United States v. Fischer

UNITED STATES, Appellee
v.
David E. FISCHER, Lance Corporal
U.S. Marine Corps, Appellant
No. 04-0756
Crim. App. No. 200200303
United States Court of Appeals for the Armed Forces
Argued May 3, 2005
Decided September 2, 2005
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a
dissenting opinion, in which GIERKE, C.J., joined.
Counsel
For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued).
For Appellee: Captain Glen R. Hines, USMC (argued); Colonel
William K. Lietzau, USMC (on brief).
Military Judges: T.A. Daly and M. H. Sitler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Fischer, No. 04-0756/MC
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of two specifications of indecent acts with a child under the
age of sixteen, in violation of Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2000). He was
sentenced to a bad-conduct discharge, confinement for twelve
months, and reduction to pay grade E-1. Pursuant to a pretrial
agreement, the convening authority suspended all confinement in
excess of 270 days. The United States Navy-Marine Corps Court
of Criminal Appeals, sitting en banc, affirmed the findings and
sentence. United States v. Fischer, 60 M.J. 650 (N-M. Ct. Crim.
App. 2004).
On Appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT WAS SUBJECTED TO ILLEGAL
PRETRIAL PUNISHMENT AND DENIED DUE PROCESS
OF LAW WHEN HIS PAY WAS STOPPED WHILE HE WAS
IN PRETRIAL CONFINEMENT AFTER THE END OF HIS
OBLIGATED SERVICE.
For the reasons set forth below, we affirm the decision of the
Navy-Marine Corps Court of Criminal Appeals.
2
United States v. Fischer, No. 04-0756/MC
I. BACKGROUND
A. PRETRIAL AND TRIAL PROCEEDINGS
Under Appellant’s enlistment contract, his period of
obligated service ended on June 29, 2001. Eight weeks earlier,
on May 4, Appellant was placed in pretrial confinement for
various sexual offenses with minor females. In recommending
pretrial confinement, Appellant’s commander explained that he
considered Appellant a flight risk because of his upcoming end
of obligated service (EAS) date, June 29.
Appellant was still in pretrial confinement on June 29.
Under applicable military pay regulations, discussed infra, the
Government terminated his entitlement to military pay and
allowances. On July 11, defense counsel notified the Depot
Consolidated Administrative Center that Appellant’s pay had been
stopped. Initially, defense counsel was informed that
Appellant’s pay would be reinstated. Later, the Government
advised defense counsel that Department of Defense (DoD)
regulations prohibited reinstatement of Appellant’s pay because
he had reached his EAS date and was in pretrial confinement.
Appellant was convicted and sentenced on August 9, 2001.
Appellant was paid for the period of pretrial confinement before
his EAS, but he was not paid for the forty-one days of pretrial
confinement that he served after his EAS. On appeal, Appellant
argues that the termination of his pay amounted to illegal
3
United States v. Fischer, No. 04-0756/MC
pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C.
§ 813 (2000).
B. PAY REGULATIONS
By statute, servicemembers who are on active duty are
entitled to the basic pay of the pay grade to which they are
assigned. 37 U.S.C. § 204(a)(1); see Bell v. United States, 366
U.S. 393, 401 (1961) (a soldier’s entitlement to pay is
statutory, not contractual). The Department of Defense
Financial Management Regulations (DoD FMR) provide implementing
rules concerning the obligation to pay servicemembers. See
Paalan v. United States, 51 Fed. Cl. 738, 745 (2002). In the
course of determining that Appellant’s pay could not be
reinstated, the Depot Consolidated Administrative Center relied
upon DoD FMR, vol. 7A, ch. 1, subpara. 010302.G.4 (2005),1 which
provides: “If a member is confined awaiting court-martial trial
when the enlistment expires, pay and allowances end on the date
the enlistment expires. If the member is acquitted when tried,
pay and allowances accrue until discharge.”
1
The Depot Consolidated Administrative Center cited DoD FMR, vol. 7A, ch. 3,
subpara. 030207.D. This provision is identical to DoD subpara. 010302.G.4,
the only difference being that subpara. 030207 appears in Chapter 3, which is
entitled “Special Pays -- Officers Only” as opposed to Chapter 1, which is
entitled “Basic Pay.” Though subpara. 030207 was cited by the Depot
Consolidated Administrative Center, Appellant’s brief refers to subpara.
