Petty Officer First Class (E-6) Altier was convicted in 2010, by a special court-martial composed of members with enlisted representation, of one specification of fraternization and one specification of sexual harassment, both in violation of Article 92, and sentenced to a bad-conduct discharge. However, the NMCCA set-aside the sentence and authorized a rehearing because “improper oral and written [sentencing] instructions were given to the members, and the sentencing worksheet contained even further mistakes.” United States v. Altier, No. 201000361, slip op. at 8 (N-M Ct. Crim. App., May 26, 2011) (Altier I). A sentence rehearing occurred in July 2011 before a military judge alone, and he sentenced Petty Officer Altier to confinement for 30 days, reduction to pay grade E-5, restriction to base limits with hard-labor for 45 days, and forfeiture of $1,500.00 pay per month for three months, but no punitive discharge.

Execution of the sentence to confinement was then stayed pending further review by the NMCCA (which kept jurisdiction from the original sentence). The CCA had to reconcile the prohibition of Article 63 and Rule for Courts-Martial 810 that the approved sentence after a rehearing may not be “in excess of or more severe than” the approved sentence after the original hearing, with the fact that the approved sentence in this rehearing included everything that the original sentence did not. Well, everything but a reprimand.

No problem, said the majority of a three-judge panel:

Under the circumstances of this case, we do not find confinement for 30 days, restriction with hard labor without confinement for 45 days, reduction to pay grade E-1, and forfeiture of $1500.00 pay per month for three months to be in excess of or more severe than a bad-conduct discharge.
. . .
Recognizing that this is a case of first impression and that the appellant is likely to petition the CAAF for review of our decision, the stay we issued on execution of the sentence approved by the CA will remain in effect until the CAAF acts on such a petition, or the time for filing a petition with that court expires, or the appellant informs the Government that he will not appeal this court’s decision.

United States v. Altier, No. 201000361, slip op. at 5 (N-M Ct. Crim. App., April 30, 2012) (Altier II). CAAF then granted review of a single issue: “Whether Appellant’s sentence violates Article 63, UCMJ, and R.C.M. 810(d) because it is in excess of and more severe than his original approved court-martial sentence.”

The Appellant’s brief lays out the clear case. The first sentence to just a bad-conduct discharge “included zero days of confinement and zero days of restriction [with hard-labor],” and the second sentence included more than zero days of confinement and more than zero days of restriction with hard-labor (the reduction and forfeitures are a wrinkle because the approved punitive discharge implicates automatic reduction to E-1, and the use of appellate leave put the Appellant in a no-pay-due status). Appellant’s Br. at 6. But the brief quickly moves from the mathematical argument to the metaphysical argument: “it is not possible to meaningfully compare a punitive discharge to a sentence to confinement to determine which of the two sentences is worse.” Appellant’s Br. at 7. The brief discusses some of the difficulties faced by the Appellant in finding employment and moving on with his life the years since his trial (though the brief omits discussion of the fact that the Appellant is still on active duty, with no adjudged discharge, and isn’t just entitled to current pay and allowances – he is also entitled to back pay and allowances for his time on involuntary appellate leave!).

The Appellant’s brief also predicts that the Government will attempt to analogize this case to one where a punitive discharge is commuted to a term of confinement, citing CAAF’s 1996 decision in United States v. Carter, 45 M.J. 168. The appellant in Carter was an Air Force Master Sergeant with 24 years of active duty service who was convicted by a general court-martial of (primarily) drug offenses. His sentence included confinement for a year and a bad-conduct discharge, forfeiting his entitlement to a military retirement. In clemency, he requested commutation of the discharge to an unspecified period of confinement. The convening authority granted his request, and converted the discharge to an additional 24 months confinement and 35 months forfeitures. On review, CAAF approved the conversion in an opinion that begins with the following sentence: “This case and its outcome can be summarized by the old adage, ‘Watch what you ask for, you may get it.'” Carter, 45 M.J. at 168. The Appellant’s brief in Altier distinguishes this case from Carter on the basis of this request.

In it’s response, the Government embraces the Appellant’s challenge to analogize this case to Carter, arguing that “while sentence commutation is different from sentence comparison, lessons can be drawn from that context which are informative to the case at Bar. Given the finality of the punitive discharge, particularly in view of the transitory nature of 30 days confinement and 45 days hard labor and in light of the commutation case law, it is clear that Appellant’s new sentence is not more severe than that previously imposed.” Gov’t Br. at 9. This argument is a kind of emotional balancing test, as the Government pragmatically compares the practical effects of a bad-conduct discharge with those of a short period of loss of liberty. But then the Government makes an incredible argument:

[W]hile a discharge may be “apples” and restraint on liberty may be “oranges,” it is untrue to suggest that the two cannot be compared – setting aside the statutory requirement to do so, the mere fact that one notes differences between the two in and of itself implies that a comparison has, in fact, occurred.

I don’t think I’ve ever seen a legal brief deliberately call for an apples-to-oranges comparison before this… But the Government’s brief does something even stranger – it makes no argument that the second sentence is not “in excess of” the first sentence; a seemingly case-dispositive concession.

The Government’s argument is that:

ANY SENTENCE MAY BE APPROVED ON REHEARING AS LONG AS IT IS NOT MORE SEVERE THAN THE PREVIOUSLY APPROVED SENTENCE. APPELLANT’S SENTENCE ON REHEARING WAS NOT MORE SEVERE THAN THE ORIGINALLY APPROVED SENTENCE

Gov’t Br. at 4 (emphasis added). But the prohibition in Article 63 and R.C.M. 810 isn’t just against a sentence that is “more severe”; both provisions state:

. . . sentence in excess of or more severe than . . .

However, the Government’s brief contains the word “excess” a grand total of six times:

  • Twice in statements of the granted issue. Gov’t Br. at 1, and in the index.
  • Once in the summary of the case history. Gov’t Br. at 2.
  • Twice in quotations of Art. 63 and R.C.M. 810. Gov’t Br. at 4.
  • Once in a quoted passage from United States v. Kelly, 5 C.M.A. 259, 262 (C.M.A. 1954). Gov’t Br. at 11.

And it doesn’t contain the words “exceed(s)” or “greater” at all. The brief puts all of the Government’s eggs into a severity-comparison basket, and ignores a key principle of law:

It is a fundamental tenet of statutory construction to construe a statute in accordance with its plain meaning.

Loving v. United States, 62 M.J. 235, 240 -241 (C.A.A.F. 2005) (citing Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[I]n interpreting a statute a court should always turn first to one cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”)).

The Government neither addresses the statutory language “in excess of,” nor does it argues that it is mere surplusage. In fact, the brief deliberately dodges this language. For example: “a sentence is appropriate on rehearing unless it is more severe than a previously approved sentence.” Gov’t Br. at 4. And: “this Court should similarly hold that Appellant’s new sentence . . . is not more severe than the [original sentence].” Gov’t Br. at 8.

It’s easy to imagine why Congress was concerned with new sentences “in excess of or more severe than” earlier sentences. The concept of sentence appropriateness has deep roots in the UCMJ. The words “in excess of” invoke the type of mathematical calculation employed by the Appellant’s brief, while the words “more severe than” invoke the type of emotional balancing employed in the Government’s brief. Anyone who has ever made a sentencing argument knows that the severity of a sentence often depends as much on the unique circumstances of the defendant as on the quantum of punishment awarded (for instance, an accused with a small child at home might well prefer a punitive discharge without confinement to any period of confinement followed by a return to full duty at reduced rank).

In a reply brief, the Appellant’s counsel does his own emotional balancing and essentially argues that these days, a bad-conduct discharge isn’t that bad. For instance, “[t]oday, employers are on notice not to ask about a servicemember’s type of discharge during a job interview, lest they subject themselves to allegations of unfair hiring practices.” Reply Br. at 7. And, “[t]he modern trend is clear: the stigma of the punitive discharge is not what it once was. As a result, when this case is viewed through a 2012 lens, the government’s substantive argument resting on the ‘lifelong effects’ of a punitive discharge cannot carry the day.” Reply Br. at 8. However, the reply brief fails to consider a point raised in the Appellant’s initial brief: the bad-conduct discharge ended a 15-year career. Without that discharge, the Appellant now has a shot at the lifelong benefits of a military retirement.

It’s hard to imagine that CAAF won’t use this case as an opportunity to define a bright line, mathematical test for the application of Article 63. The Government’s emotional balancing is both messy and better subsumed within the sentence appropriateness determinations made by the convening authority and the courts of criminal appeals. Unfortunately, drawing a bright line creates the potential for an undeserved windfall for this Appellant, who because of the lack of overlap between the two sentences may now be entitled to an approved sentence of no punishment. However, it’s my prediction that if during oral argument CAAF asks either party for their views on such an outcome, that that’s exactly how this case will end.

Case Links:
NMCCA opinion (Altier I)
Blog post: NMCCA sets-aside otherwise-lawful sentence…
NMCCA opinion (Altier II)
Blog post: Enforcing (or not) the sentence limitation provisions of Article 63
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief
Blog post: Argument preview

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