United States v. Freeman III

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32564
________________________
UNITED STATES
Appellee
v.
Howard U. FREEMAN III
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 6 September 2019
________________________
Military Judge: Matthew D. Talcott
Approved sentence: Bad-conduct discharge, confinement for 40 days, for-
feiture of $1,287.00 pay per month for 1 month, reduction to E-1, and a
reprimand. Sentence adjudged 7 December 2018 by SpCM convened at
Nellis Air Force Base, Nevada.
For Appellant: Major Kevin R. Cayton, USAF; Captain David A. Schia-
vone, USAF.
For Appellee: Mary Ellen Payne, Esquire.
Before MINK, LEWIS, and D. JOHNSON, Appellate Military Judges.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
PER CURIAM:
Appellant was convicted, in accordance with his pleas and pursuant to a
pretrial agreement (PTA), of one specification of divers use of cocaine and one
United States v. Freeman, No. ACM S32564
specification of divers use of marijuana, in violation of Article 112a, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 912a. *
A military judge sitting alone sentenced Appellant to a bad-conduct dis-
charge, confinement for 40 days, forfeiture of $1,287.00 pay per month for one
month, reduction to the grade of E-1, and a reprimand. The adjudged confine-
ment was below the PTA’s confinement cap so the PTA did not affect the sen-
tence that could be approved. The convening authority approved the sentence
as adjudged.
I. BACKGROUND
This case was submitted for our review on its merits without assignment
of error. Upon our review, we find the forfeiture adjudged exceeded the maxi-
mum allowable forfeiture in a special court-martial. We reduce the adjudged
forfeiture in our decretal paragraph.
II. DISCUSSION
“Special courts-martial may, under such limitations as the President may
prescribe, adjudge any punishment not forbidden by this chapter except . . .
forfeiture of pay exceeding two-thirds pay per month . . . .” Article 19, UCMJ,
10 U.S.C. § 819. “Unless a total forfeiture is adjudged, a sentence to forfeiture
shall state the exact amount in whole dollars to be forfeited each month and
the number of months the forfeitures will last.” Rule for Courts-Martial
(R.C.M.) 1003(b)(2). “If the sentence also includes reduction in grade, expressly
or by operation of law, the maximum forfeiture shall be based on the grade to
which the accused is reduced.” Id.
Appellant was sentenced on 7 December 2018. Part of his sentence included
reduction to the grade of E-1. As such, the maximum forfeiture of pay he could
be adjudged was two-thirds forfeiture of pay at the reduced grade of E-1 ex-
pressed in a whole dollar amount. For calendar year 2018, this amount was
$1,092.00 pay per month. In this case, the military judge imposed $1,287.00
pay per month for one month, in excess of the maximum forfeiture allowed
under R.C.M. 1003(b)(2). It appears to us that the military judge imposed the
maximum allowable forfeiture at Appellant’s grade at the time of trial—E-3—
rather than the reduced grade of E-1. To correct this error, which was not ad-
dressed during post-trial processing or on appeal, we reduce the forfeiture of
pay to $1,092.00 pay per month for one month. See United States v. Devlin, No.
ACM S31858, 2012 CCA LEXIS 892, at *4–5 (A.F. Ct. Crim. App. 11 Dec. 2012)
*All references in this opinion to the Uniform Code of Military Justice and Rules for
Courts-Martial are found in the Manual for Courts-Martial, United States (2016 ed.).
2
United States v. Freeman, No. ACM S32564
(unpub. op.); United States v. Deleo, No. ACM S29585, 1998 CCA LEXIS 496,
at *2 (A.F. Ct. Crim. App. 23 Dec. 1998) (unpub. op.).
III. CONCLUSION
The approved findings and only so much of the sentence as provides for a
bad-conduct discharge, 40 days of confinement, forfeiture of $1,092.00 pay per
month for one month, reduction to the grade of E-1, and a reprimand are AF-
FIRMED. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
3