CAAF will hear oral argument in the certified Marine Corps case of Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page), on Wednesday, May 11, 2016, at 9:30 a.m. The case presents four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of a sexual assault conviction with a rehearing authorized. Howell was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

Howell complained, asserting that he was entitled to be paid as an E-6, and the military judge agreed, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The trial proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit. However, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA, seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and then (in an opinion discussed here) granted the Government petition in part, reducing the award to 308 days.

Howell sought review by CAAF, asserting that the CCA didn’t have jurisdiction to consider the Government’s petition. Then, in a move that I don’t believe is unprecedented (though I can’t cite a prior instance), but is certainly praiseworthy, the JAG certified the case with both the jurisdictional issue raised by Howell and the Government’s arguments for why the military judge’s award of credit should be reversed.

Howell’s argument for why the CCA lacked jurisdiction to consider the Government’s petition focuses on the interplay between Article 62 (authorizing Government appeals under limited circumstances), Article 66 (providing for automatic review of certain court-martial convictions), and the All Writs Act (which enables courts to issue writs, but doesn’t extend jurisdiction not otherwise already granted). He asserts that jurisdiction for a Government petition under the All Writs Act exists only for matters collateral to the bases for appeal under Article 62, and that the Government may not use the All Writs Act to circumvent the limitations on Government appeals.

The Government’s arguments on the other certified issues also raise a jurisdictional issue, as the U.S. Court of Federal Claims generally has exclusive jurisdiction over military pay entitlement cases. Furthermore, based on cases from that court and the military’s interpretation of its own pay regulations, the Government asserts that the military judge committed clear and indisputable error when it found an Article 13 violation in the fact that Howell was paid at the E-1 rate while he awaited completion of the rehearing.

Case Links:
• NMCCA opinion
Blog post: The NMCCA splits 4-4 on the propriety of Art. 13 relief for a pay issue
Blog post: Navy JAG certified Howell
Blog post: Judge Ryan recuses herself from Howell
Howell’s brief: Certified issue 1
Government brief: Certified issue 1
• Howell’s reply brief: Certified issue 1
Government brief: Certified issues 2-4
• Howell’s brief: Certified issues 2-4
• Government reply brief: Certified issues 2-4
Blog post: Argument preview

4 Responses to “Argument Preview: Determining whether a military judge can award credit for a pay dispute (and whether the Government can do anything about it) in United States v. Howell, Nos. 16-0289/MC & 16-0367/MC”

  1. Christian Deichert says:

    Perhaps we’ll see some limits placed on Article 13 credit if CAAF sides more with Col. Brubaker.  I agree that Article 13 wasn’t the place to litigate a pay issue that was based on DFAS policy and not on any evidence of intent to punish.  Had DFAS been willing to pay this troop E6 pay and the command opted not to bother getting in the paperwork, I can see that as violating Article 13, but this seems to be an issue better litigated outside of the court-martial.

  2. Dew_Process says:

    CAAF has been “creative” in the past when pay issues have come up.  See, e.g., U.S. v. Olson, 25 M.J. 293, 298 (CMA 1987):

        Although we have no statutory authority to review Air Force administrative action for collecting debts, we are empowered to review court-martial sentences. In this case, we believe this power can be exercised to carry out the intent of the pretrial agreement. In this connection, we observe that the amount of the fine ($1,000.00) is almost equivalent to the $1,107.07 which was collected administratively from the accused. If the fine is set aside, Olson will receive a financial benefit substantially equivalent to the amount of pay recouped administratively by the Air Force.


  3. Babu says:

    Christian Deichert: so if Manpower/Personnel/Corrections policy was to not release servicemembers from confinement if their convictions were set aside on appeal, but to instead keep them in confinement on their original sentence until they could be retried, would a court-martial be the proper venue to litigate that issue?

  4. Christian Deichert says:

    Babu, yes, that might be a way for an individual to get relief in their situation, but it would not force change on the policy itself.  And yes, if every court-martial gave relief to troops in that position, the policy might eventually get changed, but a trial judge can’t order the change itself.
    Fortunately, my experience with the Personnel Control Facility and many a rehearing case is that DA Corrections has no such policy.
    I’m a little jaundiced on Article 13 claims, as I was tangentially involved in a case where Article 13 credit was given because a commander’s wife would not talk to an accused officer’s wife in the commissary.  Whereas a client of mine was given zero credit when his bed was moved behind the CQ desk into basically a closet and was essentially locked down in the barracks.  There is no rhyme or reason as to how it is given out in some cases; it appears to come down to the individual judge and his or her approach.