The limitation on punishment of some offenses listed in the table is no longer in effect. The maximum established for the offense of willful disobedience of a superior officer in violation of AW 64 is not applicable "in time of war or grave public emergency." There is now, therefore, no limitation upon the punishment for that offense. (It will be noted that the table

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      contains no maximum at all as to the offense of assaulting a superior officer in violation of AW 64.) The limitation on punishments for violation of AW 58 (desertion), AW 59 (advising or persuading another to desert) and AW 86 (misbehavior of sentinel) were suspended by order of the President as to offenses committed after 3 February 1942 (Executive Order 9048, 3 February 1942; Sec. IV, Bull. 6, WD, 1942; See Note, p. 97, par 104c, MCM). Violations of those Articles committed after that date are punishable by death or such other punishment as the court-martial may direct. However, for such offenses committed on or before 3 February 1942 the maximum is still in effect. Thus, an accused who is tried today for having deserted on 1 February 1942 cannot be punished more severely that the table allows. The limitation upon punishment for absence without leave from command, guard, quarters, station, or camp in violation of AW 61 was suspended by order of the President as to such offenses committed after 1 December 1942 (Executive Order 9267, 9 November 1942; Sec. I, Bull, 57, WD, 1942; See Note, p. 97, par 104c, MCM). Absence without leave on or before 1 December 1942 in punishable only to the extent provided in the table. It will be noted that in addition to absence without leave from command, guard, quarters, station, or camp, AW 61 also makes it an offense to fail to repair at the fixed time to the properly appointed place of duty or to go from the same without proper leave. The President's order did not suspend the maximum as to these two latter offenses. If, therefore, a soldier today failed to repair for KP in violation of AW 61 he could be punished only to the extent permitted by the table--i.e., by forfeiture of 3 days' pay.

  1. SUBSTITUTED PUNISHMENTS. The Table of Maximum Punishments state the maximum punishment in terms of confinement or forfeiture or both. It contains no reference to such other forms of punishment as hard labor without confinement, restriction to the limits, or detention of pay. For many minor offenses these latter forms of punishment would be more appropriate. Unless a dishonorable discharge is imposed, the court has discretion to substitute other punishments for those stated in the table. The basis for such substitution is set out in a table on page 96, MCM. From that table it will be seen that the following punishments are equivalent: forfeiture of 1 day's pay, confinement at hard labor for 1 day, detention of 11/2 day's pay, hard labor without confinement for 11/2 days, and restriction to the limits for 3 days. If an enlisted man were convicted of being drunk on duty in violation of AW 85, for example, for which the maximum punishment is forfeiture of 20 day's pay, the court could substitute other punishments for all or part of the 20 days' forfeiture at the rates just referred to. Since 1 day's forfeiture is equivalent to 1 day's confinement, it could substitute 20 days' confinement; since 1 day's forfeiture is equivalent to 11/2 day's hard labor without confinement, it could substitute 30 days' hard labor

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    without confinement; since 1 day's forfeiture is equivalent to 3 days' restriction to the limits, it could substitute 60 days' restriction to the limits. Or it could substitute other punishments for part of the authorized forfeiture. Thus, it could impose forfeiture of 10 day's pay and for the remaining 20 days' forfeiture authorized substitute 10 day's confinement of 15 day's hard labor without confinement of 30 day's restriction. Substitutions cannot be made if a dishonorable discharge is imposed. They are of importance chiefly in cases of minor offenses. By substituting additional forfeitures, or hard labor without confinement, or restriction, for the authorized confinement in such cases, the accused will be adequately punished but will not be kept from his regular duties as he would be if the sentence included confinement. In making substitutions the court must keep in mind the limits on its own jurisdiction and on particular types of punishment. Thus, if the authorized punishment for an offense were confinement at hard labor for 1 month and forfeiture of two-thirds of 1 month's pay, a summary court-martial could not impose additional forfeitures in place of all or any part of the confinement, since it has no jurisdiction to forfeit more than two-thirds of 1 month's pay. Similarly if the authorized punishment for an offense were 2 moths' confinement and forfeiture of two-thirds pay per month for 2 months, no court could substitute restrictions for all the confinement (that is, 3×60, or 180 days) since in not event may restriction be imposed in excess of 3 months (i.e., 90 days). It is to be especially noted that the Table of Maximum Punishments and the Table of Substitutions are to used by the court in cases involving enlisted personnel only, excluding aviation cadets, warrant officers, and flight officers and including general prisoners not dishonorably discharged (par. 104a, MCM). In no case may the reviewing or higher authority make use of the Table of Substitutions in taking his action. (Par. 104c, MCM.)

