UNITED STATES, Appellee
David E. FISCHER, Lance Corporal
Crim. App. No. 200200303
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.
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.
Judge EFFRON delivered the opinion of the Court.
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
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.
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.
A. PRETRIAL AND TRIAL PROCEEDINGS
enlistment contract, his period of obligated service ended on
still in pretrial confinement on June 29.
Under applicable military pay regulations, discussed infra,
Government terminated his entitlement to military pay and allowances. On July 11, defense counsel notified the
convicted and sentenced on
B. PAY REGULATIONS
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);
regulation is consistent with decisions of the Comptroller General of
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 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].
suits brought by pretrial confinees who
reached their EAS while in pretrial confinement against the Government
and allowances for the time in pretrial confinement past their EAS, the
States Court of Federal Claims and its predecessor court have followed
reasoning of the Comptroller General’s decisions, holding that “[w]hen
enlisted person is in confinement awaiting trial at the time his term
enlistment expires, his pay and allowances terminate on the date his
expires unless he is subsequently acquitted.”
Moses v. United States, 137 Ct. Cl. 374, 380 (1957); see
to the United States Court of
Appeals for the Federal Circuit, the authority for the military to hold
in service after EAS without pay pending court-martial unless there is
acquittal constitutes a “settled rule of law.”
C. ARTICLE 13
that DoD FMR 010302.G.4, which was the basis for terminating his pay
reached his EAS while in pretrial confinement, violated the Article 13,
to be free from illegal pretrial punishment.
Article 13 provides: “No person, while being held for trial, may
subjected to punishment or penalty other than arrest or confinement
charges pending against him.” We have
interpreted Article 13 to prohibit two types of activities: (1) the
imposition of punishment on an accused prior to trial, i.e., illegal
punishment; and (2) pretrial confinement conditions that are more
necessary to ensure the accused’s presence at trial, i.e., illegal
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
condition are “reasonably related to a legitimate governmental
objective.” United States v. King,
61 M.J. 225,
227 (C.A.A.F. 2005) (citing Bell v. Wolfish, 441
whether Appellant is entitled to credit for an Article 13 violation is
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 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.
servicemember’s entitlement to pay is terminated at EAS.
See Simoy v.
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
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. 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.
B. REGULATORY EFFECT
argues that even if the regulation is not implicitly punitive, the
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
Congress is punitive or regulatory in nature: (1) whether the sanction
an affirmative disability or restraint; (2) whether it has historically
regarded as punishment; (3) whether it comes into play only on a
scienter; (4) whether its operation promotes retribution and deterrence
traditional aims of punishment; (5) whether the behavior to which it
already a crime; (6) whether an alternative purpose to which it may
be connected is assignable for it; and (7) whether it appears excessive
relation to the alternative purpose assigned.
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
first take into
account whether DoD FMR 010302.G.4 imposes an affirmative disability or
restraint. See Mendoza-Martinez,
2. Historic Perspective
next factor considers the historical perspective on the consequence of
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).
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
considers whether DoD FMR 010302.G.4 promotes the traditional aims of
punishment -– retribution and deterrence.
5. Application to Criminal Behavior
fifth factor requires an evaluation as to whether the policy is invoked
result of behavior that is already 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
considers whether there is a non-punitive purpose to the regulation. Mendoza-Martinez,
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.
final factor considers whether the regulation is excessive in relation
alternative purpose assigned to it. Mendoza-Martinez, 372
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.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
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.
3 “[N]or shall
any defendant awaiting trial be made subject to punishment or penalties
than confinement prior to sentence on charges against him.” Article of War 16, Manual for Courts-Martial,
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
One of the basic
guarantees under the Due Process Clause is that a pretrial detainee
punished until there is a finding of guilt.
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:
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 “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.
As the majority notes,
this court has not previously applied the criteria of Kennedy v.
Article 13 prohibits
two types of activity: (1) the
intentional imposition of punishment on an accused prior to trial; and
pretrial confinement conditions that are more rigorous than necessary
the accused’s presence at trial.
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.
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 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. 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.
1 Rule for Courts-Martial 202(c)(1) provides that a servicemember whose
expired may be “held on active duty.” Marine
Corps Manual for Legal Administration § 1005 (
2 The May 2005
version of subpara. 010302.G.4 is
provisions that were in effect during Fischer’s pretrial confinement. See Department of Defense Financial
Management Regulation, vol. 7A, ch. 3, 030207.D (Feb. 2000).
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.