IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Alphonso C. PALMER, Staff Sergeant 

U.S. Air Force, Appellant 

No. 03-0173 

Crim. App. No. 34379 

United States Court of Appeals for the Armed Forces 

Argued November 18, 2003 

Decided April 1, 2004 

ERDMANN, J., delivered the opinion of the Court, in which 

CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined. 

Counsel 

For Appellant: Captain Sandra K. Whittington (argued); Colonel 

Beverly B. Knott, Major Terry L. McElyea and Captain James M. 

Winner (on brief); Major Maria A. Fried. 

For Appellee: Captain Kevin P. Stiens (argued); Colonel LeEllen 

Coacher and Lieutenant Colonel Robert V. Combs (on brief); 

Lieutenant Colonel Lance B. Sigmon. 

Military Judge: Robert G. Gibson 

This opinion is subject to editorial correction before final publication. 
United States v. Palmer, No. 03-0173/AF 

2

 Judge ERDMANN delivered the opinion of the Court: 

 Appellant, Staff Sergeant Alphonso C. Palmer, separately 

conspired with two employees of the Naval Exchange to illegally 

obtain automotive parts and tires from the Naval Exchange, which 

Palmer would then use or sell in his private business 

enterprises. The items Palmer unlawfully obtained exceeded 

$100,000.00 in value. He was found guilty of two specifications 

each of conspiracy and larceny, violations of Articles 81 and 

121, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 881 

and 921 (2000), respectively. 

He was sentenced to a bad-conduct discharge, confinement 

for 30 months, total forfeitures, reduction to the lowest 

enlisted grade, and a fine in the amount of $30,000.00. The 

sentence also provided that if the fine was not paid, Palmer 

would be subject to an additional 12 months of confinement. 

This fine and the provision for contingent confinement gave rise 

to the two issues we granted for review: 

I. 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED 

WHEN IT DEEMED APPELLANT'S FAILURE TO PAY HIS ADJUDGED 

DEBT AS WILLFUL AND APPROVED THE CONTINGENT 

CONFINEMENT FOR 95 DAYS DESPITE THE GOVERNMENT HAVING 

RECEIVED A $3,000.00 PARTIAL PAYMENT TOWARDS THE FINE. 

II. 

WHETHER THE INITIAL GOVERNMENT ACCEPTANCE OF 

APPELLANT'S $3,000.00 PARTIAL FINE PAYMENT ON MARCH 9, 

2001, WHICH OCCURRED AFTER THE CONVENING AUTHORITY'S 

REMISSION OF THE UNPAID BALANCE OF THE ADJUDGED FINE 
United States v. Palmer, No. 03-0173/AF 

3

AND APPROVAL OF AN ADDITIONAL 95 DAYS OF CONFINEMENT, 

EITHER (1) NEGATED THE CONVENING AUTHORITY'S ACTION 

REMITTING THE UNPAID BALANCE OF THE ADJUDGED FINE AND 

APPROVING ADDITIONAL CONFINEMENT, OR (2) SHOULD HAVE 

REDUCED THE ADDITIONAL CONFINEMENT TO 58 DAYS. 

We affirm the decision of the Air Force Court of Criminal 

Appeals. The Court of Criminal Appeals did not err in its 

treatment of Palmer’s failure to pay his debt, his March 9, 2001 

partial payment or the execution of the contingent confinement. 

FACTS 

 On December 31, 2000, the convening authority approved the 

sentence including the $30,000.00 fine and the contingent 

confinement. On that same day, the convening authority informed 

Palmer by letter that he had 30 days to pay the fine to the 

Hickham Air Force Base Finance and Accounting Office and that 

after 30 days the amount due would be considered delinquent. 

On January 29, 2001, Palmer requested an additional 30 days 

within which to pay the fine. He was granted an extension until 

February 9. On the extended due date of February 9, Palmer made 

a partial payment of $5,000.00. On February 13 he made a second 

payment in the amount of $17,175.00, leaving an unpaid balance 

on the fine of $7,825.00. 

 Because the fine had not been paid in full by the extended 

February 9 due date, the convening authority ordered a hearing 

pursuant to Rule for Courts-Martial 1113(d)(3) [R.C.M.] to 

determine whether the conditional confinement should be 
United States v. Palmer, No. 03-0173/AF 

4

executed. A hearing officer conducted the hearing on February 

14 and found: (1) at the time of the contingent confinement 

hearing, Palmer was “delinquent in [the] payment of his fine[] 

in the amount of $7,825.00”; (2) Palmer “failed to show by a 

preponderance of the evidence that his failure to pay [was] due 

to indigence or that he made a good faith effort to pay”; and 

(3) there was evidence that Palmer had “an intent to hide assets 

and deprive the Government of monies owed.”1

 Despite these 

findings, the hearing officer recommended that Palmer be given 

until 8:00 a.m. on March 1 to pay the balance of the fine, and 

that if the balance was not paid by that time then he should 

serve an additional 95 days of confinement.2

 In a February 28 memorandum, the convening authority 

informed Palmer that he had adopted the hearing officer’s 

recommendations. The memorandum specifically stated that Palmer 

had until 8:00 a.m., March 1 to pay the remaining $7,825.00 and 

if it was not paid, the convening authority would execute 

 

1 Palmer owned two vehicles with a cumulative loan value of 

$14,175; he transferred ownership of two other vehicles to 

relatives in Samoa for personal reasons; he was part owner of a 

business called “Momo’s Tires” that had business inventory 

available for liquidation; and Palmer’s wife sold their car 

stereo business in July 2000 on contract for $150,000.00. 

2

 In a statement dated February 13, 2001, attached to the 

contingent confinement hearing record, Palmer stated that he 

anticipated that he could pay the balance of the fine within the 

next two weeks. 
United States v. Palmer, No. 03-0173/AF 

5

additional confinement proportional to the amount of the fine 

remaining unpaid. 

On March 8, after no further payments on the fine had been 

received, the convening authority remitted the unpaid $7,825.00 

balance of the fine and executed an additional 95 days of 

confinement in lieu of the fine.3

 Perhaps unaware of either the 

February 28 memorandum or the March 8 action, Palmer made a 

partial payment on March 9 in the amount of $3,000.00 to the 

Hickham AFB Finance and Accounting Office. 

 On March 22 the convening authority rejected the $3,000.00 

payment. In a memorandum to Palmer, the convening authority 

informed Palmer that the remission of the unpaid balance of the 

fine and the execution of the additional days of confinement had 

not changed and that the $3,000.00 payment from March 9 would be 

returned. Subsequently, Palmer received a $2,342.34 payment 

from the Government, which represented the rejected $3,000.00 

payment less an amount for other debts Palmer owed the United 

States. 

 

3 The members adjudged contingent confinement for 12 months in 

the event the fine was not paid. The 95 days of confinement 

recommended by the contingent confinement hearing officer and 

executed by the convening authority was proportional to the 

amount of the fine remaining unpaid when the convening authority 

acted. 
United States v. Palmer, No. 03-0173/AF 

6

DISCUSSION 

 Pursuant to the authority Congress has given him to 

establish punishments, Article 56, UCMJ, 10 U.S.C. § 856 (2000), 

the President has provided that a court-martial “may adjudge a 

fine in lieu of or in addition to forfeitures.” R.C.M. 

1003(b)(3). The rule further provides that “[i]n order to 

enforce collection, a fine may be accompanied by a provision in 

the sentence that, in the event the fine is not paid, the person 

fined shall, in addition to any period of confinement adjudged, 

be further confined until a fixed period considered an 

equivalent punishment to the fine has expired.”4

 Id. 