Section III. Types of Punishments

  1. CONFINEMENT AT HARD LABOR.

    1. Definition. By this punishment the accused is imprisoned and required to perform hard labor during such imprisonment. Confinement "without hard labor" cannot be imposed (par. 103i, MCM), since it is not desirable that a prisoner serve out his term in idleness. Even if the words "at hard labor" are omitted in the sentence, the prison authorities may require performance of hard labor by the prisoner (AW 37) and normally should do so. (See par. 20, AR 600-375, 17 May 1943, and par. 5, AR 600-395, 28 March 1944.)

    2. Who subject to. Any person triable by court-martial may be sentenced to confinement at hard labor. Such a sentence cannot be adjudged in the case of a commissioned officer, unless he is also sentenced to

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      dismissal; and in the case of a warrant officer, flight officer, or aviation cadet, unless he is also sentenced to dishonorable discharge.

    1. Length of confinement. The amount of confinement which may be imposed is subject, in the case of enlisted men, to the limitations, if any, imposed by the Table of Maximum Punishments for the offense. (See par. 119, supra.) Special and summary courts-martial cannot, of course, adjudge confinement in excess of their jurisdictional limits--i.e., 6 months and 1 month respectively. A general court-martial cannot adjudge more than 6 months, confinement in the case of an enlisted man without sentencing him also to a dishonorable discharge (par. 104b, MCM).

    2. Imposing forfeiture with confinement. It is contrary to the policy of the War Department that a soldier should serve a sentence of confinement without some forfeiture of pay, in the absence of special circumstances. The mere fact that he is in confinement does not automatically result in any forfeiture of pay. The sentence must expressly provide for forfeiture. In every instance in which confinement is authorized in the Table of Maximum Punishments, forfeiture is also authorized. For example, the offense of larceny of property of a value of $20 or less in violation of AW 93 carries 6 months' confinement at hard labor. Although there is not entry in the column headed "Forfeiture" in the table as to that offense, the entry "Yes" in the column headed "Dishonorable discharge and forfeiture of all pay and allowances" shows that total forfeitures are authorized, and, of course, a lesser forfeiture is, therefore, allowable.

    3. Form of sentence. (1) The appropriate forms for sentences of confinement at hard labor are set out in app. 9, MCM. (See particularly Forms 6 and 7.) Care should be taken to state that the accused is to be "confined." A sentence to "serve" at hard labor, for example, does not provide for confinement and would result simply in the performances of hard labor without confinement, which would not carry out the intention of the court. The sentence should expressly state that the confinement is to be"at hard labor," although, as pointed out above, the omission of these words will not prevent hard labor being required. It is not the function of the court to designate the place of confinement, and any such designation in the sentence is improper and ineffective (par. 103i, MCM). A sentence of a general court-martial should provide for confinement at hard labor "at such place as the reviewing authority may direct" (app. 9, Form 7, MCM), since there are several possible places of confinement of prisoners sentenced to dismissal or dishonorable discharge. (See par. 5, AR 600-375, 17 May 1943.) These words are usually not included in a sentence imposed by a summary or special court-martial (app. 9, Form 7, MCM), since normally there is only one place in which a garrison prisoner is confined--i.e., the guardhouse of the organization for which the inferior court was appointed.

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      (2) Sentences of confinement at hard labor in excess of 1month should not be stated in terms of days--e.g., "ninety days"--but in terms of months--e.g., "three months."

  1. HARD LABOR WITHOUT CONFINEMENT.

    1. Definition. A sentence to perform hard labor without confinement requires the accused to perform hard labor in addition to his regular duties for the number of days or months provided in the sentence. In no case can it be imposed for more than 3 months par. 103i, MCM). The accused is not to be excused from his assigned duties so that he may perform the hard labor, the very purpose of the sentence being to exact extra work of a laborious nature from him during such time as may be available after he has completed his other tasks. Since the labor is to be performed in time which he would otherwise have free, 1 day's hard labor cannot be measured in terms of hours. The performance each day of the assigned task after his normal duties are done satisfies the sentence whether the particular task 1, 2, or more hours. A sentence to perform hard labor does not subject the accused to any legal restraint. His freedom of action is limited as a practical matter by having to do additional work after his normal duties are performed, but legally he is as free to come and go as and other soldier.

    2. Who subject to. Hard labor without confinement is an appropriate punishment for enlisted men only. It may never be imposed on officers, warrant officers, flight officers, Army nurses, or aviation cadets (par. 103c, MCM). A noncommissioned officer or private first class who is sentenced to perform hard labor is automatically reduced to the grade of private if the sentence is approved and either ordered executed or suspended (par. 103d, MCM); par. 13a, AR 615-5, 30 June 43).

    3. Execution of sentence. Since the sentence itself simply provides for the performance of hard labor for a certain number of days or months, some one must designate the particular tasks which the accused is to perform. Normally, the immediate commanding officer of the accused will designate the amount and character of the work to be done, although, of course, the reviewing authority may do so.

