UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and SCHASBERGER 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant EDWARD J. MITCHELL, II 

United States Army, Appellant 

ARMY 20170558 

Headquarters, 1st Cavalry Division 

Douglas K. Watkins and Rebecca K. Connally, Military Judges 

Colonel Emily Schiffer, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Patrick G. 

Hoffman, JA; Captain Benjamin A. Accinelli, JA (on brief). 

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford, 

JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief). 

14 November 2018 

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SUMMARY DISPOSITION 

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FEBBO, Judge: 

Procedurally, appellant’s court-martial case is unusual. Appellant’s case was 

initiated with multiple charges in June 2015 and ended with a guilty plea over two years 

later in October 2017.1

 During this time, the government filed two unsuccessful appeals 

under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012) [hereinafter 

UCMJ], the appellant spent 887 days in pre-trial confinement, reached his expiration-

 

1

 A military judge sitting as a general court-martial convicted appellant, pursuant to 

his pleas, of one specification of stalking, five specifications of disobeying a 

superior commissioned officer, and one specification of obstruction of justice, in 

violation of Articles 92, 120a, and 134 of the UCMJ. The military judge sentenced 

appellant to a bad-conduct discharge and confinement for 13 months. The convening 

authority approved the adjudged sentence and credited appellant with 887 days for 

his pre-trial confinement. 
MITCHELL—ARMY 20170558 

2 

term of service (ETS) date, and did not receive pay and allowances for approximately 

16 months. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises two assigned errors.2 Appellant claims on appeal that the military judge 

abused his discretion in denying appellant’s motion for confinement credit under 

Article 13, UCMJ for non-payment of pay and allowances while in pre-trial 

confinement. The military judge found stopping appellant’s pay was not 

punishment, but the function of a Defense Finance and Accounting Service (DFAS) 

policy and that agency’s interpretation of its statutory authority to pay an accused 

whose term of service expired while in pre-trial confinement. We agree. See Howell 

v. United States, 75 M.J. 386 (C.A.A.F. 2016). 

BACKGROUND 

Sergeant Mitchell was a M-1 Armor Crewman assigned to 1st Cavalry 

Division. He deployed to combat zones four times for a total of 46 months. In 

2013, appellant married JM and supported her two children. The family moved to 

Fort Hood in April 2014. In November 2014, JM reported that appellant had 

sexually assaulted her. They separated and appellant moved out of their home. His 

company commander gave him a Military Protective Order (MPO) to have no contact 

with JM without prior approval of his chain of command. This was the lull before 

the storm. 

Instead of obeying the no contact order, appellant began stalking JM and 

placed her in fear. Appellant began a month’s long campaign of communicating vile 

and threatening text messages and phone calls to JM. He repeatedly drove by her 

residence, followed her in his vehicle, and tried to enter JM’s residence. In 

response, appellant was given two additional MPOs from his company commander 

 

2 Appellant also asserts on appeal that his bad-conduct discharge should not be 

approved. Among the reasons in support of his argument, appellant points to the 

fact that his 887 days of pre-trial confinement exceeded his 13 month adjudged 

sentence. As he presented at sentencing, appellant also had a tragic experience in 

combat when he witnessed his brother’s body being pulled from a tank in Iraq after 

the tank hit an improvised explosive device (IED). While he was in pre-trial 

confinement, he was not allowed to attend his mother’s funeral. Appellant’s 

maximum sentence included the possibility of a dishonorable discharge and many 

years of confinement. The military judge stated on the record that he fully 

considered appellant’s extenuation and mitigation evidence before sentencing him to 

a bad-conduct discharge. Our review of the entire record, to include the length of 

pre-trial confinement as compared to the adjudged sentence, appellant’s record of 

service and other matters presented by appellant in extenuation and mitigation (to 

include Rule for Courts-Martial (R.C.M.) 1105 and 1106 matters), concludes that the 

sentence to 13 months confinement and a punitive discharge was appropriate. 
MITCHELL—ARMY 20170558 

3 

and two MPOs from his Battalion Commander. Appellant violated all five of the nocontact orders. Between November 2014 and May 2015, appellant contacted JM 

around 4,000 times by phone or text. The military police responded over 55 times to 

JM’s stalking complaints against appellant. 

In May 2015, after appellant’s repeated stalking of JM and violations of the 

MPOs, appellant was placed in pre-trial confinement. While in pre-trial 

confinement, appellant obstructed justice by contacting his father and asking him to 

contact friends and family and instruct them not to cooperate with police or 

investigators. Charges were preferred in June 2015 and additional charges were 

preferred in July 2015. 

In October 2015, pursuant to pre-trial motions, the military judge suppressed 

any evidence derived from appellant’s iPhone. The military judge found appellant 

entering his iPhone personal identification number (PIN) violated appellant’s Fifth 

Amendment rights against self-incrimination and to counsel. 

The government filed an Article 62 appeal with this court. Over the next 

twenty-plus months, the ruling on the suppression motion was litigated at this court 

twice, returned to the trial court once for clarification, and ended with our superior 

court’s opinion in August 2017 affirming in part the trial judge’s and this court’s 

suppression of the evidence from appellant’s iPhone.3

After these appeals, the case was returned to the trial court. The appellant 

and the government negotiated a pre-trial agreement which capped confinement at 

time-served. As part of the agreement, the government dismissed a number of 

charges to include the sexual assault offenses, communicating threats, indecent 

broadcasting of naked images of JM, and placing an online add soliciting men to go 

to JM’s home to engage in sexual acts. 

