UNITED STATES, Appellee 

v. 

David E. FISCHER, Lance Corporal 

U.S. Marine Corps, Appellant 

No. 04-0756 

Crim. App. No. 200200303 

United States Court of Appeals for the Armed Forces 

Argued May 3, 2005 

Decided September 2, 2005

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

CRAWFORD and BAKER, JJ., joined. ERDMANN, J., filed a 

dissenting opinion, in which GIERKE, C.J., joined. 

Counsel 

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued). 

 

For Appellee: Captain Glen R. Hines, USMC (argued); Colonel 

William K. Lietzau, USMC (on brief). 

Military Judges: T.A. Daly and M. H. Sitler 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Fischer, No. 04-0756/MC 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of a military judge 

sitting alone, Appellant was convicted, pursuant to his pleas, 

of two specifications of indecent acts with a child under the 

age of sixteen, in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2000). He was 

sentenced to a bad-conduct discharge, confinement for twelve 

months, and reduction to pay grade E-1. Pursuant to a pretrial 

agreement, the convening authority suspended all confinement in 

excess of 270 days. The United States Navy-Marine Corps Court 

of Criminal Appeals, sitting en banc, affirmed the findings and 

sentence. United States v. Fischer, 60 M.J. 650 (N-M. Ct. Crim. 

App. 2004). 

On Appellant’s petition, we granted review of the following 

issue: 

WHETHER APPELLANT WAS SUBJECTED TO ILLEGAL 

PRETRIAL PUNISHMENT AND DENIED DUE PROCESS 

OF LAW WHEN HIS PAY WAS STOPPED WHILE HE WAS 

IN PRETRIAL CONFINEMENT AFTER THE END OF HIS 

OBLIGATED SERVICE. 

For the reasons set forth below, we affirm the decision of the 

Navy-Marine Corps Court of Criminal Appeals. 
United States v. Fischer, No. 04-0756/MC 

3

I. BACKGROUND 

A. PRETRIAL AND TRIAL PROCEEDINGS 

Under Appellant’s enlistment contract, his period of 

obligated service ended on June 29, 2001. Eight weeks earlier, 

on May 4, Appellant was placed in pretrial confinement for 

various sexual offenses with minor females. In recommending 

pretrial confinement, Appellant’s commander explained that he 

considered Appellant a flight risk because of his upcoming end 

of obligated service (EAS) date, June 29. 

Appellant was still in pretrial confinement on June 29. 

Under applicable military pay regulations, discussed infra, the 

Government terminated his entitlement to military pay and 

allowances. On July 11, defense counsel notified the Depot 

Consolidated Administrative Center that Appellant’s pay had been 

stopped. Initially, defense counsel was informed that 

Appellant’s pay would be reinstated. Later, the Government 

advised defense counsel that Department of Defense (DoD) 

regulations prohibited reinstatement of Appellant’s pay because 

he had reached his EAS date and was in pretrial confinement. 

Appellant was convicted and sentenced on August 9, 2001. 

Appellant was paid for the period of pretrial confinement before 

his EAS, but he was not paid for the forty-one days of pretrial 

confinement that he served after his EAS. On appeal, Appellant 

argues that the termination of his pay amounted to illegal 
United States v. Fischer, No. 04-0756/MC 

4

pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. 

§ 813 (2000). 

B. PAY REGULATIONS 

By statute, servicemembers who are on active duty are 

entitled to the basic pay of the pay grade to which they are 

assigned. 37 U.S.C. § 204(a)(1); see Bell v. United States, 366 

U.S. 393, 401 (1961) (a soldier’s entitlement to pay is 

statutory, not contractual). The Department of Defense 

Financial Management Regulations (DoD FMR) provide implementing 

rules concerning the obligation to pay servicemembers. See

Paalan v. United States, 51 Fed. Cl. 738, 745 (2002). In the 

course of determining that Appellant’s pay could not be 

reinstated, the Depot Consolidated Administrative Center relied 

upon DoD FMR, vol. 7A, ch. 1, subpara. 010302.G.4 (2005),1 which 

provides: “If a member is confined awaiting court-martial trial 

when the enlistment expires, pay and allowances end on the date 

the enlistment expires. If the member is acquitted when tried, 

pay and allowances accrue until discharge.” 

 

1

 The Depot Consolidated Administrative Center cited DoD FMR, vol. 7A, ch. 3, 

subpara. 030207.D. This provision is identical to DoD subpara. 010302.G.4, 

the only difference being that subpara. 030207 appears in Chapter 3, which is 

entitled “Special Pays -- Officers Only” as opposed to Chapter 1, which is 

entitled “Basic Pay.” Though subpara. 030207 was cited by the Depot 

Consolidated Administrative Center, Appellant’s brief refers to subpara. 

010302, and the Government’s brief refers to subpara. 030207. For 

consistency, our discussion will cite to subpara. 010302, but the analysis 

would be no different for subpara. 030207. 
United States v. Fischer, No. 04-0756/MC 

5

The regulation is consistent with decisions of the 

Comptroller General of the United States,2 the United States 

Court of Federal Claims, and the United States Court of Appeals 

for the Federal Circuit. Well before the enactment of the UCMJ, 

the Comptroller General determined that a soldier who reached 

EAS while in pretrial confinement, and who was later convicted, 

was not entitled to be paid subsequent to the EAS while in 

pretrial confinement. E.g., Comptroller General McCarl to Maj. 

E. C. Morton, United States Army, 11 Comp. Gen. 342 (1932). In 

a 1937 decision, the Comptroller General stated: 

An enlisted man of the Navy held for trial 

or for sentence by court martial after 

expiration of enlistment is being held to 

await the completion of criminal proceedings 

against him under authority of the Articles 

for the Government of the Navy. He is no 

more entitled to pay when so held after 

expiration of his enlistment than is a 

civilian who is being held for trial on a 

criminal offense by the civil authorities, 

and the fact that the issuance of his 

discharge is delayed pending the conclusion 

of the proceedings gives him no right to pay 

beyond the period for which he contracted to 

serve. The period of retention for criminal 

proceedings is no part of the enlistment 

 

2

 The Comptroller General is the head of the Government Accountability Office 

(GAO), formerly known as the General Accounting Office. See GAO Human 

Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811 (2004). The 

GAO is an independent, nonpartisan agency in the legislative branch that 

reports to Congress on the activities of executive branch agencies. 

Frederick M. Kaiser, General Accounting Office and Comptroller General: A 

Brief Overview, in Major Studies and Issue Briefs of the Congressional 

Research Service (2000); Frederick C. Mosher, The GAO: The Quest for 

Accountability in American Government 2-3 (1979). A primary duty of the 

Comptroller General involves issuance of opinions on behalf of the 

legislative branch interpreting legislation and determining the legality of 

financial transactions. See Mosher, supra at 205-06. 
United States v. Fischer, No. 04-0756/MC 

6

contract and the obligation of the 

Government . . . is to pay him for the 

period for which he contracted to serve, not 

to pay him for any period he may be held on 

criminal charges after expiration of 

enlistment, any more than it would be 

obligated to pay him after his enlistment 

had expired if he were convicted and 

sentenced to imprisonment. 

Acting Comptroller General Elliot to the Secretary of the Navy, 

17 Comp. Gen. 103 (1937), U.S. Comp. Gen. LEXIS 271, at *6-*7 

(1937). 

 In 1951, shortly before the UCMJ took effect, the 

Comptroller General ruled that the pre-UCMJ prohibition against 

pretrial punishment3 did not require payment of pretrial 

confinees held beyond their EAS date: 

[T]he said provisions do not require any 

change in the rule that the pay and 

allowances of an enlisted person whose term 

of enlistment expires while he is in 

confinement, awaiting trial by court 

martial, terminate on the date of the 

expiration of his term of enlistment unless 

he is acquitted, in which event pay and 

allowances accrue until he is discharged. 

Assistant Comptroller General Yates to the Secretary of the 

Army, 30 Comp. Gen. 449 (1951), U.S. Comp. Gen. LEXIS 86, at *6 

(1951) [hereinafter Yates]. 

 

3

 “[N]or shall any defendant awaiting trial be made subject to punishment or 

penalties other than confinement prior to sentence on charges against him.” 

Article of War 16, Manual for Courts-Martial, U.S. Army (MCM) (1949 ed.), 

App. 1. “[N]or shall any accused who is confined while awaiting trial be 

made subject to punishments or penalties other than confinement for any 

offense with which he stands charged prior to execution of an approved 

sentence on charges against him . . . and they will not forfeit pay or 
United States v. Fischer, No. 04-0756/MC 

7

 In suits brought by pretrial confinees who reached their 

EAS while in pretrial confinement against the Government for pay 

and allowances for the time in pretrial confinement past their 

EAS, the United States Court of Federal Claims and its 

predecessor court have followed the reasoning of the Comptroller 

General’s decisions, holding that “[w]hen an enlisted person is 

in confinement awaiting trial at the time his term of enlistment 

expires, his pay and allowances terminate on the date his 

enlistment expires unless he is subsequently acquitted.” Moses 

v. United States, 137 Ct. Cl. 374, 380 (1957); see also 

Singleton v. United States, 54 Fed. Cl. 689, 692 (2002). But 

cf. Rhoades v. United States, 229 Ct. Cl. 282 (1982); Dickenson 

v. United States, 163 Ct. Cl. 512 (1963) (distinguishing the 

facts and holding that the Comptroller General’s rule did not 

apply under the circumstances of the cases). 

