United States v. Buford

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39087
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UNITED STATES
Appellee
v.
Aaron M. BUFORD
Senior Airman (E-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 19 December 2017
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Military Judge: Donald R. Eller, Jr.
Approved sentence: Bad-conduct discharge and reduction to E-1. Sen-
tence adjudged 19 February 2016 by GCM convened at RAF Laken-
heath, United Kingdom.
For Appellant: Major Allen S. Abrams, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Amanda L.K. Linares, USAF; Major Mary Ellen Payne, USAF; Gerald
R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
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PUBLISHED OPINION OF THE COURT
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HARDING, Senior Judge:
A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of possession and distribution of child pornography in
violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
United States v. Buford, No. ACM 39087
§ 934. 1 The members sentenced Appellant to a bad-conduct discharge and re-
duction to E-1. The convening authority approved the adjudged sentence and
ordered that “[u]nless competent authority otherwise directs, [Appellant] will
be required, under Article 76a, UCMJ, 10 U.S.C. § 876a, to take leave pend-
ing the completion of appellate review.” At the time Appellant began the re-
quired period of what is referred to as appellate leave, he had 73 days of ac-
crued leave. When presented with an option to receive a lump sum payment
for the accrued leave or to “use” the leave, Appellant elected the latter, or to
“[r]eceive pay and allowances during the period of accrued leave, then contin-
ue on unpaid required excess leave.” As of the date Appellant filed his appel-
late brief, he had not been paid for the period of accrued leave.
Appellant asserts he has been improperly denied his pay and this court
has jurisdiction under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to provide a
remedy. 2 Appellant specifically requests two forms of tailored relief. First,
Appellant asks that we prohibit the convening authority from taking final
action until Appellant is paid for the period of accrued leave. Secondly, Appel-
lant argues that we should disapprove the approved reduction in grade to E-1
so that his accrued leave is paid at the E-4 rate, which would compensate him
for the consequential damages (financial hardships) he attributes to the im-
proper withholding of pay. We hold that Article 66(c), UCMJ, does not grant
this court jurisdiction over a pay dispute absent a nexus to the approved sen-
tence. As Appellant’s dispute with military officials does not concern the ap-
proved sentence, it is beyond our statutory authority. We find no error that
materially prejudiced a substantial right of Appellant and affirm the findings
and sentence.
1 Appellant’s case was previously before this court and our superior court when the
Government appealed, pursuant to Article 62, UCMJ, a trial court ruling suppressing
digital evidence of child pornography. United States v. Buford, Misc. Dkt. No. 2013-
26, 2014 CCA LEXIS 226 (A.F. Ct. Crim. App. 4 Apr. 2014) (unpub. op.), rev’d, 74
M.J. 98 (C.A.A.F. 2014).
2 Appellant also raises two issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). First, he asserts the military judge abused his discretion when he de-
clined to suppress the digital evidence underlying Appellant’s convictions. Second,
Appellant contends his convictions are legally and factually insufficient where the
Government introduced no evidence to show Appellant’s conduct was of a nature to
bring discredit upon the Armed Forces. We have considered and reject these claims,
which neither require additional analysis nor warrant relief. See United States v. Ma-
tias, 25 M.J. 356, 363 (C.M.A. 1987).
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United States v. Buford, No. ACM 39087
I. BACKGROUND
Shortly after the convening authority took action, Appellant was provided
a memorandum notifying him of the requirement that he be placed on excess
leave and explaining his options regarding accrued leave. The memorandum
stated:
If you have accrued ordinary leave you can elect to:
a. Receive pay and allowances during the period of accrued
leave, then continue on unpaid required excess leave; or
b. Receive a lump sum payment for the accrued leave, as of the
day before the required excess leave begins, and serve the en-
tire period of required leave on unpaid excess leave.
Appellant elected to receive pay and allowances during the period of ac-
crued leave and then continue on unpaid required excess leave. According to
his sworn declaration, Appellant departed the United Kingdom for the Unit-
ed States on 23 June 2016 with 73 days of accrued leave. Appellant expected
that he would continue to receive pay and allowances twice per month
through at least the end of August 2016 and then be on unpaid required ex-
cess leave pending completion of appellate review. Instead, Appellant last re-
ceived pay in early July 2016 and had not received a lump sum payment for
accrued leave.
