CAAF decided the Army case of United States v. Guardado, 79 M.J. 301, No. 19-0139/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 15, 2020. Holding that its own precedent regarding an accused’s right to restoration in rank and pay pending a rehearing is not binding on the military pay agency, a majority of the court finds no intent to punish the appellant when that pay agency refused to restore his pay.

Judge Sparks writes for the court, joined by all but Judge Ohlson who dissents.

CAAF granted review of a single issue:

Whether the military judge abused his discretion by failing to grant Appellant Article 13, UCMJ, credit in consequence of the Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016), violation present here.

Article 13 prohibits punishment before trial, and deprivation of military pay is a form of punishment. In Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), CAAF addressed a situation where a military accused is convicted at a court-martial and reduced in rank, the conviction is reversed, a retrial is planned and the accused is restored in rank pending that retrial, but the accused is not paid at the restored rate. That non-restoration of pay occurs because of Defense Finance and Accounting Service (DFAS) policy based on decisions by non-military courts: the Court of Appeals for the Federal Circuit and the Court of Federal Claims.

In Howell, a military judge held that paying an accused at the reduced rate prior to a retrial violated Article 13. The prosecution appealed. CAAF agreed that Article 75(a) – which requires restoration of rights and privileges when a court-martial conviction or sentence is reversed – mandates that “if an accused is released from confinement awaiting rehearing, his pay status . . . should be the same as if he had never been tried in the first instance.” Howell, 75 M.J. at 392. Nevertheless, CAAF found no violation of Article 13 because DFAS’ interpretation of Article 75(a) “was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress.” 75 M.J. at 394.

Guardado involves similar facts. Master Sergeant (E-8) Guardado was convicted of numerous offenses in 2014, and sentenced to confinement for eight years, total forfeitures, and reduction to the grade of E-1. CAAF reversed some of the convictions in 2017 and it set aside the sentence. United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). On remand, in 2018, Guardado was acquitted of the the most serious offense (aggravated sexual contact with a child) and resentenced on the remaining convictions that CAAF affirmed: three specifications of indecent liberties with a child, one specification of battery of a child, one specification of indecent language, and one specification of indecent acts. The new sentence included confinement for 55 months, total forfeitures, and reduction to E-1. Before Guardado was resentenced, however, he was released from confinement, during which time he was paid at the E-1 rate (imposed by the first court-martial) rather than the E-8 rate (his entitlement prior to the first court-martial). He sought credit from the military judge under Article 13, seeking application of CAAF’s decision in Howell. But the military judge denied the motion.

CAAF affirms the military judge’s denial, holding that its own “interpretation of Article 75(a), UCMJ, in Howell was not binding on DFAS in this instance. Accordingly, DFAS’s pay determination was not intended to punish [Guardado.]” Slip op. at 6. Judge Ohlson dissents because he finds that the non-restoration of pay is a proper basis to provide sentence relief and constitutes a violation of Article 13.

Writing for the court, Judge Sparks explains that the ultimate question in this case is whether it was punishment within the meaning of Article 13 for DFAS to rely on its policies and federal caselaw – that are contrary to CAAF’s decision in Howell – and pay Guardado at the E-1 rate pending his rehearing. He writes:

The answer to this question depends on whether DFAS’s action was “an incident of a legitimate nonpunitive governmental objective” and occurred “in the absence of a showing of intent to punish.” Howell, 75 M.J. at 393 (internal quotation marks omitted) (citation omitted).

We hold that DFAS’s reliance on legal precedent from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims interpreting Article 75(a), UCMJ, serves a legitimate nonpunitive governmental objective in light of the jurisdiction of those courts to adjudicate military pay disputes. Although it is within this Court’s statutory authority to interpret Article 75(a), UCMJ, to determine whether an Article 13, UCMJ, violation occurred, as we did in Howell, we do not have jurisdiction to adjudicate military pay disputes. Thus, our interpretation of Article 75(a), UCMJ, in Howell was not binding on DFAS in this instance. Accordingly, DFAS’s pay determination was not intended to punish Appellant and the policy serves a legitimate, nonpunitive governmental objective to provide proper pay pending rehearing. The military judge’s findings of fact are supported by the record and are not clearly erroneous. His conclusions of law are correct. We, therefore, conclude Appellant is not entitled to relief under Article 13, UCMJ.

Slip op. at 6 (paragraphing added). Judge Sparks also notes that Congress changed Article 75(a) and the President revised R.C.M. 1208(b) after CAAF decided Howell, expressly requiring pay at the original grade pending any rehearing. But that change did not take effect until January 1, 2019, and so Guardado does not get the benefit of the new rule.

The majority’s decision turns on its finding of no intent to punish Guardado in DFAS’ application of its policies (that are based on the decision of other courts). The prerequisite of an intent to punish to an Article 13 violation was an important part of the court’s holding in Howell, where Judge Sparks also wrote for the court and emphasized that for there to be a violation of Article 13, “the record must disclose an intent to punish on the part of the Government.” Howell, 75 M.J. at 394. In so ruling, CAAF specifically rejected its earlier reasoning that “under an Article 13 claim, we look to whether there was intent to punish or a punitive effect.” United States v. Fischer, 61 M.J. 415, 421 (C.A.A.F. 2005) (emphasis added). After Howell, punitive effect alone is not enough, and Guardado involves only punitive effect (loss of pay).

But Judge Ohlson’s dissent seeks revival of the punitive-effect consideration, writing:

In United States v. Fischer, 61 M.J. 415, 421 (C.A.A.F. 2005), we stated that in determining whether there was illegal pretrial punishment under Article 13, UCMJ, we look not only at whether there was an “intent to punish” the accused, but also at whether the actions of the government had a “punitive effect.” Here, the punitive effect was obvious-a drastic reduction in pay from E-8 to E-1 that served no legitimate governmental objective and that was likely to lead to “unnecessary hardship.” Howell, 75 M.J. at 392.

Diss. op. at 2. Judge Ohlson also dissented in Howell, observing there that “the punitive effect inquiry is nothing more than an examination of whether the purpose of a condition had a legitimate, nonpunitive governmental objective.” 75 M.J. at 396. But Judge Ohlson also wrote in Howell that there was no valid basis for the pay reduction, while the majority found (as it finds in Guardado) that the DFAS policy causing the pay reduction was a legitimate – if erroneous – interpretation.

Judge Ohlson then goes further, observing that the facts of Guardado suggest punitive intent (by the imposition of a punitive effect), and so “under either prong of the Fischer test, it is evident that the action by the Government constituted a violation of Article 13, UCMJ.” Diss. op. at 2. Accordingly, while the military courts can’t force DFAS to change its policy (though the President can and did), the military courts can “grant Article 13, UCMJ, credit to servicemembers caught in the type of pay web created by DFAS in the instant case.” Diss. op. at 1. Judge Ohlson would remand the case to the CCA to determine what – if any – credit Guardado deserves.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

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