  2. RESTRICTION TO LIMITS.

    1. Definition. By this punishment the accused is deprived of the privilege of going outside the area fixed in the sentence. He may, for example, be restricted to the limits of the camp, or of his regimental or company area. As in the case of arrest prior to trial, the restraint is moral, not physical. The person restricted will not be exempted from any military duty by reason of his sentence.

    2. Who subject to. Restriction to limits is an appropriate form of punishment for all military personnel whatever their rank or status.

    3. Length of restriction. Every type of court-martial may impose restriction, but no court-martial may impose it in excess of 3 moths (par. 103f, MCM).

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  1. FORFEITURE OF PAY.

    1. Definition. A sentence of forfeiture deprives the accused of the amount provided in the sentence for the number of months or days stated therein. That amount is collected out of pay only (par. 7, AR 35-2460, 21 May 1942). Allowances are not forfeited except under a sentence "to forfeit all pay and allowances" which, in the case of enlisted men, can be imposed only with a dishonorable discharge. No punishment--whether it be death,dismissal, dishonorable discharge, or imprisonment--automatically results in forfeiture or deprivation of any pay or allowances due the accused. If the court intends to forfeit pay, or pay and allowances, it must expressly adjudge the kind and amount of forfeiture in its sentence (par. 103g, MCM; par. 2b,AR 35-2460, 21 May 1942). A court-martial has no power to assign or appropriate the pay of an accused to reimburse the Government or any agency or person, nor to require the accused to pay any debt or satisfy any obligation (par. 103g, MCM).

    2. Who subject to forfeiture. A sentence of forfeiture is an appropriate form of punishment for all military personnel whatever their rank or status. Civilians who may be tried by court-martial are, however,subject to forfeiture only as to pay due them from the United States GOvernment. If, as in the case of a newspaper correspondent or an employee of a contractor, for example, they are being paid by someone other than the United States, a money penalty can be adjudged only in the form of a fine. (See sec. IV, WD Cir. 175, 1943 and par. 125, infra.)

    3. Amount of forfeiture. A summary court-martial may forfeit two-thirds of 1 month's pay (AW 14. A special court-martial may forfeit two-thirds pay per month for 6 months or less (AW 13. A general court-martial is not limited as to the amount of forfeiture it may impose, but in the case of an enlisted man it may not forfeit more than two-thirds pay per month for six months, unless it also sentences the accused to a dishonorable discharge (par. 104b, MCM). In such a case, it should adjudge total forfeiture--i.e., forfeiture of "all pay and allowances due or to become due."

    4. Pay subject to forfeiture. A forfeiture applies to base pay,longevity pay (that is, the 5 percent increase for each 3 years of service) and the increased pay for sea duty or foreign duty (if not in a status of confinement; see WD Cir. 484, 1944). Except in case of a sentence of total forfeitures (imposed only with a dishonorable discharge) no other pay is subject to forfeiture. To illustrate: An enlisted man of the fourth grade (i.e., a sergeant), who has 4 years of service and is overseas, receives base pay of $78 per month (AR 35-2340, 31 August 1942), which is increased by 5 percent--i.e., $4.90, for 3 years service (AR 35-2360, 7 December 1944) and by 20 percent--i.e., $15.60, for foreign service (AR 35-1490, 15 September 1944). The amount of monthly forfeiture a court could impose upon him, therefore, would be two-thirds of $97.50. Additional pay for particular duties such as aviation

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      pay (AR 35-1480, 10 October 1942) or pay for parachute duty (Ar35-1495, 1 December 1944) is not part of his pay which can be forfeited. Thus, if the sergeant just referred to received $50 additional pay because required to engage in parachute jumping, the basis for determining the amount of monthly forfeiture would still by $97.50.

    1. Class F deductions. It is the policy of the War Department that the amount of an enlisted man's monthly contribution to family allowance be excluded in computing the amount of his pay subject to forfeiture. (See par. 38, AR 35-5540, 5 January 1944.) Any Class F deduction is therefore, to be subtracted from his base pay. Thus, if there were a Class F deduction of $27 from the pay of a private (whose monthly pay is $50), his net pay subject to monthly forfeiture is $23. Hence, the maximum allowable forfeiture (two-thirds of the net pay) would be $15.33 Other allotments or deductions,however, are not excluded in determining the amount of net pay subject to forfeiture.

