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.).