Howell v. United States

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
Stephen P. HOWELL, Staff Sergeant
United States Marine Corps, Appellant/Cross-Appellee
v.
UNITED STATES
Appellee/Cross-Appellant
Nos. 16-0289 & 16-0367
Crim. App. No. 201200264
Argued May 11, 2016—Decided July 19, 2016
Military Judge: David M. Jones
For Appellant/Cross-Appellee: Lieutenant R. Andrew
Austria, JAGC, USN (argued).
For Appellee/Cross-Appellant: Lieutenant Robert J. Miller,
JAGC, USN (argued); Colonel Mark K. Jamison, USMC
(on brief).
Judge SPARKS delivered the opinion of the Court, in
which Senior Judge LAMBERTH joined. Judge
STUCKY filed a separate concurring opinion concurring
in the result. Judge OHLSON filed a separate opinion
concurring in part and dissenting in part, in which
Chief Judge ERDMANN joined.
_______________
Judge SPARKS delivered the opinion of the Court.1
This matter is before us as a result of a petition for
extraordinary relief filed by the Government pursuant to the
All Writs Act, 28 U.S.C. §1651(a). In its petition for
extraordinary relief in the nature of a writ of prohibition,
the Government asked the United States Navy-Marine
Corps Court of Criminal Appeals to prohibit enforcement of
an order by the military judge granting Appellant/Cross-
Appellee (Appellant) confinement credit pursuant to Article
1 Senior Judge Royce C. Lamberth, of the United States
District Court for the District of Columbia, sat by designation
pursuant to Article 142(f), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 942(f) (2012).
United States v. Howell, Nos. 16-0289 & 16-0367/MC
Opinion of the Court
13, UCMJ, 10 U.S.C. § 813 (2012). The lower court granted
the Government’s writ petition in part and denied in part.
Appellant then filed a writ-appeal with this Court,
challenging the lower court’s jurisdiction to hear the
Government’s petition for extraordinary relief. The Judge
Advocate General of the Navy certified four additional issues
for review by this Court.2 We hold that the Court of
Criminal Appeals had jurisdiction under the All Writs Act to
entertain the Government’s petition for a writ of prohibition.
We further hold that under the facts of this case, there was
no intent to punish the accused by paying him as an E-1
while he was performing duties as and wearing the uniform
of an E-6. Thus, no violation of Article 13, UCMJ, occurred
and the military judge abused his discretion in awarding
confinement credit.
Background
On October 12, 2012, Appellant, then a Staff Sergeant
(E-6) in the Marine Corps, was tried by a general
court-martial consisting of members. Contrary to his pleas,
he was convicted of violating a general regulation, rape,
2 The Judge Advocate General of the Navy certified the case
for review of four issues:
I. Whether the Government may invoke Article 66, UCMJ, as
the jurisdictional basis for an extraordinary writ pursuant
to the All Writs Act when the issue is not included as a
basis for Government appeal under Article 62, UCMJ?
II. Whether the military judge, in finding an Article 13,
UCMJ, violation, exceeded his authority by rejecting
applicable holdings of the U.S. Court of Appeals for the
Federal Circuit and the Court of Federal Claims, in order
to conclude that [Appellant] was entitled to pay at the E-6
rate pending his rehearing?
III. Whether the lower court erred by concluding that the
setting aside of [Appellant’s] findings and sentence
rendered his reduction to pay grade E-1 prospectively
unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed
reduction to pay grade E-1 and the sentence is
subsequently set aside, does the action of paying that
member at the E-1 rate pending rehearing constitute
illegal pretrial punishment in the absence of any punitive
intent?
2
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Opinion of the Court
aggravated sexual contact, forcible sodomy, assault
consummated by a battery, and adultery, in violation of
Articles 92, 120, 125, 128, and 134, UCMJ, 10 U.S.C. §§ 892,
920, 925, 928, and 934. The members sentenced Appellant
to a dishonorable discharge, confinement for eighteen years,
forfeiture of all pay and allowances, and reduction to pay
grade E-1. The convening authority approved the sentence
as adjudged.
On May 22, 2014, the lower court set aside the findings
and sentence and authorized a rehearing. United States v.
Howell, No. NMCCA 201200264, 2014 CCA LEXIS 321, at
*38 (N-M. Ct. Crim. App. May 22, 2014) (unpublished). The
convening authority ordered the rehearing on June 25, 2014.
The next day, Appellant was released from confinement,
returned to full duty status, permitted to wear his
preconviction rank insignia of E-6 and assigned
commensurate duties. However, in accordance with
guidance from the Defense Finance and Accounting Service
(DFAS), the command determined that Appellant was to be
paid as an E-1 pending the rehearing results.
After referral of the charges, Appellant filed a motion,
seeking, in relevant part, payment as an E-6 pending the
results of the rehearing. The military judge noted that he
did not have the authority to order the Government to
restore Appellant to the grade of E-6 pending the rehearing.
Instead, the military judge concluded that the Government’s
failure to pay Appellant as an E-6 following set aside of his
conviction and the command’s decision to return him to full
duty status amounted to illegal pretrial punishment in
violation of Article 13, UCMJ. Accordingly, the military
judge granted one day of confinement credit for every day
from May 22, 2014, onward that Appellant was paid at the
E-1 rate.
Following the military judge’s ruling, the Office of the
General Counsel for DFAS provided the Government with
its legal opinion that Article 75(a), UCMJ, as interpreted by
Dock v. United States, 46 F.3d 1083 (Fed. Cir. 1995) and
Combs v. United States, 50 Fed. Cl. 592 (Fed. Cl. 2001),
provided binding legal authority to pay Appellant at the E-1
rate until the results of the rehearing were known. Based
on this legal opinion, the Government filed a motion asking
the military judge to reconsider the pay issue.
The military judge did not believe that the Government
was acting in complete disregard of Appellant’s rights.
3
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Opinion of the Court
Rather, “DFAS and the Court simply disagree on what rank
[Appellant] should be paid at pending his re-trial.” The
military judge found that DFAS’s pay position was taken in
good faith based on statutory interpretation and case law.
Nonetheless, the military judge adhered to his initial Article
13, UCMJ, determination.
At the rehearing, the members convicted Appellant,
contrary to his pleas, of violating a lawful general order,
abusive sexual contact, and adultery, in violation of Articles
92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934.
Appellant was sentenced to a dishonorable discharge,
confinement for nine years, forfeiture of all pay and
allowances, and a reduction to E-1.
Prior to the convening authority’s action, the
Government filed a petition for extraordinary relief in the
nature of a writ of prohibition with the lower court. The
Government requested that the lower court vacate the
military judge’s ruling directing the convening authority to
provide Appellant with Article 13, UCMJ, sentencing credit.
In United States v. Jones, No. NMCCA 201200264, 2015
CCA LEXIS 573, at *27, 2015 WL 9487941, at *9 (N-M. Ct.
Crim. App. Dec. 29, 2015),3 a divided court, en banc, granted
the writ petition in part and denied in part. The lower court
agreed with the military judge that after Appellant’s first
conviction was vacated and he was released from
confinement and returned to full duty status, he should have
been paid as an E-6 pending the results of the rehearing.
The lower court found that the military judge erred only in
setting the start date for the Article 13, UCMJ, credit as the
date when the findings were first set aside, when instead
any credit due should not have begun until the date
Appellant was released from confinement. Accordingly, the
Court of Criminal Appeals issued a writ of prohibition
vacating the military judge’s award of confinement credit for
the period from the set aside of sentence on May 22, 2014, to
the last day in confinement on June 25, 2014. The petition
was otherwise denied.
I.
Jurisdiction is a question of law that this Court reviews
de novo. LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F.
2013). This Court has statutory jurisdiction to review the
3 Howell is the real party in interest in Jones.
4
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Opinion of the Court
decision of the Court of Criminal Appeals under Article 67,
UCMJ, 10 U.S.C. § 867 (2012). Article 67(a)(2), UCMJ,
provides that this Court shall review the record in “all cases
reviewed by a Court of Criminal Appeals which the Judge
Advocate General orders sent to the Court of Appeals for the
Armed Forces for review.” The jurisdiction of the Courts of
Criminal Appeals has generally been limited to appeals by
the United States under Article 62, UCMJ, 10 U.S.C. § 862
(2012), and review of the findings and sentences of certain
courts-martial under Article 66(b), UCMJ, 10 U.S.C. § 866(b)
(2012).
Certified Issue I asks whether the Government may
invoke Article 66, UCMJ, as the jurisdictional basis for an
extraordinary writ to remedy an alleged Article 13, UCMJ,
violation when the issue is not included as a basis for
government appeal under Article 62, UCMJ.
As an initial matter, whether Article 62, UCMJ, limits
the use of the All Writs Act is not before us. Article 62
limits interlocutory appeals – “[a]n appeal that occurs before
the trial court’s final ruling on the entire case.” Black’s Law
Dictionary 118 (10th ed. 2014). Here, the trial court issued
findings and sentence, and the military judge authenticated
the record before the Government petitioned for relief. This
was not, therefore, an interlocutory appeal.
The All Writs Act grants the power to “all courts
established by Act of Congress [to] issue all writs necessary
or appropriate in aid of their respective jurisdiction and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651(a). The All Writs Act is not an independent grant of
jurisdiction, nor does it expand a court’s existing statutory
jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 534-35
(1999). Rather, the All Writs Act requires two
determinations: (1) whether the requested writ is “in aid of”
the court’s existing jurisdiction; and (2) whether the
requested writ is “necessary or appropriate.” Denedo v.
United States, 66 M.J. 114, 119 (C.A.A.F. 2008) (internal
quotation marks omitted).
Whether issuance of the requested writ was “in aid of” the
lower court’s jurisdiction
In the context of this case, writ jurisdiction under the All
Writs Act is limited to those matters that are “in aid of [the
Court of Criminal Appeals] respective jurisdiction[]” under
Article 66, UCMJ. 28 U.S.C. § 1651(a). Article 66(b)(1),
5
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Opinion of the Court
UCMJ, requires the Court of Criminal Appeals to review the
record in each trial by court-martial “in which the sentence,
as approved, extends to death, dismissal of a commissioned
officer, cadet, or midshipman, dishonorable or bad-conduct
discharge, or confinement for one year or more.”4 In Article
66(c), Congress conferred upon the Court of Criminal
Appeals an “awesome, plenary, de novo power of review.”
United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
Under this power, the Courts of Criminal Appeals may only
“affirm … such findings of guilty, and the sentence or such
part or amount of the sentence, as it finds correct in law and
fact and determines, on the basis of the entire record, should
be approved.” Article 66(c), UCMJ.
Jurisdiction under the All Writs Act is therefore limited
to matters that “ha[ve] the potential to directly affect the
findings and sentence.” Ctr. For Constitutional Rights v.
United States, 72 M.J. 126, 129 (C.A.A.F. 2013) (citing
Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012)); see also LRM,
72 M.J. at 368. We can readily conclude that the
Government’s specific complaint regarding the military
judge’s ruling on confinement credit directly affects the
findings and sentence. The convening authority is required
“to direct application of all confinement credits for violations
of Article 13 ... against the approved sentence.” United
States v. Spaustat, 57 M.J. 256, 263-64 (C.A.A.F. 2002).
Accordingly, we answer Certified Question I in the
affirmative and deny Appellant’s writ-appeal petition for
review.
Whether issuance of the writ was “necessary and
appropriate”
A writ of prohibition, like mandamus, is a “drastic
instrument which should be invoked only in truly
extraordinary situations.” United States v. Labella, 15 M.J.
228, 229 (C.M.A. 1983). To prevail, the petitioner must
show that: “(1) there is no other adequate means to attain
relief; (2) the right to issuance of the writ is clear and
4 Although the convening authority has not yet approved the
sentence, the doctrine of potential jurisdiction allows appellate
courts to issue opinions in matters that may reach the actual
jurisdiction of the court. See FTC v. Dean Foods Co., 384 U.S. 597,
603 (1966) (the power to issue writs “extends to the potential
jurisdiction of the appellate court where an appeal is not then
pending but may be later perfected”).
6
United States v. Howell, Nos. 16-0289 & 16-0367/MC
Opinion of the Court
indisputable; and (3) the issuance of the writ is appropriate
under the circumstances.” Hasan, 71 M.J. at 418 (citing
Cheney v. United States Dist. Court for D.C., 542 U.S. 367,
380-81 (2004)). With these principles in mind, we will
establish the necessity and appropriateness of the
Government’s writ of prohibition as we proceed through our
analysis of the remaining certified questions.
II.
Certified Issue II asks whether the military judge, in
finding an Article 13, UCMJ, violation, exceeded his
authority by not following Article III courts’ holdings that
Appellant was only entitled to be paid as an E-1 pending the
results of the rehearing.
Determining whether the Government’s action of not
paying Appellant as an E-6 pending the results of the
rehearing amounted to an Article 13, UCMJ, violation is
properly within the jurisdiction of the military courts, as
well as this Court. This determination necessarily requires
interpretation of Article 75(a), UCMJ, 10 U.S.C. § 875(a)
(2012), and how this article applies when court-martial
findings and sentences have been set aside by an appellate
court. This is the sort of issue for which the military court
ought not to defer to an Article III court’s interpretation.
Article 75(a), UCMJ, provides:
Under such regulations as the President may
prescribe, all rights, privileges, and property
affected by an executed part of a court-martial
sentence which has been set aside or disapproved,
except an executed dismissal or discharge, shall be
restored unless a new trial or rehearing is ordered
and such executed part is included in a sentence
imposed upon the new trial or rehearing.
In Dock, the United States Court of Appeals for the
Federal Circuit concluded that Article 75(a), UCMJ:
[P]lainly requires that, with two exceptions, if a
member’s court-martial sentence is set aside or
disapproved, all rights, privileges, and property are
to be restored to the member. The first exception is
that a set-aside or disapproved sentence does not
undo an already executed dismissal or discharge.
The second exception, controlling here, is that if a
rehearing is ordered, and the member is
resentenced, then only that part of the executed
7
United States v. Howell, Nos. 16-0289 & 16-0367/MC
Opinion of the Court
first sentence that is not included in the second
sentence shall be restored to the member.
46 F.3d at 1087. Relying upon Dock, the United States
Court of Federal Claims held in Combs that when a new
trial is conducted, entitlement to restoration of pay is
dependent upon the outcome of the new trial. 50 Fed. Cl.
at 600.
In reliance upon these holdings, the Government, based
on guidance received from DFAS, took a wait-and-see
approach to restoring Appellant’s pay grade until after the
results of the rehearing were known. We acknowledge that
this position is not an inherently unreasonable
interpretation of Article 75(a), UCMJ. However, under the
facts of this case, we disagree with this interpretation.
As we stated in Keys v. Cole, 31 M.J. 228 (C.M.A. 1990):
It is clear to us that the unambiguous language of
[Article 75(a), UCMJ] implies that, if a new trial or
rehearing is ordered, as in this case, all property—
i.e. forfeitures—will not be restored until that
rehearing is held. Again, of course, this provision
would not entitle the United States to continue in
the interim to withhold pay otherwise due by relying
on the forfeiture element of a set-aside sentence.
However, it does quite clearly entitle the United
States to retain pay already withheld prior to the
sentence being set aside, until such time as either a
decision is made not to hold a rehearing or a
rehearing is held.
Id. at 232 (second emphasis added) (citation omitted).
The Government is within its statutory rights to not
restore to an accused any forfeiture of pay and allowances he
has already suffered as a result of the original conviction
and sentence until after the rehearing is completed. But,
Article 75(a), UCMJ, does not provide for the withholding of
pay during the interim period after the findings and
sentence are set aside, and the accused is returned to full
duty status and his previous rank.
Historically, we have found that after a new trial is
ordered, no vestiges of the former court-martial should
linger, as:
“An order granting a new trial reopens the whole
case, which then stands for trial de novo, and
places the accused in the same position as if no
trial had been had.” 24 CJS, Criminal Law, § 1511.
8
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Opinion of the Court
As stated in Salisbury v. Grimes, 223 Ga 776, 158
S.E.2d 412 (1967), the grant of a new trial “wiped
the slate clean as if no previous conviction and
sentence had existed.” See also Manor v. Barry, 62
Ariz 122, 154 P.2d 374 (1944), and 39 Am Jur, New
Trial, § 204, wherein it is declared:
“An order directing a new trial has the effect of
vacating the proceedings and leaving the case as
though no trial had been had.”
Johnson v. United States, 19 C.M.A. 407, 408, 42 C.M.R. 9,
10 (1970).
Under this longstanding interpretation of what a
rehearing entails, if an accused is released from confinement
awaiting rehearing, his pay status – at least insofar as the
Uniform Code of Military Justice is concerned – should be
the same as if he had never been tried in the first instance.
The problem with the Federal Circuit’s analysis of
Article 75(a), UCMJ, is that, as with all appellate courts,
review of the issue is necessarily retrospective. In other
words, both conditions contained in the statutory provision
will have been satisfied. First, the convening authority will
have ordered a rehearing and secondly, the results of the
rehearing will have been adjudged. However, if the
perspective is shifted to the point at which the convening
authority receives the decision of the appellate court setting
aside the findings and/or the sentence, the logic of our
approach becomes more evident. Upon receipt of the
decision, the convening authority has a number of options
before him or her. The decision might be made to simply
forego a rehearing and return the accused to duty.
Alternatively it might be decided that the accused should be
administratively separated rather than retried. However, if
a hearing is ordered and the accused is not confined, it
makes perfectly good sense to restore the accused fully,
including his preconviction pay grade, until the results of
the hearing are known. Often, it takes some time before a
rehearing is concluded. For an accused returned to full
duty, the longer it takes, the greater the possibility the
accused may suffer an unnecessary hardship, particularly if
the accused was previously a senior noncommissioned
officer. Although the record does not disclose a particular
hardship in this case, it does reveal a lengthy gap between
when the rehearing was ordered on June 25, 2014, and when
it ultimately concluded on April 29, 2015.
9
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Opinion of the Court
The military judge, under the facts of this case, did not
clearly and indisputably err in not following the Article III
courts’ interpretation of Article 75(a), UCMJ.5 Accordingly,
we answer Certified Issue II in the negative.
III.
Certified issue III asks whether the lower court erred in
concluding that the setting aside of the findings and
sentence rendered unexecuted the portion of Appellant’s
sentence reducing his pay grade to E-1 pending rehearing.
We conclude that this certified issue rests on an incorrect
premise – namely, that the lower court found Appellant’s
sentence unexecuted after it was set aside. The Court of
Criminal Appeals decision never stated that a set-aside
sentence becomes “unexecuted.” Rather, the lower court
concluded: “Once a court-martial sentence is set aside and
thus invalidated, the Government can no longer execute it.”
Jones, 2015 CCA LEXIS 573, at *15, 2015 WL 9487941, at
*5. The Court of Criminal Appeals correctly reached this
determination because, as discussed in Certified Issue II,
Appellant’s set-aside sentence was no longer enforceable
pending a rehearing. See United States v. Von Bergen,
67 M.J. 290, 294 (C.A.A.F. 2009) (“‘[T]he effect of ordering a
rehearing is ... to place the United States and the accused in
the same position as they were at the beginning of the
original trial.’” (alteration in original) (quoting United States
v. Staten, 21 C.M.A. 493, 495, 45 C.M.R. 267, 269 (1972)).
Accordingly, we answer Certified Issue III in the negative.
IV.
Certified Issue IV asks whether the Government’s action
of paying Appellant at the E-1 rate pending his rehearing
constituted illegal pretrial punishment, in violation of
5 We are cognizant of the fact that our conclusions are at odds
with those of the Federal Circuit and the Court of Federal Claims.
We do, however, feel that it is important to express our view with
the hope that Congress and the President will clarify this aspect of
Article 75(a), UCMJ. See generally Military Justice Review
Group, Dep’t of Defense, Report of the Military Justice Review
Group Part I: UCMJ Recommendations 657 (2015)
(recommending that Article 75, UCMJ, be amended to require the
President to establish rules governing the eligibility for pay and
allowances during the period after a court-martial sentence is set
aside or disapproved).
10
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Opinion of the Court
Article 13, UCMJ, in the absence of any punitive intent. We
answer this certified issue in the negative.
Article 13, UCMJ, provides:
No person, while being held for trial, may be
subjected to punishment or penalty other than
arrest or confinement upon the charges pending
against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the
circumstances required to insure his presence, but
he may be subjected to minor punishment during
that period for infractions of discipline.
In United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985),
we set out the process for evaluating alleged Article 13,
UCMJ, violations:
[T]he question of whether particular conditions
amount to punishment before trial is a matter of
intent, which is determined by examining the
purposes served by the restriction or condition, and
whether such purposes are “reasonably related to a
legitimate governmental objective.”
[I]n the absence of a showing of intent to punish, a
court must look to see if a particular restriction or
condition, which may on its face appear to be
punishment, is instead but an incident of a
legitimate nonpunitive governmental objective.
Id. at 95 (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979)).
Therefore, the following pertinent questions arise relevant
to the facts of this case:
1. Did the Government intend to punish Appellant by
paying him as an E-1 pending the rehearing?
2. If there was no punitive intent, did the Government’s
interpretation of Article 75(a), UCMJ, further a
legitimate nonpunitive governmental objective?
Unlike the situation we faced in United States v. Combs,
47 M.J. 330 (C.A.A.F. 1997),6 here the record is clear that
there was no punitive intent behind the Government’s
decision to pay Appellant as an E-1 pending the rehearing
results. The military judge explicitly found that the
Government had not acted in complete disregard of the
6 Following this decision, the appellant pursued a back pay
claim in the United States Court of Federal Claims in Combs, 50
Fed. Cl. 592.
11
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Opinion of the Court
accused’s rights. He also found that DFAS had taken a
good-faith position it believed was supported by regulations,
statutes, and case law interpreting Article 75(a), UCMJ, in
concluding that there was no authority to pay Appellant at
his former pay grade pending the results of the rehearing.
As discussed above, we disagree with the Government’s
interpretation of Article 75(a), UCMJ. Nonetheless, there
was a legitimate debate on the proper interpretation of
Article 75(a), UCMJ, and disbursements to accused persons
pending rehearings. From the record before us, we have no
question that the Government legitimately believed that
Appellant was not entitled to be paid as an E-6 pending the
results of his rehearing. Accordingly, we conclude that there
was no intent to punish Appellant by the Government’s
decision to pay him at the E-1 rate pending the results of his
rehearing.
