UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600362

_________________________

UNITED STATES OF AMERICA

Appellee

v.

DILLON C. NYE

Religious Programs Specialist Third Class (E-4), U.S. Navy 

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Commander Jason L. Jones, JAGC, USN.

Convening Authority: Commanding Officer, Naval Support Activity 

Mid-South, Millington, TN.

Staff Judge Advocate’s Recommendation: Lieutenant Nicole T. 

Staring, JAGC, USN.

For Appellant: Lieutenant Rachel E. Weidemann, JAGC, USN; Captain 

Daniel Douglass, USMC.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant Robert J. Miller, JAGC, USN.

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Decided 18 January 2018

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This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

Before GLASER-ALLEN, MARKS, and WOODARD, Appellate Military 

Judges

_________________________

GLASER-ALLEN, Chief Judge:

A military judge sitting as a special court-martial convicted the appellant, 

pursuant to his pleas, of unauthorized absence terminated by apprehension, 

falsifying official records, wrongful use of marijuana, and larceny, in violation 
United States v. Nye, No. 201600362

2

of Articles 86, 107, 112a, and 121, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 886, 907, 912a, and 921. The military judge sentenced the 

appellant to reduction to pay grade E-1, confinement for 11 months, forfeiture 

of $900.00 pay per month for 11 months, and a bad-conduct discharge. The 

convening authority (CA) approved the sentence as adjudged and, except for 

the punitive discharge, ordered it executed. 

The appellant raises a single assignment of error (AOE): the military 

judge erred by misinterpreting the pretrial agreement (PTA) and refusing to 

rule on whether the appellant was entitled to Mason credit. United States v. 

Mason, 19 M.J. 274 (C.M.A. 1985). After carefully considering the pleadings

and the record of trial, we find no error materially prejudicial to the 

substantial rights of the appellant and affirm the findings and sentence. Arts. 

59(a) and 66(c), UCMJ.

I. BACKGROUND

The appellant was assigned to the base chapel at Naval Support Activity 

Mid-South in Millington, Tennessee. He was the designated custodian of 

funds for the command’s Consolidated Religious Offering Fund (ROF) from 

September 2014 to October 2015. From August to October 2015, the appellant

drafted 58 ROF checks to himself—totaling $32,600.00—and deposited them 

into his personal bank accounts. He concealed these actions by falsely 

representing in official records that ROF funds were properly contributed to 

charitable organizations. In January 2016, the appellant wrongfully smoked 

marijuana. When his command received the positive urinalysis results in 

March 2016, the appellant was placed on pretrial restriction.

The appellant served his pretrial restriction at Naval Air Technical 

Training Center, Naval Air Station (NAS) Pensacola, Florida. He served 93 

days at the restriction barracks from 17 March to 17 June 2016. On 18 June 

2016, he signed out of the restricted barracks indicating that he was going to 

medical and chow but instead began a period of unauthorized absence during 

which he traveled to Ohio. On 22 July 2016, the appellant was apprehended 

in Ohio pursuant to a deserter warrant and placed into pretrial confinement 

upon his return to military control.

II. DISCUSSION

The appellant asserts that his pretrial restriction was tantamount to 

confinement, and he is therefore entitled to Mason credit. He further 

contends that the military judge erred by not ruling on this issue during his 

guilty plea.

“We review de novo the ultimate legal question of whether certain pretrial 

restrictions are tantamount to confinement.” United States v. King, 58 M.J. 

110, 113 (C.A.A.F. 2003) (citations omitted). However, we need not reach that
United States v. Nye, No. 201600362

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issue here. Like our superior court in United States v. McFadyen, we are “not 

called upon by the [AOE] to resolve the question of whether the appellant’s 

treatment at NAS Pensacola amounted to pretrial punishment.” 51 M.J. 289, 

290 (C.A.A.F. 1999). Rather, the determinative issue is whether the 

appellant’s PTA, which included a generic “waive all waivable motions” 

provision, properly removed the issue of Mason credit from his trial.1 The 

Court of Appeals for the Armed Forces (CAAF) has held that a knowing and 

voluntary “. . . waiver of Article 13 motions is a permissible plea agreement 

term.” United States v. Felder, 59 M.J. 444, 445-46 (C.A.A.F. 2004) (internal 

citation omitted).

Our sister service court declined to grant relief where an informed 

appellant had voluntarily “agreed [via pretrial agreement] to waive ‘any 

motion for illegal pretrial punishment or pretrial restriction tantamount to 

confinement.’” United States v. Barrett, No. S31531, 2009 LEXIS 233, at *5, 

unpublished op. (A.F. Ct. Crim. App. 12 Jun 2009). We have also found that a 

PTA’s “waive all waivable motions” provision is a valid term which precludes 

an appellant from raising waivable issues on appeal. United States v. 

Murphy, No. 201000262, 2010 CCA LEXIS 774, at *3-4 (N-M. Ct. Crim. App. 

23 Nov 2010).

The CAAF has long recognized that as to their review authority and as a 

general matter “‘[w]hen an error is waived . . . the result is that there is no 

error at all and an appellate court is without authority to reverse a conviction 

on that basis.’” United States v. Chin, 75 M.J. 220, 222 (2016) (quoting United 

States v. Weathers, 186 F.3d 948, 955, (D.C. Cir. 1999) (additional citation 

omitted)). However, the plenary review mandate of Article 66(c), UCMJ 

requires “the CCAs . . . to assess the entire record to determine whether to 

leave an accused's waiver intact, or to correct the error” even if the error was 

subject to a “waive all waivable motions” provision of a PTA. Chin, 75 M.J. at 

223 (citing United States v. Tardif, 57 M.J. 219, 223 (C.A.A.F. 2002)). See 

also, United States v. Nerad, 69 M.J. 138, 145-46 (C.A.A.F. 2010). 

Here, the military judge discussed the generic “waive all waivable 

motions” provision extensively. The Mason credit issue and potential conflict 

with the PTA provision first arose during a RULE FOR COURTS-MARTIAL 

(R.C.M.) 802, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.)

conference the day prior to trial. The military judge acknowledged that he 

had “kind of shot [trial defense counsel (TDC)] down” when they discussed 

the issue during that session and delayed further discussion of it until after 

sentencing evidence was admitted.2

 

1 Appellate Exhibit II at 4, ¶ 18g.

2 Record at 125.
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Prior to hearing sentencing argument, the military judge noted that the 

TDC called the restriction barracks’ Leading Petty Officer to testify about the 

conditions of restriction and submitted two defense exhibits regarding 

restriction barracks procedures. Similarly, in his unsworn statement, the 

appellant claimed that restriction was “way harder than the brig.”

3 The 

military judge explained that regardless of his prior comments at the R.C.M. 

802 conference, he would take all the evidence into account, including the 

conditions of pretrial restriction when “formulating an appropriate sentence, 

one way or another. Whether Mason credit exists or not, that evidence is 

going to be there.”4

The military judge then specifically asked the TDC whether the appellant 

was “moving the court for Mason credit” because he thought doing so would 

violate the PTA.5 The TDC’s response was initially somewhat nuanced:

Well, Your Honor, the defense position—and certainly we 

are not—do not want to make any motions in violation of the 

terms of the pretrial agreement. That is not our intent; 

however, our position is that this is not a motion, but rather it 

is equivalent to Allen credit that—the ruling in Mason simply 

extended the application of credit to restriction tantamount to 

confinement. Therefore, because in—in U.S. v. Rock, that 

cannot be bargained away by pretrial agreement, that it is a 

matter of credit and not something that a motion need be 

provided for. That aside, as you’ve said, Your Honor, we ask 

you to take it into consideration on sentence, and—and we’ll do 

that through argument. But that—that’s our position.6

The military judge noted that paragraph 18g of the PTA required that all 

waivable motions be waived.

7 He then explained:

I know that the defense often kind of goes and presents 

information that would normally be presented in a motion. 

 

3 Id. at 123.

4 Id. at 125.

5 Id. at 125.

6 Id. at 125-126.

7 Appellate Exhibit II at 4, ¶ 18g. “I agree to waive all motions except those that 

are otherwise non-waivable, pursuant to R.C.M. 705(c)(1)(B). I have not been 

compelled to waive my right to due process, the right to challenge the jurisdiction of 

the court-martial, the right to a speedy trial, the right to raise the issue of unlawful 

command influence or any other motion that cannot be waived. I have no motions to 

bring and I am not aware of any motion that was waived pursuant to this provision.”
United States v. Nye, No. 201600362

5

What the court asked earlier is, is there any illegal pretrial 

restraint or confinement, and the answer to that is no. And so I 

don’t believe that the court has an immediate duty to say that 

this is restriction tantamount to confinement or not. The case 

law that I’ve looked up about Mason credit deals with—with 

people affirmatively coming to court and saying “this is Mason 

credit; give me Mason credit;” that—that’s my experience as 

a—as a litigator also. So I’m not inclined to make a ruling this 

is restriction tantamount to confinement, which essentially 

flips this into Allen credit, day for day, unless the defense 

stands up and says “I want to make this motion,” at which 

point I’d look over at the government and say, “Well, does this 

break the PTA? What are you all going to do?” So I’m going to 

take everything—all this information that’s come at me in 

formulating a sentence, but I don’t think the court, at this time, 

needs to make a decision whether this is or isn’t Mason credit. . 

. .

DC: Understood, Your Honor. And just for the record, we--we 

understand that we did waive any Article 13 motion, which is 

why we didn’t put that forward earlier.8

In light of this discussion, the military judge reasoned that he did not 

need to rule on the issue because the TDC was not actually making a motion 

for Mason credit. And he reiterated his earlier position that he would 

consider “all this information that’s come at me in formulating a sentence[.]”

9

The TDC was then permitted to argue the conditions of the appellant’s 

pretrial restriction as a matter in mitigation. 

While the military judge disagreed with the TDC regarding the PTA 

waiver’s effect on Mason credit, he also clearly understood his responsibility 

to ensure a knowing and voluntary Article 13, UCMJ waiver and to consider 

the nature of pretrial restraint in formulating his sentence—agreeing 

repeatedly to do so. That the military judge’s sentence was nearly at the 

jurisdictional maximum for a special court-martial does not alone imply he 

failed to properly consider the pretrial restriction conditions. Indeed, when 

considering the entire record, it reflects at most that the military judge 

simply disagreed with the weight that the appellant desired him to give that 

restriction.

 

8 Record at 126-27.

9 Id. at 127.
United States v. Nye, No. 201600362

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The TDC ultimately was clear that she was not raising the Article 13 

motion. She secured a beneficial PTA sending the case to a special courtmartial by, inter alia, agreeing to waive all waivable motions. She understood 

that raising an Article 13 motion risked the deal and the appellant 

potentially going to general court-martial for his offenses. The colloquy 

between the military judge and TDC makes it clear that she understood the 

meaning and effect of the waiver provision—the voluntary relinquishment of 

a known right—while making a good faith effort nonetheless to ensure the 

military judge gave appropriate credit for the appellant’s pretrial restriction.

The appellant is unable to produce any case supporting his position that 

Mason credit is an unwaivable motion, and the CAAF has recognized 

otherwise. McFadyen, 51 M.J. at 290-91.

Therefore, we agree with the government that the PTA’s “waive all 

waivable motions” provision was valid, and that the Mason credit motion was 

knowingly and voluntarily waived. After consideration of the entire record we 

are also satisfied that the military judge properly considered both the 

duration of pretrial restraint and the conditions of that restraint in 

determining an appropriate sentence; eliminating any potential prejudice to 

the appellant.

Although not raised as error, we note that the court-martial order (CMO)

incorrectly reflects a finding of not guilty to Charge III and its sole 

specification. The appellant does not assert, and we do not find, any prejudice 

resulting from this error. Nevertheless, the appellant is entitled to have the 

CMO accurately reflect the results of the proceedings. United States v. 

Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order

corrective action in our decretal paragraph.

III. CONCLUSION

The findings and the sentence as approved by the CA are affirmed. The 

supplemental CMO shall correctly reflect that the appellant pleaded not 

guilty to Charge III and its sole specification and that this offense was 

withdrawn and dismissed without prejudice prior to the entry of findings by 

the military judge.

Senior Judge MARKS and Judge WOODARD concur.

 For the Court

 R.H. TROIDL

 Clerk of Court