 According to the United States Court of Appeals for the 

Federal Circuit, the authority for the military to hold an 

enlistee in service after EAS without pay pending court-martial 

unless there is an acquittal constitutes a “settled rule of 

law.” Simoy v. United States, 64 F.App’x 745, 746 (Fed. Cir. 

2003); see also Anderson v. United States, 70 F.App’x 572, 575 

(Fed. Cir. 2003); Dock v. United States, 46 F.3d 1083 (Fed. Cir. 

1995). 

 

allowances during the period of confinement except pursuant to sentences 
United States v. Fischer, No. 04-0756/MC 

8

C. ARTICLE 13 

Appellant contends that DoD FMR 010302.G.4, which was the 

basis for terminating his pay after he reached his EAS while in 

pretrial confinement, violated the Article 13, UCMJ, right to be 

free from illegal pretrial punishment. Article 13 provides: “No 

person, while being held for trial, may be subjected to 

punishment or penalty other than arrest or confinement upon the 

charges pending against him.” We have interpreted Article 13 to 

prohibit two types of activities: (1) the intentional imposition 

of punishment on an accused prior to trial, i.e., illegal 

pretrial punishment; and (2) pretrial confinement conditions 

that are more rigorous than necessary to ensure the accused’s 

presence at trial, i.e., illegal pretrial confinement. See

United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); United 

States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997). 

Appellant focuses his argument on the illegal pretrial 

punishment prong of Article 13. A violation of this prong 

“entails a purpose or intent to punish an accused before guilt 

or innocence has been adjudicated.” McCarthy, 47 M.J. at 165. 

We apply this standard by examining the intent of detention 

officials or by examining whether the purposes served by the 

restriction or condition are “reasonably related to a legitimate 

governmental objective.” United States v. King, 61 M.J. 225, 

 

ordered executed.” MCM (1949 ed.), ¶ 19a. 
United States v. Fischer, No. 04-0756/MC 

9

227 (C.A.A.F. 2005) (citing Bell v. Wolfish, 441 U.S. 520, 539 

(1979); McCarthy, 47 M.J. at 165). 

The question of whether Appellant is entitled to credit for 

an Article 13 violation is reviewed de novo. United States v. 

Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). It is a mixed question 

of law and fact, and the military judge’s findings of fact will 

not be overturned unless they are clearly erroneous. Id. 

Appellant bears the burden of proof to establish a violation of 

Article 13. Id. 

II. DISCUSSION 

Appellant does not dispute the lower court’s finding that 

neither Appellant’s jailors nor his chain of command intended to 

punish Appellant by stopping his pay. Instead, Appellant asks 

this Court to find that the termination of Appellant’s pay, in 

accordance with DoD FMR 010302.G.4, amounted to illegal pretrial 

punishment because it operated as punishment imposed before 

trial. 

A. REGULATORY PURPOSE 

Appellant contends that the implicit purpose of DoD FMR 

010302.G.4 is to punish. Appellant interprets DoD FMR 

010302.G.4 as denying pay only to those who are guilty, citing 

the provision that those who are held in pretrial confinement 
United States v. Fischer, No. 04-0756/MC 

10

past their EAS and later acquitted are reimbursed for the time 

held without pay. The Department of Defense regulations, 

however, are not so narrow. 

A servicemember’s pay is not terminated just because the 

servicemember is placed in pretrial confinement. DoD FMR 

010302.F.1 states that pay and allowances accrue to members in 

military confinement unless: (a) confined by military 

authorities on behalf of civil authorities; (b) pay and 

allowances are forfeited by court-martial sentence; or (c) the 

term of enlistment expires. A servicemember who is confined 

before trial is entitled to “receive pay until the end of his 

enlistment contract, regardless of the ultimate disposition of 

the case.” Paalan, 51 Fed. Cl. at 745. If a pretrial confinee 

does not reach EAS until after the adjudication of the case, the 

pretrial confinee is entitled to pay and allowances for the time 

held in pretrial confinement, regardless of whether the 

individual was found guilty or not guilty. 

Moreover, every servicemember’s entitlement to pay is 

terminated at EAS. See Simoy v. United States, 64 F.App’x 745, 

747 (Fed. Cir. 2003) (“a service member’s entitlement to pay 

ceases when his enlistment expires”); Matter of: Courts-martial 

Sentences-Records Lost Before Appellate Review-Appellate Leave 

Benefits, 1996 U.S. Comp. Gen. LEXIS 442, at *4-*5 (1996) (“It 

is a well settled rule that no credit for pay and allowances 
United States v. Fischer, No. 04-0756/MC 

11

accrues to a court-martialed enlisted member during periods 

after the expiration of his term of enlistment . . . .”). 

Although Appellant characterizes the regulations as 

“terminat[ing] a serviceman’s pay and allowances at the end of 

his enlistment if the serviceman is in pre-trial confinement,” 

there is no distinction between a servicemember in pretrial 

confinement and one in any other status. All servicemembers 

lose their entitlement to pay and allowances upon expiration of 

their enlistment contract. 

A servicemember may be paid after an enlistment expires in 

two situations. First, a servicemember who remains in the 

service and performs productive work may be paid. See United 

States v. Shattuck, 1989 CMR Lexis 187, at *5 (A.F.C.M.R. 1989); 

DoD FMR 010302.G.1. Standard confinement duties, however, are 

not considered active-duty work that would entitle a pretrial 

confinee held past EAS to payment. See DoD FMR 010302.G.1; 

Combs v. United States, 50 Fed. Cl. 592, 594 n.2 (2001); 

Shattuck, 1989 CMR Lexis 187, at *5. The second situation is 

the focus of Appellant’s concern. If a servicemember held in 

pretrial confinement past EAS is later acquitted, the 

servicemember is retroactively paid for the time spent in 

pretrial confinement past the EAS date. See DoD FMR 010302.G.4. 

Appellant assumes that because one group of pretrial confinees 

(the group that is later acquitted) is reimbursed, then the 
United States v. Fischer, No. 04-0756/MC 

12

other group (the group that is later convicted) is being 

punished. This argument takes too limited a view of the 

regulations. Acquittal provides a rational, objective basis for 

reimbursement. The Government’s policy of retroactively paying 

persons held past their EAS when a charge has not been sustained 

at trial does not signify an intent to punish the other group. 

In civilian criminal cases, for example, the Government may be 

liable for reasonable attorney’s fees and litigation expenses to 

a prevailing defendant if the Government position was 

“vexatious, frivolous, or in bad faith.” Hyde Amendment, Pub. 

L. No. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (codified 

in statutory notes at 18 U.S.C. § 3006A (2000)). Although more 

limited than the reimbursement provision of DoD FMR 010302.G.4, 

the Hyde Amendment reflects a policy to compensate specific 

individuals because of a flaw in their prosecution. It is not a 

policy designed to punish those who are not compensated. 

Likewise, we should not assume that the compensatory provisions 

of the military pay regulations reflect an implicit intent to 

punish an individual in Appellant’s situation. 

We note Appellant does not allege that he was held in 

pretrial confinement without due process. Appellant was placed 

in pretrial confinement in accordance with Rule for CourtsMartial 305, which contains specific standards and detailed 

requirements for notice and an opportunity to respond. 
United States v. Fischer, No. 04-0756/MC 

13

Following the determination that he should be held in pretrial 

confinement, Appellant’s pay was terminated in accordance with a 

neutral criterion, his EAS. 

Appellant does not claim before this Court that the 

termination of his pay violated the Thirteenth Amendment’s 

prohibition against involuntary servitude or that there is a 

constitutional right to be paid while in pretrial confinement. 

In that regard, we note that federal civilian employees may be 

suspended without pay upon an indictment, regardless of whether 

there is pretrial confinement. See 5 U.S.C. § 7513(b) (2000). 

As the Federal Circuit explained: 

[A]n indictment . . . will, as a general 

rule, provide reasonable cause for an agency 

to believe that the employee has committed 

such a crime, and, when the nature of the 

crime alleged relates to the employee's 

ability to perform his or her duties, an 

agency may summarily suspend the employee, 

without pay, pending the outcome of the 

criminal proceedings. 

Richardson v. United States Customs Serv., 47 F.3d 415, 419 

(Fed. Cir. 1995). By contrast, the pay of military personnel is 

not terminated upon the filing or referral or charges, nor is it 

terminated upon pretrial confinement. The fact that pay is 

terminated only when pretrial confinement is combined with a 

neutral criterion, the expiration of the term of service, 

underscores the non-punitive nature of the policy. When the 

Government selects one among many available objective criteria 
United States v. Fischer, No. 04-0756/MC 

14

for terminating pay, the fact that other criteria could have 

been used does not demonstrate that the selected point fails to 

serve a legitimate Government objective. Like the indictment 

date, the EAS date is a rational, objective point for 

termination of pay, and it is reasonably related to the 

legitimate Government objective of not paying people who are not 

performing duties. 

 B. REGULATORY EFFECT 

Appellant next argues that even if the regulation is not 

implicitly punitive, the policy is punitive in effect under the 

factors set out by the Supreme Court in Kennedy v. MendozaMartinez, 372 U.S. 144, 168 (1963). In Mendoza-Martinez, the 

Court set forth the following seven factors for use in 

determining whether an Act of Congress is punitive or regulatory 

in nature: (1) whether the sanction involves an affirmative 

disability or restraint; (2) whether it has historically been 

regarded as punishment; (3) whether it comes into play only on a 

finding of scienter; (4) whether its operation promotes 

retribution and deterrence -- the traditional aims of 

punishment; (5) whether the behavior to which it applies is 

already a crime; (6) whether an alternative purpose to which it 

may rationally be connected is assignable for it; and (7) 

whether it appears excessive in relation to the alternative 
United States v. Fischer, No. 04-0756/MC 

15

purpose assigned. 372 U.S. at 168-69; see Fischer, 60 M.J. at 

656-58 (Villemez, J., dissenting). 

Our Court has not previously applied the Mendoza-Martinez

factors in the context of conducting a review under Article 13. 

Assuming, without deciding, that the Mendoza-Martinez factors 

are applicable to Article 13, these factors do not support a 

finding that DoD FMR 010302.G.4 is punitive. 

1. Affirmative Disability or Restraint

We first take into account whether DoD FMR 010302.G.4 

imposes an affirmative disability or restraint. See MendozaMartinez, 372 U.S. at 168. DoD FMR 010302.G.4 provides for the 

termination of pay for an individual in Appellant’s situation. 

Although termination of pay at EAS could be viewed as a 

disability, it is difficult to characterize this as an 

affirmative disability because Appellant, and those in his 

position, are not entitled to be paid. See Yates; Shattuck, 

1989 CMR LEXIS 187, at *4-*5. 

2. Historic Perspective

 The next factor considers the historical perspective on the 

consequence of the regulation. Mendoza-Martinez, 372 U.S. at 

168. Appellant points out that “[f]orfeiture of pay has long 

been regarded as punishment.” In the present case, there has 

been no forfeiture of pay. Where Appellant was not entitled to 

payment, nothing could have been forfeited. 
United States v. Fischer, No. 04-0756/MC 

16

 Also, while we do not give great weight to negative 

legislative history, we note that Congress has amended 

provisions of the UCMJ addressing military pay on several 

occasions, but has not disturbed the settled interpretation of 

the relationship between Article 13 and termination of military 

pay upon EAS. See, e.g., Military Justice Act of 1983, Pub. L. 

No. 98-209, 97 Stat. 1393 (1983) (amending Article 57, UCMJ, 10 

U.S.C. § 857); National Defense Authorization Act for Fiscal 

Year 1996, Pub. L. No. 104-106, tit. XI, 110 Stat. 461-67 (1996) 

(amending Article 57, establishing Article 58b, 10 U.S.C. § 

858b); National Defense Authorization Act for Fiscal Year 1998, 

Pub. L. No. 105-85, § 581-82, 1073(a)(9)-(11), 111 Stat. 1759, 

1900 (1997) (amending Article 58b). 

3. Scienter

 As previously discussed, the pay of all servicemembers is 

terminated when they reach EAS. Consciousness of guilt is not a 

factor in determining whether to implement the regulation, so 

the regulation has no role in a finding of scienter. 

4. Retribution and Deterrence

The fourth factor considers whether DoD FMR 010302.G.4 

promotes the traditional aims of punishment -– retribution and 

deterrence. Mendoza-Martinez, 372 U.S. at 168. Appellant 

argues that “it is difficult to imagine a better form of 

retribution and deterrence.” The policy, however, is not aimed 
United States v. Fischer, No. 04-0756/MC 

17

at all who are accused of a crime and held in pretrial 

confinement, but only applies if a neutral event occurs -- the 

person’s EAS date. 

5. Application to Criminal Behavior

 The fifth factor requires an evaluation as to whether the 

policy is invoked as a result of behavior that is already a 

crime. Mendoza-Martinez, 372 U.S. at 168. Appellant argues 

that this factor is met because the relevant FMR provisions 

would not have been triggered if there was no probable cause to 

believe Appellant violated the UCMJ. However, the behavior to 

which DoD FMR 010302.G applies is reaching the end of an 

enlistment contract, which is not a crime. 

 As noted above, a servicemember does not lose entitlement 

to pay by virtue of being in pretrial confinement. The deciding 

factor is whether the servicemember has reached EAS, not whether 

there is probable cause to believe the individual violated the 

UCMJ. See DoD FMR 010302.G.4. 

