Yesterday CAAF granted review in this Army case:
No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER AN APPELLANT IS AUTHORIZED TO REQUEST PIERCE CREDIT FOR THE FIRST TIME AT A COURT OF CRIMINAL APPEALS.
II. IF THE ARMY CCA ERRED IN HOLDING THAT THE FAILURE TO REQUEST PIERCE CREDIT BELOW CONSTITUTED WAIVER, WAS ITS ACTUAL REVIEW OF THIS ISSUE UNDER ITS ARTICLE 66(c), UCMJ, AUTHORITY STILL SUFFICIENT?
Briefs will be filed under C.A.A.F. R. 25.
Pierce credit is credit at a court-martial for prior nonjudicial punishment for the same offense. In United States v. Pierce the Court of Military Appeals (CAAF’s predecessor court) concluded that:
It does not follow that a servicemember can be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a court-martial for the same conduct. Either consequence would violate the most obvious, fundamental notions of due process of law. Thus, in these rare cases, an accused must be given complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.
27 M.J. 367, 369 (C.M.A. 1989) (emphasis in original). More recently, CAAF observed that:
The accused, as gatekeeper, may choose whether to introduce the record of a prior NJP for the same act or omission covered by a court-martial finding and may also choose the forum for making such a presentation.
United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999). Then, the court explained, the cognizant authority will determine the appropriate credit:
If the accused chooses to raise the issue of credit for prior punishment during an Article 39(a) session rather than on the merits during sentencing, the military judge will adjudicate the specific credit to be applied by the convening authority against the adjudged sentence in a manner similar to adjudication of credit for illegal pretrial confinement. If the accused chooses to raise the issue of credit for prior punishment before the convening authority, the convening authority will identify any credit against the sentence provided on the basis of the prior NJP punishment. Likewise, if the issue is raised before the Court of Criminal Appeals, that court will identify any such credit.
Gammons, 51 M.J. at 184.
The Army CCA issued a published opinion in Haynes available here and at 77 M.J. 753, finding waiver but with a catch:
[W]e read Gammons as requiring an accused to raise the issue of Pierce credit to either the court-martial or to the CA to avoid waiver as a matter of law. If waived, no relief can be obtained as a matter of law from this court. United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (explaining that a valid waiver of an issue at trial extinguishes the alleged error on appeal).
Here, appellant waived any entitlement to Pierce credit when he affirmatively told the military judge that he was not entitled to any additional confinement credit and stipulated (see below) that the Article 15 addressed post-preferral misconduct. As cited in Gammons, this is also consistent with R.C.M. 1001(b)(2) (for personnel records of an accused introduced during sentencing, “[o]bjections not asserted are waived”).
77 M.J. at 757, slip op. at 6. The catch is that the CCA found that the stipulated facts preclude any credit, because “the Article 15 and the charged offense addressed separate misconduct.” Haynes, 77 M.J. at 757, slip op. at 6. CAAF has addressed such a situation before, with the explanation that:
[A]lthough Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses. . .
United States v. Bracey, 56 M.J. 387, 389 (C.A.A.F. 2002).