United States v. Pena

UNITED STATES, Appellee
v.
Timothy J. PENA, Senior Airman
U.S. Air Force, Appellant
No. 06-0091
Crim. App. No. 35397
United States Court of Appeals for the Armed Forces
Argued October 16, 2006
Decided January 16, 2007
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major Sandra K. Whittington (on
brief).
For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gary F. Spencer and Lieutenant Colonel Robert V. Combs (on
brief).
Military Judge: Patrick M. Rosenow
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pena, No. 06-0091/AF
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of attempted
indecent assault, indecent assault, indecent exposure, indecent
language, and adultery, in violation of Articles 80 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934
(2000), respectively. The sentence adjudged by the court-
martial and approved by the convening authority included a
dishonorable discharge, confinement for one year, and reduction
to the lowest enlisted grade. The convening authority deferred
mandatory forfeitures until the date of the action, and waived
automatic forfeitures for a period of six months, directing
payment of the mandatory forfeitures to Appellant’s spouse for
the benefit of his children. The United States Air Force Court
of Criminal Appeals affirmed. United States v. Pena, 61 M.J.
776 (A.F. Ct. Crim. App. 2005).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE APPELLANT WAS IMPROPERLY
PLACED ON EXCESS APPELLATE LEAVE AND
DENIED PAY AND ALLOWANCES IN VIOLATION
OF ARTICLE 76a, UCMJ, WHEN HIS SENTENCE
TO CONFINEMENT WAS NOT COMPLETED OR
REMITTED AND HE WAS FORCED TO FULFILL
CONDITIONS OF MANDATORY SUPERVISION
UPON HIS RELEASE FROM CONFINEMENT.
II. WHETHER THE AIR FORCE CLEMENCY AND
PAROLE BOARD INCREASED THE SEVERITY OF
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APPELLANT’S SENTENCE IN VIOLATION OF
ARTICLE 55, UCMJ, AND THE EIGHTH
AMENDMENT WHEN IT FORCED APPELLANT TO
FULFILL CONDITIONS OF MANDATORY
SUPERVISION THAT ARE NOT AUTHORIZED BY
THE UCMJ.
III. WHETHER THE IMPOSITION OF CONDITIONS OF
MANDATORY SUPERVISION ON APPELLANT
VIOLATES THE DUE PROCESS CLAUSE BECAUSE
THE MILITARY JUDGE DID NOT ANNOUNCE A
PERIOD OF MANDATORY SUPERVISED RELEASE
OR ANY OF ITS CONDITIONS AS PART OF THE
SENTENCE.
IV. WHETHER APPELLANT’S PLEAS OF GUILTY ARE
IMPROVIDENT BECAUSE THE MILITARY JUDGE
DID NOT INFORM APPELLANT PRIOR TO
ACCEPTING HIS PLEAS THAT HE COULD BE
ADDITIONALLY PUNISHED IN UNSPECIFIED
WAYS.
Appellant, who was sentenced to confinement for one year,
served all but seventy-two days of that period in confinement at
the Naval Consolidated Brig Miramar, in San Diego, California.
During the remaining seventy-two days, the Government placed
Appellant in the Department of Defense (DoD) Mandatory
Supervised Release program against his wishes.
The granted issues concern Appellant’s early release from
his sentence to confinement. Part I of this opinion summarizes
the relationship between the DoD Mandatory Supervised Release
program and other confinement and release programs in the
military justice system. Part II describes the sentencing
proceedings at Appellant’s trial and the terms and conditions
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applied to Appellant through the Mandatory Supervised Release
program. Part III considers whether those terms or conditions
provide a basis for relief under applicable standards of review.
For the reasons set forth below, we affirm.
I. THE DoD MANDATORY SUPERVISED RELEASE PROGRAM
Persons sentenced to confinement by a court-martial serve
their period of imprisonment in facilities administered by the
DoD, subject to exceptions not pertinent to the present appeal.
Dep’t of Defense Dir. 1325.4, Confinement of Military Prisoners
and Administration of Military Correctional Programs and
Facilities (Aug. 17, 2001) [hereinafter DoD Dir. 1325.4]. The
DoD traditionally has administered a variety of early release
procedures for persons in confinement, such as good time and
earned credits, return to duty programs, and parole. See Dep’t
of Defense, Instr. 1325.7, Administration of Military
Correctional Facilities and Clemency and Parole Authority,
enclosure 26, para. E26.1-E26.5. (July 17, 2001, incorporating
Change 1, June 10, 2003) [hereinafter DoD Instr. 1325.7].
Parole is a form of conditional release from confinement
under the guidance and supervision of a United States probation
officer. Id. at enclosure 2, para. E2.1.11. In addition,
parole is a voluntary program, in which the inmate applies to
participate during the balance of his or her period of approved
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confinement. Id. at para. 6.17; Dep’t of Defense, Sentence
Computation Manual 1325.7-M, at AP1.1.12 (July 27, 2004,
Administrative Reissuance, incorporating Change 1, Aug. 30,
2006) [hereinafter DoD Manual 1325.7-M]. The decision as to
whether parole should be granted is vested in the Clemency and
Parole Boards of the military departments. The decision is
highly discretionary. See DoD Instr. 1325.7, at para. 6.16.
Prior to release on parole, the inmate must have an approved
parole supervision plan, and agree in writing to abide by the
plan and conditions of supervision. Id. at para. 6.17.9.1.
Violation of the terms and conditions may result in revocation
of parole. Id. at para. 6.17.10. In general, the supervision
of persons on parole is designed to enhance the person’s
reintegration into civilian society. See id. at para. 6.17.9.2.
In 2001, the DoD introduced an additional early release
mechanism, the Mandatory Supervised Release program. Mandatory
Supervised Release covers specified classes of prisoners who
have served sufficient time in confinement to be considered for
parole, but who are not granted parole. Id. at para. 6.20.1.
As with parole, Mandatory Supervised Release applies from the
time of release from prison until the end of the prisoner’s
approved sentence, and it may be revoked for violation of the
terms and conditions of the program. Id. at paras. 6.17.9.4,
6.17.9.6, 6.20.6.; DoD Manual 1325.7-M, at AP1.1.12.
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In contrast to parole, which is a voluntary program, a
prisoner may be placed involuntarily on Mandatory Supervised
Release. See generally Policy Letter, Clemency and Parole
Boards Mandatory Supervised Release Policy (May 23, 2003) (in
Brief of Appellant at app. E). In addition to the conditions
that may be imposed during parole, the Clemency and Parole Board
may use the Mandatory Supervised Release program to impose “any
additional reasonable supervision conditions . . . that would .
. . further an orderly and successful transition to civilian
life for released prisoners, and which would better protect the
communities into which prisoners are released.” DoD Instr.
1325.7, at para. 6.20.2. A prisoner who refuses to accept
Mandatory Supervised Release or the conditions imposed by the
Clemency and Parole Board is subject to discipline, including
trial by court-martial. Clemency and Parole Boards Mandatory
Supervised Release Policy Letter (May 23, 2003). See Policy
Letter at ¶ E.5.
Mandatory Supervised Release differs in significant
respects from the authority of the federal civilian courts to
include in a sentence “a term of supervised release after
imprisonment.” 18 U.S.C. § 3583(a) (2000). Unlike the federal
civilian program, which is based on express statutory authority
and involves terms that are adjudged as part of the sentence,
the military’s Mandatory Supervised Release program is based on
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executive authority, and involves terms that are imposed by
executive branch officials well after completion of trial.
II. THE ADJUDICATION AND ADMINISTRATION
OF APPELLANT’S SENTENCE
A. THE PROCEEDINGS AT TRIAL
After Appellant entered a plea of guilty to various charged
offenses, the military judge conducted an inquiry into the
providency of the plea. See Rule for Courts-Martial (R.C.M.)
910. As part of the inquiry, the military judge explained the
maximum punishment Appellant faced, based solely on the offenses
to which he pled guilty. Appellant agreed with the military
judge that he faced a dishonorable discharge from the service,
forfeiture of all pay and allowances, forty-nine years of
confinement, reduction to the grade of E-1, and a fine. The
military judge asked Appellant if he had any questions about the
specific punishments he faced, and Appellant responded in the
negative. In addition, the military judge asked defense counsel
whether he and Appellant had discussed the administrative
ramifications of the punishments. Defense counsel responded in
the affirmative. Neither the military judge nor defense counsel
mentioned any specific administrative consequence.
Subsequently, during the sentencing proceeding the military
judge reminded Appellant that he was facing a lengthy amount of
confinement and asked him whether he had any additional
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questions. Appellant responded in the negative. The military
judge sentenced Appellant to a dishonorable discharge, one year
of confinement, and reduction to the grade of E-1.
B. PLACEMENT OF APPELLANT IN THE
MANDATORY SUPERVISED RELEASE PROGRAM
The Air Force assigned Appellant to serve his period of
confinement at the Naval Consolidated Brig Miramar. During that
period, the Air Force Clemency and Parole Board determined that
he would not be granted parole. The Board ordered him to
participate in the Mandatory Supervised Release program for a
seventy-two day period, terminating on his maximum release date
at the end of the adjudged period of confinement.
The Certificate of Mandatory Supervised Release
(certificate) issued to Appellant by the Board set forth sixteen
conditions generally applicable to persons in the program, along
with an attachment containing nine additional conditions
tailored to Appellant’s circumstances. The additional
conditions required Appellant to: (1) participate in a
community-based sex offender treatment program with a duration
of at least twenty-four months, at his own expense; (2) have no
contact with the victims without the prior approval of his
probation officer; (3) abstain from the use and possession of
pornography or sexually stimulating materials; (4) consent to
periodic examinations of his computer, to include retrieval and
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copying of all data from his computer and/or removal of his
computer equipment for the purpose of conducting a more thorough
inspection; and consent to having installed on his computer, at
his expense, any hardware or software monitoring systems; (5)
abstain from adult book stores, sex shops, topless bars, or
other locations that act as a sexual stimulus; (6) register as a
sex offender in accordance with state law; (7) attend and
participate in three meetings weekly concerning alcohol and
narcotics abstention; (8) waive confidentiality in his relations
with the sponsor of the treatment program so that his probation
officer may monitor his progress in the program; and (9) abstain
from consuming alcohol. The certificate provided that the term
of mandatory supervision would expire on Appellant’s maximum
release date. The confinement officials at Miramar advised
Appellant that he was required to accept the conditions in the
certificate. If Appellant refused to do so, he could be
prosecuted in a court-martial for failure to obey an order or
dereliction of duty, and he could be sent before a disciplinary
board with the potential of losing good time credits and
confinement privileges.
A month prior to his proposed release under the Mandatory
Supervised Release program, Appellant submitted a letter to the
Commander of the confinement facility at Miramar requesting
permission to decline participation in the program without
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losing his good time credits. Appellant stated that he could
adhere to all of the conditions in the attachment except for
participation in the sex offender treatment program. He noted
that while the state of Illinois would pay for his participation
in a treatment program in Chicago, he would have to make a six-
hour round trip from his expected place of residence. He added
that he had not yet obtained a job, his wife was unable to work
due to the imminent birth of a child, and his family would have
no income. He also noted that his mother would provide his
family with room, board, and incidentals, but that the burden
would stretch “her financial situation beyond its limits.” He
stated that “the bottom line is we cannot pay for transportation
[to the treatment program] until I have secured a job and
financially reestablished [my] family.”
Appellant did not receive a response. When he reached his
minimum release date with seventy-two days left in his period of
confinement, he was released into the Mandatory Supervised
Release program on June 22, 2003. The post-trial record
contains a declaration signed by Appellant on July 10, 2003, in
which he noted a number of problems created by his participation
in the Mandatory Supervised Release program. The declaration
notes that he was unable to stop in Colorado to ship his
household goods to Illinois, that he incurred a ten dollar per
week expenditure for transportation to the sex offender
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treatment program, that he was required to attend Alcoholics
Anonymous classes three times a week at night and sex offender
treatment classes once a week during the day, that he had
various other appointments and a requirement to give a urine
sample on short notice every two weeks, and that the conditions
of mandatory supervision left him unable to find work to support
his family. The declaration was submitted when Appellant had
completed eighteen out of the seventy-two days of his period of
mandatory supervised release. Although the declaration noted
that he was not employed, it did not describe his living
circumstances, sources of support, or overall financial
condition. The record contains no further information
documenting the impact of the Mandatory Supervised Release
program on Appellant during the remaining fifty-four days that
he was in the program. In addition, the record contains no
indication that he was subjected to any of the conditions of the
Mandatory Supervised Release program after the end of the
seventy-two day period.
III. DISCUSSION
A. THE TERMS AND CONDITIONS
OF APPELLANT’S MANDATORY SUPERVISED RELEASE
(ISSUES II, III, AND IV)
At the outset, we note that Appellant has challenged the
authority of the DoD to establish the Mandatory Supervised
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Release program in the absence of express statutory authority.
Appellant asks us to invalidate a program under which the DoD
releases individuals from prison prior to the completion of
their adjudged sentence to confinement. On direct appeal, the
scope of our review does not extend to supervision of all
aspects of the confinement and release process. United States
v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. App. 2000), aff’d, 55
M.J. 361 (C.A.A.F. 2001). Our review of post-trial confinement
and release conditions on direct appeal is limited to the impact
of such conditions on the findings and the sentence. See
Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2000); United States v.
