With a published decision in United States v. Buford, __ M.J. __, No. 39087 (A.F. Ct. Crim. App. Dec. 19, 2017) (link to slip op.), the Air Force CCA holds:

The members sentenced Appellant to a bad-conduct discharge and reduction to E-1. The convening authority approved the adjudged sentence and ordered that “[u]nless competent authority otherwise directs, [Appellant] will be required, under Article 76a, UCMJ, 10 U.S.C. § 876a, to take leave pending the completion of appellate review.” At the time Appellant began the required period of what is referred to as appellate leave, he had 73 days of accrued leave. When presented with an option to receive a lump sum payment for the accrued leave or to “use” the leave, Appellant elected the latter, or to “[r]eceive pay and allowances during the period of accrued leave, then continue on unpaid required excess leave.” As of the date Appellant filed his appellate brief, he had not been paid for the period of accrued leave.

Appellant asserts he has been improperly denied his pay and this court has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide a remedy. Appellant specifically requests two forms of tailored relief. First, Appellant asks that we prohibit the convening authority from taking final action until Appellant is paid for the period of accrued leave. Secondly, Appellant argues that we should disapprove the approved reduction in grade to E-1 so that his accrued leave is paid at the E-4 rate, which would compensate him for the consequential damages (financial hardships) he attributes to the improper withholding of pay. We hold that Article 66(c), UCMJ, does not grant this court jurisdiction over a pay dispute absent a nexus to the approved sentence. As Appellant’s dispute with military officials does not concern the approved sentence, it is beyond our statutory authority. We find no error that materially prejudiced a substantial right of Appellant and affirm the findings and sentence.

Slip op. at 2 (marks in original) (emphasis added).

The opinion distinguishes the circumstances of this case from those of United States v. Gay, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), in which CAAF affirmed the CCA’s power to grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment:

In Gay, the legal deficiency resulted in improper solitary confinement and “conditions of confinement that were more severe than what [appellant] should have experienced.” [75 M.J.] at 269. We note that the authority validated in Gay was rooted and limited to a legal deficiency that directly impacted a component of the sentence. It is clear that Gay may be cited for the proposition that a CCA is not limited to violations of the Eighth Amendment to the United States Constitution, Article 55, UCMJ, 10 U.S.C. § 855, or other defined rights and protections as a basis for granting relief. However, CAAF in Gay did not recognize unlimited authority under Article 66(c), UCMJ, for a CCA to grant sentencing relief, including for errors collateral to the court-martial process. We are neither persuaded that we have such unlimited authority nor convinced that we should exercise any of our limited authority to grant relief for an administrative matter unrelated to any legal deficiency and unconnected to the legality or appropriateness of a court-martial sentence.

Slip op. at 6 (emphasis in original).

The underlying issue seems to be a recurring problem. The CCA made a similar finding of no-jurisdiction in United States v. Whiting, No. S32420 (A.F. Ct. Crim. App. Jan. 4, 2018) (link to slip op.).

7 Responses to “Air Force CCA finds no jurisdiction “over a pay dispute absent a nexus to the approved sentence””

  1. k fischer says:

    So, what if the appellant’s trial attorney sent e-mails with a an attachment requesting a pay inquiry to the SVP, the TC, the GCMCA, the CoJ requesting that his pay be fixed?  Would it have been punishment if they did not fix it when it was within their power to fix it?

  2. Zachary D Spilman says:

    Is it within their power? The facts of Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), suggest that DFAS does what DFAS wants…

  3. stewie says:

    kf I’ve been on the government side in this case I WANTED to pay the man, but DFAS said no. I tried, I intervened, I did everything I could think of, but DFAS is stuck on the concept that they won’t pay in rehearings unless and until the person is found not guilty or the charges dismissed.
     
    I’ve also been on the defense side for this, and the government again wanted to pay him, they had no issue with paying him, but there was nothing they could do to effectuate it…and in both cases the charges were way too serious to simply dismiss them for lack of payment.
     
    The problem is with DFAS and their somewhat crazy reading of law, and the courts are simply unwilling to step in.

  4. k fischer says:

    I was a legal resistance LT stationed in Yongsan back in ’01 when an E7 came into my office complaining that a private child support collection company was garnishing his pay based on a temporary order that had expired in a divorce case.  The problem was that he was paid in full for the temporary order and had an allotment set up, but when the garnishment hit, he got hit twice for two months.
     
    The owner of the company out of Texas, was a man who was on President GW Bush’s transition team for child support back when the Republican party platform was “privatization.”  I called DFAS and spoke to someone who gave me a bunch of lip service, but did nothing.  So, I wrote a letter that had about 12 Senators on the Cc line explaining that DFAS did not want to cooperate with my client who was financially devastated because DFAS did nothing to fix the situation.  I put a cover letter on top of that letter with a letter explaining that if my client did not have the money deposited into his account by August 15, 2001, then the letter would be sent.
     
    My client came into my office on August 15, 2001 and called me Johnny Cochran.  The point of my story, other than to dazzle you with what a great attorney I was, is that DFAS suuuuucks.  And, I don’t think that those tactics for your guy convicted of a 120 child pornography offense are going to work because who in Congress wants to pick up that flag and run with it.
     
    On a side note, I still sent the letter to all those Congressional Representatives, except that I talked about how cooperative DFAS was and how evil the company was.

  5. stewie says:

    Sure, you might be able to move DFAS in a sympathetic case, but their position of we ain’t paying until charges are dismissed or accused is found not guilty as you say are going to inspire no one in Congress to do jack.

  6. Tami a/k/a Princess Leia says:

    And I’m sure an IG complaint would have resulted in IG saying, “since this is related to a court-martial, he has an avenue of redress, so we can’t do anything to help.”
     
    I say file an IG complaint and attach this decision showing that in fact there is no other avenue of redress.

  7. Brian Magee says:

    The avenue of redress is to file suit in the Court of Federal Claims, or in any other Federal District Court (although in Federal District Court, recovery is capped at something like $6,000).

Leave a Reply