UNITED STATES, Appellee 

v. 

Daniel A. ZARBATANY Jr., Airman First Class 

U.S. Air Force, Appellant 

No. 11-0165 

Crim. App. No. 37448 

United States Court of Appeals for the Armed Forces 

Argued April 21, 2011 

Decided July 6, 2011 

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

and ERDMANN, J., joined. STUCKY, J., filed a separate dissenting 

opinion, in which RYAN, J., joined. 

Counsel 

For Appellant: Major Reggie D. Yager (argued); Lieutenant 

Colonel Gail E. Crawford (on brief). 

For Appellee: Captain Scott C. Jansen (argued); Captain Michael 

T. Rakowski and Gerald R. Bruce, Esq. (on brief); Major Charles 

G. Warren. 

Military Judge: Don M. Christensen 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Zarbatany, No. 11-0165/AF

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 Judge BAKER delivered the opinion of the Court. 

Appellant entered mixed pleas at a general court-martial 

with members convened at Elmendorf Air Force Base, Alaska. He 

was convicted pursuant to his pleas of two specifications of 

unauthorized absence, two specifications of wrongful use of 

cocaine, and two specifications of wrongful use of marijuana, in 

violation of Articles 86 and 112a, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 886, 912a (2006).1 The adjudged 

sentence consisted of a bad-conduct discharge, six months of 

confinement, forfeiture of all pay and allowances, and reduction 

to E-1. The convening authority disapproved the forfeitures and 

approved the remaining sentence. 

On review, the United States Air Force Court of Criminal 

Appeals affirmed the findings and sentence as approved. United 

States v. Zarbatany, No. ACM 37448, 2010 CCA LEXIS 354, at *6, 

2010 WL 3981672, at *3 (A.F. Ct. Crim. App. Oct. 4, 2010) (per 

curiam). 

We granted review of the following assigned issues: 

WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL 

CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13, 

UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE. 

WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL 

RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL 

PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED 

SENTENCE TO CONFINEMENT. 

 

1

 The members returned a finding of not guilty to a distribution 

offense charged under Article 112a, UCMJ. 
United States v. Zarbatany, No. 11-0165/AF

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For the reasons set forth below, we conclude that to the 

extent its opinion is read to restrict the application of credit 

for illegal pretrial confinement to the forms of punishment 

listed in Rule for Courts-Martial (R.C.M.) 305(k), the Court of 

Criminal Appeals erred. Conversion of confinement credit to 

forms of punishment other than those found in R.C.M. 305(k) is 

generally inapt. This is especially true in the case of 

punitive discharges, where the qualitative differences between 

punitive discharges and confinement are pronounced. However, 

Article 13, UCMJ, 10 U.S.C. § 813 (2006), does not preclude 

forms of relief other than confinement credit. Nor has this 

Court’s case law interpreted R.C.M. 305(k) as exclusively 

delimiting the form of relief lawfully available for violations 

of Article 13, UCMJ. 

To reiterate prior case law interpreting the Constitution, 

the UCMJ, and the R.C.M.: Article 13, UCMJ, relief can range 

from dismissal of the charges, to confinement credit or to the 

setting aside of a punitive discharge. Where relief is 

available, meaningful relief must be given for violations of 

Article 13, UCMJ. However, relief is not warranted or required 

where it would be disproportionate to the harm suffered or the 

nature of the offense. 

In this case, the Court of Criminal Appeals applied an 

erroneous view of the law in concluding that the only remedy 
United States v. Zarbatany, No. 11-0165/AF

4

available to address the Article 13, UCMJ, violations in 

Appellant’s case was to apply Appellant’s Article 13, UCMJ, 

confinement credit against the forms of punishment listed in 

R.C.M. 305(k). At the same time, the lower court used its 

sentence appropriateness power to expressly determine that in 

light of the record as a whole, including Appellant’s pretrial 

confinement, Appellant’s sentence was not inappropriately 

severe. A judgment regarding sentence appropriateness should 

necessarily encompass a judgment that any additional Article 13, 

UCMJ, relief would be disproportionate in the context presented. 

However, because the Court of Criminal Appeals did not appear to 

determine whether such relief was disproportionate, we remand 

this case for a new Article 66(c), UCMJ, 10 U.S.C. § 866(c) 

(2006), review. 

I. BACKGROUND 

On August 8, 2008, while stationed at Elmendorf, Air Force 

Base (Elmendorf), Appellant was ordered into pretrial 

confinement by the commander of the 3rd Civil Engineer Squadron. 

Because Elmendorf does not have its own pretrial confinement 

facility, the 3rd Wing, pursuant to Dep’t of the Air Force, 

Instr. 31-205, The Air Force Corrections System para. 1.2.2.2. 

(Apr. 7, 2004) [hereinafter AFI 31-205], entered into an 

agreement with the Anchorage Correction Complex (ACC), a 

civilian confinement facility, to house both pretrial and post-
United States v. Zarbatany, No. 11-0165/AF

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trial confinees from Elmendorf. The Memorandum of Agreement 

(MOA) between ACC and Elmendorf outlined the responsibilities of 

both parties. Specifically, Elmendorf would bear the cost of 

treatment at ACC, ensure monthly visits from the accused’s unit 

commander or designated representative, help arrange visits from 

the accused’s family, and monitor the accused’s health, morale, 

and welfare through visits by a military confinement officer. 

The ACC would provide the means for Air Force inmates to comply 

with dress and appearance standards. 

By the terms of the agreement, both parties were also 

required to comply with the Department of Defense (DOD) 

confinement standards set forth in AFI 31-205. See AFI 31-205, 

para. 1.2.2. These standards include housing pretrial inmates 

in separate cells or sleeping areas from post-trial inmates, 

though they may share common areas, id. at para. 5.8.1.2; 

prohibiting demeaning, degrading, or humiliating treatment, as 

well as hazing and “laying hands upon inmates” except for the 

minimum use of force necessary for the protection of persons or 

property, id. at para. 1.3.13.4; providing physical contact 

visits in the absence of substantiated risk, id. at para. 6.4.4; 

providing the same medical and dental care as active duty 

persons, id. at para. 6.5.2; and providing barber and beautician 

services, id. at para. 6.5.7. 
United States v. Zarbatany, No. 11-0165/AF

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The military judge found, and both parties agree, that 

Appellant’s pretrial confinement conditions did not comply with 

the MOA or AFI 31-205. The military judge’s undisputed findings 

of fact are as follows: 

• Appellant was in pretrial confinement at ACC for 119 

days in “virtual lockdown status.” 

• He was confined to his cell “for an average of 23 hours 

a day except when he was brought on the base.” 

• He was only allowed out of his cell “to take a shower, . 

. . [to] visit[] with his wife by television,” or for 

recreation. 

• Any recreation Appellant was granted consisted of 

walking around an empty outdoor courtyard “not much 

bigger than [his] cell.” 

• With few exceptions, he was not allowed to converse with 

other inmates. 

• He twice shared his cell with civilian post-trial 

inmates for a total of six days, one of whom was a 

convicted sex offender. 

• In most instances, he was shackled or handcuffed when 

taken from his cell or receiving visits from his wife, 

attorney, or a member of his unit. None of the visits 

with his wife were contact visits, even though other 
United States v. Zarbatany, No. 11-0165/AF

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convicted inmates were allowed contact visits with their 

families. 

• For no apparent reason, he was locked in the shower 

between four and eight times, each time for thirty 

minutes to an hour. On one such occasion, this was 

brought to the attention of Correction Officer (CO) 

Zimmerman, who responded, “Airman Zarbatany can wait, or 

he can piss in the shower.” 

• On one occasion he was inadvertently hit with pepper 

spray directed at another inmate, and he did not receive 

the medical attention required within twenty-four hours 

of a chemical spray. 

• He was improperly grabbed by a corrections officer and 

taken to be weighed after his complaints about his 

conditions were shown to members of ACC. 

• He was denied appropriate hygienic services, including 

hair cuts and clean underwear, and required to wear an 

“insufficient” shoe for two weeks. 

• Neither the commander nor a designee visited Appellant 

or his wife during the 119-day pretrial confinement. 

When the commander was present at ACC and invited to 

speak to Appellant, he declined because he “had nothing 

to say to him productively.” When discussing 
United States v. Zarbatany, No. 11-0165/AF

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Appellant’s twenty-three-hour daily confinement, the 

commander responded, “It is appropriate because of what 

he has done.” 

• He was not given access to a common area. 

• He was denied mental health counseling despite repeated 

requests to his commander and officials at both 

Elmendorf and ACC, notifying them not only of his 

confinement conditions but also of his ongoing 

relationship with a mental health care provider prior to 

his confinement. The military judge found this 

“particularly shocking” in light of the suicide of the 

3rd Wing commander in July 2008. 

• Appellant had access to other medical care, but he was 

required to bear the cost. 

• Appellant was a “model prisoner with no disciplinary 

infractions” who presented no security risks. 

Despite these deficiencies, the military judge found that 

neither the commander nor confinement officials at either 

Elmendorf or ACC intended to punish Appellant. However, the 

military judge found that “when given specific complaints that 

should have put the commander on notice that Airman Zarbatany 

was being illegally punished, he didn’t care because he thought 

the punishment was appropriate for the crimes he had done -– 

overcoming Airman Zarbatany’s presumption of innocence.” 
United States v. Zarbatany, No. 11-0165/AF

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The military judge concluded his findings of fact by 

stating: 

[T]he court is specifically ordering four-for-one 

credit for the entire time [Appellant] has been in 

confinement. This is due to the continuing nature of 

the issues at ACC, including housing post-trial and 

serious offenders of a civilian nature with the 

accused and, very importantly, ignoring his claims and 

his requests for mental health care. 

The court specifically finds the conduct of his unit 

appalling, that his commander has abdicated his role 

as a commander in ensuring his troop is taken care of 

and that troop’s family is taken care of. 

The court is very tempted to provide ten-for-one 

credit solely on the mental health issue considering 

this installation’s notice of the seriousness of 

mental health issues. 

The military judge then clarified that the four-for-one credit 

was in addition to one-for-one credit for the pretrial 

confinement. Thus, the military judge awarded Appellant 119 

days credit for pretrial confinement plus an additional 476 days 

of credit (4 x 119) for the violation of Article 13, UCMJ, 

totaling 595 days of confinement credit. 

The military judge later noted two prior cases involving 

illegal pretrial confinement conditions at ACC, and stated: 

[T]his installation [Elmendorf] has been aware of the 

deficiencies of using local confinement since at least 8 

December 2005, at the time Airman Junior was courtmartialed. Three years. 

So my guidance to this installation, the NAF, and MAJCOM is 

that they fix this. 
United States v. Zarbatany, No. 11-0165/AF

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At the conclusion of trial, the military judge made a 

clemency recommendation to the convening authority on the record 

that he disapprove the forfeitures, stating: 

I’ll make a clemency [recommendation] that the 

forfeitures not be adjudged in this case. That would 

punish no one except Mrs. Zarbatany, who has done 

nothing wrong. In fact, unlike many cases that this 

court has dealt with where a spouse is sometimes 

complicit or hostile to the government, . . . Mrs. 

Zarbatany is the exact opposite of that and should not 

suffer as a result of this. 

Trial counsel concurred with the military judge’s assessment of 

Mrs. Zarbatany. 

The confinement credits were applied against the adjudged 

confinement of six months (180 days), and Appellant was released 

from confinement at the conclusion of trial with 415 days of 

excess confinement credit.2

Following trial, the defense counsel requested that the 

convening authority defer the forfeitures of all pay and 

allowances and reduction portions of the sentence until the 

 

2

 Appellant argues that his excess confinement credits totaled 

445 days based on the assumption that thirty days good conduct 

time would also have applied. We decline to apply this 

assumption here, as Appellant did not serve his adjudged 

sentence, making good conduct time mere speculation. Nor would 

the difference affect our analysis. The excess credit is 

calculated as follows: 

 119 days credit for pretrial confinement 

+ 476 days credit for violations of Article 13, UCMJ 

 595 days credit total 

- 180 days adjudged confinement 

 415 days excess confinement credit 
United States v. Zarbatany, No. 11-0165/AF

11

convening authority’s action in order to allow Appellant to 

continue to provide for his wife, who according to the written 

request: 

initially contacted [Appellant]’s chain of command 

[sic] to notify them that her husband had a drug 

problem. . . . gave AFOSI [Air Force Office of Special 

Investigations] the evidence that was later used to 

convict her husband at trial. . . . consented to a 

search of their home in order to aid the investigation 

against her husband. . . . [and] contacted AFOSI a 

second time to again report that her husband was 

engaged in possible drug use. 

The convening authority denied the request regarding reduction 

in grade, but granted the request regarding forfeitures. In his 

later clemency petition, Appellant also requested disapproval of 

his bad-conduct discharge in light of the actions taken by 

Appellant’s wife, the “onerous” nature of his pretrial 

confinement, and the military judge’s recommendation to 

disapprove forfeitures. The staff judge advocate recommended 

disapproval of forfeiture of all pay and allowances and approval 

of the bad-conduct discharge. The convening authority approved 

this recommendation in his action. Although the clemency 

petition mentioned Appellant’s pretrial confinement conditions 

and that the members were not made aware of such conditions in 

sentencing, neither the staff judge advocate’s recommendation 

nor the convening authority’s action reference them. 

On appeal to the court below, Appellant “assert[ed] . . . 

that his sentence [was] inappropriately severe, particularly 
United States v. Zarbatany, No. 11-0165/AF

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arguing that the punitive discharge should be disapproved to 

provide meaningful relief because the pretrial confinement 

credit exceeded the adjudged confinement to which the credit 

applied.” Zarbatany, 2010 CCA LEXIS 354, at *2, 2010 WL 

3981672, at *1. In a per curiam decision, the lower court, 

relying on R.C.M. 305(k), held that “the convening authority 

credited the appellant with the days awarded by the military 

judge and disapproved the adjudged forfeitures, leaving no other 

form of punishment to which the credit could properly apply,” 

and that “the military judge properly awarded additional 

administrative credit for unduly harsh conditions of pretrial 

confinement and the convening authority properly applied the 

credit to the adjudged sentence.” Id. at *2-*4, 2010 WL 

3981672, at *1-*2. “Turning to the appellant’s more general 

argument concerning sentence appropriateness,” the Court of 

Criminal Appeals concluded that “Having given individualized 

consideration to this particular appellant, the nature of the 

offenses, and all other matters in the record of trial to 

include the appellant’s pretrial confinement, we hold that the 

approved sentence is not inappropriately severe.” Id. at *6, 

2010 WL 3981672, at *2. 
United States v. Zarbatany, No. 11-0165/AF

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II. DISCUSSION 

“The proper application[] of credit for illegal pretrial 

punishment . . . [is a] question[] of law, reviewed de novo.” 

United States v. Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002). 

