TRIAL STAGES: Sentence and Punishment:  Credits

2019 (October Term)

United States v. Guardado, 79 M.J. 301 (in this case, the military judge did not err in denying appellant’s motion for confinement credit under Article 13, UCMJ, for the government’s failure to restore him to his original E-8 pay status after his original court-martial sentence (and reduction to E-1) was set aside and he was pending a sentence rehearing; the military judge correctly found that paying appellant as an E-1 was not punishment, but rather the result of the Defense Finance and Accounting Service following binding judicial authority from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims, and the policy served a legitimate, nonpunitive governmental objective of providing appellant with the proper pay pending in light of the jurisdiction of those courts to adjudicate military pay disputes). 

2018 (October Term)

United States v. Haynes, 79 M.J. 17 (in this case, by answering in the affirmative when asked by the military judge if he agreed with the proposed amount of pretrial confinement credit due, appellant (through his counsel) affirmatively acknowledged that he was not entitled to any additional confinement credit; accordingly, appellant affirmatively waived any entitlement to Pierce credit (under US v. Pierce, 27 MJ 367 (CMA 1989), Pierce credit is sentencing credit for prior nonjudicial punishment imposed for the same offense punished by court-martial); appellant’s agreement (through his counsel) with the proposed amount of confinement credit was akin to a statement of “no objection,” which may count as an affirmative waiver).  

United States v. Harris, 78 M.J. 434 (the DoD Sentence Computation Manual provides that a military judge will direct credit for each day spent in pretrial confinement for crimes for which the prisoner was later convicted, but specifically precludes the award of pretrial confinement credit where a prisoner is confined in a non-military facility for a charge or offense for which the prisoner had been arrested after the commission of the offense for which the military sentence was imposed; in this case, the military judge’s factual finding that the 291-day period spent in pretrial confinement in a civilian facility in Florida was confinement for a civilian offense for which appellant was arrested after the commission of the offenses for which he was court-martialed was supported by the record, and consequently, appellant was not entitled to administrative credit for those days; although appellant had initially been arrested by civilian authorities in Florida for possession of child pornography charges, he was free on bond awaiting trial when he fled the jurisdiction and failed to appear at a pretrial hearing; when he returned to Florida, his bond was rescinded and he was placed in pretrial confinement for failure to appear at a hearing while on bail; ultimately, Florida elected not to prosecute the child pornography charges and appellant pleaded guilty to a single count of failure to appear; appellant was then court-martialed for desertion and possession of child pornography and pleaded guilty; the military judge did not err in denying him pretrial confinement credit for the time spent in the civilian confinement facility because appellant was confined in that facility for the offense of failure to appear, an offense for which he was arrested well after the offenses for which he was sentenced at his court-martial; dispositive in this case is the meaning of the DoD instruction’s phrase: “for a charge or offense for which the prisoner had been arrested after the commission of the offense for which the military sentence was imposed;” the correct meaning of the word “for” is closest to “because of” or “on account of;” it was perfectly accurate for the military judge to say that appellant was placed in pretrial confinement in Florida because he fled the jurisdiction and failed to appear at his hearing, not because he possessed child pornography, particularly where appellant was not confined for the child pornography charges prior to his fleeing the jurisdiction). 

2017 (October Term)

United States v. Katso, 77 M.J. 247 (in this case, where the accused was an adjudged and sentenced prisoner whose sentence to confinement had been ordered executed by the CA but where the CCA had set aside the accused’s conviction and sentence and the government had certified the case to the CAAF, the CCA erred in applying the procedures and penalties of RCM 305 crafted for pretrial confinement to the accused’s post-trial confinement while the government appeal was pending; specifically, the CCA erred in determining that the accused was entitled to a sua sponte continued confinement hearing within seven days of the government’s certification to the CAAF and day-for-day credit for each day served in confinement between the certification and the date of the continued confinement hearing). 

2015 (September Term)

Howell v. United States, 75 M.J. 386 (the convening authority is required to direct application of all confinement credits for violations of Article 13 against the approved sentence). 

(under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit). 