Spaustat, 57 M.J. 256, 263 (C.A.A.F. 2002) (responsibility for
determining how much good time credit, if any, will be awarded
is an administrative responsibility, vested in the commander of
the confinement facility). Accordingly, our review in the
present appeal focuses on whether the post-trial conditions at
issue: (1) constituted cruel or unusual punishment or otherwise
violated an express prohibition in the UCMJ; (2) unlawfully
increased Appellant’s punishment; or (3) rendered his guilty
plea improvident. To the extent that the issues raised by
Appellant otherwise challenge the administration of the
Mandatory Supervised Release program, those matters -- including
questions regarding the underlying legal authority for the
program -- are not before us on direct review.
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1. Cruel or Unusual Punishment
The Eighth Amendment prohibits “cruel and unusual
punishments.” U.S. Const. amend. VIII. Similarly, Article 55,
UCMJ, 10 U.S.C. § 855 (2000), prohibits “cruel or unusual
punishment.” Article 55, UCMJ, also prohibits specified
punishments, such as use of irons except for the purpose of safe
custody, which are not at issue in the present appeal. See also
Article 12, UCMJ, 10 U.S.C. § 812 (2000) (prohibition on
confinement in immediate association with enemy prisoners).
We review allegations of cruel or unusual punishment under
a de novo standard. United States v. White, 54 M.J. 469, 471
(C.A.A.F. 2001). In our evaluation of both constitutional and
statutory allegations of cruel or unusual punishment, we apply
the Supreme Court’s Eighth Amendment jurisprudence “in the
absence of legislative intent to create greater protections in
the UCMJ.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.
2006).
The Eighth Amendment prohibits punishments that are
“‘incompatible with the evolving standards of decency that mark
the progress of a maturing society, or which involve the
unnecessary and wanton infliction of pain.’” Id. at 214(quoting Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)).
Although the conditions at issue in the present appeal implicate
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other legal issues, as discussed below, none of these conditions
constitute cruel or unusual punishment within the Eighth
Amendment standards articulated by the Supreme Court. E.g., 18
U.S.C. § 3583 (2000) (describing the conditions of mandatory
release that may be imposed in criminal trials in the federal
district courts).
2. Impact on the adjudged sentence
Appellant contends that his punishment was increased
without providing the requisite constitutional, statutory, and
regulatory components of notice and an opportunity to respond.
We review such claims de novo. United States v. Rollins, 61
M.J. 338, 343 (C.A.A.F. 2005).
The military sentencing process provides notice of the
punishments at issue, an adversarial proceeding, and formal
announcement of the sentence. See U.S. Const. amend. V;
Articles 53, 56, and 60, UCMJ, 10 U.S.C. §§ 853, 856, 860
(2000); R.C.M. 1001-1007. A servicemember “cannot be subjected
to a sentence greater than that adjudged” by the court-martial.
United States v. Stewart, 62 M.J. 291, 294 (C.A.A.F. 2006)
(citing Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990)). Cf.
White, 54 M.J. at 472 (noting our Court’s “authority to ensure
that the severity of the adjudged and approved sentence has not
been unlawfully increased by prison officials”). Although
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reviewing authorities have the power to commute a sentence to a
different form of punishment, see Article 60(c)(2), UCMJ;
Article 71, UCMJ, 10 U.S.C. §§ 871 (2000), this authority may
not be exercised in a manner that increases the severity of the
punishment. United States v. Carter, 45 M.J. 168, 170 (C.A.A.F.
1996); Waller, 30 M.J. at 143; see R.C.M. 1107(d)(1),
1107(f)(2). The question of whether a change in the form of
punishment increases the severity of the punishment is
contextual, requiring consideration of “all the circumstances in
a particular case.” Carter, 45 M.J. at 170.
The foregoing considerations apply only to matters that
constitute “punishment” within the meaning of the criminal law.
As a general matter, the collateral administrative consequences
of a sentence, such as early release programs, do not constitute
punishment for purposes of the criminal law. See, e.g., United
States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988) (impact of
conviction on retirement benefits is a collateral administrative
consequence, inappropriate for consideration at sentencing);
United States v. Murphy, 26 M.J. 454, 457 (C.M.A. 1988)
(classifying eligibility for a particular squadron as a
collateral administrative consequence not to be considered in
sentencing); United States v. Hannan, 17 M.J. 115, 123 (C.M.A.
