The appellant in United States v. Barnett, No. 12-0251/AF, received 100 days of confinement credit under Article 13, UCMJ, for a sixteen-month assignment to the “Thunder Pride” team (an administrative “holding unit”) at Luke Air Force Base, Arizona. He was then convicted of various offenses at a general court-martial composed of members. Prior to sentencing, the defense requested that the members receive no instructions regarding the 100 days of credit. However, during the presentencing proceeding, the defense presented the members with evidence of the appellant’s time with the Thunder Pride team. The trial counsel then requested that the members be instructed on the credit, and the military judge provided the following instruction:
In determining an appropriate sentence in this case, you should consider that the accused has been granted 100 days of confinement credit. If you adjudge confinement as part of your sentence, those days will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement and will be given on a day-for-day basis.
The court-martial closed for deliberation, but the members returned with a question regarding whether they could offset the 100 days of credit, apparently based on their own conclusion that it was unerned. The military judge’s discussion with the President inclued this exchange:
PRES: So legally, is it okay for us to consider that hundred days of credit less than what we would consider actual confinement? That’s the question that’s come up in our discussions. And maybe for ease of understanding and, please, this is just for the example, if we consider 300 days as appropriate confinement but we know the hundred days credit is there but we think that the 300 days confinement should be actual confinement so we bump it up to 400 days because we know we’re going to subtract a hundred days; is that legal for us to do that?
MJ: What I can instruct you in this regard is that you should determine a sentence that you believe is appropriate for this accused for the offenses that he’s been found guilty of, considering all of the evidence that you’ve been presented in the case. You’ve been provided the fact or circumstance that, if you adjudge confinement, then he will have 100 days of credit toward any period of confinement that is adjudged by the court.
Following this exchange, the defense asked the military judge to instruct the members that they were to adjudge a sentence without considering the credit. The government opposed this request, and the military judge gave the members the following additional instruction (the “second instruction”):
Your duty is to adjudge an appropriate sentence for this accused that you regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case. These instructions must not be interpreted as indicating an opinion as to the sentence which should be adjudged for you alone are responsible for determining an appropriate sentence in this case. In arriving at your determination, you should select the sentence which will best serve the ends of good order and discipline, the needs of the accused, and the welfare of society.