2014 (September Term)

United States v. Carter, 74 M.J. 204 (the question of whether an accused was unlawfully punished under Article 13, UCMJ, is one that includes a finding of law, and thus is a question that must be answered by the military judge; if the military judge is convinced by the evidence presented that it is more likely than not the accused suffered from illegal pretrial punishment, then the accused would be entitled to credit against any sentence).

(Article 13, UCMJ, credit is distinct from NJP credit and should not be treated in the same way; Article 13, UCMJ credit is provided for conduct in which the government has already engaged; in other words, it is relief for the government's conduct, not a sentencing factor related to the accused's offense).

(when there is evidence of an Article 13, UCMJ, violation, that evidence can be presented to the military judge for confinement credit and then subsequently to the panel in connection with the issue of sentence mitigation).

(the law does not create a per se rule against the accused being allowed to present evidence of an Article 13, UCMJ, violation to the military judge and also to the panel, so long as that evidence is otherwise admissible pursuant to the relevant rules of evidence and procedure; presenting Article 13, UCMJ, evidence in these two different contexts serves two distinct purposes; a military judge considers evidence of Article 13, UCMJ, violations to determine, as a matter of law, whether the accused is entitled to credit for the government's conduct; however, when a panel considers that same evidence properly admitted as mitigation on sentencing, it is doing so for the purpose of determining an appropriate sentence for an appellant's conduct; as with other evidence offered in sentence mitigation, this evidence is subject to MRE 403 balancing, rebuttal, and instruction).

(when and whether to raise Article 13, UCMJ, is a matter of trial tactics; in choosing to present the Article 13, UCMJ, evidence to the panel, including the number of days already credited the accused, defense counsel may even risk that the panel members consider that factor in favor of a harsher sentence than would have been assessed without knowledge of the credit; it is for that same reason, however, that allowing a military judge to first determine whether Article 13, UCMJ, violations occurred as a matter of law and awarding confinement credit where relevant, and subsequently allowing a panel to consider the totality of the evidence - including that there was an Article 13, UCMJ, violation - does not provide defense counsel two bites at the apple; rather, the evidence is at play in two different stages of the trial, and presented for different purposes).

(should members take Article 13, UCMJ, evidence into account when assessing a sentence, the accused is not receiving credit twice for the same conduct).

2013 (September Term)

United States v. Mead, 72 M.J. 479 (Article 15(f) provides that the imposition and enforcement of nonjudicial punishment for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable with nonjudicial punishment; but the fact that nonjudicial punishment has been enforced may be shown by an accused at trial, and when so shown, shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty). 

(Article 15(f) leaves it to the discretion of an accused whether the prior punishment will be revealed to the court-martial for consideration on sentencing; the accused is the gatekeeper with respect to consideration of an NJP record during a court-martial involving the same act or omission). 

(in this case, it was clear to the parties and the military judge that appellant raised the issue of the NJP for the military judge’s consideration as prior punishment for one of the charged offenses: (1) appellant stipulated to the NJP as part of his pretrial agreement; (2) he declined to object to the military judge’s statement that it appeared it would be necessary to provide credit against the adjudged sentence because of the NJP; (3) the defense declined to oppose the admission of the NJP during the sentencing hearing; (4) appellant declined to question the military judge’s calculation of the NJP credit or the adjudged sentence; and (5) appellant agreed with the military judge that the convening authority could approve a sentence that included confinement for two years; as such, the military judge considered the NJP and specifically awarded Pierce (27 MJ  367 (CMA 1989)) credit for it; neither Article 15(f) nor appellate case law grants appellant more).

2011 (September Term)

United States v. Barnett, 71 M.J. 248 (once evidence of pretrial punishment was introduced during sentencing by the accused, in the interests of reliable and truthful sentencing, it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited). 

(the military judge correctly responded to the members’ question about whether they could increase the accused’s sentence to offset the 100 days of pretrial confinement Article 13 credit the accused received by instructing the members that they had a duty to adjudge an appropriate sentence that they regarded as fair and just when imposed, not one whose fairness depended upon the actions of others; nothing in the instruction invited the members, either expressly or by inference, to either impose extra confinement to offset the pretrial confinement Article 13 credit or impose less confinement in consideration for the pretrial punishment).

(the military judge did not abuse his discretion in declining to specifically instruct the members that they could not increase the amount of the accused’s confinement to offset or nullify some or all of the accused’s pretrial confinement Article 13 credit, where the issue as to how the members should consider the credit was substantially covered in the instructions provided; if the military judge had instructed the members that they could not consider the Article 13 confinement credit in determining an appropriate sentence, that instruction would have been in conflict with the standard instruction properly informing the members that they should consider all matters in extenuation and mitigation as well as those in aggravation in determining an appropriate sentence). 

United States v. Kreutzer, 70 M.J. 444 (after prison officials at the US Disciplinary Barracks retained appellant on death row despite the CCA setting aside his death sentence, appellant was not entitled to additional confinement credit under RCM 305, or Article 13, UCMJ, because he was still subject to lawful confinement as a prisoner found guilty of a number of offenses, and therefore, his confinement was outside the scope of RCM 305 and Article 13, which only apply to pretrial confinees; under the circumstances of this case, appellant was a prisoner convicted of very serious offenses with a temporarily inchoate sentence; he had not requested, and did not request, release from confinement; the fact that the capital sentence had been set aside, for reasons peculiar to capital litigation, did not convert him from an adjudged prisoner to a person held for trial as regards the offenses which the CCA had affirmed; at most, the retention of appellant on death row prompted a dispute not over punishment prior to trial (the concern of Article 13) or of the inception and continuation of pretrial confinement (the concern of RCM 305) but of the proper level of confinement; this decision is normally placed in the hands of correctional authorities, but that discretion may be limited by regulation; although in this case confinement authorities abused their discretion in retaining appellant on death row in violation of a regulation prohibiting the commingling of death row prisoners with other prisoners not subject to a death sentence, as an adjudged prisoner, appellant received the only relief he was entitled to for a violation of that regulation when he was ordered by an appellate court to be taken off death row; because appellant did not come within the purview of Article 13, UCMJ, he was entitled to no relief under it). 

2010 (September Term)

United States v. Zarbatany, 70 M.J. 169 (conversion of confinement credit to forms of punishment other than those found in RCM 305(k) is generally inapt; this is especially true in the case of punitive discharges, where the qualitative differences between punitive discharges and confinement are pronounced; however, Article 13, UCMJ, does not preclude forms of relief other than confinement credit; and RCM 305(k) does not exclusively delimit the form of relief lawfully available for violations of Article 13, UCMJ). 

(Article 13, UCMJ, relief can range from dismissal of the charges, to confinement credit, or to the setting aside of a punitive discharge; where relief is available, meaningful relief must be given for violations of Article 13, UCMJ; however, relief is not warranted or required where it would be disproportionate to the harm suffered or the nature of the offense). 

(although merely classifying a pretrial inmate as maximum custody or comingling an inmate with post-trial inmates are not per se violations of Article 13, UCMJ, arbitrarily segregating a pretrial inmate for two weeks in a six-by-six, windowless cell did violate Article 13, UCMJ, and merited relief in the form of confinement credit under RCM 305(k)). 

(the primary mechanism for addressing violations of Article 13, UCMJ, and the remedy for illegal pretrial confinement has been confinement credit; the plain language of RCM 305(k) requires that after the convening authority has applied confinement credit to the adjudged confinement, the convening authority may then apply any excess confinement credit against (1) hard labor without confinement, (2) restriction, (3) fine, and (4) forfeiture, in that order, and credit shall not be applied against any other form of punishment; as a result, RCM 305(k)’s plain language excludes a punitive discharge from permissible applications of illegal confinement credit under the rule). 

(although RCM 305(k) is the principal remedy for Article 13, UCMJ, violations, it is not the sole remedy; courts must consider other relief for violations of Article 13, UCMJ, where the context warrants; other relief may range from disapproval of a bad-conduct discharge, to complete dismissal of the charges, depending on the circumstances). 

(the question of what relief is due to remedy an Article 13 violation, if any, requires a contextual judgment, rather than the pro forma application of formulaic rules; whether meaningful relief has been granted and should be granted will depend on factors such as the nature of the Article 13, UCMJ, violations, the harm suffered by appellant, and whether the relief sought is disproportionate to the harm suffered or in light of the offenses for which appellant was convicted). 