1984) (recognizing parole eligibility as a collateral
administrative consequence of sentence). Whether a particular
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aspect of an early release program is administered in a manner
that constitutes punishment requires a case-specific inquiry.
Compare California Dep’t of Corrections v. Morales, 514 U.S. 499(1995), with Lynce v. Mathis, 519 U.S. 433 (1997). Cf. United
States v. Fischer, 61 M.J. 415, 420 (C.A.A.F. 2005) (setting
forth factors to be considered in determining whether
governmental actions are regulatory or punitive in nature)
(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963))).
The terms and conditions of Appellant’s Mandatory
Supervised Release, as initially conveyed to him, potentially
raised serious questions as to whether Appellant’s sentence had
been increased. On its face, the attachment accompanying the
Certificate of Mandatory Release suggested that Appellant was
required to subject himself involuntarily to a sex offender
treatment program for twenty-four months, a period extending
well beyond his maximum release date. In addition, the
attachment suggested that Appellant was required to expend a
substantial amount of his own funds to pay for the treatment
program and computer software. As the record indicates,
however, and as defense counsel confirmed during oral argument,
none of the conditions were imposed upon Appellant after his
maximum release date, and he was not required to pay for his
treatment program or any computer software.
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Although the defense brief sets forth a facial challenge to
the Mandatory Supervised Release program and the conditions
communicated to Appellant prior to his release, the defense has
provided few details as to any actual impact on Appellant. On
May 17, 2003, prior to his release, Appellant submitted a
request for exemption from one of the conditions, participation
in a treatment program, based upon concern as to what might
occur upon release. That statement provides no information as
to what actually happened to Appellant after he was released.
On July 10, 2003, eighteen days after he was released under the
Mandatory Supervised Release program, Appellant signed a
declaration describing various difficulties that he had
encountered in moving his household goods and obtaining
employment as result of the requirements imposed by the
Mandatory Supervised Release program. He also noted that he was
required to expend ten dollars a week for transportation to a
treatment program. The declaration, however, does not indicate
what impact, if any, the Mandatory Supervised Release program
had on Appellant’s sentence during the remaining fifty-four days
prior to his maximum release date.
In the context of an issue that requires a showing of
increased punishment, it is not sufficient to show that the
conditions of mandatory release imposed some burdens on a
released prisoner. All conditions of release impose burdens to
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some degree. Those burdens, however, must be assessed in the
context of release from a sentence to confinement. The question
in each case is whether the burdens are such that they result in
an increase in the punishment of confinement adjudged by the
court-martial. Carter, 45 M.J. at 170. Such an assessment
requires a case-specific analysis. See id.
We do not take lightly the impact of the Mandatory
Supervised Release program on Appellant during the initial
eighteen day period or during the subsequent fifty-four days.
Likewise, we do not disregard the possibility that the Mandatory
Supervised Release program could be imposed in a manner that
increases the punishment above the punishment adjudged by a
court-martial. The burden, however, is on the party challenging
the conditions to demonstrate that there has been an increase
above the punishment of confinement imposed at trial.
When an appellant asks us to review the post-trial
administration of a sentence, we are typically confronted by
issues in which the pertinent facts are not in the record of
trial. In such a case, it is particularly important that the
appellant provide us with a “clear record” of the facts and
circumstances relevant to the claim of legal error. See United
States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997). The
information about the personal, psychological, economic, and
family impact of such measures is primarily in the control of
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the party appealing the sentence, and that party bears the
responsibility of submitting detailed documentation. The
generalized statements in Appellant’s July 10, 2003,
declaration, which cover only a portion of the time Appellant
was in the Mandatory Supervised Release program, do not provide
the clear record upon which we could evaluate whether the
conditions of mandatory supervised release in this case produced
an increase in Appellant’s sentence. Accordingly, Appellant has
not demonstrated that his participation in the Mandatory
Supervised Release program produced an impermissible increase in
the punishment adjudged by the court-martial.