Appellant pleaded guilty to the remaining offenses. The military judge stated 

on the record he was disgusted by the fact that appellant was held in pre-trial 

confinement for so long and not paid after he reached his ETS date. However, the 

military judge found that the government did not intend to punish appellant and was 

following DFAS policy when appellant’s pay was stopped while he was in 

confinement after his ETS date. The military judge denied the motion for Article 13 

credit. 

LAW AND DISCUSSION 

Providing sentence credit for violations of Article 13, UCMJ, serves to 

 

3 United States v. Mitchell, 2016 CCA LEXIS 179 (A. Ct. Crim. App. 18 Mar 

2016)(unpub.); United States v. Mitchell, 2016 CCA LEXIS 762 (A. Ct. Crim. App. 

28 Aug. 2016)(unpub.); United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017) 
MITCHELL—ARMY 20170558 

4 

ensure that an accused is not doubly punished for an offense. “[I]f the accused has 

already been punished pretrial, that pretrial punishment must be credited against 

the sentence.” United States v. Alston, 75 M.J. 875, 887 (Army Ct. Crim. App. 

2016) (citing United States v. Ruppel, 49 M.J. 247, 254 (C.A.A.F. 1998)). 

Normally, in reviewing claims for Article 13, UCMJ, credit where the military 

judge makes no finding of an intent to punish, we must review the claim de novo. 

United States v. Smith, 53 M.J. 168, 170 (C.A.A.F. 2000) (“In the absence of a 

factual finding relating to intent to punish, this Court will address the issue of illegal 

pretrial punishment de novo. . . .”). 

The United States Court of Appeals for the Armed Forces (CAAF) explicitly 

stated that in order to find a violation of Article 13, UCMJ, “[t]he record must 

disclose an intent to punish on the part of the Government.” Howell v. United 

States, 75 M.J. 386, 394 (C.A.A.F. 2016) (emphasis added). “[A] finding of 

[punitive] intent is a threshold requirement for finding a violation of Article 13, 

UCMJ.” Alston, 75 M.J. at 885. Our superior court has rejected the view that a 

“punitive effect” without finding a punitive intent is sufficient to support a 

violation of Article 13, UCMJ. Howell, 75 M.J. at 393-94. 

Application of the DFAS regulations furthered a legitimate government 

intent of ensuring pay and allowances were expended in accordance with law and 

DFAS regulations.4 The DFAS laws and regulations were not applied to appellant 

in a punitive or improper manner. At the Article 13 motions hearing, a DFAS 

representative testified about appellant’s pay status while in confinement. 

Appellant reached his ETS date on 18 June 2016. Since he was in pre-trial 

confinement at the time his enlistment contract expired, there was no affirmative 

authority for DFAS to continue to pay appellant after his ETS date.5 This 

interpretation of the DFAS rules on entitlement of pay after an ETS date is a wellsettled. United States v. Fischer, 61 M.J. 415, 418 (C.A.A.F 2005) (citing Simoy 

v. United States, 64 Fed. Appx. 745, 746 (Fed. Cir. 2003). 

 

4 Appellant argues that Title 38 of the United States Code that regulates military 

pay does not include prohibitions against paying service-members who are in pretrial confinement after their ETS date. However, when dealing with expenditure of 

funds, government agencies require specific Congressional authority for the 

expenditure. 

5 The DFAS witness explained that appellant was erroneously paid around $59,000 

after his ETS date. Appellant argues that he was also punished by DFAS’s 

attempts to recoup this money. 
MITCHELL—ARMY 20170558 

5 

There are two exceptions to protect soldiers. First, a soldier can receive 

retroactive pay if the soldier is either acquitted or the charges are dismissed. 

Second, a soldier’s pay can be re-started if the soldier is released from pre-trial 

agreement and is returned to full duty status while awaiting trial. Neither of these 

exceptions applied to the appellant. 

This court’s review of the record finds no improper intent to punish 

appellant.6 It is unfortunate that the combination of being in pre-trial confinement, 

reaching his ETS date, and multiple lengthy appeals resulted in him not being paid 

for approximately 16 months. However, appellant was placed in pre-trial 

confinement based solely on his serious and threatening misconduct towards his 

spouse and failure to obey no-contact orders from his commanders. Appellant’s 

term of enlistment and ETS date were established prior to any misconduct leading to 

his charges. The Article 62 appeals were lengthy and complicated, but ultimately led 

to favorable results for appellant, a favorable pre-trial agreement, and dismissal of 

multiple charges. 

Further proof of no intent to punish appellant is evident by his unit’s repeated 

attempts to extend his ETS date to get him paid. However, since appellant was in 

pre-trial confinement, DFAS regulations did not allow for appellant’s ETS date to be 

adjusted or allow DFAS to pay appellant. 

The court finds that the government was following established regulatory 

guidance and did not intend to punish appellant. Therefore, he was not improperly 

denied Article 13 credit. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and sentence 

are AFFIRMED. 

Senior Judge MULLIGAN and Judge SCHASBERGER concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

6 At trial, appellant did not claim Article 13 credit for his physical conditions of 

confinement nor the unit’s actions or inaction to provide logistic support to 

appellant. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: