CAAF’s first non-summary disposition of the term is in United States v. Mead, No. 13-0459/AR, 72 M.J. 479 (CAAFlog case page) (link to slip op.). The court decided the case on November 21, 2013, rejecting the appellant’s claim to additional credit against the sentence adjudged at a general court-martial for prior nonjudicial punishment that he received for one of the offenses, and affirming the Army CCA.

Judge Stucky writes for a unanimous court.

Appellant was convicted pursuant to his pleas of guilty entered in accordance with a pretrial agreement, by a general court-martial composed of a military judge alone, of drunken operation of a vehicle, wrongful use of amphetamine, and involuntary manslaughter by operating a motor vehicle in a culpably negligent manner, in violation of Articles 111, 112a, and 119, UCMJ. He was sentenced to confinement for 38 months, total forfeitures, and a bad-conduct discharge.

But before the court-martial, Appellant received nonjudicial punishment pursuant to Article 15, UCMJ, for the same wrongful use of amphetamine. This fact was brought to the military judge’s attention during the court-martial, and when the judge announced the sentence he explained that he considered the prior punishment and that without the prior punishment Appellant’s sentence to confinement would have been two months greater (40 months instead of 38). However, the pretrial agreement required the convening authority to disapprove all confinement in excess of 24 months, rendering the judge’s two month reduction meaningless.

So, on automatic appeal to the Army CCA, Appellant complained that he received no meaningful credit for the nonjudicial punishment, and also that he received no credit at all for the pay he lost as a result of reduction in rank imposed by the nonjudicial punishment. The CCA rejected Appellant’s arguments in a published decision, reaffirming a prior holding that “where a military judge awards credit for non-judicial punishment on the adjudged sentence and the punishments still exceeds the limitation of punishments in a pretrial agreement, the military judge has already satisfied Pierce and there is no duty for the convening authority to again award credit,” and also finding “no legal obligation to provide credit” for the reduced pay as a result of reduced rank from prior nonjudicial punishment. United States v. Mead, 72 M.J. 515, 518-19 (A.Ct.Crim.App. 2013). CAAF then granted review of a two-part issue questioning these determinations:

Whether the Army court incorrectly ruled that Pierce credit may be applied against the adjudged sentence where this results in no relief to Appellant and whether the Army court incorrectly ruled that pay lost as a result of prior reduction under Article 15, UCMJ, need not to be restored to Appellant.

Judge Stucky’s short opinion makes quick work of the case, almost summarily rejecting Appellant’s claims. After reviewing the facts of the trial proceedings, including discussions the military judge and the Defense had about the prior nonjudicial punishment, Judge Stucky notes that under the court’s precedent (discussed in detail in my argument preview) it is the accused who decides when the credit is applied. And that’s exactly what happened in this case.

Judge Stucky explains:

In this case, it was clear to the parties and the military judge that Appellant raised the issue of the NJP for the military judge’s consideration:

(1) He stipulated to the NJP as part of his pretrial agreement;
(2) He declined to object to the military judge’s statement that it appeared it would be necessary to provide credit against the adjudged sentence because of the NJP;
(3) The defense declined to oppose the admission of the NJP during the sentencing hearing;
(4) Appellant declined to question the military judge’s calculation of the NJP credit or the adjudged sentence; and
(5) Appellant agreed with the military judge that the convening authority could approve a sentence that included confinement for two years.

The military judge considered the NJP and specifically awarded Pierce credit for it. Neither Article 15(f) nor this Court’s case law grants him more.

Slip op. at 8 (formatting added).

The court also flatly rejects Appellant’s claim to credit for pay not received because of his lower rank after the nonjudicial punishment:

The money Appellant forfeited as a result of the reduction in grade was not punishment imposed by the NJP. It was merely a consequence of the reduction in grade — a recognition that as he no longer held the grade of E-4, he was no longer expected to perform the duties of an E-4 and, therefore, was not entitled to be paid as such.

Slip op. at 8-9. A footnote analogizes this situation to cases involving sentence reassessment, where the court has never “required compensation for forfeited pay.” Slip op. at 9 N.1. But this is somewhat apples-to-oranges, because when a sentence is reassessed lower there’s the possibility of administrative compensation (i.e., via the provisions of Article 75 for restoration of “all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved”). It seems simpler to just see reduced pay as a collateral consequence of the punishment of reduced rank, and absent the footnote that’s exactly what CAAF does in this case.

In my argument preview I considered it unlikely that CAAF would upset well-settled law to change how this credit is applied, particularly on the facts of this case. Judge Stucky’s opinion discusses the facts but eschews any mention of waiver. That puts the weight of this opinion behind the existing law, and the court’s unanimous decision is a strong affirmation of the Pierce / Gammons method of applying credit for prior nonjudicial punishment.

Case Links:
ACCA opinion (72 M.J. 515)
Blog post: Another published ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
CAAF argument audio
CAAF opinion
Blog post: Opinion analysis

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