UNITED STATES ARMY COURT 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 Corps and Fort Hood 

James Varley, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain 

Robert A. Feldmeier, JA (on brief). 

For Appellee: Lieutenant 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 operation of a vehicle, wrongful use of 

amphetamine, and involuntary manslaughter by operating a motor vehicle in a 

culpably negligent manner, in violation of Articles 111, 112a 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 forfeiture of all pay and allowances. Pursuant to a pretrial 

agreement, the convening authority approved only so much of the sentence as 

provides for a bad-conduct discharge, confinement for twenty-four months, and 

forfeiture of all pay and allowances. 

This case is before our court for review under Article 66, UCMJ. In his sole 

assignment of error, appellant alleges the credit awarded by the military judge, 
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2

pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), was both illusory 

and improperly calculated. This assignment of error merits discussion but no relief. 

FACTS 

At trial, on 7 June and 15 August 2011, appellant 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, pursuant to Article 15, UCMJ, then Specialist Mead’s battalion 

commander imposed the following punishment: extra duty for 45 days; forfeiture of 

$723.00, suspended, to be automatically 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 stipulation 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 stated, “[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 Charge II, is that correct?” After both the government and 

the defense agreed, the military judge and the parties thoroughly discussed and 

agreed upon what forms of punishment had been imposed upon appellant pursuant to 

the Article 15, UCMJ. The defense had no objection to the DA Form 2627 being 

admitted into evidence. 

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

When arriving at the adjudged sentence in this case, I took 

into account the non-judicial punishment, or NJP, the 

accused has already received under Article 15 of the 

Uniform Code of Military Justice. As a result of the NJP 

that was imposed by his battalion commander, 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 accused had not 

received prior NJP for the offense listed in the 

Specification of Charge II, I would have adjudged an 

additional 2 months of confinement, 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. 
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In compliance with United States versus Pierce, 27 MJ 

367, Court of Military Appeals, 1989, and United States 

versus Flynn, 39 MJ 774, Army Court of Military Review, 

1984, I am going to state, on the record, the specific credit 

I gave the accused for his prior punishment in arriving at 

my adjudged sentence. In arriving at the adjudged 

sentence, I gave the accused credit for one 30-day month 

of confinement credit for the 45 days of extra duty he 

served, as a result of the NJP. In addition, I gave the 

accused one 30-day month of confinement credit for the 

reduction to E1 he served, as a result of the reduction at 

the NJP proceeding, from February 2010 to present. As 

the accused was already an E1 at the time of this court 

martial, I did not adjudge a reduction. However, if the 

accused had been an E4 today, I would have adjudged a 

reduction to E1. 

While case law would indicate that I have no duty to apply 

specific confinement credit against the adjudged sentence 

as a result of a prior reduction to E1 at an NJP proceeding, 

I believe it is within my discretion 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 additional 30-days of confinement 

against the confinement I ultimately adjudged, to account 

for the period he served as an E1, between February 2010 

and present.2

Neither side had any question or objection to the military judge’s Pierce credit 

calculation. Furthermore, when the military judge announced his understanding that 

the pretrial agreement’s cap of twenty-four months confinement was such that the 

convening authority could approve the 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 prosecuted for the same conduct 

for which non-judicial punishment has been previously imposed, “an accused must 

 

2

 We interpret the military judge’s explanation to indicate the military judge 

credited appellant with a single thirty-day period of confinement for the prior 

reduction in rank. Regardless, it was clear that any credit awarded by the military 

judge was to be applied against the adjudged sentence. 
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be given complete credit for any and all non-judicial punishment 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 approved sentence instead of his adjudged sentence. To do 

otherwise, according to appellant, confers nothing but an illusory 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 approved sentence when the pretrial agreement’s 

sentence cap is less than the adjudged sentence paints the state of the law with too 

broad a brush. Ridgeway, by its own language, is limited 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 automatic forfeitures must be considered. (emphasis 

added). Ridgeway, 48 M.J. at 906. 

Just as it is well-settled that credit for 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, and 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 applied by the panel, the military judge, 

or the convening authority. Id. 

In this case, it is clear appellant and his counsel decided to have the military 

judge apply any Pierce credit at trial instead of requesting its application by the 

convening authority. The military judge summarized an early RCM 802 conference: 

We, also, went over issues of whether there’d been any 

pretrial confinement or pretrial punishment of the accused, 

as well as discussed the fact that the accused has, 

apparently, been punished for what has been charged as a 

specification of Charge II, that 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 this court. (emphasis added). 

