## UNITED STATES ARMY COUR T 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 Rebec ca K. Connally, Military Judges Colonel Emily Schiffer, Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Major Patrick G. Hoffman, JA; Captain Benjamin A. Accinelli, JA (on brief).

For Appellee: Colonel Steven P. H aight, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Wayne H. Williams, JA ; Captain Joshua Banister, JA (o n brief).

14 November 2018

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SUMMARY DISPOSITION

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FEBBO, Judge:

Procedurally, appellant’s court-martial case is unusual. Appel lant’s case was initiated with multiple charges in June 2015 and ended with a g uilty plea over two years

later in October 2017. 1 During this time, the government filed two unsuccessful appea ls 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, r eached his expiration-

1 A military judge sitti ng as a general cour t-martial convicted appellant, pursuant to his pleas, of one specification of stalking, five specification s of disobeying a superior commissioned officer, a nd one specification of obstruc tion of justice, in violation of Articles 92, 120a, and 134 of the UCMJ. The milit ary judge sentenced appellant to a bad-co nduct discharge and c onfinement for 13 mon ths. The convening authority approved the adjudged sentence a nd 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 allowan ces for approximately

16 months.

This case is before us for rev iew pursuant to A rticle 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 confine ment credit under Article 13, UCMJ for non-payment of pay and allowances while in pre-trial

confinement. The milit ary judge found sto pping appellant’s pay was not punishment, but the function of a Defense Finance and Accountin g Service (DFAS) policy and that a gency’s interpre tation of its statutory author ity to pay an accused

whose term of ser vice 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 Caval ry Division. He deployed to combat zones four times for a total o f 46 months. In 2013, appellant marrie d JM and supported her two children. The family moved to Fort Hood in April 2014. In Novem ber 2014, JM rep orted that ap pellant had sexually assaulted her. They se parated and appe llant moved out of their home. His company commander gave him a Mi litary Protective Order (MPO) to have no contact with JM without prior approval of his chain of command. This w as the lull before

the storm.

Instead of obeyi ng the no contact order, appellant began stalki ng JM and placed her in fear. Appellant be gan a month’s long campaign of communicating vile and threatening text messages and phone calls to JM. He repeat edly drove by her residence, followed h er in his vehicle, a nd tried to enter JM’s residence. In response, appellant was given two additional MPO s from his comp any commander

2 Appellant also assert s on appeal th at his bad-co nduct dischar ge should not be approved. Among the r easons in support of hi s argument, appell ant points to the fact that his 887 days of pre-tr ial confinement exceeded his 13 month adjudged sentence. As he presented at se ntencing, appellan t also had a tragic experience in

combat when he witness ed his brother’s bo dy being pulled from a tank in Iraq after the tank hit an impro vised explosive devi ce (IED). While he wa s in pre-trial confinement, he was not allowed to attend hi s mother’s funeral. Appellant’s

maximum sentence included the possibility of a di shonorable dis charge and many years of confinement. The military judge s tated on th e record that he fully considered appellant’s extenuati on and mitigation evidence befo re sentencing him to a bad-conduct discharge. Our review of the entire record, to i nclude the length of pre-trial confinement as compare d to the adjudged sentence, app ellant’s record of

service and other matte rs presented by appellant in extenuation and mitigation (to

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

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

3 and two MPOs from his Battalion C ommander. Appellant violated all five of the nocontact orders. Between Novem ber 2014 and May 2015, appellant contacted JM around 4,000 times by phone or text. The military police respo nded over 55 times to JM’s stalking complaints against appellant.

In May 2015, after appe llant’s repeated sta lking of JM and viol ations of the MPOs, appellant was placed in pre-trial confinement. While in pre-trial confinement, appellant obstruc ted justice by co ntacting his fat her and asking him to contact friends and family and instruct them not to cooperate w ith police or investigators. Charges were pr eferred in June 2015 and additio nal charges were preferred in July 2015.

In October 2015, pursua nt to pre-trial moti ons, the military ju dge suppressed any evidence derived from appel lant’s iPhone. The military jud ge found ap pellant entering his iPhone personal ide ntification numbe r (PIN) violat ed appellant’s Fifth Amendment rights against self-in crimination and to counsel.

