Yesterday – nine days after hearing oral argument – CAAF summarily reversed the Army CCA’s decision in United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), remanding the case for further consideration of the adequacy of the CCA’s grant of 180 days of confinement credit for dilatory post-trial processing:

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On further consideration of the granted issue, 76 M.J. 174 (C.A.A.F.2017), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012). In this review, the Court of Criminals Appeals will specifically address the following issue:

IN LIGHT OF THE FACT THAT THE COURT OF CRIMINAL APPEALS ISSUED ITS INITIAL OPINION OUTSIDE OF THE TIMEFRAME ESTABLISHED IN UNITED STATES v. MORENO, 63 M.J. 129 (C.A.A.F. 2006), AND ONE DAY AFTER APPELLANT WAS RELEASED FROM CONFINEMENT ON PAROLE, DID THE 180-DAY REDUCTION IN THE ADJUDGED SENTENCE OF CONFINEMENT AFFORD APPELLANT MEANINGFUL RELIEF FOR THE DILATORY POST-TRIAL PROCESSING?

The 180-days of credit was for the 641 days it took the convening authority to act on the result of trial. But it took the Army CCA 782 to issue that decision, and Gomzalez-Gomez was released from confinement one day before the CCA acted.

CAAF granted review to determine whether this deprived Gonzalez-Gomez of his right to due process. Yesterday’s summary reversal doesn’t address that issue. But it does seem to be an invitation to the Army CCA to do something dramatic.

8 Responses to “CAAF summarily remands in Gonzalez-Gomez to determine if more credit is warranted”

  1. OMC_Alum says:

    I suppose on a regular day, this case would be a big deal. Too bad for any Non-OMC, Non-Bergdahl related military justice news. 

  2. Contract Lawyer says:

    i can solve this issue.  Just credit him a billion years credit toward his confinement.  If 180 days not good enough, just pick a real high number.  I suppose the concern is precedent.  My concern is the ability of these appeal forums to award this confinement credit after the guy gets out and to really think that anyone thinks they care even a little bit.  Come on, don’t be scared of it.  Get the check book out.  Give him something that matters.  I would say reducing the DD to a BCD would do the trick.   I’m not sure it will have a big impact on the accused, but it would be something real. 

  3. Zachary D Spilman says:

    Reducing the BCD doesn’t restore his veterans benefits, Contract Lawyer. Nor does it necessarily get him back pay for the disapproved confinement (because he might have been ordered to involuntary excess leave beginning on the date of release). 

    The CCA has to disapprove the punitive discharge.

    Then, depending on the appellant’s EAS and amount of lost time, the Army can either involuntarily separate (and give a less-than-honorable characterization) or separate for expiration of enlistment (only authorized characterization is an honorable).

    Disapproving the punitive discharge is (or at least seems like it would be) a meaningful remedy to this appellant that has the added benefit of acting as a deterrent for the Army that allowed the unreasonably delays. 

  4. K fischer says:

    Whats the case that disapproved a punitive discharge because the pretrial punishment of confinement credit exceeded the adjudged sentence under the rationale of providing meaningful relief?

  5. K fischer says:

    Zarbatany?

  6. Pre says:

    just curious . Do the Military compensate people monetarily for wrongful imprisonment. Also if this guys confinement was reduced at a time that confinement has already been served. Does it constitute wrongful imprisonment

  7. Contract Lawyer says:

    To clarify, the accused was sentenced to a DD.  I am suggesting converting that to a BCD.  I doubt this provides any pay or benefits, but it does provide something real.  As for a benefits, this accused did not make it through his initial enlistment and it sounds like he showed  up broken.  His only VA claim would be for his STDs.
    Not really wrongful imprisonment, they gave him credit after he got out.  My only argument is that this does not seem fair.  I suppose if he was paroled, he could apply it towards any additional time if his parole is revoked? 

  8. ContractLawyer says:

    K Fisch – I once had a guy do six months in pre-trial and his sentence was bust from E-5 to E-4 and some forfeitures.  I asked for credit and the judge ordered the CA to apply it towards any confinement, which was zero.  The client said he heard while in pre-trial, that if he didn’t get any time, the law was that he was supposed to get $10,000 per month that he spent in pre-trial confinement.  This guy was just lucky he did not go to prison for 10 to 20 years.  He was was convicted of only the additional misconduct that landed him in pre-trial and it wasn’t a case of just a light sentence.  He originally was just restricted to base and ordered not to contact the victim, but broke restriction and allegedly made contact with the victim with his hands.  I put it all in the 1105 (except for the request for $10,000 per month) and it went nowhere.  Had he got a BCD and no time, then he could have raised this on appeal.  I think I have seen something that a BCD = 6 months, but for a soldier with over 20, it would be a different issue.  

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