Commenting on collateral consequences

  1. uscourtmartiallawyers13Generally, the collateral consequences of a sentence are not relevant to the sentencing decision and are not allowed to be argued in sentencing. United States v. Griffin , 25 M.J. 423 (C.M.A. 1988). Sentencing Argument (Art and Law)
  2. Loss of VA benefits is a relevant consideration on sentencing. United States v. Stargell, 49 M.J. 92 (C.A.A.F. 1998).
  3. Effect of sentence on retirement benefits is relevant.
    1. Defense counsel may introduce evidence of the effect of a punitive discharge on retirement benefits. See Military Judges’ Benchbook para.
      1. The accused has sufficient time in service to retire;
      2. For an enlisted accused, the accused has sufficient time left on his current term of enlistment to retire without having to reenlist;
      3. For an accused that is a commissioned or warrant officer, it is reasonable that the accused would be permitted to retire but for a punitive discharge.

      See also United States v. Washington , 55 M.J. 441 (C.A.A.F. 2001); United States v. Boyd , 55 M.J. 217 (C.A.A.F. 2001); United States v. Luster , 55 M.J. 67 (C.A.A.F. 2001); United States v. Becker , 46 M.J. 141 (C.A.A.F. 1997); United States v. Greaves , 46 M.J. 133 (C.A.A.F. 1997); United States v. Sumrall , 45 M.J. 207 (C.A.A.F. 1996); United States v. Polk , 47 M.J. 116 (C.A.A.F. 1997).

    2. United States v. Stargell, 49 M.J. 92 (C.A.A.F. 1998). Trial counsel argued the accused, with nineteen and a half years, will get an honorable retirement unless the panel gave him a BCD. Military judge provided curative instruction to panel.
  4. The availability of a subsequent administrative discharge is not relevant. United States v. Briggs , 69 M.J. 648 (A.F. Ct. Crim. App. 2010)

Effect of sentence on retirement benefits is relevant.

See also United States v. Washington