## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 ROLLAN D. MEAD United States Army, Appellant

ARMY 20110717

Headquarters, III Co rps and Fort Hood James Varley, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Colonel Patric ia A. Ham, JA; Major Jaco b D. Bashore, JA; Captain Robert A. Feldmeier, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley, JA; Captain Edward J. Whitford, JA (on brief).

25 February 2013

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OPINION OF THE COURT

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HAIGHT, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of drunken op eration of a vehicle, wrongful use of amphetamine, and involuntary manslaughter by operating a motor vehicle in a culpably negligent manner, in violatio n of Articles 111, 11 2a and 119, Uniform Code of Military Justice, 10 U.S.C. §§ 911, 912a, 919 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to a bad- conduct discharge, confinement for thirty-eight months, and forfei ture of all pa y and allowances. Purs uant to a pretrial agreement, the convening authority appr oved only so much of the sentence as provides for a bad-conduct discharge, confinement fo r twenty-four months, and forfeiture of all pa y and allowances.

This case is before our court for review und er Article 66, UCMJ. In his sole assignment of error, appell ant alleges the credit awarde d by the mili tary judge,MEAD—ARMY 20110717

2 pursuant to United States v. Pierce , 27 M.J. 367 (C.M.A. 19 89), was both illusory and improperly calculated. This assignment of error merits discussion but no relief.

FACTS

At trial, on 7 June an d 15 August 2011, appellan t was charged with and convicted of wrongful use of amphetamine, the same drug use for which he received earlier non-judicial punishment under Article 15, UCMJ. Specifically, on 3 February 2010, pursua nt to Article 15, UCMJ, then Specialist Mead’s battalion commander imposed the follow ing punishment: extra duty for 45 days; forfeiture of $723.00, suspended, to be au tomatically remitted if not vacated before 2 August 2010; reduction to E-1; and an oral reprimand. 1

This prior non-judicial punishment for appellant’s amphetamine use was not only discussed in the stipul ation of fact, the record of the Article 15, UCMJ, proceeding, DA Form 2627, was admitted into evidence as Prosecution Exhibit 2. Upon the government’s offer, the military judge stat ed, “[a]ll right , looking at Prosecution Exhibit 2, this appears to be non-judicial punishment the accused received in February of 2010, for the same conduct the accused was convicted of at this court-martial, under Char ge II, is that correct?” After both the government and the defense agreed, the military judge and the parties thor oughly discussed and agreed upon what forms of pun ishment had been imposed u pon appellant pursuant to the Article 15, UCMJ. The defense had no objection to the DA Form 2627 being

admitted into evidence.

Finally, after announcing th e adjudged sentence, the military judge stated:

When arriving at the adjudged sentence in this case, I took into account the non-judicia l punishment, or NJP, the accused has already received under Article 15 of the

Uniform Code of Milit ary Justice. As a result of the NJP that was imposed by his battalion comm ander, Lieutenant Colonel [BH], for the wrongful use of amphetamine that he was charged with and found guilty of in the Specification of Charge II . If the acc used had not received prior NJP for the offense listed in the Specification of Charge II, I would have adjudged an

additional 2 months of confin ement, in addition to what I just announced.

1 The record indicates the forfeiture was, in fact, remitted on 2 August 2010 and, therefore, never executed.MEAD—ARMY 20110717

3 In compliance with United States versus Pierce , 27 MJ 367, Court of Military Appeals, 1989, and United States versus Flynn , 39 MJ 774, Army Cour t of Military Review, 1984, I am going to state, on th e record, the specific credit I gave the accused for his prior punishment in arriving at my adjudged senten ce. In arriving at the adjudged sentence, I gave the accused credit for one 30-day month

of confinement credit for the 45 days of ex tra duty he served, as a result of the NJ P. In addition, I gave the accused one 30-day month of confinement credit for the

reduction to E1 he served, as a resu lt of the reduction at the NJP proceeding, from February 2010 to present. As

the accused was alread y an E1 at the ti me of this court martial, I did not adjudge a redu ction. Howeve r, if the

accused had been an E4 toda y, I would have adjudged a

reduction to E1.

While case law would indicate that I have no duty to apply specific confinement credit ag ainst the adjudged sentence as a result of a prio r reduction to E1 at an NJP proceeding, I believe it is within my di scretion to do so, and I have

chosen to do so in this case . Under the circumstances of this case, I have determined that it is appropriate to credit

the accused with an addition al 30-days of confinement against the confinement I ultimately adjudged, to account for the period he se rved as an E1, be tween February 2010 and present. 2

Neither side had any que stion or objection to the military judge’s Pierce credit calculation. Furthermore, when the milita ry judge announced hi s understanding that the pretrial agreement’s cap of twenty-four mont hs confinement was such that the convening authority could approve th e adjudged sentence except for any

confinement in excess of twenty-four months , both sides echoed that same interpretation.