6. Alternative Purpose

The sixth factor considers whether there is a non-punitive 

purpose to the regulation. Mendoza-Martinez, 372 U.S. at 168-

69. Here, Appellant reiterates his argument that the stated 

purpose of the FMR is pretext, specifically noting that DoD FMR 

010302.G.4 returns pay and allowances to servicemembers in 

Appellant’s position who are subsequently acquitted. 
United States v. Fischer, No. 04-0756/MC 

18

However, there is an alternative, non-punitive purpose of 

DoD FMR 010302.G.4. The alternative purpose is that a 

servicemember held in pretrial confinement who has passed EAS 

and who is not providing productive service is not entitled to 

pay and allowances. As discussed above, EAS is a neutral, nonpunitive point in time which is reasonably related to the 

legitimate governmental interest in terminating the pay of 

persons who are not performing productive service. 

7. Excessiveness

 The final factor considers whether the regulation is 

excessive in relation to the alternative purpose assigned to it. 

Mendoza-Martinez, 372 U.S. at 169. Appellant argues that the 

FMR inflicts an excessive toll. We disagree. In civilian life, 

pretrial confinees may lose their jobs and are often not 

compensated for the time spent in pretrial confinement. The 

military’s policy to reimburse pretrial confinees who were 

mistakenly held is more generous than the Hyde Amendment, 

discussed above, that applies in civilian criminal cases. 

Although Appellant may undergo personal financial loss because 

of the policy reflected in the regulations, the termination of 

pay upon the expiration of the enlistment contract does not 

signify that the policy is excessive. 
United States v. Fischer, No. 04-0756/MC 

19

III. CONCLUSION 

 As Appellant conceded, the brig authorities in this case 

had no intent to punish Appellant. The regulation is not 

implicitly punitive or punitive in effect. There is a 

legitimate, non-punitive reason behind the regulation. The 

application of the policy was reasonable, given that Appellant 

reached his EAS and did not perform productive services. Under 

an Article 13 claim, we look to whether there was intent to 

punish or a punitive effect. If Appellant takes issue with the 

propriety of the underlying decisions as a matter of fiscal law, 

he must pursue that issue before the United States Court of 

Federal Claims. 

As a final matter, Appellant also maintains that his Fifth 

Amendment rights were violated because he was punished by virtue 

of the application of DoD FMR 010302.G.4 without due process of 

law. In view of our conclusion that the regulation has a 

legitimate non-punitive purpose, there is no punishment at issue 

in this case. Moreover, as explained above, there was no 

forfeiture in this case because Appellant had no entitlement to 

pay and allowances. 

IV. DECISION 

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Fischer, No. 04-0756/MC 

 ERDMANN, Judge, with whom GIERKE, Chief Judge, joins 

(dissenting): 

 The majority opinion finds that terminating the pay of 

a servicemember in pretrial confinement, whose term of 

service has been involuntarily extended by the Government, 

does not constitute illegal pretrial punishment under 

Article 13, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. § 813 (2000). I would hold that the regulation 

requiring the termination of pay under those circumstances 

is punitive in effect and its application constitutes 

illegal pretrial punishment. 

Fischer was placed in pretrial confinement on May 4, 

2001. His enlistment expired on June 29, 2001. Rather 

than discharging him from military service at the end of 

his enlistment and thereby losing jurisdiction over him, 

the Marine Corps understandably extended his active duty 

status pending court-martial.1

 Fischer remained in 

confinement and his pay and allowances were terminated. 

When Fischer asked for his pay to be reinstated, the 

 

1

 Rule for Courts-Martial 202(c)(1) provides that a 

servicemember whose enlistment has expired may be “held on 

active duty.” Marine Corps Manual for Legal Administration

§ 1005 (31 Aug 99), details this involuntary extension of 

active duty and requires that proper administrative action 

be taken to effectuate the extension. While the record in 

this case contains references to the fact that Fischer’s 

active duty was extended, it contains no references to the 

administrative action effectuating the extension. 
United States v. Fischer, No. 04-0756/MC 

2

Government responded that it was prohibited from paying him 

under Department of Defense (DoD) regulations. 

 One of the basic guarantees under the Due Process 

Clause is that a pretrial detainee cannot be punished until 

there is a finding of guilt. Bell v. Wolfish, 441 U.S. 

520, 533 (1979). Article 13 of the UCMJ, which prohibits 

pretrial punishment, has its roots in this constitutional 

guarantee. Servicemembers who are accused of crimes can be 

placed in pretrial confinement to ensure that they will 

appear at trial and to prevent further misconduct. Rule 

for Courts-Martial (R.C.M.) 305(h)(2)(B). When placed in 

pretrial confinement, Article 13 protects them from 

conditions that constitute punishment, penalty or excess. 

In this case we are called on to determine whether 

terminating the pay and allowances of a servicemember, who 

is in pretrial confinement and whose enlistment has been 

involuntarily extended, constitutes punishment under 

Article 13. 

 The DoD regulation in question, the Department of 

Defense Financial Management Regulation (DoD FMR), vol. 7A, 

ch. 1, 010302.G.4 (May 2005),2

 provides: 

 

2

 The May 2005 version of subpara. 010302.G.4 is identical 

to provisions that were in effect during Fischer’s pretrial 

confinement. See Department of Defense Financial 
United States v. Fischer, No. 04-0756/MC 

3

4. Confined Awaiting Trial by Court-Martial. 

If a member is confined awaiting courtmartial trial when the enlistment expires, 

pay and allowances end on the date the 

enlistment expires. If the member is 

acquitted when tried, pay and allowances 

accrue until discharge. 

 

 The majority focuses on the fiscal implications of the 

regulation and relies, in part, on opinions of the 

Comptroller General and Court of Claims. While these 

opinions are interesting both from a fiscal and a 

historical perspective, they do not provide any binding 

authority for this court as they do not interpret Article 

13 or the cases from this court or the U.S. Supreme Court 

dealing with illegal pretrial punishment. Nor do those 

opinions consider the “status” based nature of courtmartial jurisdiction under the UCMJ. It is the primary 

duty of this court to provide such interpretations. 

 I have no quarrel with the majority’s finding that a 

servicemember’s entitlement to pay is terminated when his 

or her enlistment expires. That, however, is simply not 

the situation in this case. One of the mandatory factors 

underlying court-martial jurisdiction is that the person to 

be tried must be subject to the UCMJ. In other words, the 

person must be in a “status” in which he or she is a 

 

Management Regulation, vol. 7A, ch. 3, 030207.D (Feb. 

2000). 
United States v. Fischer, No. 04-0756/MC 

4

“person[] . . . subject to” the UCMJ. See Article 2(a), 

UCMJ, 10 U.S.C. § 802(a) (2000). Article 3(a), UCMJ, 10 

U.S.C. § 803(a) (2000), makes it clear that personal 

jurisdiction is “status based” under the UCMJ: “. . . a 

person who is in a status in which the person is subject to 

this chapter . . . .” Emphasis added. Holding Fischer 

beyond his term of service continued his status as a 

“servicemember on active duty” through disposition of the 

charges against him. R.C.M. 202(c)(1). 

 As I read the majority opinion, once a servicemember’s 

term of enlistment is involuntarily extended, the 

obligation to provide pay and allowances is extended as 

well except in the event that the servicemember is in 

pretrial confinement. The result of this view is that the 

Government can, solely for its own purposes, imprison a 

presumptively innocent individual, unilaterally continue 

military status with all its obligations and duties and at 

the same time take away one of the basic rights associated 

with active duty military status -– the right to pay.3

 I 

cannot join the majority’s view that these circumstances do 

not constitute a violation of Article 13. 

 

3

 37 U.S.C. § 204(a)(1) (2000) provides that members of a 

uniformed service on active duty are entitled to pay. 
United States v. Fischer, No. 04-0756/MC 

5

 As the majority notes, this court has not previously 

applied the criteria of Kennedy v. Mendoza-Martinez, 372 

U.S. 144, 168 (1963), in order to determine whether 

conditions of pretrial confinement violate Article 13. 

Were I to apply those factors, I would disagree with the 

conclusion reached by the majority that the regulation at 

issue is not punitive in effect. However, I do not believe 

that such an analysis is necessary. In my view, this 

court’s Article 13 jurisprudence provides a proper 

framework for determining whether Fischer was subject to 

unlawful pretrial punishment. 

 Article 13 prohibits two types of activity: (1) the 

intentional imposition of punishment on an accused prior to 

trial; and (2) pretrial confinement conditions that are 

more rigorous than necessary to ensure the accused’s 

presence at trial. United States v. Inong, 58 M.J. 460, 

463 (C.A.A.F. 2003); United States v. McCarthy, 47 M.J. 

162, 165 (C.A.A.F. 1997). The first prong prohibits a 

purpose or intent to punish, determined by examining the 

intent of detention officials or by examining the purposes 

served by the restriction or condition, and whether such 

purposes are “reasonably related to a legitimate 

governmental objective. . . .” Bell, 441 U.S. at 539; 

McCarthy, 47 M.J. at 165. The second prevents unduly 
United States v. Fischer, No. 04-0756/MC 

6

rigorous circumstances during pretrial detention. 

