This term, in United States v. Mead, No. 13-0459/AR (CAAFlog case page), CAAF is considering the application of credit against the sentence adjudged by a court-martial for an offense when the accused previously received nonjudicial (administrative) punishment for the same offense. The right to such credit was established in United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), where CAAF’s predecessor court found that to avoid improper double punishment for an offense, “an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.” Pierce, 27 M.J. at 369 (emphasis in original).

Later cases clarified that the accused himself determines how this credit is applied by controlling whether the fact of prior punishment is introduced into the case during the trial, after the trial, or not at all. But in Mead the appellant seeks to require that the credit always be applied against the final sentence approved by the convening authority.

There are practical considerations that weigh both in favor of and against the appellant’s position in Mead, but it’s hard to disagree with the idea that the law of this credit needs attention. Consider the following recent example from the Army CCA.

Private Gonzalez was a deserter whose absence was terminated by apprehension. She was briefly placed into pretrial confinement, but was released after two days. She then received nonjudicial punishment consisting of reduction from E-2 to E-1, extra duty for 45 days, restriction for 45 days, and forfeiture of $745 pay per month for two months. The forfeiture of pay was suspended and never imposed.

But then she was prosecuted for the same desertion terminated by apprehension at a special court-martial composed of a military judge alone, and convicted contrary to her plea of not guilty. She was sentenced to confinement for two months and a bad-conduct discharge.

However:

At trial, appellant disclosed to the military judge in both the stipulation of fact and the pre-sentencing hearing that she had previously been punished under Article 15, UCMJ, for deserting her unit. The military judge acknowledged that he would consider this as a matter of mitigation in adjudging the sentence in this case. Immediately after announcing the sentence, the military judge reiterated that he had considered the prior punishment when determining the adjudged sentence but failed to state the specific credit he awarded for the prior nonjudicial punishment.

United States v. Gonzalez, No. 20120984, slip op. at 2 (A.Ct.Crim.App. Oct. 17, 2013) (link to unpub. op.). The ACCA notes that it was error for the judge to fail to announce the precise credit applied, and remedies this error by applying credit anew against the adjudged sentence of confinement for 60 days and a BCD.

The result?

It follows that appellant should receive 45 days confinement credit for the 45 days when appellant was deprived of her liberty, even if that deprivation occurred in two different manners. Second, we award 15 days of confinement credit for appellant’s reduction from E-2 to E-1. This credit satisfies the “stripe-for-stripe” requirement of Pierce. Accordingly, we only affirm that part of the sentence extending to a bad-conduct discharge.

Gonzalez, slip op. at 3.

Unfortunately, the appellant undoubtedly served the complete sentence to confinement months before the CCA ever saw the case. So, to borrow a term from the world of securities regulation, this relief has “no more basis than so many feet of blue sky.” Hall v. Geiger-Jones Co., 242 U.S. 539, 550 (1917).

Of course, this can happen any time a sentence is reduced by an appellate court, but here the reduction is specifically to avoid the double punishment for a single offense that is unique to this area of military law. We obviously don’t have the whole record, but some facts are obvious to any objective member of the public who reads the CCA’s opinion: the appellant was an apprehended deserter who was released from pretrial confinement after just two days (implying that she was clearly not a flight risk); she was offered and accepted nonjudicial punishment (implying that her commander thought her desertion relatively minor); and part of her nonjudicial punishment was suspended and then never imposed (implying no subsequent misconduct).

Considering these facts, it seems unjust that her case ends with a meaningless credit against time already served, and a bad-conduct discharge that will be executed.

One Response to “In order to prevent double punishment, ACCA credits time already served”

  1. Contract Lawyer says:

    I agree that the credit should be applied against the BCD since there is no other way to rectify this.  Seems harsh for the Govt, but this is a risk when they give an Art 15 and proceed to court-martial.  In this case, if court-martial was the plan, then the plan for Art 15 was to pre-punish and take the stripe, which may need to be given back, though striking the BCD will be adequate.  Giving back the stripe and keeping the BCD in place is not just many feet of blue sky, but rather being pissed on and being told its raining. 
     
    I am not suggesting that if we are caught where there are a handful of days at issue that the punitive discharge should be struck, but application of such a rule may provide that if there is an extra day of confinement that was served that should not have been, then the punitive discharge may be struck if that is the only remaining relief available.  For this case, this result would not bother me as the command thought little enough of the issue to give the accused an Art 15 and when referring to court-martial they settled for a big chicken dinner level.  For more serious cases where a DD is part of the punishment, there is meaningful release in reducing the DD to a BCD.  I always told my clients who got a BCD to tell folks they were kicked out for doing something bad.  The DD cannot be explained.  An OTH actually sounds worse than a BCD.  A General Discharged is called “Under Honorable Conditions” and appears to be a Honorable Discharge.  Of course the administrative discharges have no place is the consideration of court-martial appeal issues, but mention as a side note.