(meaningful relief for violations of Article 13, UCMJ, is required, provided such relief is not disproportionate in the context of the case, including the harm appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review). 

2009 (September Term)

United States v. Williams, 68 M.J. 252 (confinement in violation of service regulations does not create a per se right to sentencing credit under the UCMJ; this rule reflects the long-standing principle that not all violations of law result in individually enforceable remedies; however, under RCM 305(k), a servicemember may identify abuses of discretion by pretrial confinement authorities, including violations of applicable service regulations, and on that basis request confinement credit). 

(appellant, who was placed on “suicide watch” while he was held in pretrial confinement, was entitled to sentencing credit for the period where confinement officials violated an Air Force regulation requiring medical authorities to review a detainee’s “suicide watch” status every 24 hours to determine if continued segregation was appropriate; the regulation was designed to protect the personal liberties and interests of individuals who had been placed on “suicide watch” status to ensure that they will be removed from the additional restrictive conditions as soon as medically appropriate; the failure of the confinement officials to abide by the requirements of the regulation constituted an abuse of discretion that adversely impacted appellant’s personal liberty or interests).

(RCM 305(k) provides an independent basis for the award of additional confinement credit where there has been a violation of service regulations when those regulations reflect long-standing concern for the prevention of pretrial punishment and the protection of servicemembers’ rights). 

(administrative relief under RCM 305(k) is appropriate where confinement officials have knowingly and deliberately violated provisions of service regulations designed to protect the rights of presumptively innocent servicemembers). 

(it is well-settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests). 

(under RCM 305(k), a servicemember may identify abuses of discretion by pretrial confinement authorities, including violations of applicable service regulations, and on that basis request additional confinement credit). 

(military judge did not abuse his discretion in awarding one-for-one pretrial confinement credit under Article 13, UCMJ, where an alternative basis for confinement credit could have been based on RCM 305(k); while RCM 305(k) could have provided an alternative basis for relief, the factual basis for credit under either Article 13, UCMJ, or RCM 305(k) under the facts of this case was the same conduct on the part of the confinement officials).

(appellant was not entitled to additional sentencing credit based on conditions of his pretrial confinement while he was on “suicide watch” status, beyond the one-for-one credit he was awarded by the military judge for that period; although appellant was denied books, a radio, and CD player, was subjected to 24-hour lighting, and was required to wear a suicide gown, those conditions were directly related to his “suicide watch” status, were considered by the military judge in his decision on credit, did not show an intent to punish, and served a legitimate, nonpunitive governmental objective). 

United States v. Harris, 66 M.J. 166 (appellant failed to meet his burden to establish his entitlement to additional confinement credit for alleged improper denial of necessary medical care, where he was seen daily by medical personnel and did not express any concern about his medical care until he discovered and reported blood in his urine, and brig personnel took appropriate action thereafter). 

(appellant failed to meet his burden to establish his entitlement to additional confinement credit for alleged unduly rigorous brig conditions beyond that already granted by the court of criminal appeals; the court of criminal appeals had granted him one additional day of credit for each of the days he spent in pretrial confinement because he had been placed in maximum custody solely based on the nature and seriousness of the charges against him, and the government had presented no evidence that he was a flight risk or that there was any risk that he would harm himself or others if lesser degrees of restraint were utilized). 

(in light of the assault offenses of which appellant had been convicted, granting him any further sentence relief would be disproportionate to any harm that he may have suffered from the fact that the additional days of confinement credit granted by the court of criminal appeals could not be applied because he had already served the full term of his confinement).

2007

(RCM 305 (k) authorizes the military judge to order additional administrative credit against the sentence adjudged for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances; the abuse of discretion language permits a military judge to award additional credit based on conduct by confinement officials during pretrial confinement that amounts to an abuse of discretion). 

(a military judge’s discretion to award additional credit for abuses of discretion in pretrial confinement does not create an enforceable per se right to additional sentence credit; servicemembers may only enforce a per se right to credit by demonstrating an Article 13, UCMJ, violation). 

(under RCM 305(k), a servicemember may identify abuses of discretion by pretrial confinement officials, including violations of applicable service regulations, and on that basis request additional confinement credit). 

(confinement officials abused their discretion under RCM 305(k) when they knowingly and deliberately violated Air Force regulatory provisions designed to safeguard the rights of Air Force pretrial confinees by confining appellant, a pretrial confinee, in a civilian correctional facility where she was commingled with, and required to wear the same uniform as, the convicted inmates). 

(violations of service regulations prescribing pretrial confinement conditions provide a basis for a military judge, in his or her discretion, to grant additional credit under the criteria of RCM 305(k); however, they do not independently trigger a per se right to such credit enforceable by the servicemember; accordingly, a military judge should consider violations of service regulations as a basis for pretrial confinement credit under RCM 305(k) when those regulations reflect long-standing concern for the prevention of pretrial punishment and the protection of servicemembers’ rights). 

(administrative relief under RCM 305(k) is appropriate where confinement officials have knowingly and deliberately violated provisions of service regulations designed to protect the rights of presumptively innocent servicemembers during pretrial confinement).

(the military judge abused his discretion in denying the accused additional confinement credit under RCM 305(k) where the conditions of her pretrial confinement in a civilian jail violated several provisions of a service regulation concerning the corrections system and involved an abuse of discretion by confinement officials who knowingly and deliberately violated the regulations; moreover, the accused was prejudiced by this denial as it deprived her of 157 days of confinement credit; accordingly, she is to be credited with an additional 157 days of confinement served).

2006

United States v. Regan, 62 M.J. 299 (the procedural protections or the credit provided by RCM 305 in connection with pretrial confinement apply to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement; to come within the scope of RCM 305, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his freedom; thus, restriction tantamount to confinement does not necessarily trigger the application of RCM 305).

(in this case, where appellant was an inpatient at a hospital for drug treatment, was not subject to physical restraint incidental to pretrial confinement, and was treated as a patient rather than as a prisoner, the military judge did not err in refusing to grant additional credit pursuant to RCM 305(k) for the restrictions imposed by the hospital; the conditions of appellant’s inpatient stay at the hospital did not amount to physical restraint characteristic of confinement, thus entitling her to credit because of a violation of RCM 305; the restrictive parameters set by the hospital were for legitimate medical reasons, to prevent relapse or a person running out and getting additional drugs). 

2003

United States v. King, 58 M.J. 110 (the determination whether the conditions of restriction are tantamount to confinement must be based on the totality of the conditions imposed.).

(factors to be considered in determining whether pretrial restriction is tantamount to confinement include: the nature of the restraint (physical or moral); the area or scope of the restraint (confined to post, barracks, room, etc.); the types of duties, if any, performed during the restraint (routine military duties, fatigue duties, etc.); the degree of privacy enjoyed within the area of restraint; whether the accused was required to sign in periodically with some supervising authority; whether a charge of quarters or other authority periodically checked to ensure the accused’s presence; whether the accused was required to be under armed or unarmed escort; whether and to what degree the accused was allowed visitation and telephone privileges; what religious, medical, recreational, educational, or other support facilities were available for the accused’s use; the location of the accused’s sleeping accommodations; and whether the accused was allowed to retain and use his personal property (including his civilian clothing)).

(pretrial restriction of accused was not tantamount to confinement, and thus accused was not entitled to any Mason credit against his sentence to confinement, considering the nature of the restriction and the fact that he did not argue at trial that it was tantamount to confinement; accused was restricted from all base facilities with the exception of his dormitory residence and any facility required to assist his defense counsel with pretrial preparation, but he could visit other locations on base with the permission of his commander or first sergeant).

United States v. Josey, 58 M.J. 105 (the conversion formula set forth in the MCM for crediting improper confinement under R.C.M. 305(k) provides an appropriate measure for crediting various types of punishment for purposes of former jeopardy, including confinement, hard labor without confinement, restriction, forfeitures, and fines).

(R.C.M. 305(k) does not provide a conversion formula for reduction and punitive separations because these penalties are so qualitatively different from confinement that the fact that an accused has served confinement which was technically illegal should not automatically affect these forms of punishment).

(we do not read North Carolina v. Pearce, 395 U.S. 711 (1969), as requiring credit against punishments unique to military life where there is no readily measurable equivalence between confinement and the personnel related punishments of reduction and punitive separation).

(as a matter of federal law, compensation generally is not provided to persons who serve time in confinement as a result of an initial trial that is set aside, even if a subsequent proceeding results in acquittal, a sentence to no confinement, or a sentence to confinement for a period shorter than the initial sentence; federal law provides only a very limited opportunity for persons wrongly convicted in federal civilian criminal trials to obtain damages or attorneys fees).

(we conclude that reprimands, reductions in rank, and punitive separations are so qualitatively different from other punishments that conversion is not required as a matter of law for former-jeopardy confinement credit).

(the issue of whether a member of the armed forces should or should not receive a punitive discharge reflects a highly individualized judgment as to the nature of the offense as well as the person’s past record and future potential, and does not lend itself to a standard conversion formula; similar considerations apply with respect to reprimands, which have no direct monetary consequences, and reductions in rank).

(the absence of reprimands, reductions, and separations from the conversion formula in the MCM under R.C.M. 305(k) reflects the traditional exclusion of such punishments from standard conversion tables in prior editions of the Manual).

United States v. Rendon, 58 MJ 221 (R.C.M. 305 applies to restriction tantamount to confinement only when the conditions and constraints of that restriction constitute physical restraint, the essential characteristic of confinement).

(on its face, R.C.M. 305 applies to pretrial confinement; there is no support in R.C.M. 305 for applying R.C.M. 305(k) to any lesser form of restraint; further, the nature of pretrial confinement or confinement served encompassed by the R.C.M. 305 is clear: pretrial confinement is physical restraint depriving a person of freedom pending disposition of offenses; CAAF finds no evidence that the President intended the procedural protections or the credit provided in R.C.M. 305 to apply to anything other than the physical restraint attendant to pretrial confinement; CAAF's conclusion is buttressed by the fact that the President has not seen fit to expand the coverage of R.C.M. 305 despite the many years that restriction tantamount to confinement has required a day-for-day credit under Mason).

(restriction tantamount to confinement does not, per se, trigger, justify or require application of R.C.M. 305; the rule is applicable to restriction tantamount to confinement only when the conditions or circumstances attendant to that restriction meet the definitional requirements for confinement; in other words, the conditions or terms of the restriction must constitute physical restraint depriving an accused of his or her freedom; anything less is outside the scope of R.C.M. 305).

(CAAF rejects the notion that there are unique moral and disciplinary considerations present in the military which require a unique application of the Fourth Amendment or R.C.M. 305 to restriction tantamount to confinement).

(military apprehension, custody, and pretrial confinement involve physical restraint; absent some military necessity requiring a different rule, Fourth Amendment considerations apply to these forms of restraint; however, CAAF finds no basis upon which to extend the Fourth Amendment and other procedural protections embodied in R.C.M. 305 to pretrial restraint, including restriction tantamount to confinement, that do not include physical restraint).

United States v. Inong, 58 MJ 460 (in United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), this Court held that when the record reflects a tactical decision to present the issue of illegal pretrial punishment to the court-martial panel with the goal of obtaining a lesser sentence, rather than presenting the issue to the military judge for the purpose of obtaining pretrial punishment credit, that tactical decision waives the issue of whether a specific credit for pretrial punishment is warranted; relying on these cases, the Court of Criminal Appeals concluded that appellant made a tactical decision at trial to use the conditions of his pretrial confinement as a means of obtaining a lesser adjudged sentence, rather than seek credit against his adjudged sentence by arguing the issue of illegal pretrial punishment; this Court holds the Court of Criminal Appeals correctly applied Southwick and Tanksley to the facts of appellant’s case, and thereby correctly determined that appellant is not entitled to any appellate relief stemming from the conditions of his pretrial confinement; the Court further holds that in the future, failure at trial to raise the issue of illegal pretrial punishment waives that issue for purposes of appellate review absent plain error).

(in United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we will not invoke waiver of alleged Article 13 violations unless there is an affirmative, fully developed waiver on the record; today, however, the Court concludes Huffman’s affirmative waiver rule is unworkable; as a result, the Court now overrules Huffman and begins followings the "raise or waive" rule required by the Manual for Courts-Martial, United States, as relates to assertions of illegal pretrial confinement and punishment; in so doing, the Court also overrules United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), to the extent they establish a "tantamount to affirmative waiver" rule in the Article 13 arena; the Court therefore holds that once this opinion becomes final, failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error; having said that, however, the Court urges all military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that they should).

2002

United States v. Bracey, 56 MJ 387 (the credit for NJP previously imposed is not automatic; the accused is the gatekeeper on the question as to whether an NJP for a serious offense will be brought to the attention of the sentencing authority, and failure to raise the issue of mitigation based upon the record of a previous NJP for the same offense prior to action by the convening authority waives an allegation that the court-martial or convening authority erred by failing to consider the record of the prior NJP).

United States v. Spaustat, No. 01-0656, 57 MJ 256 (the proper applications of credit for illegal pretrial punishment and lawful pretrial confinement are questions of law, reviewed de novo).

(the military judge’s decision to apply credit for unlawful pretrial punishment against the lesser sentence provided for in the pretrial agreement was consistent with United States v. Rock, 52 MJ 154, 157 (1999)).

(credit for 102 days of pretrial confinement must be applied against the lesser of the adjudged sentence or the sentence limitation in the pretrial agreement).

(the UCMJ and the Manual for Courts-Martial make no provision for good time credit, and the 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).

(judicial review of disputes about good time credit occurs only upon application for an extraordinary writ, not on direct review of the sentence).

(in all future cases after August 30, 2002, the date of this decision, the convening authority is required 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).

2000

United States v. Rosendahl, 53 MJ 344 (considerations similar to those governing credits for pretrial confinement under RCM 305(k) should govern application of former jeopardy credits for punishment imposed at an earlier court-martial).

(after a sentence is announced, and the terms of any applicable pretrial agreement examined, the military judge should consider the matter of proper credits for former jeopardy, including necessary equivalencies, and announce on the record how those credits shall be applied in the convening authority’s action).

(the convening authority will apply any credits for former jeopardy announced by the military judge and, to the extent necessary, may modify those credits to ensure proper and complete credit for former jeopardy).

(punishments such as reduction and punitive separation are qualitatively different from forfeiture and confinement; former jeopardy concerns do not require credit against punishments unique to military life where there is no readily measurable equivalence between confinement and the personnel-related punishments of reduction and punitive separation).

(where appellant served 120 days confinement pursuant to a court-martial sentence which was set aside and no confinement was adjudged at a rehearing, Court declined to apply former jeopardy credit against punitive discharge because confinement and punitive separation are traditionally distinct types of punishment and because the period of confinement to be credited was relatively short).

United States v. Scalarone, 54 MJ 114 (failure to request sentence credit for unlawful pretrial punishment or illegal pretrial confinement at trial does not forfeit such a claim in the absence of plain error or waive such a claim forever).

1999

United States v. Gammons, 51 MJ 169 (while differences in the nature of punishments may make reconciliation difficult, it is the responsibility of the military judge, convening authority, or Courts of Criminal Appeals, as the case may be, to ensure that an accused is given appropriate credit for any punishment suffered as a result of nonjudicial punishment previously imposed for an offense that is subject to sentencing at a court-martial).

United States v. Rock, 52 MJ 154 (credits against confinement awarded by a military judge apply against the adjudged sentence unless the terms of a pretrial agreement dictate otherwise; this rule applies whether or not the adjudged period of confinement is less than or exceeds that provided for in a pretrial agreement).

(where portions of a sentence to confinement have already been served, either actually [pretrial confinement] or constructively [restraint tantamount to confinement], the resultant credit for confinement served must be applied to actual confinement to be served, whether that be established by the adjudged sentence or by the limitations of a pretrial agreement; credit for pretrial confinement, or its equivalent, cannot be bargained away in arriving at a sentence limitation).