We address briefly Appellant’s contention that even if
there was no intent by the Government to punish, the
Government’s action of paying him at the E-1 rate still had a
punitive effect. To the extent that any dicta in United States
v. Fischer, 61 M.J. 415, 420-22 (C.A.A.F. 2005), suggests
that such an effect is sufficient to trigger an Article 13,
UCMJ, violation, we reject that view. The record must
disclose an intent to punish on the part of the Government.
Irrespective of any intent to punish, Article 13, UCMJ, is
violated if the activity at issue serves no legitimate,
nonpunitive purpose. The Government’s interpretation of
Article 75(a), UCMJ, was in furtherance of a legitimate,
nonpunitive governmental objective to provide an accused
pending rehearing with the proper pay entitlement as
prescribed by Congress. For these reasons, we hold that
there was no Article 13, UCMJ, violation.
Conclusion
Having concluded that issuance of the Government’s writ
of prohibition was in aid of the lower court’s jurisdiction, we
hold that the Government has shown a clear and
indisputable right to the issuance of the writ. Here, the
military judge exceeded his authority by applying
confinement credit to remedy conduct that did not violate
Article 13, UCMJ. We further hold that there is no other
adequate means for the Government to obtain relief and
that issuance of the writ is both appropriate and necessary
under the circumstances.
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Opinion of the Court
Decision
Appellant’s writ-appeal petition is denied. Certified
Question I is answered in the affirmative. Certified
Questions II, III, and IV are answered in the negative.
Accordingly, the decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of
trial is returned to the Judge Advocate General of the Navy
for remand to that court for review of the petition for
extraordinary relief consistent with this opinion.
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United States v. Howell, Nos. 16-0289/MC & 16-0367/MC
Judge STUCKY, concurring in the result.
I agree with Judge Sparks that the Government’s peti-
tion for the writ was not an interlocutory appeal under Arti-
cle 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 862 (2012), that both the Court of Criminal Appeals and
this Court have jurisdiction to consider the issue, and the
action of paying Appellant at the E-1 rate pending his re-
hearing did not amount to illegal pretrial punishment. I dis-
agree, however, with the conclusion that the military judge
did not “clearly and indisputably err in not following the Ar-
ticle III courts’ interpretation of Article 75(a), UCMJ.” Unit-
ed States v. Howell, __ M.J. __, __ (10) (C.A.A.F. 2016).
The military judge quite properly recognized that he had
no authority to order any particular military pay action with
regard to Appellant, and took the alternative of awarding
confinement credit. However, the military judge took this
action because he had an underlying disagreement with the
interpretation of the restoration provisions of Article 75(a)
contained in Dock v. United States, 46 F.3d 1083, 1087–88
(Fed. Cir. 1995), and Combs v. United States, 50 Fed. Cl.
592, 600 (Fed. Cl. 2001). Congress has given jurisdiction
over pay claims to these Article III and Article I courts, see
28 U.S.C. § 1491(a) and § 1295(a) (2012). In my opinion, the
decisions of those courts, within their jurisdiction, are bind-
ing on us. I would therefore answer Certified Issue II in the
affirmative and would refrain from answering Certified Is-
sue III.
I concur in the result.
United States v. Howell, No. 16-0289/MC & 16-0367/MC
Judge OHLSON, with whom Chief Judge ERDMANN
joins, concurring in part and dissenting in part.
OVERVIEW
In various cases during the past few decades, this Court
has concluded that: (a) the effect of ordering a rehearing in a
case is to place the accused in the same position he or she
was in before the original trial began, United States v. Von
Bergen, 67 M.J. 290, 294 (C.A.A.F. 2009); (b) an accused’s
pay status while awaiting rehearing should be the same as if
the accused had never been tried in the first place, Keys v.
Cole, 31 M.J. 228, 232 (C.M.A. 1990); (c) in determining
whether there was illegal pretrial punishment under Article
13, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 813 (2012), we look not only at whether there was an “in-
tent” to punish an accused, but also at whether there was a
“punitive effect,” United States v. Fischer, 61 M.J. 415, 421
(C.A.A.F. 2005); and (d) the “primary mechanism” for ad-
dressing Article 13, UCMJ, violations is to award confine-
ment credit. United States v. Zarbatany, 70 M.J. 169, 174
(C.A.A.F. 2011).
