Opinion Analysis: The Government’s position on pay entitlement is still wrong and still not an intent to punish, in United States v. Guardado
CAAF decided the Army case of United States v. Guardado, __ M.J. __, 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.