Held also: A board of review is under a duty to affirm so much of the findings of guilty as is not affected by error committed at trial. So too is it under a duty to affirm so much of the sentence as it deems appropriate on the basis of the entire record (UCMJ, Art 66; U. S. v. Shepard (No. 343), 1 USCMA 487, 492, 4 CMR 79, 84). Since the assumed error in this case could have had no influence on the finding that the accused was guilty of a violation of UCMJ, Art 86. and since any harm with respect to the sentence could have been cured by its action, the board of review was not legally bound to set aside the conviction in its entirety and dismiss the charge. (Citing U. S. v. Gilgallon (No. 286), 1 USCMA 263, 2 CMR 170; U. S. v. Goddard (No. 331), 1 USCMA 475, 4 CMR 67.) United States v. Fleming (No. 2727), 3 USCMA 461, 13 CMR 17, reversing CM 359817, 9 CMR 502.

§ 13.1. Generally.

§ 13. Execution of Sentence

The accused was sentenced to dishonorable discharge, total forfeitures and confinement at hard labor for one year. The convening authority approved the sentence and ordered its execution suspending the dishonorable discharge until the accused's release from confinement or completion of appellate review whichever is the later. Held: So much of the action of the convening authority as purports to direct execution of the punishments of confinement and forfeitures is a nullity since UCMJ, Art 71(c), forbids an order of execution as to any part of a sentence which includes confinement for one year or more until the sentence has been affirmed by a board of review. However, the accused suffers no material prejudice by the void portion of the convening authority's action since the period of confinement begins to run from the date the sentence is adjudged without the necessity of any order of execution and the forfeitures apply to pay or allowances becoming due on and after the date the sentence is approved by the convening authority so long as he does not affirmatively direct that the application of the forfeitures be deferred. (Citing UCMJ, Art 57(a) and (b); MCM, 1951, par 88a (2) (c); note, p 546, Appx 14, MCM.) CGCM 9807, Johnson (1954) 15 CMR 583.

Order directing execution of punitive discharge as not constituting execution of discharge, see ACM 6630, Williams, infra § 47.1.

§ 13.5. Discharge or release from active duty prior to execution. The accused was sentenced to forfeit $100.00 per month for twelve months. He was a reserve officer on extended active duty but prior to the action of the convening authority approving and ordering the sentence executed he was released from active duty and furnished with a certificate of service certifying that he had served honorably on active duty. Held: The action of the convening authority in approv ing the findings and sentence was without legal efficacy. It is well settled that the release from active duty of an officer, under honorable conditions, prior to the execution of a sentence adjudged against him by court-martial, constitutes a remission of the unexecut ed

portions of the sentence. The fact that the accused herein was released from active duty before the sentence was approved and ordered executed does not affect the application of the above rule to the instant case. (Citing MCM, 1951, par 97a; Op JAGAF 1951/49, 6 June 1951, 3 Dig JAGAF, par 338; Op JAGAF 1951/86, 1 Dig Ops SENT & PUN § 13.5; CM 307048, Brogan, 60 BR 155; CM 312219, Murray, 62 BR 35. Distinguishing U. S. v. Sippel (No. 2689), 4 USCMA 50, 15 CMR 50; and ACM 7395, Westergren, 14 CMR 560.) ACM 8169, Santiago (1954) 15 CMR 781.

§ 15.1. Generally.

§ 15. Operation of Sentence

All sentences of courts-martial become effective on the date ordered executed (UCMJ, Art 57 (c)) except as otherwise provided in UCMJ, Art 57(a) and (b), where forfeitures and confinement are adjudged. Under the provisions of UCMJ, Art 71(d), sentences to restriction or hard labor without confinement may be ordered executed by the convening authority when approved by him. Accordingly, such sentences begin to run on the date ordered executed by the convening authority. It should be noted that the imposition of either restriction or hard labor without confinement as a form of punishment prior to the order of execution would constitute a violation of UCMJ, Art 13. (See MCM, US, 1951, par 18b (3), Legal and Legislative Basis, MCM, US, 1951, p 34; concerning the effective date prior to the Code, see CM 257027, 3 Bull. JAG 289 (1944), JAGJ 1952/6785, 27 Aug 1952.) JAGJ 1952/6785. 29 August 1952.

§ 15.21. Concurrent, cumulative or consecutive sentences.