In the instant case, Appellant’s1 convictions and sentence
were vacated by the United States Navy-Marine Corps
Court of Criminal Appeals (CCA) and a rehearing was or-
dered. Pending this rehearing, Appellant’s E-6 rank was re-
stored, he was placed in an E-6 billet, and he performed E-6
duties. And yet, Appellant was paid at the E-1 pay grade—a
fact that he repeatedly protested—and his loss of pay
amounted to more than $20,000.
Based on these facts and the case law cited above, I con-
clude that the military judge did not err in finding that the
circumstances in the instant case constituted illegal pretrial
punishment, nor did he err in awarding confinement credit
to Appellant based on this illegal pretrial punishment. Ac-
1 The accused in this case stands before this Court as both an
Appellant and as a Cross-Appellee. In the course of this dissent I
refer to him simply as “Appellant.”
United States v. Howell, No. 16-0289/MC & 16-0367/MC
Judge OHLSON, concurring in part and dissenting in part
cordingly, to the extent that the majority opinion2 holds oth-
erwise, I respectfully dissent.
ANALYSIS
I concur with the majority’s decision on Certified Issues
I, II, and III, but part ways as to Certified Issue IV. In my
view and as explained in greater detail below, the military
judge did not clearly and indisputably err in finding illegal
pretrial punishment under Article 13, UCMJ, when the
Government continued to enforce a set-aside punishment by
paying Appellant at the E-1 pay grade while assigning him
duties commensurate with an E-6 pay grade.
Certified Issue IV asks whether the Government’s deci-
sion to pay Appellant at the E-1 pay grade after his sentence
was set aside constitutes illegal pretrial punishment under
Article 13, UCMJ. In analyzing this issue, I initially observe
that Appellant’s case is before this Court because of the
CCA’s decision to deny a writ sought by the Government to
prohibit the military judge from awarding Article 13, UCMJ,
confinement credit to Appellant. The case law pertaining to
such writs is clear. “[T]he issuance of [an extraordinary] writ
is a matter vested in the discretion of the court to which the
petition is made.” Cheney v. United States Dist. Court for
D.C., 542 U.S. 367, 391 (2004). A writ of prohibition will only
issue if the Government establishes that: “(1) there is no
other adequate means to attain relief; (2) the right to issu-
ance of the writ is clear and indisputable; and (3) the issu-
ance of the writ is appropriate under the circumstances.”
Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). Further,
this type of writ is a drastic remedy that should only be in-
voked in extraordinary cases. See Cheney, 542 U.S. at 380.
When Appellant’s case is viewed within this legal frame-
work, I conclude that the CCA appropriately denied the writ
because the military judge did not clearly and indisputably
err in finding illegal pretrial punishment under Article 13,
UCMJ.
Turning to the primary issue, Article 13, UCMJ, prohib-
2 The term “majority opinion” refers to the opinion authored by
Judge Sparks, which commands a majority of three or more judges
of this Court on each of the four certified issues.
2
United States v. Howell, No. 16-0289/MC & 16-0367/MC
Judge OHLSON, concurring in part and dissenting in part
its, in relevant part, illegal pretrial punishment or penalty.
See Fischer, 61 M.J. at 418. There is illegal pretrial punish-
ment when the Government has “a purpose or intent to pun-
ish” as determined by examining either (1) “the intent of
[the government] officials” or (2) “the purposes served by the
restriction or condition, and whether such purposes are rea-
sonably related to a legitimate governmental objective.”
Zarbatany, 70 M.J. at 174 (internal quotation marks omit-
ted) (quoting United States v. King, 61 M.J. 225, 227–28
(C.A.A.F. 2005)). This Court therefore “look[s] to whether
there was intent to punish or a punitive effect.” Fischer,
61 M.J. at 421 (emphasis added).
I agree with the majority that there is no evidence in the
record that government officials at the command level had
an intent to punish Appellant.3 However, I disagree with the
majority’s decision not to consider the punitive effects of
3 I note that officers in Appellant’s chain of command were not
the only government officials directly involved in this case. In a
November 13, 2014, memorandum addressing the matter of pay in
Appellant’s case, the Office of the General Counsel for the Defense
Finance and Accounting Service (DFAS) stated that there were
two potential ways to comply with federal civilian court rulings on
military pay. One was to pay Appellant at the E-1 pay grade; the
other was to pay Appellant at his preconviction rate, i.e., at the E-
6 pay grade. However, DFAS asserted that the latter course of ac-
tion would “place [Appellant] in debt for the overpayment if the
reduction is imposed at rehearing.” This assertion is at best ques-
tionable because any punishment awarded at a subsequent re-
hearing would only apply prospectively, see Article 57, UCMJ,
10 U.S.C. § 857 (2012), and only the portion of the first court-
martial punishment that had already deprived Appellant of prop-
erty would continue to be enforced if the same punishment was
imposed on rehearing, Article 75(a), UCMJ, 10 U.S.C. § 875(a)
(2012). And importantly, in its memorandum DFAS failed to ac-
count for this Court’s case law addressing an accused’s status
when awaiting a rehearing. Accordingly, by allowing military au-
thorities to rely on a bureaucratic decision instead of this Court’s
interpretation of military justice matters when deciding what con-
stitutes Article 13, UCMJ, illegal pretrial punishment, the majori-
ty cedes far too much of our institutional authority in regard to
determining what Articles 13 and 75 mean in any particular crim-
inal case. See Garrett v. Lowe, 39 M.J. 293, 296 n.4 (C.M.A. 1994)
(noting this Court’s special competence in interpreting the UCMJ).