The government filed an Article 6 2 appeal with this court. Ove r the next twenty-plus months, the rulin g on the suppressi on motion was li tigated at this court twice, returned to the trial court once for clarification, and ended with our superior court’s opinion in Au gust 2017 affirming i n part the trial judg e’s and this court’s suppression of the evidence from a ppellant’s iPhone. 3

After these appeals, the case wa s returned to th e trial court. The appellant and the government negotiated a pre-trial agreem ent which cappe d confinement at time-served. As part of the agre ement, the gover nment dismisse d a number of charges to include the sexual as sault offenses, communicating t hreats, indecent broadcasting of naked i mages of JM, and plac ing an online add s oliciting men to go to JM’s home to engage in sexual acts.

Appellant pleaded guilty to the remaining offenses. The milita ry judge stated

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

confinement for so lo ng and not paid after h e reached his ETS d ate. However, the military judge f ound that the gove rnment did not intend to puni sh appellant and was following DFAS policy when appell ant’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, s erves 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 b e 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, 2 54 (C.A.A.F. 1998)).

Normally, in reviewi ng claims for Article 13, UCMJ, credit wher e the military judge makes no finding of an inte nt to punish, we must review t he 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 inten t to punish, this Court will a ddress 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 r equirement for finding a viol ation of Article 13,

UCMJ.” Alston , 75 M.J. at 885. Our superior court has rejected the view tha t a “punitive effect” without finding a punitive intent is sufficie nt to support a violation of Article 13, UCMJ. Howell , 75 M.J. at 393-94.

Application of the DFA S regulations further ed a legitimate gove rnment intent of ensuring pa y and allowances were expended in accordan ce 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 he aring, a DFAS representative testifi ed about appellant’s pay status while in confinement. Appellant reached his ETS da te on 18 June 2016. Since he was i n pre-trial

confinement at the time his enli stment contract e xpired, there was no affirmative authority for DFAS t o continue to pay appell ant after his ETS d ate. 5 This interpretation of the DFAS rule s 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 p rohibitions against paying service-member s who are in pretrial confinement after their ETS date. However, when dealing with expenditure of funds, government agencies require specifi c Congressional autho rity for the expenditure.

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

after his ETS date. Appellant argues tha t he was also punished by DFAS’s attempts to recoup this money.MITCHELL—ARMY 20170558

5 There are two exceptions to prot ect soldiers. Fir st, a soldier can receive retroactive pay if the soldier i s either acquitt ed or the charg es are dismissed. Second, a soldier’s pay can be re- started if the s oldier is rel eased from pre-trial agreement and is returned to ful l duty status whi le awaiting tr ial. Neither of these exceptions applied t o the appellant.

This court’s review of the recor d finds no imprope r intent to p unish appellant. 6 It is unfortunate tha t the combination of being in pre-trial confinement, reaching his ETS dat e, and multiple lengthy appeals r esulted in him not being paid for approximately 16 months. How ever, appellant was placed in pre-trial

confinement base d solely on his s erious and threatening miscond uct towards his spouse and failure to obey no-cont act orders from his commander s. Appellant’s

term of enlistment and ETS date were established prior to any m isconduct leading to his charges. The Art icle 62 appeals were lengthy and complicate d, but ultimately led to favorable results for appella nt, a favorable p re-trial agree ment, and dismissal of multiple charges.

Further proof of no intent to punish appellant is evident by hi s unit’s repeated attempts to extend his ETS date to get him paid. However, sinc e appellant was in pre-trial confinement, DFAS re gulations did not allow for appel lant’s ETS date to be adjusted or allow DFAS to pay appe llant.

The court finds that the government was following established r egulatory 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 find ings of guilty and sentence

are AFFIRMED.

Senior Judge MULLI GAN and Judge SCHASBERGER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

6 At trial, appellant did not cl aim Article 13 credit for his ph ysical conditions of

confinement nor the unit’s acti ons or inaction t o provide logis tic support to appellant. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: