United States v. Perry , 48 M.J. 197 ( 1998 )

Opinion of the Court

GIERKE, Judge:

A general court-martial composed of officer members convicted appellant, on mixed pleas, of attempted sodomy, conduct unbecoming an officer (4 specifications), and committing indecent acts (6 specifications), in violation of Articles 80,133, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 933, and 934, respectively. The court-martial sentenced appellant to a dismissal, confinement for 5 years, loss of lineal numbers, and total forfeitures. The convening authority approved the adjudged sentence but suspended confinement in excess of 4 years for 12 months from the date of trial. The Court of Criminal Appeals set aside the conviction of attempted sodomy but affirmed the remaining findings of guilty and the sentence.

Our Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE FAILED TO GIVE A PROPOSED INSTRUCTION REGARDING RE-COUPMENT OF EXPENDITURES FOR APPELLANT’S EDUCATION AT THE U.S. NAVAL ACADEMY.

Appellant graduated from the U.S. Naval Academy in May 1993. He was convicted and sentenced in July 1994. Appellant had incurred a 5-year military service commitment in return for his education at the Naval Academy. During a discussion on sentencing instructions, appellant proposed the following instruction:

A dismissal may cause Ensign Perry to be liable to reimburse the U.S. Government for all or a portion of the costs associated with his education at the U.S. Naval Academy. As computed by the U.S. Naval Academy, the total cost of education for the past four years is approximately $80,-000.

Defense counsel supported this request with a memorandum from the Naval Academy Comptroller that computed the cost of education and recited,

In accordance with PL 96-357, and effective with the Class of 1985, if any individual fails to fulfill their commitment, they may be liable to reimburse the U.S. Government for all or a portion of the costs associated with their education at the Academy.

The military judge denied the request for an instruction on the possibility of reimbursement. He explained, “I don’t see anything here that makes this a matter that I should instruct them [on] as a matter of law as to the potential consequences of dismissal.” He offered appellant an opportunity to present additional evidence but declined to give the requested instruction because “[i]t’s not evidence before the court.”

Defense counsel responded that he was “puzzled by the judge’s ruling” because “it’s a strong probability” that an Academy graduate who fails to fulfill the service requirement “may be liable to reimburse the Government.” The military judge responded again:

[I]t’s not evidence before the court. You’re asking me to instruct them on law. If I’m going to instruct them on this law, as you’re asking me to do, then I will want to see some regulation, some implementing feature — I’d like to know a history of do they do it in a case such as this, is there any reason to believe that will happen here, other than this general assessment of 1 March ’94 to the midshipmen.

The military judge concluded by explaining:

There are a lot of public laws that never come into play in terms of regulations that implement them and collections that would be applicable specifically to a case such as this one. I doubt you could make a showing necessary to get me to give that instruction, but you certainly can try.

Defense counsel concluded his argument by saying, “I’ve tried. The objection, obviously, is noted for the record.”

During sentencing argument, defense counsel told the members: “Now, right up front I’m going to tell you what I think is an appropriate sentence in this ease. We think a dismissal, total forfeitures of pay and allowances, and we think confinement not to exceed one year would be appropriate.”

Appellant now contends that the military judge abused his discretion by refusing to instruct the members on the possibility of government recoupment of the cost of his education. The Government responds that the military judge did not abuse his discretion because the claimed collateral consequence was too remote. The Government points out that appellant failed to avail himself of the opportunity to present evidence on the recoupment issue. Finally, the Government argues that any error in refusing to instruct on the issue was harmless because the defense conceded that dismissal and total forfeitures were appropriate punishments.

Public Law No. 96-357, on which the defense relied at trial, is codified in 10 USC § 2005. Under § 2005(f) of this statute, cadets and midshipmen must execute agreements to serve on active duty for specific periods. Cadets and midshipmen must also agree to reimburse the United States for their educational expenses if they, “voluntarily or because of misconduct,” fail to serve for “the period of active duty specified in the agreement.” Under § 2005(g)(2), a cadet or midshipmen “who may be subject to a reimbursement requirement” is entitled to notice of the requirement “before (1) submitting a request for voluntary separation, or (2) making a decision on a course of action regarding personal involvement in administrative, nonjudicial, and judicial action resulting from alleged misconduct.” Under § 2005(g)(1), before collection action is initiated, a factfinding hearing must be conducted “in order to determine the validity of the debt.” Finally, under § 2005(h), the Secretary of the military department concerned may modify a service agreement to reduce the active-duty obligation “if the Secretary determines that it is in the best interests of the United States to do so.”

An accused has a broad right to present mitigation evidence. United States v. Becker, 46 MJ 141, 143 (1997). This Court has recognized that the financial impact of a punitive discharge may be relevant on sentencing, provided that it is a direct and proximate consequence of the punitive discharge and not merely a potential collateral consequence. Id. (error to exclude evidence of retirement benefits of accused only 3l¿ months from retirement without reenlisting); United States v. Greaves, 46 MJ 133 (1997) (generic instruction on collateral consequences of punitive discharge inadequate where accused was 2 months from retirement without reenlisting); United States v. Griffin, 25 MJ 423 (CMA 1988) (no error to instruct on impact of punitive discharge on retirement where accused was retirement eligible).

We review a military judge’s decision whether and how to instruct on the consequences of a sentence for abuse of discretion. Greaves, 46 MJ at 139. We hold that the military judge did not abuse his discretion in this case.

The military judge’s refusal to give the requested instruction was founded on a lack of evidence. Defense counsel proffered only a memorandum based on an enabling statute that authorizes the Secretary of the Navy to recoup educational costs but also gives the Secretary broad authority to waive the service requirement. The internal publication from the Naval Academy reflects the discretionary nature of the Secretary’s authority by announcing that individuals who fail to fulfill the service requirement “may be liable” to reimburse the United States. Although given ample opportunity, the defense offered no evidence that the Secretary of the Navy routinely initiated collection action or that such action was contemplated in this case. The defense offered no evidence that appellant had received the statutory notice required by § 2005(g)(2). In short, there was no evidentiary predicate for the requested instruction. See United States v. Van Syoc, 36 MJ 461, 464 (CMA 1993) (duty to instruct arises when “some evidence” is presented raising the issue). Accordingly, we hold that the military judge did not abuse his discretion.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

Chief Judge COX and Judge CRAWFORD concur.