CAAFlog » September 2013 Term » United States v. Mead

CAAF’s first non-summary disposition of the term is in United States v. Mead, No. 13-0459/AR, 72 M.J. 479 (CAAFlog case page) (link to slip op.). The court decided the case on November 21, 2013, rejecting the appellant’s claim to additional credit against the sentence adjudged at a general court-martial for prior nonjudicial punishment that he received for one of the offenses, and affirming the Army CCA.

Judge Stucky writes for a unanimous court.

Appellant was convicted pursuant to his pleas of guilty entered in accordance with a pretrial agreement, by a general court-martial composed of a military judge alone, of drunken operation of a vehicle, wrongful use of amphetamine, and involuntary manslaughter by operating a motor vehicle in a culpably negligent manner, in violation of Articles 111, 112a, and 119, UCMJ. He was sentenced to confinement for 38 months, total forfeitures, and a bad-conduct discharge.

But before the court-martial, Appellant received nonjudicial punishment pursuant to Article 15, UCMJ, for the same wrongful use of amphetamine. This fact was brought to the military judge’s attention during the court-martial, and when the judge announced the sentence he explained that he considered the prior punishment and that without the prior punishment Appellant’s sentence to confinement would have been two months greater (40 months instead of 38). However, the pretrial agreement required the convening authority to disapprove all confinement in excess of 24 months, rendering the judge’s two month reduction meaningless.

So, on automatic appeal to the Army CCA, Appellant complained that he received no meaningful credit for the nonjudicial punishment, and also that he received no credit at all for the pay he lost as a result of reduction in rank imposed by the nonjudicial punishment. The CCA rejected Appellant’s arguments in a published decision, reaffirming a prior holding that “where a military judge awards credit for non-judicial punishment on the adjudged sentence and the punishments still exceeds the limitation of punishments in a pretrial agreement, the military judge has already satisfied Pierce and there is no duty for the convening authority to again award credit,” and also finding “no legal obligation to provide credit” for the reduced pay as a result of reduced rank from prior nonjudicial punishment. United States v. Mead, 72 M.J. 515, 518-19 (A.Ct.Crim.App. 2013). CAAF then granted review of a two-part issue questioning these determinations:

Whether the Army court incorrectly ruled that Pierce credit may be applied against the adjudged sentence where this results in no relief to Appellant and whether the Army court incorrectly ruled that pay lost as a result of prior reduction under Article 15, UCMJ, need not to be restored to Appellant.

Judge Stucky’s short opinion makes quick work of the case, almost summarily rejecting Appellant’s claims. After reviewing the facts of the trial proceedings, including discussions the military judge and the Defense had about the prior nonjudicial punishment, Judge Stucky notes that under the court’s precedent (discussed in detail in my argument preview) it is the accused who decides when the credit is applied. And that’s exactly what happened in this case.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Mead, No 13-0459/AR (CAAFlog case page): Argument audio.

United States v. Finch, No. 13-5007/AF (CAAFlog case page): Argument audio.

CAAF will hear oral argument in United States v. Mead, No 13-0459/AR (CAAFlog case page), on Wednesday, October 9, 2013, at 9:30 a.m. Appellant was tried by a general court-martial for an offense after receiving nonjudicial punishment under Article 15 for the same offense. CAAF will review the application of credit under United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), a case in which the Court of Military Appeals (CAAF’s predecessor) considered the otherwise rare situation where a service member is convicted and sentenced by a court-martial for an offense after he has already been punished nonjudicially for the same offense. In Pierce the CMA determined:

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. Furthermore, the nonjudicial punishment may not be used for any purpose at trial, such as impeachment (even of an accused who asserts he had no prior misconduct); to show that an accused has a bad service record; or any other evidentiary purpose, e.g., Mil.R.Evid. 404(b), Manual, supra. Under these circumstances, the nonjudicial punishment simply has no legal relevance to the court-martial.

Pierce, 27 M.J. at 369 (emphasis in original). Appellant Mead was convicted, pursuant to his pleas of guilty entered in accordance with a pretrial agreement, by a general court-martial composed of a military judge alone, of drunken operation of a vehicle, wrongful use of amphetamine, and involuntary manslaughter by operating a motor vehicle in a culpably negligent manner, in violation of Articles 111, 112a, and 119, UCMJ. But before the court-martial he received nonjudicial punishment pursuant to Article 15, UCMJ, for the same wrongful use of amphetamine.

When the military judge announced the sentence at the court-martial, he declared that:

When arriving at the adjudged sentence in this case, I took into account the non-judicial punishment, or NJP, the accused has already received under Article 15 of the Uniform Code of Military Justice. As a result of the NJP that was imposed by his battalion commander, Lieutenant Colonel [BH], for the wrongful use of amphetamine that he was charged with and found guilty of in the Specification of Charge II. If the accused had not received prior NJP for the offense listed in the Specification of Charge II, I would have adjudged an additional 2 months of confinement, in addition to what I just announced.

United States v. Mead, 72 M.J. 515, 517 (A.Ct.Crim.App. 2013). Appellant was sentenced to confinement for 38 months, total forfeitures, and a bad-conduct discharge. Pursuant to the pretrial agreement, the convening authority disapproved all confinement in excess of 24 months. Because of these terms of the pretrial agreement, the judge’s two-month reduction in the adjudged sentence had no effect on the sentence ultimately ordered executed.

On automatic appeal to the Army CCA, Appellant complained that the credit applied by the military judge “was both illusory and improperly calculated.” 72 M.J. at 516. His complaint was two-fold. First, he complained that he received no meaningful credit at all (because the 2-month reduction in confinement announced by the judge had no effect after application of the pretrial agreement). And second, he complained that he received no credit for the pay he lost as a result of his reduction in rank from the nonjudicial punishment (put differently: the prior nonjudicial punishment of reduction had the consequence of reduced pay to Appellant, but when he was punished by the court-martial for the same underlying misconduct, he received only credit for the prior reduction itself and not for the accompanying reduction in pay).

The CCA rejected Appellant’s arguments, reaffirming a prior holding that “where a military judge awards credit for non-judicial punishment on the adjudged sentence and the punishments still exceeds the limitation of punishments in a pretrial agreement, the military judge has already satisfied Pierce and there is no duty for the convening authority to again award credit,” 72 M.J. 518, and also finding “no legal obligation to provide credit” for the reduced pay as a result of reduced rank after the nonjudicial punishment, 72 M.J. 519. CAAF then granted review of the following two-part issue questioning these determinations:

Whether the Army court incorrectly ruled that Pierce credit may be applied against the adjudged sentence where this results in no relief to Appellant and whether the Army court incorrectly ruled that pay lost as a result of prior reduction under Article 15, UCMJ, need not to be restored to Appellant.

The Appellant’s brief discusses significant precedents involving the computation and application of sentence credits, beginning with Pierce in 1989, establishing the credit, then moving to United States v. Edwards, 42 M.J. 381 (C.A.A.F. 1995), where CAAF held that where the defense so requests, the military judge may apply the credit against the adjudged sentence (instead of the convening authority applying it against the approved sentence), and ending with United States v. Gammons, 51 M.J. 169 (C.A.A.F 1999) (slip opinion), in which then-Judge Effron wrote a lengthy unanimous opinion of the court discussing the relationship between nonjudicial punishment and court-martial, the application of credit against a court-martial sentence for prior nonjudicial punishment, and the myriad ways the prior punishment may be brought to the attention of the court-martial and the convening authority. In Gammons, Judge Effron explained:

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