In view of the fact that UCMJ, Art 57(b), requires that a sentence to confinement begin to run on the date it is adjudged, unless suspended, paragraph 3b (1), AR €00-340, 22 May, 1951, which provides the method of executing multiple sentences to confinement, was drawn so that periods during which the original sentence to confinement is suspended or interrupted by a subsequent and concurrent sentence to confinement shall be excluded in computing the service of the original term of confinement (See Legal and Legislative Basis, MCM, 1951, pages 184-185).

In the case of sentences involving forfeitures which are to be served concurrently, there is nothing in AR 35-1820 or paragraph 127b, MCM, 1951, which can be construed as implying a remission of the second forfeiture. They relate to bookkeeping procedures, and are in aid of the Act of 22 May 1948 (45 Stat 698), as amended by the act of 26 June 1934 (48 Stat 1222, 10 USC 875a), ML 1949, sec 1521. In practical effect, when a soldier's pay has been reduced by forfeitures or other authorized deductions to one-third, the actual collection of subsequent forfeitures cannot be made until his pay account will permit. Administratively, nothing prevents his pay account being debited each month during which the sentence to forfeitures runs, with a view to eventual settling of the account. Thus, the total amount of the forfeitures imposed by sentence of court-martial may be collected as long as the accused remains in

the Army in a pay status and such forfeitures have not been remitted, provided the amount collected or deducted from his pay in any one month does not exceed the rate designated by sentence of courtmartial nor contravene the provisions of par 127b, MCM, 1951, and AR 35-1820. JAGJ 1952/2829. 16 April 1952.

When an accused's pay has been reduced by forfeitures or other authorized deductions to one-third, the actual collection of subsequent forfeitures cannot be made until his pay account will permit. Administratively, nothing prevents his pay account being debited each month during which the sentence to forfeiture runs, with a view to eventual settling of the account. Thus, the total amount of the forfeitures imposed by the sentence of court-martial may be collected as long as the accused remains in the Army in a pay status and such forfeitures have not been remitted, provided the amount collected-deducted from his pay--in any one month does not exceed the rate designated by sentence of the court-martial nor contravene the provisions of par 127b, MCM, 1951, and AR 35-1820. (Citing JAGJ 1953/5734, 10 Jul 1953; JAGJ 1952/2829, 16 Apr 1952, 3 Dig Ops No. 2, SENT & PUN § 15.21.)

Where an accused is serving concurrent sentences which include forfeitures, the convening authority could suspend the execution of forfeitures in one sentence until a specified date in order to permit the full collection of the forfeitures imposed in the other sentence.

However, inasmuch as a special court-martial may impose only those punishments specifically provided for in UCMJ, Art 19, where a special court-martial imposes forfeitures and, in effect, suspends the execution of the forfeitures, the purported suspension should be treated as illegal. The court may, however, transmit recommendations regarding the sentence to the convening authority. JAGA 1953/7050. 10 September 1953.

§ 23.1. Generally.

II. PARTICULAR SENTENCES

§ 23. Dishonorable Discharge

Although this is not made explicit by the Code, if a special courtmartial cannot impose a bad conduct discharge in the absence of a verbatim record, it necessarily follows that Congress could not have intended to permit a general court-martial to impose the more severe dishonorable discharge without a verbatim transcription. (Disting. U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179.) United States v. Nelson (No. 2760), 3 USCMA 482, 13 CMR 38.

The accused, a first lieutenant, was sentenced to be dishonorably discharged from the service. Held: Although inappropriate in the case of an officer, such sentence is legal and is equivalent to dismissal. The convening authority should have taken corrective action to approve only so much of the sentence as provides for dismissal from the service. (Citing ACM 522, Severson (BR), 1 CMR (AF) 207, 212.) ACM 7395, Westergren (1953) 14 CMR 560.

An enlisted man enlisted in the Regular army on 13 July 1940. He absented himself without leave on 1 April 1941 and was shortly thereafter dropped from the rolls as a deserter. He enlisted in the Navy on 31 December 1941 and was discharged therefrom on 11 May 1942. On 18 January 1943 he was inducted into the Army. He was later transferred to the Army Air Corps for cadet training from which he was relieved because of physical condition. On 4 March 1944 an Army general court-martial convicted him of desertion and sentenced him to total forfeitures, eight years' confinement and a dishonorable discharge. The dishonorable discharge was executed on 19 April 1952. Held: Under the provisions of par 2, Department of Defense Transfer Order No. 33, 26 March 1949, the enlisted man was transferred to the Department of the Air Force. Therefore the execution of his dishonorable discharge on 19 April 1952 did not terminate his enlistment of 13 July 1940 in the Regular Army. (Citing JAGA 1947/638, 21 Aug 1947 (restricted); CSJAGA 1949/7522, 31 Oct 1949; JAGA 1950/5737, 29 Sept 1950; JAGA 1952/8885, 14 Nov 1952, 2 Dig Ops, SENT & PUN § 23.1; JAGA 1950/4249, 9 August 1950.) JAGA 1953/9162. 25 November 1953.

