When does one apple equal 30 oranges, 45 bananas, and 3 bunches of 1,500 grapes? When “the specific circumstances of this case” permit such a conclusion. So finds CAAF, in a per curiam opinion that affirms the NMCCA’s decision in United States v. Altier, No. 12-0496/NA, 71 M.J. 427 (C.A.A.F. Dec. 19, 2012) (CAAFlog case page) (link to slip op.).
The Appellant in Altier was convicted in 2010, by a special court-martial composed of members with enlisted representation, of one specification of fraternization and one specification of sexual harassment, both in violation of Article 92. He was sentenced to just a bad-conduct discharge. However, the NMCCA set-aside the sentence and authorized a sentencing rehearing because of improper sentencing instructions. That rehearing occurred in July, 2011, before a military judge alone, and the Appellant was sentenced to confinement for 30 days, reduction to pay grade E-5, restriction to base limits with hard-labor for 45 days, and forfeiture of $1,500.00 pay per month for three months. But no punitive discharge.
The Appellant promptly sought appellate relief to avoid execution of the confinement, and was granted a writ of prohibition by the NMCCA staying execution of the new sentence in order to allow the court to first determine if the new sentence was “in excess of or more severe than” the original sentence. Article 63, UCMJ, states that “upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…,” and the Appellant argued that the confinement, restriction, hard-labor, and forfeitures in the second sentence were in excess of or more severe than the punitive discharge (with automatic reduction under Article 58a) but no confinement, no restriction, no hard-labor, and no forfeitures in the first sentence.
Crazy talk, right? And a three-judge panel of the NMCCA denied relief (in a 2-1 split), finding that “[u]nder the circumstances of this case” the second sentence was not in excess of or more severe than the first sentence. CAAF granted review, and on December 19, 2012, in a per curiam opinion, it agreed with the NMCCA, and the court lifted the stay of execution of the sentence.
CAAF’s discussion is both short and unenlightening, but there are two lessons that can be drawn from the opinion. The first is that none of the judges at CAAF have any significant interest in establishing a formula for calculating equivalent sentences for rehearings:
Our cases regarding Article 63 reflect both the obligation to give meaning and effect to the statutory limitation against a sentence that is “in excess of or more severe” than the original sentence, and an understanding that the application of the Article 63 limitation in any case cannot be reduced to a specific formula.
Slip op. at 4. Nevermind that the Manual for Courts-Martial used to include a Table of Equivalent Punishments (though it didn’t establish any equivalent for a discharge) and that the NMCCA and CAAF have both used this table in the past (see United States v. Edwards, 54 M.J. 761, 763 (N-M.Ct.Crim.App. 2000) (citing United States v. Gammons, 51 M.J. 169, 183-184 (C.A.A.F. 1999)). When it comes to Article 63, equivalents are out.
The second lesson requires reading between the sparse lines of the court’s opinion:
…Appellant received a sentence containing terms similar in effect, although not identical to, the types of punishment that could be imposed in a non-judicial setting under Article 15, UCMJ. Under the specific circumstances of this case, we conclude that the Court of Criminal Appeals did not err under Article 63 in affirming a sentence adjudged by the court-martial and approved by the convening authority.
Slip op. at 5. Those “specific circumstances” include the fact that during the sentencing rehearing the Appellant’s counsel first asked for a sentence of “no further punishment,” but then argued that if “a ‘message’ was necessary, then [the judge] should impose a sentence no greater than the punishment ‘that could be imposed at NJP.'” Slip op. at 2. CAAF doesn’t explicitly state that this Appellant got what he asked for, but that familiar message is clear. See United States v. Carter, 45 M.J. 168 (C.A.A.F. 1996) (“This case and its outcome can be summarized by the old adage, ‘Watch what you ask for, you may get it.'”)).