Keeping that Military Pay Check “All in the Family”: Deferring and Waiving Forfeitures 101

Military dependents may continue to receive the benefit of their loved ones monthly paychecks while they serve time in military confinement. United States v. Moralez, 65 M.J. 665 (ACA 2007).  How “forfeitures” work is an admittedly complicated topic that seems to confuse civilian and military lawyers alike. Pursuant to UCMJ, Articles 57 and 58b, there are two types of forfeitures, or ways that the Government can take money from the accused after his court-martial.

First, an “adjudged forfeiture” is typically announced as part of the sentence by the military judge. Often times the military judge will utter something like “this court sentences you, PVT Smith ….to forfeit all pay and allowances.” Again, because this is announced “by the judge” it’s termed, by definition, an “adjudged” forfeiture.

Second,  an “automatic forfeiture” occurs by operation of law, and thus is never actually announced in court. It is automatically triggered by certain court-martial sentences. By way of example, in the Army context, if a Soldier receives confinement in excess of 6 months or received a “punitive kick” (bad conduct or dishonorable discharge) he and by implication his family, will suffer “automatic” forfeitures of all his pay and allowances; this occurs even though the military judge never mentioned the loss of pay as part of the court-martial sentence.

Defense counsel can avoid the financial hardship associated with such “surprise financial punishments” by submitted to the Convening Authority (CA) a request to “defer” the adjudged and automatic forfeitures within 14 days after the sentence is announced. The CA cannot direct payment to your client’s dependents, however, you can still arrange for it indirectly. It works this way. Have your client prove his intent to provide his pay and allowances to his family by filling out an allottment  form directing pay to his wife’s bank account or by providing a sworn statement from his wife assuring the CA that she alone has access to the bank account where the money is to be routed. By making these arrangements, the CA might approve the deferral of the forfeitures even though your client is technically still being sent the money; when in reality, it is actually being forwarded on to his wife and kids.

As part of your deferral request highlight the factors in RCM 1101(c)(3).  If approved, the family should receive money so long two facts stay the same. (1) The Soldier does not reach his ETS; and (2) the Soldier remains in confinement. With regard to the former rule, once the Soldier is released from confinement he is typically placed on involuntary excess leave, and by definition, will no longer be eligible for any military pay or allowances.

Notably, “deferment” has one temporal limitation. It ceases on the “date of action.” Simply stated, if your client’s appeal is denied  and the CA takes final action on his punitive discharge that is it, no more money. His family will be ineligible to collect money under the “deferment route”, even though their father and husband remains in confinement. In order to avoid this hardship, defense counsel should, as part of its RCM 1105 clemency application, seek the “waiver” of the “automatic forfeitures” pursuant to the factors listed within RCM 1101(d)(2). If successful, the CA, by “waiving the forfeitures” will essentially guarantee payments to the family “at anytime before action or at action” including ” an extension of payments “up to six months after action.” This additional six months of payments after final action, while the Soldier remains in custody, can certainly make a world of difference for his family. Be cautioned however, this option is only available with regard to “automatic forfeitures” and not “adjudged forfeitures.”

Accordingly, make sure to tailor your pre-sentencing argument wisely, by strenuously arguing against the military judge imposing any financial forfeitures on your client, and his highly vulnerable family. Similarly, defense counsel should press the military judge to award a sentence of confinement that does not exceed 6 months. As an aside, be ever mindful that the same provisions that trigger an automatic forfeiture (more than 6 months in the brig or punitive discharge) also trigger an “automatic” reduction to the lowest enlisted grade.

In conclusion, Army trial defense counsel who are able to keep their clients from serving more than 6 months of confinement while simultaneously avoiding a punitive discharge, have avoided the Army’s “automatic” punishments. By limiting such exposure, savvy defense counsel have also avoided the need to confront the unforgiving CA who may be grossly uninterested in providing any financial benefits to your client, much less his family.

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