§ 25.1. Generally.

§ 25. Bad Conduct Discharge

At a trial by special court-martial wherein the accused was found guilty and sentenced, inter alia, to a bad conduct discharge, failure of the record of trial to contain a verbatim transcript of all proceedings in open court, particularly where there was no transcript of testimony on the merits and only a narrative record of other proceedings, constituted prejudicial error requiring reversal. (Citing MCM, 1951, par 83 (a); sec 0103a (1), CG Supp, MCM, 1951, as amended 6 February 1952; see NCM 112, Reger, 3 CMR 438.) CGCMS 19790, Mendoza (1953) 11 CMR 659.

The record of trial assumed, in part, the form of a narrative summary of the proceedings, and, in part, that of a verbatim account. The accused was tried by special court-martial, and the sentence upon conviction included a bad conduct discharge. Held: The failure to keep a verbatim account of the entire proceedings of a special court-martial proceedings, which culminated in the imposition of a bad conduct discharge, constituted prejudicial error, and with respect to any inconsistency between pars 15b and 83a, MCM 1951, the latter provision, which sets out the more stringent rule and inclines to be more directly in favor of the accused, must prevail. United States v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179.

The accused pleaded guilty to being drunk on duty, breach of restriction and absence without authority. He was sentenced to a bad conduct discharge, reduction in grade in confinement at hard labor for three months. The accused had an honorable discharge from the Army and had completed a four-year enlistment in the Coast Guard. His disciplinary troubles began following a refusal to grant him an emergency leave when his father was dying and

a subsequent refusal to grant leave to permit him to attend the funeral and a later refusal to grant him leave so that he could visit his widowed mother. He told the court in this trial that he was aware of the meaning of a bad conduct discharge but that he saw no alternative other than to request a bad conduct discharge in order to get out of the service and see that his mother was properly cared for. Held: An enlisted man's request for a bad conduct discharge should conclusively be presumed to be an improvident request. The court should not adjudge the bad conduct discharge on the basis of such request unless appropriate as punishment for the accused's offenses in the light of all the circumstances and unless it appears to be necessary for the service that he be separated from it in this particular manner. In view of the extenuating circumstances, the reduction in rating and the bad conduct discharge are disapproved. (Cf. MCM, 1951, par 76a (7).) CGCMS 19895, Perez (1953) 13 CMR 593.

The accused pleaded guilty to attempting to dispose of foodstuffs of a value of $4.00, military property of the United States. His sentence included a bad conduct discharge. No previous convictions were shown. It has been a repeatedly expressed policy of the seagoing services that a thief not be retained in the service. However the policy is not arbitrary but is to be applied on a rational basis and if the offender is not believed to be a confirmed thief or a "thief at heart," or if the theft did not amount to anything more than petty pilfering, the case may be outside the scope of the policy. (See Naval Digest, 1916, p 627; CG Law Bulletin 69, p 2; Naval Justice 1945, p 378; Art 246, CGCMM 1949; CMO 2, 1939, 307; CMO 2, 1941, 400; CG Law Bulletin 69, p 2.) In contemplation of current moral conventions, the offense in the instant case does not involve the degree of moral turpitude which would disqualify the accused from further military service. The service policy in reference to larceny, as applied to this case, does not demand the accused's separation from the service and accordingly the board deems it proper to disapprove the bad conduct discharge herein. (Citing MCM, 1951, par 88e; U. S. v. Francioso, 164 F2d 163; CGCMS 19421, 14 April 1952; CGCMS 19948, 9 December 1953; CGCMS 19760, 5 March 1953; CGCMS 19949, 14 December 1953.) CGCMS 19944, Spencer (1953) 14 CMR 534.

§ 27. Dismissal

§ 27.15. Officer absent without leave.

Constructive notice of a dismissal by sentence of a court-martial, in the case of an individual absent without leave, would be effected by receipt at the individual's proper duty station, of the general court-martial order, or other official notification, announcing the execution of the sentence to dismissal. However, to avoid any possible doubt, like notice of the dismissal should be sent, in addition, to the person's last known permanent address. The dismissal would be effective as of the date fixed for separation by the general courtmartial order, or as of the date of the arrival of the notice at the person's station, whichever is later. Accordingly, if the Department