Appellant argues that the court below erred in holding that 

R.C.M. 305(k) precludes the application of excess confinement 

credit against a punitive discharge in the context of an Article 

13, UCMJ, violation and that its holding deprived Appellant of 

meaningful relief. The Government responds that the lower court 

properly followed the plain language of R.C.M. 305(k), which 

expressly limits the application of confinement credits to 

punishments enumerated in that subsection. Thus, the parties, 

like the court below, frame this case as a credit-conversion 

issue under R.C.M. 305(k). However, we believe the parties and 

the lower court too narrowly defined the questions presented by 

Appellant’s case. There are at least two threshold questions 

before one gets to the application of R.C.M. 305(k): (1) What 

relief is available as a matter of law for violations of Article 

13, UCMJ, as occurred here; and (2) is meaningful relief legally 

required to be awarded, and if so, in what circumstances? 

A. Relief Under Article 13, UCMJ

Article 13, UCMJ, 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, nor shall the arrest or 
United States v. Zarbatany, No. 11-0165/AF

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confinement imposed upon him be any more rigorous than the 

circumstances required to insure his presence, but he may 

be subjected to minor punishment during that period for 

infractions of discipline. 

In United States v. King, we addressed the contours of Article 

13, UCMJ, stating: 

Article 13, UCMJ, prohibits two things: (1) the 

imposition of punishment prior to trial, and (2) conditions 

of arrest or pretrial confinement that are more rigorous 

than necessary to ensure the accused’s presence for trial. 

The first prohibition of Article 13 involves 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 [v. Wolfish], 441 U.S. [520,] 539 

[(1979)]; [United States v.] McCarthy, 47 M.J. [162,] 165, 

167 [(C.A.A.F. 1997)]. 

The second prohibition of Article 13 prevents imposing 

unduly 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. McCarthy, 47 M.J. at 165; United States v. 

James, 28 M.J. 214, 216 (C.M.A. 1989) (conditions that are 

“arbitrary or purposeless” can be considered to raise an 

inference of punishment). 

61 M.J. 225, 227 (C.A.A.F. 2005); see also United States v. 

Harris, 66 M.J. 166, 167-68 (C.A.A.F. 2008). In King, we held 

that although merely classifying a pretrial inmate as “maximum” 

custody or comingling an inmate with post-trial inmates are not 

per se violations of Article 13, UCMJ, arbitrarily segregating a 

pretrial inmate for two weeks in a “six-by-six, windowless cell” 

did violate Article 13, UCMJ, and merited relief in the form of 

confinement credit under R.C.M. 305(k). 61 M.J. at 228-29. 
United States v. Zarbatany, No. 11-0165/AF

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As in King, the primary mechanism for addressing violations 

of Article 13, UCMJ, has been confinement credit. This Court 

initially awarded such credit in United States v. Larner, 1 M.J. 

371 (C.M.A. 1976), and United States v. Suzuki, 14 M.J. 491, 493 

(C.M.A. 1983), to provide an effective remedy for illegal 

pretrial confinement. The drafters of the R.C.M. subsequently 

“explicitly recognized” this practice with the adoption of 

R.C.M. 305(k) in the 1984 Manual for Courts-Martial, United 

States (MCM). See MCM, Analysis of the Rules for Courts-Martial 

app. 21 at A21-20 (2008 ed.) [hereinafter Drafters’ Analysis]; 

Spaustat, 57 M.J. at 261. 

R.C.M. 305(k) provides in relevant part: 

The military judge may order additional credit for 

each day of pretrial confinement that involves an 

abuse of discretion or unusually harsh circumstances. 

This credit is to be applied in addition to any other 

credit the accused may be entitled as a result of 

pretrial confinement served. This credit shall be 

applied first against any confinement adjudged. If no 

confinement is adjudged, or if the confinement 

adjudged is insufficient to offset all the credit to 

which the accused is entitled, the credit shall be 

applied against hard labor without confinement, 

restriction, fine, and forfeiture of pay, in that 

order . . . . The credit shall not be applied against 

any other form of punishment. 

As discussed by the court below, the plain language of 

R.C.M. 305(k) requires that after the convening authority has 

applied confinement credit to the adjudged confinement, the 

convening authority may then apply any excess confinement credit 
United States v. Zarbatany, No. 11-0165/AF

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against (1) hard labor without confinement, (2) restriction, (3) 

fine, and (4) forfeiture, in that order, and credit “shall not 

be applied against any other form of punishment.” Therefore, 

the lower court was correct in stating that R.C.M. 305(k)’s 

plain language excludes a punitive discharge from permissible 

applications of illegal confinement credit under the rule. See

also United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003); 

United States v. Rosendahl, 53 M.J. 344, 347 (C.A.A.F. 2000). 

As noted by the Court of Criminal Appeals, the Drafters’ 

Analysis, and this Court’s prior decisions, the reason for 

excluding a punitive discharge from the application of 

confinement credit is that a punitive discharge is “so 

qualitatively different” from the other punishments to which 

R.C.M. 305(k) credit can apply “that the fact that an accused 

has served confinement which was technically illegal should not 

automatically affect” a punitive discharge. Drafters’ Analysis 

app. 21 at A21-21; Josey, 58 M.J. at 108 (“Although a punitive 

separation potentially involves monetary consequences, 

particularly with respect to veterans’ benefits, the primary 

impact involves severance of military status”); Rosendahl, 53 

M.J. at 348 (describing punitive discharges as “personnelrelated punishments”). 

Our inquiry does not end there, however. As previously 

noted, R.C.M. 305(k) does not limit the availability of other 
United States v. Zarbatany, No. 11-0165/AF

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remedies under Article 13, UCMJ. It is axiomatic, for example, 

that a court with appropriate jurisdiction may remedy an ongoing 

Article 13, UCMJ, violation through the writ of habeas corpus. 

No doubt, additional credit under R.C.M. 305(k) is a remedy for 

violations of Article 13, UCMJ. See, e.g., Harris, 66 M.J. at 

167; United States v. Adcock, 65 M.J. 18, 21 (C.A.A.F. 2007); 

United States v. Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006); 

King, 61 M.J. at 227. Indeed, it is a normative remedy and one 

that has been expressly endorsed in the rules. But this Court 

has never held that R.C.M. 305(k) is the exclusive remedy for 

Article 13, UCMJ, violations. To the contrary, our case law 

explicitly recognizes that certain circumstances may warrant 

other relief. In Crawford, for example, we said that “[w]here 

we find that maximum custody was arbitrary and unnecessary to 

ensure an accused’s presence for trial, or unrelated to the 

security needs of the institution, we will consider appropriate 

credit or other relief to remedy this type of violation of 

Article 13, UCMJ.” 62 M.J. at 416 (emphasis added). Prior case 

law has recognized that “other relief” for Article 13, UCMJ, 

violations may range from disapproval of a bad-conduct 

discharge, see United States v. Nelson, 18 C.M.A. 177, 181, 39 

C.M.R. 177, 181 (1969), to complete dismissal of the charges, 

depending on the circumstances. See United States v. Fulton, 55 

M.J. 88, 89 (C.A.A.F. 2001). It follows that if a court can 
United States v. Zarbatany, No. 11-0165/AF

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dismiss a charge in response to violations of Article 13, UCMJ, 

as in Nelson, a court can do something less by setting aside a 

discharge. 

Therefore, we reiterate this Court’s prior holdings, that 

although R.C.M. 305(k) is the principal remedy for Article 13, 

UCMJ, violations, courts must consider other relief for 

violations of Article 13, UCMJ, where the context warrants. 

B. Meaningful Relief As A Legal Requirement

Having determined that R.C.M. 305(k) is not the sole remedy 

for Article 13, UCMJ, violations, we now consider the second 

threshold question presented: Is meaningful relief required in 

response to every Article 13, UCMJ, violation? In specific 

terms, if Appellant’s Article 13, UCMJ, violations warranted 595 

days of relief, and he only received 180 days of actual relief, 

was there an additional form of relief available to make him 

whole? Thus, the immediate question is not whether the court 

below erred in not applying excess confinement credit to a 

punitive discharge, but rather whether it erred by excluding the 

possibility that additional forms of relief might be available 

in response to Appellant’s Article 13, UCMJ, violations and 

whether such relief was required in this context? 

Appellant argues that meaningful relief is required in 

response to a violation of Article 13, UCMJ, and since he did 

not receive the full benefit of the military judge’s confinement 
United States v. Zarbatany, No. 11-0165/AF

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credit, the law requires additional relief addressed to 

alternative portions of the sentence. The Government 

essentially argues that the issue of meaningful relief is 

subsumed within the lower court’s exercise of its 

appropriateness power. The court below having determined that 

Appellant’s sentence is appropriate in light of the confinement 

he received, it follows that Appellant has received all the 

credit that is appropriate under the circumstances for the 

violations of Article 13, UCMJ, that occurred. 

This Court first addressed the question of whether 

meaningful relief is required for violations of Article 13, 

UCMJ, in Nelson, 18 C.M.A. at 181, 39 C.M.R. at 181. In Nelson, 

the appellant pled guilty to various violations of the UCMJ, 

including unauthorized absence, violating a lawful general 

order, possession of marijuana, and breach of restriction, and 

was sentenced to a bad-conduct discharge, forfeiture of all pay 

and allowances, confinement at hard labor for six months, and 

reduction to E-1. Id. at 178, 39 C.M.R. at 178. The appellant 

was placed in pretrial confinement under circumstances 

indistinguishable from those of adjudged and sentenced inmates 

including identical indoctrination, dress, living, eating, and 

labor requirements. Id. at 178-79, 39 C.M.R. at 178-79. This 

Court reversed the board of review, holding that the appellant’s 

pretrial confinement conditions constituted pretrial punishment 
United States v. Zarbatany, No. 11-0165/AF

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in violation of Article 13, UCMJ, and due process. Id. at 181, 

39 C.M.R. at 181 (“‘Congress has decreed that, until convicted, 

one charged with a crime shall not be subjected to punishment, 

and we must enforce that edict.’” (quoting United States v. 

Bayhand, 6 C.M.A. 762, 773, 21 C.M.R. 84, 95 (1956))). The 

appellant having already served his sentence, the only 

unexecuted portion of the sentence was the punitive discharge. 

Id. The appellant requested relief in the form of dismissal of 

the charges and specifications. Id. Although the court 

recognized that the board of review was the proper authority for 

reassessing the appropriateness of the sentence, the Court 

nonetheless concluded that “modification of the sentence is in 

order.” Id. Specifically, the Court held: 

Under these circumstances, were we simply to return 

the case to the board of review for reassessment of 

the sentence, we would thereby imply that the badconduct discharge may be affirmed. Such a course 

would deprive the accused of all meaningful relief, 

and would rightly suggest that this Court is prepared 

to wink at such grossly illegal treatment of men in 

pretrial confinement. The disastrous effects of such 

a situation upon the system of military justice itself 

are so manifest as to require us to eliminate that 

possibility. 

 

Id. at 181-82, 39 C.M.R. at 181-82. 

Since Nelson, this Court has sought to “ensure meaningful 

relief in all future cases” involving violations of Article 13, 

UCMJ. See Spaustat, 57 M.J. at 263-64; Suzuki, 14 M.J. at 493. 

However, as in the context of appellate due process delay, the 
United States v. Zarbatany, No. 11-0165/AF

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question of what relief is due to remedy a violation, if any, 

requires a contextual judgment, rather than the pro forma 

application of formulaic rules. Whether meaningful relief has 

been granted and should be granted will depend on factors such 

as the nature of the Article 13, UCMJ, violations, the harm 

suffered by the appellant, and whether the relief sought is 

disproportionate to the harm suffered or in light of the 

offenses for which the appellant was convicted. See Harris, 66 

M.J. at 169 (declining to set aside the punitive discharge “[i]n 

light of the offenses of which Appellant was convicted,” because 

“such relief would be disproportionate to any harm he may have 

suffered”). 

In light of these cases, we conclude that meaningful relief 

for violations of Article 13, UCMJ, is required, provided such 

relief is not disproportionate in the context of the case, 

including the harm an appellant may have suffered and the 

seriousness of the offenses of which he was convicted. We 

further conclude that the issue of meaningful relief must be 

reviewed independent of the lower court’s appropriateness 

review. 

C. Meaningful Relief In This Case

Given this understanding of meaningful relief, we proceed 

to review whether the Court of Criminal Appeals denied Appellant 

meaningful relief in this case. “Whether the action taken by 
United States v. Zarbatany, No. 11-0165/AF

22

the lower court provided meaningful relief is a question of law 

that we consider under a de novo standard of review.” United 

States v. Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007). 

In this case, Appellant was convicted of unauthorized 

absence, two specifications of wrongful use of cocaine, and two 

specifications of wrongful use of marijuana. Appellant’s 

sentence included a bad-conduct discharge, six months of 

confinement, forfeiture of all pay and allowances, and reduction 

to E-1. As in Nelson, and unlike Harris, the pretrial 

confinement conditions in this case violated Article 13, UCMJ, 

and constituted pretrial punishment. We view the repeated 

denials of mental treatment by both Elmendorf and ACC as 

particularly egregious. In response, the military judge awarded 

four-to-one additional confinement credit. As noted above, this 

credit of 595 days more than satisfied the adjudged confinement 

of 180 days, leaving 415 days of excess confinement credit. The 

convening authority disapproved the forfeiture of all pay and 

allowances. As a result, only the bad-conduct discharge and the 

reduction to E-1 remained as sentencing elements against which 

meaningful relief might apply after the convening authority’s 

action. At this point, the only meaningful relief that could be 

provided to Appellant would have to be addressed to his punitive 

discharge. 
United States v. Zarbatany, No. 11-0165/AF

23

Appellant argues that this Court should follow Nelson and 

set aside his bad-conduct discharge. However, unlike Nelson, 

this case is complicated by the fact that it is not clear 

whether the lower court operated under a correct view of the law 

in reviewing Appellant’s sentence and in exercising its 

appropriateness power. In particular, we do not know if the 

court below considered such relief unwarranted, unavailable, or 

available but disproportionate. Neither is it clear whether the 

court operated on the belief that meaningful relief was required 

where proportionate under the circumstances. Instead, the court 

appears to have subsumed the issue of meaningful relief into a 

question of credit conversion under R.C.M. 305(k) alone, and 

then as a question of sentence-appropriateness review under 

Article 66(c), UCMJ, where it operates at its broadest 

discretion. Therefore, we remand this case to the Court of 

Criminal Appeals for a new Article 66(c), UCMJ, review to 

determine whether the circumstances of Appellant’s case warrant 

additional relief as a matter of law, or whether such relief 

would be disproportionate. 

III. CONCLUSION 

For the foregoing reasons, the decision of the United 

States Air Force Court of Criminal Appeals is set aside, and the 

record of trial is returned to the Judge Advocate General of the 

Air Force for remand to that court for a new Article 66(c), 
United States v. Zarbatany, No. 11-0165/AF

24

UCMJ, 10 U.S.C. § 866(c) (2006), review consistent with this 

opinion. 
United States v. Zarbatany, No. 11-0165/AF 

 STUCKY, Judge, with whom RYAN, Judge, joins (dissenting): 

 The majority remands this case to the United States Air 

Force Court of Criminal Appeals (CCA) to determine whether 

Appellant received meaningful relief for a violation of Article 

13, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813 

(2006). Whether Appellant has received meaningful relief is a 

question of law, which this Court is as well suited to decide as 

the CCA. By simply addressing the crucial issue in this case of 

whether Appellant received meaningful relief, this Court need 

not reach other issues, namely, whether Rule for Courts-Martial 

(R.C.M.) 305(k) limits the remedies available for an Article 13 

violation. For these reasons, I respectfully dissent. 

I. 

 An Article 13 violation does not directly impugn the 

results of a trial by court-martial, which is why the error has 

been traditionally cured by providing the accused with sentence 

relief. See R.C.M. 305(k) (recognizing several sentence relief 

options as the remedies for a variety of errors that result in 

confinement credit). For Article 13 violations, sentence relief 

is calculated in terms of confinement credit, which is then 

applied against an appellant’s sentence. See United States v. 

Rock, 52 M.J. 154, 156-57 (C.A.A.F. 1999). 

 Of course, every error does not demand the same degree of 

relief. Rather, our precedents indicate that this Court 
United States v. Zarbatany, No. 11-0165/AF 

2

balances the error complained of, the harm suffered, and the 

surrounding circumstances to determine whether the accused 

received meaningful relief. See United States v. Harris, 66 

M.J. 166, 169 (C.A.A.F. 2008) (holding that “granting Appellant 

[the requested] relief would [have been] disproportionate to any 

harm he may have suffered”). The balancing of these factors is 

a question of law that we review de novo. See United States v. 

Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007) (“Whether the action 

taken by the lower court provided meaningful relief is a 

question of law that we consider under a de novo standard of 

review.”). 

 Review for meaningful relief may be contrasted with 

reviewing for sentence appropriateness. The latter focuses on 

whether the sentence resulted in disparate treatment between 

individuals or was otherwise inappropriately severe under the 

facts of the case. See United States v. Baier, 60 M.J. 382, 

384-85 (C.A.A.F. 2005). Although the review for meaningful 

relief and sentence appropriateness is not the same, substantial 

overlap exists between them. A lower court, in reviewing the 

sentence for appropriateness, may resolve the issue of whether 

the accused received meaningful relief by taking into account 

errors that would require sentence relief. See United States v. 

Suzuki, 20 M.J. 248, 249 (C.M.A. 1985) (“Indeed, had we believed 

that this credit already had been taken into account in the 
United States v. Zarbatany, No. 11-0165/AF 

3

reduction of sentence originally ordered by the Court of 

Military Review, there would have been no occasion for further 

action by that court.”). 

 In this case, the CCA stated that, “[h]aving given 

individualized consideration to this particular appellant, the 

nature of the offenses, and all other matters in the record of 

trial to include the appellant’s pretrial confinement, we hold 

that the approved sentence is not inappropriately severe.” 

United States v. Zarbatany, No. 37448, 2010 CCA LEXIS 354, at 

*6, 2010 WL 3981672, at *2 (A.F. Ct. Crim. App. Oct. 4, 2010) 

(unpublished) (emphasis added). The CCA’s discussion indicates 

that it determined the extent of sentence relief necessary in 

determining the appropriateness of the sentence. Under these 

circumstances, the CCA exercised its broad power over sentences, 

and its decision should be reviewed for an abuse of discretion 

or a miscarriage of justice. See United States v. Lacy, 50 M.J. 

286, 288 (C.A.A.F. 1999). The sentence the CCA affirmed clearly 

passes muster under this deferential standard of review. 

 But even if the majority is correct that the CCA did not 

properly understand the effect of R.C.M. 305(k), United States 

v. Zarbatany, __ M.J. __ (22-23) (C.A.A.F. 2011), we should not 

remand the case for further review, but conduct a de novo review 

of whether Appellant received meaningful relief. 
United States v. Zarbatany, No. 11-0165/AF 

4

II. 

 Both this Court and the Drafters’ Analysis recognize that 

confinement credit and punitive discharges are qualitatively 

different. See United States v. Rosendahl, 53 M.J. 344, 348 

(C.A.A.F. 2000); see also United States v. Spaustat, 57 M.J. 

256, 263 (C.A.A.F. 2002). Under R.C.M. 305(k), confinement 

credit applies to more traditional punishments, such as hard 

labor without confinement, restriction, fine, and forfeiture of 

pay. United States v. Josey, 58 M.J. 105, 107-08 (C.A.A.F. 

2003). Punitive discharges and reductions in rank, although 

punitive, are different in that they are decisions based on the 

perceived ability of a particular person to continue to function 

in the military at a particular position of respect and 

responsibility. Id. The extent of this Court’s power to set 

aside a punitive discharge on the basis of unapplied confinement 

credit awarded for Article 13 violations has been a legitimate 

question since the promulgation of R.C.M. 305(k). The general 

policy against doing so, however, is a sound one, which is 

evidenced by the fact that cases like United States v. Nelson, 

18 C.M.A. 177, 39 C.M.R. 177 (1969), a case in which this 

Court’s predecessor set aside the punitive discharge, are 

exceedingly rare in our jurisprudence. Appellant argues that 

this case is like Nelson. The reliance of both the majority 

and Appellant on Nelson is undermined by the fact that the 
United States v. Zarbatany, No. 11-0165/AF 

5

decision in Nelson preceded the enactment of R.C.M. 305(k), 

which is contrary to the holding in Nelson. Even aside from the 

timing issue, this case is not like Nelson. 

 In that case, we concluded that Nelson’s treatment in 

pretrial confinement violated Article 13 because he had been 

treated as though he had already been convicted of a crime. 

Nelson, 18 C.M.A. at 178, 39 C.M.R. at 178. Importantly, the 

Court of Military Appeals (CMA) concluded that the accused was 

subjected to punishment in violation of Article 13. Id. at 181, 

39 C.M.R. at 181. Because the rest of Nelson’s sentence had 

already been executed, the CMA determined that the punitive 

discharge had to be set aside to avoid the potentially serious 

effects of not taking action, even though Nelson only had fortytwo days of unapplied pretrial confinement credit. Id. at 181-

82, 39 C.M.R. at 181-82. 

 By contrast, in this case, the military and prison 

officials violated a number of service regulations that, when 

aggregated, violated Article 13. The military judge, however, 

found that the military and prison officials never intended to 

punish Appellant. Moreover, Appellant’s pretrial confinement 

credit was actually applied to reduce his sentence, such that he 

served no post-trial confinement. In addition, the convening 

authority deferred forfeitures until action and, ultimately, did 

not approve any forfeitures. For these reasons, the facts of 
United States v. Zarbatany, No. 11-0165/AF 

6

this case stand in stark contrast to those of Nelson, in which 

Nelson was actually punished and had no other potential remedies 

remaining except to set aside his punitive discharge. See id. 

 Under the circumstances of this case, Appellant received 

meaningful relief in that he served no post-trial confinement 

and his forfeitures were set aside. Setting aside the punitive 

discharge would be disproportionate to the harm Appellant 

suffered and inconsistent with the Court’s treatments of such 

relief. Unlike the majority, I need not and would not decide 

whether R.C.M. 305(k) limits the remedies available to a court 

to cure a violation of Article 13, because I am able to 

determine that Appellant received meaningful relief without 

resolving that issue. Considering the majority’s discussion of 

the issue, I would be remiss, however, if I said nothing about 

the current status of R.C.M. 305(k). 

III. 

 Before R.C.M. 305(k), this Court’s predecessor recognized 

that it could adjust the entirety of the sentence, including 

punitive discharges, as necessary to provide meaningful relief 

for violations of Article 13. See Nelson, 18 C.M.A. at 181, 39 

C.M.R. at 181; cf. United States v. Heard, 3 M.J. 14, 23 (C.M.A. 

1977) (noting that it was inappropriate to modify other aspects 

of the sentence, including setting aside the punitive discharge, 

as requested by the appellant, given the circumstances of the 
United States v. Zarbatany, No. 11-0165/AF 

7

case). R.C.M. 305(k) changed the legal landscape by stating 

that pretrial confinement: 

shall be applied first against any confinement 

adjudged. If no confinement is adjudged, or if the 

confinement adjudged is insufficient to offset all the 

credit to which the accused is entitled, the credit 

shall be applied against hard labor without 

confinement, restriction, fine, and forfeiture of pay, 

in that order . . . . 

R.C.M. 305(k). Significantly, the final sentence of R.C.M. 

305(k) states that “[t]he credit shall not be applied against 

any other form of punishment.” Id. 

 In enacting Article 13, Congress was entirely silent on 

what remedies are available for violations of that article. But 

by promulgating R.C.M. 305(k), the President clearly attempted 

to limit the remedies available for a violation of Article 13. 

In particular, the President attempted to prohibit the 

application of confinement credit to a punitive discharge. This 

Court has never determined whether the President has such power, 

but our precedent has generally followed the guidance provided 

by R.C.M. 305(k). The majority fails to clearly explain why we 

should or can avoid our precedent and the rule’s plain 

direction. 

 Indeed, we have used R.C.M. 305(k) and its underlying 

reasoning, as reflected in the Drafters’ Analysis, as a guide in 

determining what constitutes meaningful relief. See Rosendahl, 

53 M.J. at 348 (accepting the Drafters’ Analysis for why this 
United States v. Zarbatany, No. 11-0165/AF 

8

Court should not automatically apply confinement credit to a 

punitive discharge). I see no reason to depart from that 

precedent in this case and decide an issue that is unnecessary 

to the outcome in this case. Under our precedents, it is clear 

that Appellant received meaningful relief. Disapproval of his 

punitive discharge would grant him a windfall. Whether R.C.M. 

305(k) controls sentence relief for violations of Article 13 is 

a question that can be left for another day. 

IV. 

 For the above reasons, I would affirm the judgment of the 

United States Air Force Court of Criminal Appeals.