LAW AND DISCUSSION

It is unquestioned that in cases where one is prosec uted for the same conduct for which non-judicial punishment has been previous ly imposed, “an accused must

2 We interpret the military judge’s expl anation to indicate the military judge credited appellant with a si ngle thirty-day period of confinement for the prior

reduction in rank. Regardless, it was clea r that any credit awarded by the military judge was to be applied agains t the adjudged se ntence.MEAD—ARMY 20110717

4 be given complete credit for any and al l non-judicial punishm ent suffered: day-forday, dollar-for-dollar, stripe for stripe.” Pierce, 27 M.J. at 369.

Credit Applied Against the Adjudged or Approved Sentence

Appellant argues any Pierce credit to which he was entitled should have been applied against his a pproved sentence instead of his adjudged sentence. To do otherwise, according to appellant, confers nothing but an illusor y benefit upon him. See United States v. Ridgeway , 48 M.J. 905 (Army Ct. Crim. App. 1998). Appellant’s assertion that Ridgeway’s mandate for meaningful Pierce credit requires that credit always count against the approve d sentence when the pretrial agreement’s sentence cap is less than th e adjudged sentence paints the state of the law with too

broad a brush. Ridgeway , by its own language, is limit ed to its facts, where the

defense “elected not to raise the issue of credit for the prior punishment during the

court-martial.” Id . at 906. Also, Ridgeway requires that when applying monetary

Pierce credit, the effect of au tomatic forfeitures must be considered . (emphasis added). Ridgeway , 48 M.J. at 906.

Just as it is well- settled that credit fo r prior non-judicial punishment must be given, it is similarly well- settled that the accused is the gatekeeper regarding if, when, and how prior non -judicial punishment for the same offense will be presented, considered, a nd credited. See United States v. Gammons , 51 M.J. 169, 183 (C.A.A.F. 1999). More specifically, in that role as gatekeeper , the accused governs

whether Pierce credit will be calculated and appl ied by the panel, the military judge, or the convening authority. Id.

In this case, it is clear appellant and his counsel de cided to have the military judge apply any Pierce credit at trial instead of re questing its application by the convening authority. The m ilitary judge summar ized an early RC M 802 conference:

We, also, went over issues of whether there’d been any pretrial confinement or pretrial punishm ent of the accused,

as well as discussed the fa ct that the accused has, apparently, been punished for what has been charged as a specification of Charge II, th at is the wrongful use of Amphetamines at a prior non-judicial punishment proceeding, which would appear to require that the accused receive Pierce Credit toward any sentence adjudged by th is court. (emphasis added).

Importantly, when asked, neit her side desired to contradi ct or add anyt hing to the military judge’s unde rstanding. Appellant stipulated to the pr ior Article 15, UCMJ, proceeding and the specific punishments imposed. Although th e government offered the record of the prior non-judicial punis hment into evidence, the defense not onlyMEAD—ARMY 20110717

5 had no objection but referred to that prior punishment fo r purposes of extenuation and mitigation in its sentenci ng argument.

This court has previously held that “in circumstances wher e a military judge awards credit for non-jud icial punishment on the ad judged sentence and the punishments still exceeds [sic] the limi tation of punishments in a pretrial agreement,” th e military judge has already satisfied Pierce and there is no duty for the convening authority to again award credit. United States v. Flynn , 39 M.J. 774, 775 (A.C.M.R. 1994); see also United States v. Edwards , 42 M.J. 381 (C.A.A.F. 1995). We hold so again.

Pierce Credit for Reduced Pay vs. Forfeited Pay

Turning from where and when Pierce credit should be applied to the amount of that credit, appella nt argues “stripe-for-stripe” cr edit mandates an accounting and restitution for any pay lost as a result of a ra nk reduction imposed at a prior Article 15, UCMJ, proceeding for same offenses . This assertion is based upon the unpublished opinion of this court, United States v. Santizo , ARMY 20100146, 2011 WL 4036106 (Army Ct. Crim. App. 31 Aug. 201 1) (mem. op.), wh ich did calculate

and award credit for “forfeitur e of pay that resulte d from his reducti on in rank.” In

Santizo , this court relied upon another unpublished opinion, United States v. Piompino , ARMY 20010126, 2002 WL 34571730 (Army Ct. Crim. App. 29 Mar. 2002) (mem. op.), which calculated lost pay in order to “f ashion [their] own remedy” in the absence of any other suggestion of how to calculate credit for a prior

reduction.

While we certainly do not hold that cons ideration of pay lost as a result of a prior reduction is beyond th e scope of either judicial or convening authority discretion, there is no lega l obligation to prov ide credit for such a consequence. Accordingly, we decline to do so in this case.

In Pierce , immediately after requiring day-fo r-day, dollar-for- dollar, stripefor-stripe credit, our s uperior court acknowledged, “[b]ecause the types of punishments administer ed non-judicially a nd those adjudged by courts-martial are not always identical , there may be some difficult ies in reconciliation.” Pierce , 27

M.J. at 369. This reconci liation has proven even more troublesome in light of statutory provisions requiring automatic reductions and mone tary forfeitures.

While converting a reducti on in rank or grade to confinement credit is not prohibited, the conversion process involves potential flaws. First, Pierce stands for the proposition that one should not be punished twice for th e same offense. It does

not follow that on e may not be affected in multiple fashions as a result of a singular

offense. Calculation of any pay lost as a result of a previously imposed reduction in rank involves, at its core, consideration not of the ac tual punishment but of one ofMEAD—ARMY 20110717

6 its various consequences. Simply stated, forfeiture of pay is an authorized punishment as is re duction in rank. However, less pay due to rank reducti on is but a collateral consequence.

Second, the sole focus on the financial aspect of rank reduction can result in an imperfect and unwieldy double conversion. Instead of a simple one-step conversion, appellant would ha ve us first convert the gr ade reduction into a dollar amount, then equate that numb er to forfeiture of pay, and ultimately convert that figure into days of confinement. This eq uation can lead to an outcome that bears

little resemblance to the starting point. For example, in th is case, based upon a

reduction from E-4 to E-1 for drug use, imposed via Article 15, UCMJ, eighteen months before trial, appell ant now asks for 168 days of confinement cr edit against twenty-four months of confin ement approved in a case wh ere appellant also stands

convicted of invo luntary manslaughte r. We decline to approv e such a result. After all, the maximum punishment authorized by Article 1 5, UCMJ, can on ly deprive one’s liberty for up to sixt y days. Surely, a fraction should not subsume the whole.

Third, calculating the prec ise amount of pay lo st as a direct result of a nonjudicially imposed reduction is fraught with speculation. Questions ab ound: What

did the soldier do or not do in order to mitigate th e financial impact and regain rank through accelerated or, at least, timely pr omotion? How do administrative flags, suspensions of favorable pe rsonnel actions su ch as promotion, play into the equation? What about other consequences of re duction such as lo ss of allowances, loss of security clearances, or loss of schoolin g and training opportu nities? When is the end point for calculation of lost pay? Which conseq uences had financial impact that are worthy of cr edit and which did not and thus s hould be consider ed monetarily insignificant? These are but a few of the virtua lly countless issues that arise when attempting to identify and then calculate collateral consequenc es resulting from a

reduction in rank.

Finally, and most signific antly, a cold numerical conversion of a rank reduction ignore s the qualitative difference betwee n certain punishments. Some punishments defy precise equi valencies. For ex ample, in this cas e, appellant was administered an oral reprimand at his Ar ticle 15, UCMJ, proceed ing, yet requests no credit for this prior punishment. Are we to assume that reprimands are indeed meaningless and of no value? Our superi or court, when wrestling with the specific issue of how to prov ide former jeopardy credit by equating reductions and other forms of punishment, ha s persuasively noted:

Upon further consideration of th is issue, we conclude that reprimands, reductions in rank, and punitive separations are so qualitatively different from other puni shments that conversion is not required as a matter of law . . . .MEAD—ARMY 20110717

7 . . . Although a change in rank has a clear monetary consequence with respect to basic pay, an individual’s rank in the military involves far more than money. The primary attribute of rank is one’s relative status with respect to his or he r fellow members of the armed forces. Many of the central features of military life - such as assignments, privileges, responsibilities, and accountability - are directly tied to rank. Because the factors applicable to imposing a reduction in rank reflect highly individualized judgments about military st atus, it is not appropriate to impose a ge nerally applicable monetary formula for crediting periods of conf inement or other punishments against a se ntence to reduction.

United States v. Josey, 58 MJ 105, 108 (C.A.A.F. 2003) ; see also United States v. Rosendahl, 53 MJ 344 (C.A.A.F. 2000).

The above analysis echoes the last sentence of RCM 305(k) which declares that pretrial confinement credit shall not be applied agai nst any form of punishment other than confinement, hard labor, restriction, fine, and fo rfeiture. While this is a case of applying credit for a reduction as oppo sed to credit agains t a reductio n, it is

clear that the conversion in ei ther direction is problematic.

Accordingly, we find no error. The milita ry judge, in his discretion, awarded thirty days of confinement fo r the prior reduction. Ther e was no objection, and we do not find any requir ement to convert the reduction into lost pay and then into confinement in order to satisfy Pierce

.

CONCLUSION

On consideration of the entire record, the submissi ons of the part ies, we hold the findings of guilty an d the sentence are AFFIRMED.

Senior Judge COOK and Judge GALLAGHER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: