set that action aside, and directed that the case be returned to a new convening authority for consideration. (26 CMR 3, 6.)

On July 7, 1958, the new convening authority approved only so much of the court-martial sentence that provided for dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years. The execution of the dishonorable discharge was suspended until the enlisted member was released from confinement or until completion of appellate review; he was credited with the confinement from September 29, 1956, to March 29, 1958, and the application of forfeitures was deferred until the sentence was ordered executed. We have now ascertained that Wilson again petitioned the United States Court of Military Appeals for review, but that petition was denied on December 30, 1958. We also are advised that Wilson was discharged from the service on February 28, 1959, by reason of normal expiration of term of service.

The questions in your letter may be paraphrased as follows:

1. Is the member entitled to pay and/or allowances for the period from October 26, 1956, date of first Convening Authority action, to the date of normal expiration of term of service, June 18, 1957, and, if so, in what grade?

2. Is the member entitled to pay and/or allowances for the period of confinement subsequent to the normal date of expiration of service to date of restoration to duty?

3. Is the member entitled to pay and allowances as a private or as a sergeant first-class upon restoration to duty, March 29, 1958, to date of action by the second Convening Authority?

4. To what pay and/or allowances is the member entitled on and after July 7, 1958, date of action by the second Convening Authority? The court-martial proceedings, its findings and the sentence adjudged on September 29, 1956, were not found to be deficient or illegal at any review or appellate stage. The sentence adjudged of dishonorable discharge from the service, forfeiture of all pay and allowances, and confinement at hard labor for ten years, was consistently approved, except for the reduction of the period of confinement at hard labor to two years by the first Board of Review. (23 CMR 441.)

The second Convening Authority, in his action of July 7, 1958, approved so much of the court-martial sentence as provided for dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for two years, but suspended execution of the dishonorable discharge pending appellate review. The second Convening Authority also directed that "The application of the forfeitures is deferred until the sentence is ordered into execution." Hence, the situation is not unlike that considered in our decision of January 17, 1957, 36 Comp. Gen. 512, wherein we held—

Since the officer's original sentence [dated June 30, 1955] was never executed, moneys withheld from him under that sentence, pending completion of appellate review, were not executed forfeitures and upon such review the original sentence was set aside. Hence, the only valid existing court-martial sentence in the case is that which was approved by the convening authority on September 23, 1956, and by the terms of that sentence (which apparently are in conformity with the terms of Articles 57 and 75 of the Uniform Code of Military Justice) the only pay forfeited is that which otherwise might accrue on and after September 23, 1956.

Accordingly, pay and allowances continued to accrue to the member from October 26, 1956, date of first convening authority action, to the date of normal expiration of term of service, June 18, 1957. Your first question is answered accordingly as to entitlement to pay and allowances.

In our decision dated October 7, 1957, 37 Comp. Gen. 228, at page 229, we stated

It is the rule that pay and allowances of an enlisted person whose term of enlistment expires while he is in confinement, awaiting trial by court-martial, terminate on the date of the expiration of his term of enlistment unless he is acquitted, in which event pay and allowances accrue until he is discharged. 30 Comp. Gen. 449. This rule is subject to modification in those cases where an enlisted man, sentenced by a court-martial to dishonorable or bad conduct discharge, and who is retained in the service after the expiration of his enlistment, is released from confinement and "restored to duty pending completion of appellate review." In the latter case the enlisted man is entitled to pay and allowances while performing duty after restoration to duty, even though, upon appellate review, the sentence of dishonorable or bad conduct discharge is ordered executed. 33 Comp. Gen. 281.

Your second question is answered in the negative. In other words, Mr. Wilson is not entitled to any pay and allowances for the period of his confinement subsequent to normal date of expiration of term of service, that is from June 19, 1957, to March 28, 1958.

Executive Order No. 10652, dated January 10, 1956, 21 F.R. 235, amending paragraph 126c of the Manual for Courts-Martial, United States, 1951, provides as follows:

Unless otherwise prescribed in regulations promulgated by the Secretary of the Department concerned, in the case of an enlisted person of other than the lowest pay grade, a court-martial sentence which, as approved by the Convening Authority, includes: (1) dishonorable or bad conduct discharge, whether or not suspended, (2) confinement, or (3) hard labor without confinement, immediately, upon being so approved, shall reduce such enlisted person to the lowest enlisted pay grade; provided, that the rate of pay of the person so reduced shall be commensurate with his cumulative service; and provided further, that any person so reduced shall have all rights, privileges and property affected by such reduction restored if the sentence is subsequently set aside or disapproved, or if the sentence as finally approved does not contain any of the elements listed above.

This order shall become effective on January 20, 1956.

Since the action taken in October 1956 by the first convening authority in this case was set aside, it is our opinion that there existed no "approved" sentence and, hence, that no effect may be given his action insofar as the reduction in grade is concerned. Accordingly, the

member is entitled to the pay and allowances of a sergeant first-class from October 26, 1956, through June 18, 1957. The second part of the first question is answered accordingly.

Under the terms of the above-quoted Executive order, however, the reduction to the grade of private (E-1) automatically became effective on the date (July 7, 1958) the second convening authority approved the sentence and, hence, he is entitled, upon restoration to duty on March 29, 1958, to the pay and allowances of a sergeant first-class until July 6, 1958, inclusive. Thereafter, he is entitled only to the pay and allowances of a private (E-1), or higher grade if subsequently promoted, until the date of his discharge, or until the sentence was ordered executed, whichever first occurred. Your third and fourth questions are answered accordingly.

Since the Military Pay Order (No. 699), enclosed with your letter, states that the member is due pay as a sergeant first-class from October 26, 1956, to July 6, 1958, it is not proper and it will be retained here. A new military pay order may be prepared in accordance with this decision, and, if otherwise correct, payment may be based thereon.

[B-138882]

Military Personnel-Pay-Withholding-Debt Liquidation-Court-Martial Fines-Administrative Debts

The maximum amount of monthly basic pay of enlisted members of the uniformed services which may be forfeited by a general or special courts-martial, when the member is not sentenced to a dishonorable or bad conduct discharge, is two-thirds of the member's basic pay, plus sea or foreign duty pay, unless the member has in effect a class Q allotment, in which event that pay will be reduced by the amount of the member's contribution to the class Q allotment and the amount forfeited may not exceed two-thirds of the reduced amount. The provision in 10 U.S.C. 4837 (b) reserving to enlisted members one-third of their monthly pay which is immune from stoppage for administratively determined debts does not limit the amount of a court-martial forfeiture that may be adjudged or collected, but only prevents deductions from pay for debts administratively determined to be due the United States, in addition to courtmartial forfeitures and amounts otherwise authorized by law to be withheld, which would reduce the member's pay actually received for any month to less than one-third.

Court-martial forfeitures and statutory deductions for income tax, F.I.C.A. withholdings, United States Soldiers' Home deductions, and contribution to class Q allotment constitute items for deduction from two-thirds of the total monthly pay of enlisted members of the uniformed services before collection of an administratively determined debt.

Under 10 U.S.C. 4837 (b), which permits involuntary collection of administratively determined debts from enlisted members of the uniformed services to the extent that one-third of the total monthly pay is reserved to the members, and under the act of July 15, 1954, 5 U.S.C. 46d, which permits deductions from basic, special and incentive pay in excess of two-thirds of the member's pay in order to effect collection of erroneous payments within the period or anticipated period of service, the Government has two remedies for collection of debts and any inconsistences may be obviated by viewing the 1954 act as governing collection of erroneous payments unless affirmative administrative action is

taken to effect collection under 10 U.S.C. 4837 (b) in which event the member is entitled to receive one-third of the total pay.

In the liquidation of debts of enlisted members of the uniformed services resulting from erroneous payment, and in the absence of an administrative election to effect collection under 10 U.S.C. 4837 (b), one-third of the member's special pay, incentive pay, and proficiency pay-which is a special pay under the act of July 15, 1954, 5 U.S.C. 46d-should be paid to him unless a greater deduction is necessary to effect collection within the anticipated period of active service. In the liquidation of debts of enlisted members of the uniformed services resulting from other than an erroneous payment-an administratively determined debt-under 10 U.S.C. 4837 (b), collection may only be made from amounts in excess of one-third of the member's total pay.

To the Secretary of Defense, July 21, 1959:

By letter dated February 24, 1959, the Assistant Secretary of Defense (Comptroller), requested our decision on four questions contained in the enclosed copy of Committee Action No. 235 of the Military Pay and Allowance Committee, Department of Defense. Question 1 is as follows:

What is the maximum amount of monthly basic pay of an enlisted member that may be forfeited by a general or special court-martial, when the accused is not sentenced to a dishonorable or bad conduct discharge, i.e., must onethird of such pay be actually reserved and paid to the enlisted member or is two-thirds of his gross monthly basic pay subject to forfeiture?

The statutory jurisdiction of general and special courts-martial is contained in articles 18 and 19 of the Uniform Code of Military Justice, 10 U.S.C. 818, 819, 70A Stat. 43. Article 19 provides that special courts-martial may (under such limitations as the President may prescribe) adjudge any punishment not forbidden by Chapter 47, Title 10, U.S. Code (the Uniform Code of Military Justice, 70A Stat. 36-78), except, among other penalties, "forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months." Article 56, 10 U.S.C. 856, provides that the punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense. Paragraph 126h (2) of the Manual for Courts-Martial, United States, 1951, prescribed by the President, provides that while a general court-martial is not limited by statute as to the amount of forfeitures it may adjudge, in the case of an enlisted member it may not adjudge a forfeiture of more than two-thirds pay per month for six months "unless it also sentences the accused to dishonorable or bad conduct discharge," and that in computing the maximum forfeiture in dollars and cents "the basic pay" of the enlisted member "plus sea or foreign duty pay *** will be taken as the basis." It is there stated that the term "basic pay" comprehends no element of pay other than basic pay of the grade or class within grade as fixed by statute and does not include special pay or incentive pay, etc. Paragraph 126h (2) further provides that "Unless dishonorable or bad conduct

discharge is adjudged, the monthly contribution of an enlisted person to family allowance or to basic allowance for quarters will be deducted prior to computing the net amount of pay subject to forfeiture."

Question 1 is answered by saying that two-thirds of the enlisted member's basic pay plus sea or foreign duty pay is subject to forfeiture unless the member has in effect a class Q allotment, in which event that pay will be reduced by the amount of his statutory contribution to the class Q allotment, and the amount forfeited may not exceed two-thirds of such reduced amount.

Paragraph 126h of the United States Army 1956 Cumulative Pocket Part to the Manual for Courts-Martial, United States, 1951, contains a table setting forth the maximum forfeiture of pay that may be adjudged by court-martial against enlisted members who are not sentenced to punitive discharge. It is reported that the principle used by the Department of the Army is that a member is subject to forfeit "two-thirds of his entire basic pay," unless he has a class Q allotment in effect, in which case the amount the member contributes to said allotment is deducted from his basic pay and the twothirds rule is applied to the difference. In the discussion in Committee Action No. 235, it is stated that question arises as to whether the administrative procedure as hereinbefore indicated is legally correct in the light of the provisions of the act of May 22, 1928, 45 Stat. 698, as now codified in 10 U.S.C. 4837.

Section 4837 (b), Title 10, U.S.C., as enacted August 10, 1956, provided as follows:

Under regulations to be prescribed by the Secretary of the Army, any amount that an enlisted member is administratively determined to owe the United States or any of its instrumentalities may be deducted from his pay in monthly installments. However, after the deduction of pay forfeited by the sentence of a court-martial, if any, or otherwise authorized by law to be withheld, the deductions authorized by this section may not reduce the pay actually received for any month to less than one-third of his basic pay for that month.

The word "basic" was deleted by section 33 (a) (27) (A) of the act of September 2, 1958, Public Law 85-861, 72 Stat. 1566, 10 U.S.C. 4837 (a), effective August 10, 1956. See section 33 (g) of that act, 72 Stat. 1568.

The purpose of 10 U.S.C. 4837 (b), as evidenced by its language and the legislative history of the 1928 act, from which it was derived, is to limit the amount of deductions that may be made from an enlisted member's pay for debts "administratively determined" to be due the United States or any of its instrumentalities, its object being to leave to the member a portion of his pay each month immune from stoppage for administratively determined debts. It was not the purpose of the act to impose any limitation on the amount of a court-martial forfeiture that may be adjudged or collected, but only to limit the amount