Unsurprisingly, last week the Supreme Court denied a petition for rehearing of its denial of certiorari in Howell v. United States, No. 16-536 (CAAFlog case page).

Howell is a long running case that was tried twice. The first time it was reversed by the CCA based on the appearance of unlawful command influence (discussed here) (see also our #4 Military Justice Story of 2014). A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside). Howell complained and the military judge agreed that he was entitled to be paid as an E-6, 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 rehearing 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 due to Howell. But then, 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 (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

CAAF split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute, remanding the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit (opinion analysis here).

Howell then sought certiorari (noted here).

What’s next for this case you might wonder? I’m pretty certain the answer is: Convening authority’s action.

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