3
United States v. Howell, No. 16-0289/MC & 16-0367/MC
Judge OHLSON, concurring in part and dissenting in part
government action to determine whether an Article 13,
UCMJ, violation occurred here. As I read this Court’s case
law, the punitive effect inquiry is nothing more than an ex-
amination of whether the purpose of a condition had a legit-
imate, nonpunitive governmental objective.4 I find nothing
of the sort in the instant case.
First, a reduction in pay is an authorized punishment for
a court-martial conviction. See Rule for Courts-Martial
1003(b)(4); United States v. Simpson, 10 C.M.A. 229, 232,
27 C.M.R. 303, 306 (1959) (recognizing a reduction in pay
grade as a “permissible punishment” at court-martial). At
the time the Government paid Appellant at the E-1 pay
grade while he performed duties commensurate with an E-6
pay grade there was no court-martial conviction and there-
fore no valid punishment to impose because the CCA had set
aside the findings and sentence. See Von Bergen, 67 M.J. at
294.
Second, the Government benefitted from Appellant’s con-
tinued reduction in rank because it obtained Appellant’s
services at a reduced pay rate. The majority suggests that
this windfall serves a legitimate governmental objective “to
provide an accused pending rehearing with the proper pay
entitlement as prescribed by Congress.” United States v.
Howell, __ M.J. __, __ (12) (C.A.A.F. 2016). However, as even
the majority concludes, Article 75(a), UCMJ, did not provide
the Government with a statutory basis for denying Appel-
lant pay at the E-6 pay grade while he awaited rehearing.5
4 Compare Fischer, 61 M.J. at 418 (“examining the intent of
[government] officials or … the purposes served by the restriction
or condition [to see if they are] reasonably related to a legitimate
governmental objective” for an Article 13, UCMJ, violation (inter-
nal quotation marks omitted) (citation omitted)), with id. at 421
(examining punitive intent or punitive effect for an Article 13,
UCMJ, violation).
5 The statutory framework instead suggests that the Govern-
ment should have paid Appellant at the E-6 pay grade. Congress
has provided that an active duty servicemember is “entitled to the
basic pay of the pay grade to which assigned.” 37 U.S.C. § 204(a)
(2012). Appellant was assigned duties commensurate with the pay
grade of E-6. Had the Government not erroneously interpreted
Article 75(a), UCMJ, it would have assigned Appellant to the E-6
4
United States v. Howell, No. 16-0289/MC & 16-0367/MC
Judge OHLSON, concurring in part and dissenting in part
Without any valid basis to reduce Appellant’s pay grade, I
conclude that the Government’s pay entitlement decision
was not “proper,” and therefore the Government did not
have a legitimate governmental basis to compensate Appel-
lant at the E-1 pay grade while it received services commen-
surate with the E-6 pay grade.
For these reasons, I conclude that the military judge did
not clearly and indisputably err in finding that it was illegal
pretrial punishment “to have the Accused on full duty, wear-
ing the rank of Staff Sergeant and performing the duties of a
Staff Sergeant but receiving pay as E-1.” Accordingly, I re-
spectfully dissent from the majority’s holding that there was
no Article 13, UCMJ, violation and would answer Certified
Issue IV in the affirmative.
CONCLUSION
I concur with the majority’s resolution of Certified Issues
I, II, and III, and I respectfully dissent from the majority’s
decision with respect to Certified Issue IV. I therefore would
affirm the judgment of the United States Navy-Marine
Corps Court of Criminal Appeals.
pay grade, and it would have paid him at this pay grade. See 37
U.S.C. § 204(a); cf. Bell v. United States, 366 U.S. 393, 401–02
(1961) (“[A] soldier who has not received such a punishment from
a duly constituted court-martial is entitled to the statutory pay
and allowances of his grade and status, however ignoble a soldier
he may be.”).
5