Appellant initially sought assistance with his pay issue at the nearest fi-
nance and military personnel customer service centers. Personnel at the cen-
ters directed Appellant to contact the financial management action officer at
the Air Force Security Forces Center (AFSFC) as AFSFC exercises adminis-
trative control over Air Force personnel on appellate leave. The AFSFC ac-
tion officer told Appellant that he would not get paid until his leave period
ended, at which time he would receive a lump sum payment. In late August
2016, as the period of his accrued leave was ending, Appellant again contact-
ed the AFSFC action officer to confirm when the lump sum payment would be
made. At that time, the action officer noted “discrepancies” in Appellant’s
records and made an inquiry with the comptroller squadron at Royal Air
Force (RAF) Lakenheath.
The point of contact in the RAF Lakenheath comptroller squadron appar-
ently told Appellant that an error in his military personnel record impeded
disbursement of the payment for his accrued leave. In his declaration, Appel-
3
United States v. Buford, No. ACM 39087
lant states he was told his date of separation (DOS) was not updated 3 prior to
him out-processing from RAF Lakenheath in June 2016. While the error was
pending resolution at the Air Force Personnel Center, Appellant continued to
inquire about the payment through his former squadron at RAF Lakenheath.
At some point Appellant’s DOS was updated to a date in 2019. On 6 Decem-
ber 2016, the point of contact at the RAF Lakenheath comptroller squadron
informed Appellant that a representative at the Defense Finance and Ac-
counting Service (DFAS) advised “that the money not paid to [Appellant] dur-
ing appellate leave should not be released by finance until [Appellant’s]
DOS.”
II. DISCUSSION
Appellant does not challenge the legality or appropriateness of the ap-
proved sentence. Instead, he takes issue with the decisions of military offi-
cials, whether in personnel, finance, or both, that caused a continuing delay
of his pay for the period of accrued leave that he elected to receive before go-
ing on unpaid excess leave. As this issue concerns a matter not directly con-
nected to the approved sentence, we must first determine whether we have
jurisdiction to grant relief. We hold that we do not.
Jurisdiction is a question of law we review de novo. Randolph v. HV, 76
M.J. 27, 29 (C.A.A.F. 2017) (citing LRM v. Kastenberg, 72 M.J. 364, 367
(C.A.A.F. 2013)). “The burden to establish jurisdiction rests with the party
invoking the court’s jurisdiction[.]” Randolph, 76 M.J. at 29 (quoting United
States v. LaBella, 75 M.J. 52, 53 (C.A.A.F. 2015)). Military trial and appellate
courts, like all federal courts, are courts of limited jurisdiction. United States
v. Wuterich, 67 M.J. 63, 70 (C.A.A.F. 2008). “They possess only that power
authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). The scope and meaning of Article 66(c),
UCMJ, which is the source of this court’s authority, is a matter of statutory
interpretation, which, as a question of law, is reviewed de novo. United States
v. Schloff, 74 M.J. 312, 313 (C.A.A.F. 2015), cert. denied, 136 S. Ct. 915
3Appellant entered a six-year voluntary enlistment that began on 12 February 2008.
Appellant was still serving this enlistment when his trial initially began in October
2013, and continued to do so during the pendency of the Government’s appeal. As of
11 February 2014, Appellant would have reached his original expiration of term of
service (ETS). Involuntary extensions of Appellant’s enlistment for court-martial
should have resulted in updates to his ETS and DOS. If such updates were not done,
that may explain the “discrepancies” in Appellant’s records and lack of pay.
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United States v. Buford, No. ACM 39087
(2016). Article 66(c) establishes the jurisdiction of a military court of criminal
appeals (CCA) as follows:
In a case referred to it, the [CCA] may act only with respect to
the findings and sentence as approved by the convening au-
thority. It may affirm only such findings of guilty, and the sen-
tence or such part or amount of the sentence, as it finds correct
in law and fact and determines, on the basis of the entire rec-
ord, should be approved. In considering the record, it may
weigh the evidence, judge the credibility of witnesses, and de-
termine controverted questions of fact, recognizing that the tri-
al court saw and heard the witnesses.
10 U.S.C. § 866(c).
That Appellant was not paid during the period he was “using” his accrued
leave is an issue distinct from the sentence approved by the convening au-
thority, which consisted of a bad-conduct discharge and reduction to E-1 but
involved no confinement or adjudged or mandatory forfeiture of pay. The
matter of nonpayment is plainly a collateral administrative matter to the
sentence approved by the convening authority.
In a case concerning the jurisdiction of a CCA to review the conditions of
post-trial confinement, the United States Court of Appeals for the Armed
Forces (CAAF) specifically held a CCA has the “authority to ensure that the
severity of the adjudged and approved sentence have not been unlawfully in-
creased by prison officials.” United States v. White, 54 M.J. 469, 472 (C.A.A.F.
2001). It follows by analogy that we may review the actions of military offi-
cials to ensure the severity of the monetary components of a sentence are not
unlawfully increased. Article 66(c), however, does not extend a CCA’s reach to
all finance or personnel matters that may have some link to a court-martial
sentence. Indeed, in United States v. Dodge, we determined an appellant’s
claim for back pay was not within our statutory jurisdiction. 60 M.J. 873
(A.F. Ct. Crim. App. 2005), aff’d, 61 M.J. 288 (C.A.A.F. 2005) (mem.). While
Appellant’s pay issue is not a claim for back pay, it, like the appellant’s claim
in Dodge, does not concern the legality or appropriateness of an approved
court-martial sentence. 4
4 In Dodge, we noted “in the event th[at] appellant believe[d] that he has such a
claim, he should pursue it in the court Congress has vested with jurisdiction over the
matter, the United States Court of Federal Claims.” Our observation is as true today
as it was over 10 years ago.
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United States v. Buford, No. ACM 39087
Notwithstanding our holding in Dodge, Appellant, relying primarily on
Unites States v. Gay, 75 M.J. 264 (C.A.A.F. 2016), contends this court has ju-
risdiction to remedy his lack of pay because Article 66(c) grants broad discre-
tion to determine which part of a sentence “should be approved.” While we
agree that CCAs do have considerable discretion that discretion is not unlim-
ited.
In Gay, CAAF held this court “did not abuse its discretion when it exer-
cised its Article 66(c) sentence reassessment authority for post-trial confine-
ment conditions despite its conclusion that the conditions did not rise to a
violation of the Eighth Amendment or Article 55.” Id. at 268. In doing so,
CAAF also made clear that the authority to grant sentence appropriateness
relief is not unlimited and, specifically, a CCA is not empowered to grant re-
lief for any condition of post-trial confinement of which the CCA disapproves.
Rather, a CCA is authorized by Article 66(c) to grant relief for sentence ap-
propriateness if it finds a “legal deficiency in the post-trial process.” In Gay,
the legal deficiency resulted in improper solitary confinement and “conditions
of confinement that were more severe than what [appellant] should have ex-
perienced.” Id. at 269. We note that the authority validated in Gay was root-
ed and limited to a legal deficiency that directly impacted a component of the
sentence. It is clear that Gay may be cited for the proposition that a CCA is
not limited to violations of the Eighth Amendment to the United States Con-
stitution, Article 55, UCMJ, 10 U.S.C. § 855, or other defined rights and pro-
tections as a basis for granting relief. However, CAAF in Gay did not recog-
nize unlimited authority under Article 66(c), UCMJ, for a CCA to grant sen-
tencing relief, including for errors collateral to the court-martial process. We
are neither persuaded that we have such unlimited authority nor convinced
that we should exercise any of our limited authority to grant relief for an ad-
ministrative matter unrelated to any legal deficiency and unconnected to the
legality or appropriateness of a court-martial sentence.
Although not expressly raised to establish jurisdiction, Appellant charac-
terizes the withholding of pay as “punitive” and asserts he is “being improp-
erly punished.” We considered whether a mere claim of improper post-trial
punishment establishes jurisdiction; we hold that it does not. In Dodge, we
considered and rejected the appellant’s claim that lack of pay amounted to
illegal post-trial punishment. We found the appellant fell “far short of
demonstrating that a failure to restore the appellant to a pay status was
based on an intent to subject him to illegal punishment.” We concluded that a
bare claim of illegal punishment, absent some evidence of intent to subject an
appellant to illegal post-trial punishment, did not establish jurisdiction over
collateral pay issues. Appellant has similarly failed to present any evidence
to establish that any member of his command or other military official with-
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United States v. Buford, No. ACM 39087
held his pay for the period of accrued leave in order to increase the severity of
his sentence and impose illegal post-trial punishment.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.
FOR THE COURT
KATHLEEN M. POTTER
Acting Clerk of the Court
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