010302, and the Government’s brief refers to subpara. 030207. For
consistency, our discussion will cite to subpara. 010302, but the analysis
would be no different for subpara. 030207.
4
United States v. Fischer, No. 04-0756/MC
The regulation is consistent with decisions of the
Comptroller General of the United States,2 the United States
Court of Federal Claims, and the United States Court of Appeals
for the Federal Circuit. Well before the enactment of the UCMJ,
the Comptroller General determined that a soldier who reached
EAS while in pretrial confinement, and who was later convicted,
was not entitled to be paid subsequent to the EAS while in
pretrial confinement. E.g., Comptroller General McCarl to Maj.
E. C. Morton, United States Army, 11 Comp. Gen. 342 (1932). In
a 1937 decision, the Comptroller General stated:
An enlisted man of the Navy held for trial
or for sentence by court martial after
expiration of enlistment is being held to
await the completion of criminal proceedings
against him under authority of the Articles
for the Government of the Navy. He is no
more entitled to pay when so held after
expiration of his enlistment than is a
civilian who is being held for trial on a
criminal offense by the civil authorities,
and the fact that the issuance of his
discharge is delayed pending the conclusion
of the proceedings gives him no right to pay
beyond the period for which he contracted to
serve. The period of retention for criminal
proceedings is no part of the enlistment
2
The Comptroller General is the head of the Government Accountability Office
(GAO), formerly known as the General Accounting Office. See GAO Human
Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811 (2004). The
GAO is an independent, nonpartisan agency in the legislative branch that
reports to Congress on the activities of executive branch agencies.
Frederick M. Kaiser, General Accounting Office and Comptroller General: A
Brief Overview, in Major Studies and Issue Briefs of the Congressional
Research Service (2000); Frederick C. Mosher, The GAO: The Quest for
Accountability in American Government 2-3 (1979). A primary duty of the
Comptroller General involves issuance of opinions on behalf of the
legislative branch interpreting legislation and determining the legality of
financial transactions. See Mosher, supra at 205-06.
5
United States v. Fischer, No. 04-0756/MC
contract and the obligation of the
Government . . . is to pay him for the
period for which he contracted to serve, not
to pay him for any period he may be held on
criminal charges after expiration of
enlistment, any more than it would be
obligated to pay him after his enlistment
had expired if he were convicted and
sentenced to imprisonment.
Acting Comptroller General Elliot to the Secretary of the Navy,
17 Comp. Gen. 103 (1937), U.S. Comp. Gen. LEXIS 271, at *6-*7
(1937).
In 1951, shortly before the UCMJ took effect, the
Comptroller General ruled that the pre-UCMJ prohibition against
pretrial punishment3 did not require payment of pretrial
confinees held beyond their EAS date:
[T]he said provisions do not require any
change in the rule that the pay and
allowances of an enlisted person whose term
of enlistment expires while he is in
confinement, awaiting trial by court
martial, terminate on the date of the
expiration of his term of enlistment unless
he is acquitted, in which event pay and
allowances accrue until he is discharged.
Assistant Comptroller General Yates to the Secretary of the
Army, 30 Comp. Gen. 449 (1951), U.S. Comp. Gen. LEXIS 86, at *6
(1951) [hereinafter Yates].
3
“[N]or shall any defendant awaiting trial be made subject to punishment or
penalties other than confinement prior to sentence on charges against him.”
Article of War 16, Manual for Courts-Martial, U.S. Army (MCM) (1949 ed.),
App. 1. “[N]or shall any accused who is confined while awaiting trial be
made subject to punishments or penalties other than confinement for any
offense with which he stands charged prior to execution of an approved
sentence on charges against him . . . and they will not forfeit pay or
6
United States v. Fischer, No. 04-0756/MC
In suits brought by pretrial confinees who reached their
EAS while in pretrial confinement against the Government for pay
and allowances for the time in pretrial confinement past their
EAS, the United States Court of Federal Claims and its
predecessor court have followed the reasoning of the Comptroller
General’s decisions, holding that “[w]hen an enlisted person is
in confinement awaiting trial at the time his term of enlistment
expires, his pay and allowances terminate on the date his
enlistment expires unless he is subsequently acquitted.” Moses
v. United States, 137 Ct. Cl. 374, 380 (1957); see also
Singleton v. United States, 54 Fed. Cl. 689, 692 (2002). But
cf. Rhoades v. United States, 229 Ct. Cl. 282 (1982); Dickenson
v. United States, 163 Ct. Cl. 512 (1963) (distinguishing the
facts and holding that the Comptroller General’s rule did not
apply under the circumstances of the cases).
According to the United States Court of Appeals for the
Federal Circuit, the authority for the military to hold an
enlistee in service after EAS without pay pending court-martial
unless there is an acquittal constitutes a “settled rule of
law.” Simoy v. United States, 64 F.App’x 745, 746 (Fed. Cir.
2003); see also Anderson v. United States, 70 F.App’x 572, 575
(Fed. Cir. 2003); Dock v. United States, 46 F.3d 1083 (Fed. Cir.
1995).
allowances during the period of confinement except pursuant to sentences
7
United States v. Fischer, No. 04-0756/MC
C. ARTICLE 13
Appellant contends that DoD FMR 010302.G.4, which was the
basis for terminating his pay after he reached his EAS while in
pretrial confinement, violated the Article 13, UCMJ, right to be
free from illegal pretrial punishment. Article 13 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.” We have interpreted Article 13 to
prohibit two types of activities: (1) the intentional imposition
of punishment on an accused prior to trial, i.e., illegal
pretrial punishment; and (2) pretrial confinement conditions
that are more rigorous than necessary to ensure the accused’s
presence at trial, i.e., illegal pretrial confinement. See
United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); United
States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).
Appellant focuses his argument on the illegal pretrial
punishment prong of Article 13. A violation of this prong
“entails a purpose or intent to punish an accused before guilt
or innocence has been adjudicated.” McCarthy, 47 M.J. at 165.
We apply this standard by examining the intent of detention
officials or by examining whether the purposes served by the
restriction or condition are “reasonably related to a legitimate
governmental objective.” United States v. King, 61 M.J. 225,
ordered executed.” MCM (1949 ed.), ¶ 19a.
8
United States v. Fischer, No. 04-0756/MC
227 (C.A.A.F. 2005) (citing Bell v. Wolfish, 441 U.S. 520, 539
(1979); McCarthy, 47 M.J. at 165).
The question of whether Appellant is entitled to credit for
an Article 13 violation is reviewed de novo. United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). It is a mixed question
of law and fact, and the military judge’s findings of fact will
not be overturned unless they are clearly erroneous. Id.
Appellant bears the burden of proof to establish a violation of
Article 13. Id.
II. DISCUSSION
Appellant does not dispute the lower court’s finding that
neither Appellant’s jailors nor his chain of command intended to
punish Appellant by stopping his pay. Instead, Appellant asks
this Court to find that the termination of Appellant’s pay, in
accordance with DoD FMR 010302.G.4, amounted to illegal pretrial
punishment because it operated as punishment imposed before
trial.
A. REGULATORY PURPOSE
Appellant contends that the implicit purpose of DoD FMR
010302.G.4 is to punish. Appellant interprets DoD FMR
010302.G.4 as denying pay only to those who are guilty, citing
the provision that those who are held in pretrial confinement
9
United States v. Fischer, No. 04-0756/MC
past their EAS and later acquitted are reimbursed for the time
held without pay. The Department of Defense regulations,
however, are not so narrow.
A servicemember’s pay is not terminated just because the
servicemember is placed in pretrial confinement. DoD FMR
010302.F.1 states that pay and allowances accrue to members in
military confinement unless: (a) confined by military
authorities on behalf of civil authorities; (b) pay and
allowances are forfeited by court-martial sentence; or (c) the
term of enlistment expires. A servicemember who is confined
before trial is entitled to “receive pay until the end of his
enlistment contract, regardless of the ultimate disposition of
the case.” Paalan, 51 Fed. Cl. at 745. If a pretrial confinee
does not reach EAS until after the adjudication of the case, the
pretrial confinee is entitled to pay and allowances for the time
held in pretrial confinement, regardless of whether the
individual was found guilty or not guilty.
Moreover, every servicemember’s entitlement to pay is
terminated at EAS. See Simoy v. United States, 64 F.App’x 745,
747 (Fed. Cir. 2003) (“a service member’s entitlement to pay
ceases when his enlistment expires”); Matter of: Courts-martial
Sentences-Records Lost Before Appellate Review-Appellate Leave
Benefits, 1996 U.S. Comp. Gen. LEXIS 442, at *4-*5 (1996) (“It
is a well settled rule that no credit for pay and allowances
10
United States v. Fischer, No. 04-0756/MC
accrues to a court-martialed enlisted member during periods
after the expiration of his term of enlistment . . . .”).
Although Appellant characterizes the regulations as
“terminat[ing] a serviceman’s pay and allowances at the end of
his enlistment if the serviceman is in pre-trial confinement,”
there is no distinction between a servicemember in pretrial
confinement and one in any other status. All servicemembers
lose their entitlement to pay and allowances upon expiration of
their enlistment contract.
A servicemember may be paid after an enlistment expires in
two situations. First, a servicemember who remains in the
service and performs productive work may be paid. See United
States v. Shattuck, 1989 CMR Lexis 187, at *5 (A.F.C.M.R. 1989);
DoD FMR 010302.G.1. Standard confinement duties, however, are
not considered active-duty work that would entitle a pretrial
confinee held past EAS to payment. See DoD FMR 010302.G.1;
Combs v. United States, 50 Fed. Cl. 592, 594 n.2 (2001);
Shattuck, 1989 CMR Lexis 187, at *5. The second situation is
the focus of Appellant’s concern. If a servicemember held in
pretrial confinement past EAS is later acquitted, the
servicemember is retroactively paid for the time spent in
pretrial confinement past the EAS date. See DoD FMR 010302.G.4.
Appellant assumes that because one group of pretrial confinees
(the group that is later acquitted) is reimbursed, then the
11
United States v. Fischer, No. 04-0756/MC
other group (the group that is later convicted) is being
punished. This argument takes too limited a view of the
regulations. Acquittal provides a rational, objective basis for
reimbursement. The Government’s policy of retroactively paying
persons held past their EAS when a charge has not been sustained
at trial does not signify an intent to punish the other group.
In civilian criminal cases, for example, the Government may be
liable for reasonable attorney’s fees and litigation expenses to
a prevailing defendant if the Government position was
“vexatious, frivolous, or in bad faith.” Hyde Amendment, Pub.
L. No. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (codified
in statutory notes at 18 U.S.C. § 3006A (2000)). Although more
limited than the reimbursement provision of DoD FMR 010302.G.4,
the Hyde Amendment reflects a policy to compensate specific
individuals because of a flaw in their prosecution. It is not a
policy designed to punish those who are not compensated.
Likewise, we should not assume that the compensatory provisions
of the military pay regulations reflect an implicit intent to
punish an individual in Appellant’s situation.
We note Appellant does not allege that he was held in
pretrial confinement without due process. Appellant was placed
in pretrial confinement in accordance with Rule for Courts-
Martial 305, which contains specific standards and detailed
requirements for notice and an opportunity to respond.
12
United States v. Fischer, No. 04-0756/MC
Following the determination that he should be held in pretrial
confinement, Appellant’s pay was terminated in accordance with a
neutral criterion, his EAS.
Appellant does not claim before this Court that the
termination of his pay violated the Thirteenth Amendment’s
prohibition against involuntary servitude or that there is a
constitutional right to be paid while in pretrial confinement.
In that regard, we note that federal civilian employees may be
suspended without pay upon an indictment, regardless of whether
there is pretrial confinement. See 5 U.S.C. § 7513(b) (2000).
As the Federal Circuit explained:
[A]n indictment . . . will, as a general
rule, provide reasonable cause for an agency
to believe that the employee has committed
such a crime, and, when the nature of the
crime alleged relates to the employee's
ability to perform his or her duties, an
agency may summarily suspend the employee,
without pay, pending the outcome of the
criminal proceedings.
Richardson v. United States Customs Serv., 47 F.3d 415, 419
(Fed. Cir. 1995). By contrast, the pay of military personnel is
not terminated upon the filing or referral or charges, nor is it
terminated upon pretrial confinement. The fact that pay is
terminated only when pretrial confinement is combined with a
neutral criterion, the expiration of the term of service,
underscores the non-punitive nature of the policy. When the
Government selects one among many available objective criteria
13
United States v. Fischer, No. 04-0756/MC
for terminating pay, the fact that other criteria could have
been used does not demonstrate that the selected point fails to
serve a legitimate Government objective. Like the indictment
date, the EAS date is a rational, objective point for
termination of pay, and it is reasonably related to the
legitimate Government objective of not paying people who are not
performing duties.
B. REGULATORY EFFECT
Appellant next argues that even if the regulation is not
implicitly punitive, the policy is punitive in effect under the
factors set out by the Supreme Court in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168 (1963). In Mendoza-Martinez, the
Court set forth the following seven factors for use in
determining whether an Act of Congress is punitive or regulatory
in nature: (1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has historically been
regarded as punishment; (3) whether it comes into play only on a
finding of scienter; (4) whether its operation promotes
retribution and deterrence -- the traditional aims of
punishment; (5) whether the behavior to which it applies is
already a crime; (6) whether an alternative purpose to which it
may rationally be connected is assignable for it; and (7)
whether it appears excessive in relation to the alternative
14
United States v. Fischer, No. 04-0756/MC
purpose assigned. 372 U.S. at 168-69; see Fischer, 60 M.J. at
656-58 (Villemez, J., dissenting).
Our Court has not previously applied the Mendoza-Martinez
factors in the context of conducting a review under Article 13.
Assuming, without deciding, that the Mendoza-Martinez factors
are applicable to Article 13, these factors do not support a
finding that DoD FMR 010302.G.4 is punitive.
1. Affirmative Disability or Restraint
We first take into account whether DoD FMR 010302.G.4
imposes an affirmative disability or restraint. See Mendoza-
Martinez, 372 U.S. at 168. DoD FMR 010302.G.4 provides for the
termination of pay for an individual in Appellant’s situation.
Although termination of pay at EAS could be viewed as a
disability, it is difficult to characterize this as an
affirmative disability because Appellant, and those in his
position, are not entitled to be paid. See Yates; Shattuck,
1989 CMR LEXIS 187, at *4-*5.
2. Historic Perspective
The next factor considers the historical perspective on the
consequence of the regulation. Mendoza-Martinez, 372 U.S. at
168. Appellant points out that “[f]orfeiture of pay has long
been regarded as punishment.” In the present case, there has
been no forfeiture of pay. Where Appellant was not entitled to
payment, nothing could have been forfeited.
15
United States v. Fischer, No. 04-0756/MC
Also, while we do not give great weight to negative
legislative history, we note that Congress has amended
provisions of the UCMJ addressing military pay on several
occasions, but has not disturbed the settled interpretation of
the relationship between Article 13 and termination of military
pay upon EAS. See, e.g., Military Justice Act of 1983, Pub. L.
No. 98-209, 97 Stat. 1393 (1983) (amending Article 57, UCMJ, 10
U.S.C. § 857); National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, tit. XI, 110 Stat. 461-67 (1996)
(amending Article 57, establishing Article 58b, 10 U.S.C. §
858b); National Defense Authorization Act for Fiscal Year 1998,
Pub. L. No. 105-85, § 581-82, 1073(a)(9)-(11), 111 Stat. 1759,
1900 (1997) (amending Article 58b).
3. Scienter
As previously discussed, the pay of all servicemembers is
terminated when they reach EAS. Consciousness of guilt is not a
factor in determining whether to implement the regulation, so
the regulation has no role in a finding of scienter.
4. Retribution and Deterrence
The fourth factor considers whether DoD FMR 010302.G.4
promotes the traditional aims of punishment -– retribution and
deterrence. Mendoza-Martinez, 372 U.S. at 168. Appellant
argues that “it is difficult to imagine a better form of
retribution and deterrence.” The policy, however, is not aimed
16
United States v. Fischer, No. 04-0756/MC
at all who are accused of a crime and held in pretrial
confinement, but only applies if a neutral event occurs -- the
person’s EAS date.
5. Application to Criminal Behavior
The fifth factor requires an evaluation as to whether the
policy is invoked as a result of behavior that is already a
crime. Mendoza-Martinez, 372 U.S. at 168. Appellant argues
that this factor is met because the relevant FMR provisions
would not have been triggered if there was no probable cause to
believe Appellant violated the UCMJ. However, the behavior to
which DoD FMR 010302.G applies is reaching the end of an
enlistment contract, which is not a crime.
As noted above, a servicemember does not lose entitlement
to pay by virtue of being in pretrial confinement. The deciding
factor is whether the servicemember has reached EAS, not whether
there is probable cause to believe the individual violated the
UCMJ. See DoD FMR 010302.G.4.
6. Alternative Purpose
The sixth factor considers whether there is a non-punitive
purpose to the regulation. Mendoza-Martinez, 372 U.S. at 168-
69. Here, Appellant reiterates his argument that the stated
purpose of the FMR is pretext, specifically noting that DoD FMR
010302.G.4 returns pay and allowances to servicemembers in
Appellant’s position who are subsequently acquitted.
17
United States v. Fischer, No. 04-0756/MC
However, there is an alternative, non-punitive purpose of
DoD FMR 010302.G.4. The alternative purpose is that a
servicemember held in pretrial confinement who has passed EAS
and who is not providing productive service is not entitled to
pay and allowances. As discussed above, EAS is a neutral, non-
punitive point in time which is reasonably related to the
legitimate governmental interest in terminating the pay of
persons who are not performing productive service.
7. Excessiveness
The final factor considers whether the regulation is
excessive in relation to the alternative purpose assigned to it.
Mendoza-Martinez, 372 U.S. at 169. Appellant argues that the
FMR inflicts an excessive toll. We disagree. In civilian life,
pretrial confinees may lose their jobs and are often not
compensated for the time spent in pretrial confinement. The
military’s policy to reimburse pretrial confinees who were
mistakenly held is more generous than the Hyde Amendment,
discussed above, that applies in civilian criminal cases.
Although Appellant may undergo personal financial loss because
of the policy reflected in the regulations, the termination of
pay upon the expiration of the enlistment contract does not
signify that the policy is excessive.
18
United States v. Fischer, No. 04-0756/MC
III. CONCLUSION
As Appellant conceded, the brig authorities in this case
had no intent to punish Appellant. The regulation is not
implicitly punitive or punitive in effect. There is a
legitimate, non-punitive reason behind the regulation. The
application of the policy was reasonable, given that Appellant
reached his EAS and did not perform productive services. Under
an Article 13 claim, we look to whether there was intent to
punish or a punitive effect. If Appellant takes issue with the
propriety of the underlying decisions as a matter of fiscal law,
he must pursue that issue before the United States Court of
Federal Claims.
As a final matter, Appellant also maintains that his Fifth
Amendment rights were violated because he was punished by virtue
of the application of DoD FMR 010302.G.4 without due process of
law. In view of our conclusion that the regulation has a
legitimate non-punitive purpose, there is no punishment at issue
in this case. Moreover, as explained above, there was no
forfeiture in this case because Appellant had no entitlement to
pay and allowances.
IV. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
19
United States v. Fischer, No. 04-0756/MC
ERDMANN, Judge, with whom GIERKE, Chief Judge, joins
(dissenting):
The majority opinion finds that terminating the pay of
a servicemember in pretrial confinement, whose term of
service has been involuntarily extended by the Government,
does not constitute illegal pretrial punishment under
Article 13, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 813 (2000). I would hold that the regulation
requiring the termination of pay under those circumstances
is punitive in effect and its application constitutes
illegal pretrial punishment.
Fischer was placed in pretrial confinement on May 4,
2001. His enlistment expired on June 29, 2001. Rather
than discharging him from military service at the end of
his enlistment and thereby losing jurisdiction over him,
the Marine Corps understandably extended his active duty
status pending court-martial.1 Fischer remained in
confinement and his pay and allowances were terminated.
When Fischer asked for his pay to be reinstated, the
1
Rule for Courts-Martial 202(c)(1) provides that a
servicemember whose enlistment has expired may be “held on
active duty.” Marine Corps Manual for Legal Administration
§ 1005 (31 Aug 99), details this involuntary extension of
active duty and requires that proper administrative action
be taken to effectuate the extension. While the record in
this case contains references to the fact that Fischer’s
active duty was extended, it contains no references to the
administrative action effectuating the extension.
United States v. Fischer, No. 04-0756/MC
Government responded that it was prohibited from paying him
under Department of Defense (DoD) regulations.
One of the basic guarantees under the Due Process
Clause is that a pretrial detainee cannot be punished until
there is a finding of guilt. Bell v. Wolfish, 441 U.S.
520, 533 (1979). Article 13 of the UCMJ, which prohibits
pretrial punishment, has its roots in this constitutional
guarantee. Servicemembers who are accused of crimes can be
placed in pretrial confinement to ensure that they will
appear at trial and to prevent further misconduct. Rule
for Courts-Martial (R.C.M.) 305(h)(2)(B). When placed in
pretrial confinement, Article 13 protects them from
conditions that constitute punishment, penalty or excess.
In this case we are called on to determine whether
terminating the pay and allowances of a servicemember, who
is in pretrial confinement and whose enlistment has been
involuntarily extended, constitutes punishment under
Article 13.
The DoD regulation in question, the Department of
Defense Financial Management Regulation (DoD FMR), vol. 7A,
ch. 1, 010302.G.4 (May 2005),2 provides:
2
The May 2005 version of subpara. 010302.G.4 is identical
to provisions that were in effect during Fischer’s pretrial
confinement. See Department of Defense Financial
2
United States v. Fischer, No. 04-0756/MC
4. Confined Awaiting Trial by Court-Martial.
If a member is confined awaiting court-
martial trial when the enlistment expires,
pay and allowances end on the date the
enlistment expires. If the member is
acquitted when tried, pay and allowances
accrue until discharge.
The majority focuses on the fiscal implications of the
regulation and relies, in part, on opinions of the
Comptroller General and Court of Claims. While these
opinions are interesting both from a fiscal and a
historical perspective, they do not provide any binding
authority for this court as they do not interpret Article
13 or the cases from this court or the U.S. Supreme Court
dealing with illegal pretrial punishment. Nor do those
opinions consider the “status” based nature of court-
martial jurisdiction under the UCMJ. It is the primary
duty of this court to provide such interpretations.
I have no quarrel with the majority’s finding that a
servicemember’s entitlement to pay is terminated when his
or her enlistment expires. That, however, is simply not
the situation in this case. One of the mandatory factors
underlying court-martial jurisdiction is that the person to
be tried must be subject to the UCMJ. In other words, the
person must be in a “status” in which he or she is a
Management Regulation, vol. 7A, ch. 3, 030207.D (Feb.
2000).
3
United States v. Fischer, No. 04-0756/MC
“person[] . . . subject to” the UCMJ. See Article 2(a),
UCMJ, 10 U.S.C. § 802(a) (2000). Article 3(a), UCMJ, 10
U.S.C. § 803(a) (2000), makes it clear that personal
jurisdiction is “status based” under the UCMJ: “. . . a
person who is in a status in which the person is subject to
this chapter . . . .” Emphasis added. Holding Fischer
beyond his term of service continued his status as a
“servicemember on active duty” through disposition of the
charges against him. R.C.M. 202(c)(1).
As I read the majority opinion, once a servicemember’s
term of enlistment is involuntarily extended, the
obligation to provide pay and allowances is extended as
well except in the event that the servicemember is in
pretrial confinement. The result of this view is that the
Government can, solely for its own purposes, imprison a
presumptively innocent individual, unilaterally continue
military status with all its obligations and duties and at
the same time take away one of the basic rights associated
with active duty military status -– the right to pay.3 I
cannot join the majority’s view that these circumstances do
not constitute a violation of Article 13.
3
37 U.S.C. § 204(a)(1) (2000) provides that members of a
uniformed service on active duty are entitled to pay.
4
United States v. Fischer, No. 04-0756/MC
As the majority notes, this court has not previously
applied the criteria of Kennedy v. Mendoza-Martinez, 372
U.S. 144, 168 (1963), in order to determine whether
conditions of pretrial confinement violate Article 13.
Were I to apply those factors, I would disagree with the
conclusion reached by the majority that the regulation at
issue is not punitive in effect. However, I do not believe
that such an analysis is necessary. In my view, this
court’s Article 13 jurisprudence provides a proper
framework for determining whether Fischer was subject to
unlawful pretrial punishment.
Article 13 prohibits two types of activity: (1) the
intentional imposition of punishment on an accused prior to
trial; and (2) pretrial confinement conditions that are
more rigorous than necessary to ensure the accused’s
presence at trial. United States v. Inong, 58 M.J. 460,
463 (C.A.A.F. 2003); United States v. McCarthy, 47 M.J.
162, 165 (C.A.A.F. 1997). The first prong prohibits a
purpose or intent to punish, determined by examining the
intent of detention officials or by examining the purposes
served by the restriction or condition, and whether such
purposes are “reasonably related to a legitimate
governmental objective. . . .” Bell, 441 U.S. at 539;
McCarthy, 47 M.J. at 165. The second prevents unduly
5
United States v. Fischer, No. 04-0756/MC
rigorous circumstances during pretrial detention.
Conditions that are sufficiently egregious may give rise to
a permissive inference that an accused is being punished,
or the conditions may be so excessive as to constitute
punishment. Id.; United States v. James, 28 M.J. 214, 216
(C.M.A. 1989). A determination of whether Fischer is
entitled to relief for unlawful pretrial punishment
involves independent, de novo review. United States v.
Smith, 53 M.J. 168, 170 (C.A.A.F. 2000); McCarthy, 47 M.J.
at 165; see Thompson v. Keohane, 516 U.S. 99, 113 (1995).
Fischer’s active duty military status was extended in
virtually every respect save one -– he was no longer paid.
The sole reason that his pay was stopped, as opposed to
other servicemembers extended on active duty, was that he
was in pretrial confinement. Fischer was in pretrial
confinement because both his Commanding Officer and the
Initial Review Officer found that he constituted a flight
risk and a threat to commit serious misconduct. I find no
reasonable relation to a legitimate government objective
served by terminating an active duty servicemember’s pay
and allowances because he or she is in pretrial
confinement. Since Fischer’s pay would not have been
terminated except for the pretrial confinement, its effect
on Fischer is obviously punitive.
6
United States v. Fischer, No. 04-0756/MC
The regulation’s objective, as characterized by the
majority, is that servicemembers held in pretrial
confinement are not considered to be performing “active
duty work” and therefore should not be entitled to pay.
This logic breaks down, however, because a servicemember
who is later acquitted has performed the same duties while
in pretrial confinement and receives compensation.
Servicemembers in pretrial confinement are not
automatically excused from performing useful duties.
Military appellate case law is replete with cases
discussing various duties performed by pretrial confinees.
See, e.g., United States v. Nelson, 18 C.M.A. 177, 178-79,
39 C.M.R. 177, 178-79 (1969); United States v. Palmiter, 20
M.J. 90, 94 (C.M.A. 1985); United States v. Dvonch, 44 M.J.
531, 533 (A.F. Ct. Crim. App. 1996). Similarly, an active
duty servicemember in pretrial confinement who has not been
involuntarily extended performs those same duties and
receives his or her pay and allowances.
Forfeiting pay traditionally has been regarded as a
form of punishment in the military services. See generally
United States v. Stebbins, 61 M.J. ___, ___ (11-18)
(C.A.A.F. 2005). This regulation imposes a forfeiture upon
a servicemember in the absence of any due process or
adjudication of guilt. The effect of this action as
7
United States v. Fischer, No. 04-0756/MC
punishment is illustrated by how the forfeiture is linked
to the results of trial. If a servicemember in Fischer’s
situation is acquitted, he or she is paid retroactively.4
But if that person is convicted, there is no pay
adjustment. While the initial termination of pay was based
solely on Fischer’s pretrial confinement status, the
ultimate termination of his pay in this situation is based
solely on a finding of guilt. This is punishment.
The nexus between the permanent termination of pay and
a finding of guilt raises an additional concern which I
believe further highlights the unlawful nature of this
deprivation. Congress has delegated to the President the
authority to establish maximum punishments. Article 56,
UCMJ, 10 U.S.C. § 856 (2000). Under the Rules for Courts-
Martial, the President has directed that the only
authorized punishment involving a loss of pay is a
forfeiture of pay to be accrued. See R.C.M. 1003(b)(2) and
discussion. Additionally, execution of any punishment to
forfeit pay is effective and executed only after trial.
4
The majority’s conclusion that this payment is akin to
compensation for the accused when the charge has not been
sustained at trial creates a dangerous precedent. An
acquittal in a criminal action does not mean that the
Government was wrong in bringing the charges, nor should an
acquittal entitle an accused to compensation. It merely
means that the court-martial did not find the accused
guilty beyond a reasonable doubt.
8
United States v. Fischer, No. 04-0756/MC
See Article 57, UCMJ, 10 U.S.C. § 857 (2000). Tying the
deprivation of Fischer’s pay to his conviction creates a
punishment beyond that authorized by the UCMJ and the
Manual for Courts-Martial, United States (2002 ed.).
There is no legitimate governmental objective in DoD
FMR 010302.G.4 that outweighs its clear punitive effect,
and the regulation therefore constitutes illegal pretrial
punishment in violation of Article 13. I would hold that
the regulation is unenforceable and Fischer is entitled to
his full pay and allowances for the period in question. I
therefore dissent.
9