Before contingent confinement can be executed, the 

convening authority must afford the person fined notice and an 

 

4

 The unpaid portion of Palmer’s fine was remitted pursuant to 

Department of the Air Force Instruction 51-201, Administration 

of Military Justice, §§ 9.9.2, 9.9.5.11 (Nov. 26, 2003) [AFI 51-

201], both of which indicate that the additional confinement is 

a “substitute” for the fine. This opinion does not address 

whether the convening authority may execute contingent 

confinement without remitting any unpaid portion of an approved 

fine or providing for remission of the unpaid portion of a fine 

upon service of a contingent period of confinement. 
United States v. Palmer, No. 03-0173/AF 

7

opportunity to be heard.5

 R.C.M. 1113(d)(3). At this contingent 

confinement hearing, a convicted service member subject to a 

fine has the burden of demonstrating that, despite good faith 

efforts, he has been unable to pay the fine “because of 

indigency.” Id. If the service member demonstrates that he 

cannot pay the fine because of indigency, the contingent 

“confinement may not be executed for failure to pay a fine . . . 

unless the authority considering imposition of confinement 

determines . . . that there is no other punishment adequate to 

meet the Government’s interest in appropriate punishment.” Id. 

See United States v. Tuggle, 34 M.J. 89, 91 (C.M.A. 1992); 

United States v. Soriano, 22 M.J. 453, 454 (C.M.A. 1986). 

 There is no dispute that Palmer was afforded those due 

process rights to which he was entitled. Nonetheless, citing 

 

5

 In this case, the Commander, 15th Air Base Wing, Hickham Air 

Force Base, took all the actions relevant to the granted issue. 

Although his authority to take these actions has not been 

challenged in the course of this appeal, we note that those 

actions were taken in three capacities. Initially, this 

commander took action on the record of trial in his capacity as 

the general court-martial convening authority over the courtmartial. See Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M. 

1107. Thereafter, in taking actions relating to nonpayment of 

the fine, specifically ordering the contingent confinement 

hearing and executing the contingent confinement, the commander 

acted as the “authority considering imposition of confinement” 

under R.C.M. 1113(d)(3) pursuant to AFI 51-201, § 9.9.5.2 as the 

commander exercising general court-martial authority over 

Palmer. Finally, in remitting the unpaid balance of Palmer’s 

fine, the commander was exercising the Article 74, UCMJ, 10 

U.S.C. § 874 (2000), authority of the Secretary of the Air 

Force, as delegated under AFI 51-201, § 11.17. 
United States v. Palmer, No. 03-0173/AF 

8

Tuggle, 34 M.J. at 92-93, Palmer argues that even though he was 

technically not indigent he was entitled to consideration of 

something short of contingent confinement because he made good 

faith efforts to pay the fine and those efforts required the 

convening authority to consider what payment plan or resolution 

would best satisfy the ends of justice. Tuggle, 34 M.J. at 92. 

Palmer further asserts that when the Government accepted the 

$3,000.00 on March 9 there was a constructive waiver of the 

March 1 deadline and a constructive retraction of the convening 

authority’s March 8 order. We disagree. 

 In regard to Palmer’s argument that he acted in good faith, 

the hearing officer found that Palmer had “failed to show by a 

preponderance of the evidence that . . . he made a good faith 

effort to pay.” We are not persuaded that the hearing officer’s 

finding was clearly erroneous. There is a substantial basis in 

the hearing record to conclude that, rather than making good 

faith efforts to timely pay the fine, Palmer engaged in conduct 

designed to remove assets from his control and did not take 

reasonable steps to liquidate assets to make timely payment. 

Further, Palmer’s history of payment on the fine does not 

support his contention that he made payments in good faith. He 

made no payments until the last day of his first extension, at 

which time he paid only one-sixth ($5,000.00) of the amount due. 

Palmer’s second payment, which was after the extended due date 
United States v. Palmer, No. 03-0173/AF 

9

of February 9, was again only a partial payment and left a 

substantial portion of the fine unpaid. Even the final 

$3,000.00 was less than the amount due and tendered at a time 

when, as far as Palmer knew, he was already a month beyond the 

extended due date. The R.C.M. 1113(d)(3) hearing record and 

payment history do not support Palmer’s contention that he was 

acting in a good faith effort to fulfill his obligation to pay 

the fine. 

 Palmer’s reliance on Tuggle is misplaced. After a hearing 

officer had determined Tuggle was not indigent and had not made 

good faith efforts to pay the fine, Tuggle approached the 

convening authority requesting a monthly payment plan in lieu of 

serving the contingent period of confinement. The convening 

authority, however, executed the contingent confinement. 

This Court held that the convening authority erred as a 

matter of law when he did not “consider whether the installment 

payment plan would satisfy the ends of justice in [that] case.” 

Id. at 92. Two factors served as a predicate to that holding. 

First, this Court noted that “Tuggle’s financial limitations 

clearly could have placed him at some level of indigence.” Id. 

Second, the Court found that the Government had alternatives 

available to meet its penal interests. Id.

 In this case we find nothing in the record to cause us to 

question the finding that Palmer was not indigent. This 
United States v. Palmer, No. 03-0173/AF 

10

conclusion is bolstered by the fact that at no point during this 

appeal did Palmer claim that he was in fact indigent and his 

appellate defense counsel’s concession during argument that he 

was “technically” not indigent. Additionally, at the time the 

fine was approved Palmer did not approach the convening 

authority and request a payment plan or schedule to accommodate 

his financial situation. Instead, Palmer requested a reduction 

in the fine in his post-trial submissions and later an extension 

of the due date. Even though he received several extensions, he 

made only one timely payment and each of his payments was in an 

amount substantially less than the full amount due. 

Under these circumstances, the convening authority was not 

obligated to withdraw or amend his action of March 8 when Palmer 

made his final untimely payment of $3,000.00. This belated 

payment did nothing to alter or excuse the fact that Palmer did 

not comply with the payment terms established by the convening 

authority and the “acceptance” of this payment did not vest 

Palmer with any new substantive rights. After the convening 

authority remitted the unpaid balance of the fine and executed 

the contingent confinement on March 8, Palmer’s fine-related 

debt to the United States was extinguished. The finance 

office’s administrative “acceptance” of the $3,000.00 on March 9 

did not resurrect the fine or alter the convening authority’s 
United States v. Palmer, No. 03-0173/AF 

11

March 8 action. On March 9 there was simply no fine against 

which to apply the untimely $3,000.00 payment.6

 

In his memorandum of March 22 the convening authority set 

forth the background facts relating to Palmer’s fine, his 

payment history, and the contingent confinement hearing. 

Following this summary, the convening authority stated, “My 

action [remitting the fine and executing the confinement] 

stands[.]”7

 In our view this reflects that the convening 

authority gave due consideration to whether the ends of justice 

would be served by revoking his action of March 8 and 

substituting some other appropriate action. Given the facts of 

this case we do not believe that the convening authority abused 

his discretion by adhering to his original decision and 

returning the proffered $3,000.00, less deductions for debts to 

the United States. See generally 5 U.S.C. § 5514(a)(1) (2000). 

Absent indigence, Palmer’s untimely, unilateral efforts to 

make partial payment on his fine did not create any obligation 

 

6 As we hold that the convening authority did not abuse his 

discretion by refusing the March 9 $3,000.00 payment, we need 

not address Palmer’s argument that the contingent confinement 

should have been reduced to 58 days to reflect the receipt of 

the $3,000.00. 

7

 We note that the Manual for Courts-Martial, United States (2002 

ed.) lacks specific guidance regarding the procedures applicable 

to a delinquent, but not indigent accused. In light of the more 

substantial civilian experience in this area, the President 

might well consider further amplification in lieu of case-bycase appellate review of such matters. 
United States v. Palmer, No. 03-0173/AF 

12

on the part of the convening authority to accept that payment or 

amend his prior action remitting the fine and executing the 

contingent confinement. A contrary ruling would permit Palmer 

to repeatedly interrupt the effective administration of justice 

without fulfilling the obligations imposed upon him pursuant to 

a lawful sentence and process. 

DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.