    2. Effect of reduction of noncommissioned officer or private first class. In computing the amount of forfeiture, the court should remember that if a noncommissioned officer or private first class is reduced to the grade of private by the sentence, the forfeiture must be based on the pay of his reduced grade, that is, on a private's pay. Thus, if a sergeant, whose pay is $78, is reduced by sentence of court-martial, the maximum monthly forfeiture would be $33.33--i.e., two-thirds of $50. There are two ways in which a noncommissioned officer or private first class may be reduced by a court-martial sentence. (1) The sentence may expressly provide that he is to be reduced. Thus, a sergeant might be sentenced "to be reduced to the grade of private," either separately or with some other form of punishment, forfeitures, for example. (2) Even if the sentence does not expressly provide for reduction,a noncommissioned officer or private first class is nevertheless automatically reduced if the sentence includes dishonorable discharge, confinement at hard labor, or hard labor without confinement, and such sentence is carried into execution or suspended. For example, if a sergeant were sentenced to be confined at hard labor for 3 months and to forfeit two-thirds pay per month for a like period, and the reviewing authority approved the sentence and had it carried into execution or suspended it,the sergeant would be automatically reduced to a private on the date of the reviewing authority's action. (See par. 16a, AR 615-5, 30 June 1943.) When, therefore, a court-martial sentences a noncommissioned officer or private first class either to reduction, to confinement at hard labor, or hard labor without confinement, it should compute any forfeiture it imposes on the basis of a private's pay and not on the pay which the accused is receiving at the time of trial.

    3. Forms of sentences. (1) Forfeitures should be expressed in terms of dollars, or dollars and cents, not in fractions of months' or day's

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      pay--i.e., "To forfeit $33.33," not "To forfeit two-thirds of 1 month's pay" (par. 1, app. 9, MCM, and AR 35-2460, 21 May 1942).

      (2) If the forfeiture is for more than 1 month, it must be expressed as forfeiture of a definite sum per month (par. 1, AR 35-2460, 21 May 1942). Thus, a sentence "to forfeit $33 for 6 months," omitting the words "per month," means a forfeiture of only $33. So also, a lump sum forfeiture can forfeit no more than two-thirds of the accused's pay for 1 month. For example, in the case of a soldier receiving $50 per month, a forfeiture of an amount equal to two-thirds of his pay for 6 months expressed as a lump sum--i.e., "$199.98" rather than as "33.33 per month for 6 months"--is interpreted as forfeiting only $33.33. Forfeitures must not only be stated in terms of dollars and cents per month, but it must also clearly appear for how many months the forfeitures are to run. Thus, a sentence to be confined at hard labor for 6 months and "To forfeit $33 per month" is indefinite as to the amount of the forfeiture. The forfeiture should have been expressed as "$33 per month for a like period" (Form 8, app. 9, MCM).

      (3) Forfeitures should not be expressed in terms of days, i.e. "$33 per month for 45 days" or "$1.10 per day for 45 days." If it is desired to impose forfeiture of a soldier's pay for 1 or more months and a factional part of another month, the better method is to compute the total amount to be forfeited in dollars and cents and divide it into even months. Example: A forfeiture of $14 per month for 1 month and 15 days, amounts to $21. This may be stated as "$10.50 per month for 2 months."

  1. FINES.

    1. Definition. Whereas a forfeiture deprives the accused of all or part of his pay, a fine makes him pecuniarily liable in general to the United States for the amount of money specified in the sentence. He owes the United States that amount whether or not he gets any pay. The United States may collect that debt in the way in which it collects other debts due to it, but suit if necessary. A fine is expressly authorized as a punishment for violations of AW 80 (dealing in captured property) and of AW 94 (frauds against the Government), the object being to reimburse the United States for amounts thus illegally diverted from the public treasury for private purposes.

    2. Who subject to. Fines should not be imposed on military personnel, either enlisted men or officers, except perhaps in the case of aggravated embezzlements or other frauds by a disbursing officer, for instance, when a large sum is necessary to make good the defalcation. The proper form of monetary punishment for military personnel is forfeiture of pay. In the case of civilians triable by courts-martial, however, forfeiture of pay cannot be adjudged except as to pay due them from the United States Government. A fine and not a forfeiture is, therefore, the appropriate method of imposing monetary punishment on a civilian. A sentence imposing a fine may at the same time impose confinement in the alternative

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      upon failure to pay the fine, at the rate of 1 day for so many dollars of the fine remaining unpaid. (See sec. IV, WD Cir. 175, 1943.) Summary and special courts-martial as well as general courts-martial have jurisdiction to impose fines.

  1. DETENTION OF PAY.

    1. Definition. By this form of punishment, the amount specified in the sentence is withheld from the pay of the accused until he is finally separated from the service, when it will be repaid to him on a final statement. (See par. 9, AR 35-2460, 21 May 1942.) It differs from forfeiture in that the amount detained is ultimately returned to the accused when he leaves the service. It is, therefore, a less severe form of punishment.

    2. Who subject to. Only enlisted men in the Army are subject to detention of pay (par. 104g, MCM). Pay which isi subject to detention is the same as the pay which is subject to forfeiture. (See par. 124d, supra.) No court-martial can combine both forfeitures and detention so as to affect more than two-thirds of any 1 month's pay.
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