Conditions that are sufficiently egregious may give rise to 

a permissive inference that an accused is being punished, 

or the conditions may be so excessive as to constitute 

punishment. Id.; United States v. James, 28 M.J. 214, 216 

(C.M.A. 1989). A determination of whether Fischer is 

entitled to relief for unlawful pretrial punishment 

involves independent, de novo review. United States v. 

Smith, 53 M.J. 168, 170 (C.A.A.F. 2000); McCarthy, 47 M.J. 

at 165; see Thompson v. Keohane, 516 U.S. 99, 113 (1995). 

 Fischer’s active duty military status was extended in 

virtually every respect save one -– he was no longer paid. 

The sole reason that his pay was stopped, as opposed to 

other servicemembers extended on active duty, was that he 

was in pretrial confinement. Fischer was in pretrial 

confinement because both his Commanding Officer and the 

Initial Review Officer found that he constituted a flight 

risk and a threat to commit serious misconduct. I find no 

reasonable relation to a legitimate government objective 

served by terminating an active duty servicemember’s pay 

and allowances because he or she is in pretrial 

confinement. Since Fischer’s pay would not have been 

terminated except for the pretrial confinement, its effect 

on Fischer is obviously punitive. 
United States v. Fischer, No. 04-0756/MC 

7

The regulation’s objective, as characterized by the 

majority, is that servicemembers held in pretrial 

confinement are not considered to be performing “active 

duty work” and therefore should not be entitled to pay. 

This logic breaks down, however, because a servicemember 

who is later acquitted has performed the same duties while 

in pretrial confinement and receives compensation. 

Servicemembers in pretrial confinement are not 

automatically excused from performing useful duties. 

Military appellate case law is replete with cases 

discussing various duties performed by pretrial confinees. 

See, e.g., United States v. Nelson, 18 C.M.A. 177, 178-79, 

39 C.M.R. 177, 178-79 (1969); United States v. Palmiter, 20 

M.J. 90, 94 (C.M.A. 1985); United States v. Dvonch, 44 M.J. 

531, 533 (A.F. Ct. Crim. App. 1996). Similarly, an active 

duty servicemember in pretrial confinement who has not been 

involuntarily extended performs those same duties and 

receives his or her pay and allowances. 

Forfeiting pay traditionally has been regarded as a 

form of punishment in the military services. See generally

United States v. Stebbins, 61 M.J. ___, ___ (11-18) 

(C.A.A.F. 2005). This regulation imposes a forfeiture upon 

a servicemember in the absence of any due process or 

adjudication of guilt. The effect of this action as 
United States v. Fischer, No. 04-0756/MC 

8

punishment is illustrated by how the forfeiture is linked 

to the results of trial. If a servicemember in Fischer’s 

situation is acquitted, he or she is paid retroactively.4

 

But if that person is convicted, there is no pay 

adjustment. While the initial termination of pay was based 

solely on Fischer’s pretrial confinement status, the 

ultimate termination of his pay in this situation is based 

solely on a finding of guilt. This is punishment. 

 The nexus between the permanent termination of pay and 

a finding of guilt raises an additional concern which I 

believe further highlights the unlawful nature of this 

deprivation. Congress has delegated to the President the 

authority to establish maximum punishments. Article 56, 

UCMJ, 10 U.S.C. § 856 (2000). Under the Rules for CourtsMartial, the President has directed that the only 

authorized punishment involving a loss of pay is a 

forfeiture of pay to be accrued. See R.C.M. 1003(b)(2) and 

discussion. Additionally, execution of any punishment to 

forfeit pay is effective and executed only after trial. 

 

4

 The majority’s conclusion that this payment is akin to 

compensation for the accused when the charge has not been 

sustained at trial creates a dangerous precedent. An 

acquittal in a criminal action does not mean that the 

Government was wrong in bringing the charges, nor should an 

acquittal entitle an accused to compensation. It merely 

means that the court-martial did not find the accused 

guilty beyond a reasonable doubt. 
United States v. Fischer, No. 04-0756/MC 

9

See Article 57, UCMJ, 10 U.S.C. § 857 (2000). Tying the 

deprivation of Fischer’s pay to his conviction creates a 

punishment beyond that authorized by the UCMJ and the 

Manual for Courts-Martial, United States (2002 ed.). 

 There is no legitimate governmental objective in DoD 

FMR 010302.G.4 that outweighs its clear punitive effect, 

and the regulation therefore constitutes illegal pretrial 

punishment in violation of Article 13. I would hold that 

the regulation is unenforceable and Fischer is entitled to 

his full pay and allowances for the period in question. I 

therefore dissent.