3. Effect on the providency of the guilty plea
We review claims as to the providency of a plea under a de
novo standard. United States v. Harris, 61 M.J. 391, 398
(C.A.A.F. 2005). An appellant who challenges the providency of
a guilty plea must demonstrate “a substantial basis in law and
fact for questioning the guilty plea.” United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991) (quotation marks omitted). As a
general matter, the military judge does not have an affirmative
obligation to initiate an inquiry into early release programs as
part of the plea inquiry. See Hannan, 17 M.J. at 123. When the
challenge concerns an appellant’s claimed misunderstanding of
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the collateral consequences of a court-martial, such as an early
release program, an appellant must demonstrate that:
the collateral consequences are major and
the appellant’s misunderstanding of the
consequences (a) results foreseeably and
almost inexorably from the language of a
pretrial agreement; (b) is induced by the
trial judge’s comments during the providence
inquiry; or (c) is made readily apparent to
the judge, who nonetheless fails to correct
that misunderstanding. In short, chief
reliance must be placed on defense counsel
to inform an accused about the collateral
consequences of a court-martial conviction
and to ascertain his willingness to accept
those consequences.
United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982). In
the present case, Appellant has not demonstrated that the
collateral consequences actually imposed increased his
punishment. See supra Part III.A.2. Moreover, neither the text
of the plea agreement nor the record of the military judge’s
plea inquiry contains any language that would have placed an
obligation on the military judge to address the Mandatory
Supervised Release program at that time. See United States v.
Miller, 63 M.J. 452, 457 (C.A.A.F. 2006). We also note that
Appellant has not claimed that his counsel was ineffective with
respect to explaining collateral consequences, so we need not
address whether counsel was under any obligation to do so. See
id. at 458. Under the circumstances of this case, Appellant has
not demonstrated that his plea was improvident.
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B. APPELLATE LEAVE (ISSUE I)
During Appellant’s period of confinement, he forfeited his
entitlement to pay and allowances following a six-month period
in which the forfeitures were waived by the convening authority.
See Article 58b(a), UCMJ, 10 U.S.C. § 858b(a) (2000) (providing
for mandatory forfeiture of pay and allowances “during any
period of confinement or parole” when the approved sentence of a
general court-martial includes a punitive discharge). Following
his release from confinement under the Mandatory Supervised
Release program, Appellant was placed on appellate leave under
Article 76a, UCMJ, § 10 U.S.C. 876a (2000) (providing
discretion, under military department regulations, to place a
servicemember on involuntary appellate leave after the convening
authority’s action pending completion of appellate review when
the sentence includes an unsuspended punitive discharge). The
pertinent Air Force regulation provides: “An accused awaiting
appellate review of an unsuspended punitive separation, who . .
. already completed the period of confinement, may be
involuntarily placed on excess leave . . . .” Dep’t of the Air
Force, Instr. 51-201, Administration of Military Justice para.
9.12.1 (Nov. 2, 1999). Although a person on involuntary
appellate leave remains subject to military jurisdiction and
possible recall, the individual returns to civilian life
throughout the period of leave. See 10 U.S.C. § 701(e) (2000)
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(providing that any leave prior to discharge is still considered
military service); 10 U.S.C. § 706(c) (2000) (acknowledging that
a person on excess leave may obtain civilian employment). While
on involuntary appellate leave, the individual is not entitled
to pay and allowances. See Dep’t of Defense, Dir. 7000.14-R,
Department of Defense Financial Management Regulation, volume
7A, ch. 35, § 350101, para. B (Nov. 2005) (requiring pay only
for the portion of appellate leave that a servicemember chooses
to take as accrued leave); Dep’t of the Air Force, Instr. 36-
3003, Military Leave Program para. 6.8 (Oct. 20, 2005)
(providing excess leave for a servicemember that has exhausted
accrued leave, and noting that “[e]xcess leave is a no-pay
status”).
Appellant contends that he should not have been placed on
involuntary appellate leave for two reasons. First, he contends
that as a practical matter he remained on active duty because
the conditions imposed upon him by the Mandatory Supervised
Release program constituted military duties for which he should
have been paid. We need not decide whether such a claim is
within the scope of our review under Article 67, UCMJ, because
Appellant has not demonstrated that the conditions of his
supervised release were so restrictive in nature or duration
that they had the claimed effect of retaining him on active duty
without pay. See supra Part III.A.2. Second, he contends that
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United States v. Pena, No. 06-0091/AF
he did not “complete” his period of confinement under the Air
Force Regulation because he was under a continuing threat of
return to prison if he violated the terms of his release. The
relationship between completion of confinement and commencement
of leave is a matter governed by administrative regulations and
service practices. Appellant has not demonstrated that the
applicable regulations, either on their face or as applied,
violated Article 76a, UCMJ, or any other provision of the UCMJ.
Under these circumstances, Appellant has not demonstrated that
this claim falls within the scope of our review under Article
67, UCMJ.
IV. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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