Regardless of the type, Emminizer makes clear that the convening authority must address all applicable forfeitures in a Case before the government may divert any pay or allowances to an accused or his dependents.
(16) Post-trial processing of an accused's case will rarely be complete in less than fourteen days.
(24) The convening authority may also waive the automatic forfeitures sua sponte. Part I The Winds of Change Forfeitures--To Pay or Not to Pay, and HOW, That Is the Question (11) United States v. Emminizer (12) provides valuable clarification on forfeiture processing--specifically, the options available to a convening authority when receiving a request to defer or waive forfeitures. (28) In upholding the convening authority's action, the court held: [I]f the sentence of a court-martial includes a partial forfeiture of pay, or forfeiture of all pay and allowances, and otherwise keys [i.e., triggers]'Article 58b(a)(1), and the accused requests a waiver which is granted, the convening authority is not required to first disapprove the adjudged forfeiture in order to effect the waiver. All that is required is approval of the sentence and language in the action directing the amount of the forfeiture to be waived and the duration of the waiver. (14) Although adjudged and automatic forfeitures take effect on the same date, (15) they are not the same. The command's options regarding the handling of forfeitures are largely dependent on which type of forfeiture is involved. The appellant was sentenced to a dishonorable discharge; eight years of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The appellant did not request deferment of his reduction in rank, which became effective pursuant to Article 57, UCMJ, fourteen days after the sentence was adjudged. Factors that the authority acting on a deferment request may consider in determining whether to grant the deferment request include, where applicable: the probability of the accused's flight; the probability of the accused's commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command's immediate need for the accused; the effect of deferment on good order and discipline in the command; the accused's character, mental condition, family situation, and service record. (27) Before the convening authority's action, the appellant requested waiver of forfeitures in favor of his dependents. Factors that may be considered by the convening authority in determining the amount of forfeitures, if any, to be waived include, but are not limited to, the length of accused's confinement, the number and age(s) of the accused's family members, whether the accused requested waiver, any debts owed by the accused, the ability of the accused's family members to find employment, and the availability of transitional compensation for abused dependents under 10 U. After the entire process has been completed below, then and only then, absent some extraordinary circumstances, is a case ripe for review by this Court.... In Zimmer, the monetary award or windfall to the appellant was limited to payment at the grade of E-1 because the accused did not request a deferment of reduction in rank. Our role should be limited to reviewing decisions of the Courts of Criminal Appeals as a matter of law. The applicable statutory and Manual provisions, as well as our prior cases, establish the following process for resolving claims of error connected with the convening authority's post-trial review. Had the defense counsel made such a request along with the initial deferment of forfeitures request, the court may have awarded the appellant sixteen weeks of pay at his original pay grade.