Importantly, when asked, neither side desired to contradict or add anything to the 

military judge’s understanding. Appellant stipulated to the prior Article 15, UCMJ, 

proceeding and the specific punishments imposed. Although the government offered 

the record of the prior non-judicial punishment into evidence, the defense not only 
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had no objection but referred to that prior punishment for purposes of extenuation 

and mitigation in its sentencing argument. 

 This court has previously held that “in circumstances where a military judge 

awards credit for non-judicial punishment on the adjudged sentence and the 

punishments still exceeds [sic] the limitation of punishments in a pretrial 

agreement,” the 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, appellant argues “stripe-for-stripe” credit mandates an accounting and 

restitution for any pay lost as a result of a rank 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. 2011) (mem. op.), which did calculate 

and award credit for “forfeiture of pay that resulted from his reduction 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 “fashion [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 consideration of pay lost as a result of a 

prior reduction is beyond the scope of either judicial or convening authority 

discretion, there is no legal obligation to provide credit for such a consequence. 

Accordingly, we decline to do so in this case. 

 In Pierce, immediately after requiring day-for-day, dollar-for-dollar, stripefor-stripe credit, our superior court acknowledged, “[b]ecause the types of 

punishments administered non-judicially and those adjudged by courts-martial are 

not always identical, there may be some difficulties in reconciliation.” Pierce, 27 

M.J. at 369. This reconciliation has proven even more troublesome in light of 

statutory provisions requiring automatic reductions and monetary forfeitures. 

 While converting a reduction 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 the same offense. It does 

not follow that one 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 actual punishment but of one of 
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its various consequences. Simply stated, forfeiture of pay is an authorized 

punishment as is reduction in rank. However, less pay due to rank reduction 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 have us first convert the grade reduction into a dollar 

amount, then equate that number to forfeiture of pay, and ultimately convert that 

figure into days of confinement. This equation can lead to an outcome that bears 

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

reduction from E-4 to E-1 for drug use, imposed via Article 15, UCMJ, eighteen 

months before trial, appellant now asks for 168 days of confinement credit against 

twenty-four months of confinement approved in a case where appellant also stands 

convicted of involuntary manslaughter. We decline to approve such a result. After 

all, the maximum punishment authorized by Article 15, UCMJ, can only deprive 

one’s liberty for up to sixty days. Surely, a fraction should not subsume the whole. 

Third, calculating the precise amount of pay lost as a direct result of a nonjudicially imposed reduction is fraught with speculation. Questions abound: What 

did the soldier do or not do in order to mitigate the financial impact and regain rank 

through accelerated or, at least, timely promotion? How do administrative flags, 

suspensions of favorable personnel actions such as promotion, play into the 

equation? What about other consequences of reduction such as loss of allowances, 

loss of security clearances, or loss of schooling and training opportunities? When is 

the end point for calculation of lost pay? Which consequences had financial impact 

that are worthy of credit and which did not and thus should be considered monetarily 

insignificant? These are but a few of the virtually countless issues that arise when 

attempting to identify and then calculate collateral consequences resulting from a 

reduction in rank. 

Finally, and most significantly, a cold numerical conversion of a rank 

reduction ignores the qualitative difference between certain punishments. Some 

punishments defy precise equivalencies. For example, in this case, appellant was 

administered an oral reprimand at his Article 15, UCMJ, proceeding, yet requests no 

credit for this prior punishment. Are we to assume that reprimands are indeed 

meaningless and of no value? Our superior court, when wrestling with the specific 

issue of how to provide former jeopardy credit by equating reductions and other 

forms of punishment, has persuasively noted: 

Upon further consideration of this issue, we conclude that 

reprimands, reductions in rank, and punitive separations 

are so qualitatively different from other punishments that 

conversion is not required as a matter of law . . . . 
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. . . 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 her 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 status, it is 

not appropriate to impose a generally applicable monetary 

formula for crediting periods of confinement or other 

punishments against a sentence 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 against any form of punishment 

other than confinement, hard labor, restriction, fine, and forfeiture. While this is a 

case of applying credit for a reduction as opposed to credit against a reduction, it is 

clear that the conversion in either direction is problematic. 

Accordingly, we find no error. The military judge, in his discretion, awarded 

thirty days of confinement for the prior reduction. There was no objection, and we 

do not find any requirement to convert the reduction into lost pay and then into 

confinement in order to satisfy Pierce. 

CONCLUSION

On consideration of the entire record, the submissions of the parties, we hold 

the findings of guilty and 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: