United States v. Rock , 52 M.J. 154 (1999). The CAAF held the military judge did not err in applying the sentence credit received by the accused for illegal pretrial punishment against the accused’s adjudged sentence rather than the approved sentence (accused was awarded 240 days credit against his adjudged confinement as a result of pretrial conditions on his liberty not amounting to confinement; the military judge credited the 240 days against the accused’s adjudged sentence not the approved sentence; the accused was sentenced to sixty-one months of confinement, thus the judge only gave the accused fifty-three months; the accused’s pretrial agreement further reduced the sentence to thirty-six months, minus three days of actual pretrial confinement). The court distinguished between actual or constructive confinement credit and pretrial punishment credit. Actual confinement credit and constructive confinement credit are administrative credits that come off of the approved sentence. Pretrial punishment credit for something other than confinement (like restrictions on liberty that do not rise to the level of being tantamount to confinement) is generally judicial credit and thus comes off of the adjudged sentence. If the military judge determines that Allen , Mason , or Suzuki credit is warranted, that sentence credit will be tacked on to the sentence after the pretrial agreement is considered.
- United States v. Rosendahl , 53 M.J. 344 (2000). The accused’s original approved sentence included a BCD, four months confinement, and suspended forfeitures of $150 per month for four months and suspended reduction below the grade of E-4 for six months. On rehearing, he was sentenced to a BCD and reduction to the lowest enlisted grade. The convening authority approved this sentence, again suspending reduction below the grade of E-4 for six months. The accused argued he was entitled to credit (in the form of disapproval of his BCD) for the 120 days confinement he served as a result of his first sentence. The CAAF disagreed stating that reduction and punitive separations are qualitatively different from confinement and, therefore, credit for excess confinement has no “readily measurable equivalence” in terms of reductions and separations. NOTE: The CAAF declined to address whether a case involving lengthy confinement might warrant a different result. It also distinguished this situation from the “unrelated issue of a convening authority’s clemency power to commute a BCD to a term of confinement.”
- United States v. Smith , 56 M.J. 290 (2002). No requirement that accused be given credit for lawful pretrial confinement when no confinement is adjudged.
- United States v. Chapa III , 57 M.J. 140 (2002). Failure to raise RCM 305(k) credit waives the issue, absent plain error.
- United States v. King , 58 M.J. 110 (2003). Failure to raise Mason credit (i.e., pretrial restriction tantamount to confinement) waives the issue, absent plain error.
- United States v. Coreteguera , 56 M.J. 330 (2002). When placed into PTC, the appellant was forced to run to several windows yelling he “couldn’t get it right,” was made to sing the Air Force song or “song of choice,” and was asked by a cadre member whether he wanted to pawn “this” jewelry while being shown a pair of shackles. The appellant was in pretrial confinement for, in part, pawning government computers. Additionally, appellant was made to perform duties similar to post-trial inmates BUT not with the inmates. The military judge denied the defense’s motion for additional credit under Article 13. The judge found no intent to punish on the part of the cadre, the conditions of confinement were not unduly harsh or rigorous, and the actions of AF personnel were not excessively demeaning or of a punitive nature. The CAAF held that discomforting administrative measures and “de minimis” imposition on detainees, even if unreasonable, do not warrant credit under Article 13. As for the work, the court looked to the nature, duration, and purpose of the work to determine whether it was punitive in nature – it was not, therefore, no credit. The court noted that although the judge did not err in denying the credit, the court did not “condone” the actions of the AF personnel.
- United States v. Mosby , 56 M.J. 309 (2002). Solitary confinement, in and of itself, does not equal an intent to punish warranting additional credit under Article 13, UCMJ.
- United States v. Bracey , 56 M.J. 387 (2002). Appellant was not entitled to Pierce credit since the offenses in question resulted from separate and distinct incidents despite their occurrence close in time and involving the same officer (i.e., victim). The CAAF, in holding that the appellant was not entitled to Pierce credit stated: “Neither the Constitution nor the UCMJ precludes a person from being convicted for multiples offenses growing out of the same transaction, so long as the offenses are not multiplicious . . . . Likewise, although Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses growing out of the same transaction when the offenses are not multiplicious.” I. United States v. Spaustat , 57 M.J. 256 (2002). Accused sentenced to reduction to the grade of E-1, ten months confinement, and a BCD. The accused’s PTA had a confinement limitation of eight months. At trial, the accused successfully brought an Article 13 motion for his treatment while in pretrial confinement and was awarded ninety-two days Article 13 credit (day- for-day) as well as 102 days Allen credit, all of which the judge applied against the lesser sentence provided for in the PTA. In announcing the sentence, the judge initially announced a sentence, after incorporating the Article 13 credit of 202 days and then announced another sentence of 212 days after he was advised by the TC that the Article 13 violations did not begin until after day ten of the accused’s placement into pretrial confinement, thus reducing the Article 13 credit from 102 days to ninety-two days. Appellant argued that the judge, in increasing the sentence from 202 days to 212 days, unlawfully reconsidered the sentence. The CAAF held that the judge did not unlawfully reconsider the sentence. The sentence was always ten months. All that the judge did was correct his calculation of sentence credits and clarify his calculations. Further, the judge did not err in applying the sentence credit to the lesser sentence provided for in the PTA. Recognizing the confusion created by its Rock decision, the court established a bright line rule for use by all courts effective 30 August 2002:
- [I]n order to avoid further confusion and to ensure meaningful relief in all future cases after the date of this decision, this Court will require the convening authority to direct application of all confinement credits for violations of Article 13 or RCM 305 and all Allen credit against the approved sentence, i.e., the lesser of the adjudged sentence or the sentence that may be approved under the pretrial agreement, as further reduced by any clemency granted by the convening authority, unless the pretrial agreement provides otherwise. J. United States v. Josey , 58 M.J. 105 (2003). Service member spent thirty months and twenty-eight days in post-trial confinement before the findings in his case was partially set aside. On reassessment, the CA only approved forfeiture of $600 pay/month for four months and reduction from E-8 to E-6. Appellant argued he was entitled to sentence credit against both forfeitures and the reduction. The CAAF disagreed, finding that “reprimands, reductions in rank, and punitive separations are so qualitatively different from other punishment that conversion is not required as a matter of law.” See also United States v. Stirewalt , 58 M.J. 552 (C.G. Ct. Crim. App. 2003); United States v. Rosendahl , 53 M.J. 344 (2000). K. United States v. Rendon , 58 M.J. 221 (2003). RCM 305(k) credit for non-compliance with RCM 305(f), (h), (i), or (j) does NOT apply to restriction tantamount to confinement UNLESS restriction rises to the level of physical restraint depriving appellant of his or her freedom (i.e., equivalent of actual confinement) (abrogating United States v. Gregory , 21 M.J. 952 (A.C.M.R. 1986), aff’d , 23 M.J. 246 (C.M.A. 1986) (summary disposition)). L. United States v. Oliver , 56 M.J. 779 (A.F. Ct. Crim. App. 2002). A day of pretrial confinement warrants Allen credit unless that day is the day the accused is sentenced, then the day counts as post-trial confinement. M. United States v. Sherman , 56 M.J. 900 (A.F. Ct. Crim. App. 2002). Time spent in civilian confinement for offenses forming the basis of a subsequent court-martial warrant confinement credit under Allen . See also United States v. West , 56 M.J. 626 (C.G. Ct. Crim. App. 2001). N. United States v. Inong , 58 M.J. 460 (2003). “[F]ailure at trial to raise the issue of illegal pretrial punishment waives that issue for purposes of appellate review absent plain error,” overruling United States v. Huffman , 40 M.J. 225 (C.M.A. 1994). Additionally, United States v. Southwick , 53 M.J. 412 (2000) and United States v. Tanksley , 54 M.J. 169 (2000) were overruled to the extent that they establish a “‘tantamount to affirmative waiver rule’ in the Article 13 arena.” O. United States v. Regan , 62 M.J. 299 (2006). After the third positive test, Regan’s commander gave her the choice of voluntarily admitting herself for inpatient treatment or going into pretrial confinement. The military judge concluded that appellant was really given no choice at all and based on the “totality of the conditions imposed” and “the facts and circumstances” of the case, the time appellant was in the treatment facility (twenty-one days) amounted to restriction tantamount to confinement and determined that appellant was entitled to Mason credit. However, the military judge denied the defense motion for additional credit under R.C.M. 305(k) for failure to comply with the requirements of R.C.M. 305. Affirmed.