UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Staff Sergeant MICHAEL E. HARRIS 

United States Army, Appellant 

ARMY 20170100 

Headquarters, United States Army Garrison, Fort Meade 

Daniel G. Brookhart, Military Judge 

Lieutenant Colonel Tyesha L. Smith, Staff Judge Advocate 

For Appellant: Major Brendan R. Cronin, JA; Captain Meghan E. Mahaney, JA (on 

brief); Captain Patrick G. Hoffman, JA; Captain Meghan E. Mahaney, JA (on reply 

brief). 

For Appellee: Colonel Tania M. Martin, JA; Major Cormac M. Smith, JA; Major 

Meghan Peters, JA (on brief). 

13 July 2018 

---------------------------------- 

OPINION OF THE COURT 

---------------------------------- 

FEBBO, Judge: 

 This case is before us for review pursuant to Article 66, Uniform Code of 

Military Justice, 10 U.S.C. 866 [UCMJ].1 Appellant asserts the military judge erred 

 

1

 A military judge sitting as a general court-martial convicted appellant, pursuant to 

his pleas, of one specification of desertion, in violation of Article 85, UCMJ and 

three specifications of possessing child pornography in violation of Article 134, 

UCMJ. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for five years, and reduction to the grade of E-1. The military judge 

granted appellant 191 days of confinement credit. The convening authority approved 

the adjudged sentence. 
HARRIS—ARMY 20170100 

2 

in denying appellant’s request for 291 days of Allen2 credit arising from his 

confinement by the state of Florida. 

The military judge found the appellant was confined by the state of Florida, 

pending his charges there, because of his offense of failure to appear in Florida 

court. Appellant contends the military judge’s finding, as to the reason for 

appellant’s pretrial confinement, was clearly erroneous. We determine the military 

judge’s finding was not clearly erroneous. As such, and in light of the controlling 

Department of Defense Instruction, the military judge did not err when he denied 

appellant’s request for 291 additional days of Allen credit. 

BACKGROUND 

 In 2013, as part of an internet pornography investigation, the Florida 

Department of Law Enforcement executed a search warrant of appellant’s home. 

Appellant was arrested by the state of Florida, which charged him with forty-four 

counts of possessing child pornography.3 Appellant was free on bond awaiting his 

trial for these offenses. 

In January 2014, appellant fled to Cambodia. Appellant failed to appear for a 

pretrial hearing in the Florida criminal court and his bond was forfeited. 

Appellant intended to remain away permanently. Using skills learned as a 

Military Police officer and military dog handler, he obtained a job as a dog trainer in 

Cambodia. After an article about him was published in an English-language 

newspaper and a reward was offered for his capture, appellant surrendered to 

Cambodian authorities. 

After spending a week in a Cambodian jail, appellant was escorted by U.S. 

Marshalls from Cambodia and returned to military control in Japan on 5 November 

2014. The U.S. Marshalls and a CID agent brought appellant back to Florida. On 6 

November 2014, since his bond had been forfeited, he was placed in civilian 

confinement. The military did not request the state of Florida to confine appellant. 

The appellant was charged with failure of a defendant on bail to appear, a felony 

under Florida law. Fla. Stat. § 843.15(a) (2018). 

 

2

 This term refers to day-for-day credit toward appellant’s sentence for lawful 

pretrial confinement. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). 

3

 If convicted of the 44 counts under Florida law, at 5 years confinement per count, 

appellant would have been subject to up to 220 years confinement. See Fla. Stat. §§ 

827.071(5)(a), 775.082(3)(e). 
HARRIS—ARMY 20170100 

3 

Appellant remained in civilian pre-trial confinement for approximately 22 

months. On 22 August 2016, the Florida state’s attorney agreed to nolle prosequi, or 

“not pursue” the child pornography charges due to an inability to secure a key 

witness. Appellant agreed not to contest the remaining failure to appear charge—

and therefore entered a nolo contendre plea—in exchange for a sentence 

recommendation from the prosecutor for 364 days in jail with credit for time served. 

After appellant’s conviction, he was detained in Florida, until he was 

transported back to his unit at Fort Meade on 31 August 2016. Appellant was placed 

under restriction. On 4 October 2016, appellant was charged with desertion and 

possession of child pornography and ordered into pretrial confinement. 

On 22 February 2017, appellant pleaded guilty to all charges. The military 

judge awarded appellant 191 days of confinement credit.4

 Appellant requested an 

additional 291 days credit for the period of time appellant spent in pretrial 

confinement in Florida that was in excess of his 364 day sentence for the failure to 

appear charge.5 Based on Department of Defense Instruction 1325.07, 

Administration of Military Correctional Facilities and Clemency and Parole 

Authority [DoDI 1325.07], (11 Mar. 2013), the military judge denied appellant’s 

request for the additional 291 days of pretrial confinement by the state of Florida 

because the military judge found appellant was confined by the state of Florida 

because of his failure to appear. 

 

4

 The military judge awarded 8 days credit for the time appellant was held in a 

Cambodian jail and transported back to Florida, 9 days credit for the time appellant 

was held by the state of Florida for the military after his civilian plea of no contest, 

33 days credit for restrictions tantamount to confinement while at his Fort Meade 

unit, and 141 days for the time appellant spent in military pretrial confinement. 

5

 At trial, one of appellant’s arguments was that he should receive sentence credit 

the same as if he were in the Federal civilian system. Even if there is a superficial 

appeal to that argument, “[s]entencing procedures in Federal civilian courts can be 

followed in courts-martial only to a limited degree.” Rule for Courts-Martial 1001 

analysis at A21-71. Federal sentencing includes more mandatory minimum 

sentences, sentencing guidelines, and much different pre-sentencing procedures than 

used at courts-martial. Further, in the civilian Federal system, judges do not award 

sentence credit at trial. The Bureau of Prisons calculates appropriate sentence credit 

later. See United States v. Wilson, 503 U.S. 329, 333-35 (1992).
HARRIS—ARMY 20170100 

4 

LAW AND DISCUSSION 

We review the question of whether the appellant was entitled to pretrial 

confinement credit de novo. United States v. Smith, 56 M.J. 290, 292 (C.A.A.F. 

2002). Unless they are clearly erroneous, we defer to a military judge’s findings of 

fact but review the military judge’s application of those facts to the law de novo. 

United States v. Harris, 66 M.J. 166, 168 (C.A.A.F. 2008). 

 In addressing appellant’s assigned error, we must answer two questions. 

First, is appellant entitled to Allen credit as a matter of law. Second, if not entitled 

to Allen credit, should this court provide appellant with relief under our Article 

66(c) review. 

 Appellant argues that Allen requires day-for-day credit for 291 additional days 

of civilian confinement in Florida as a matter of law. We disagree. 

 

The Current Law 

In conducting our de novo review of the law, this court finds persuasive the 

analysis and holding of a Navy-Marine Corps Court of Criminal Appeals (NMCCA) 

case addressing this issue. In United States v. Atkinson, the NMCCA held that Allen

was inapplicable because DoDI 1325.07, “does not require (or even allow) credit for 

pretrial confinement at non-military facilities for unrelated offenses.” 74 M.J. 645, 

648 (N-M. Ct. Crim. App. 2015), rev. denied, 75 M.J. 20 (C.A.A.F. 2015). 

Prior to our superior court’s decision in Allen, “a military accused who had 

served a period of pretrial confinement was not entitled to administrative credit 

against his adjudged confinement.” United States v. DeLeon, 53 M.J. 658, 659 

(Army Ct. Crim. App. 2000). In Allen, our superior court interpreted Department of 

Defense Instruction 1325.4, Treatment of Military Prisoners and Administration of 

Military Correction Facilities [DoDI 1325.4], (7 Oct. 1968),6 “as voluntarily 

incorporating the pre-sentence credit” procedures employed by the Department of 

Justice (DOJ) for sentence computation. Allen, 17 M.J. at 128. As a result, the 

Allen court held that these Federal procedures7 applied to courts-martials. Id. “This 

 

6

 DoDI 1325.4, stated “procedures employed in the computation of sentences will be 

in conformity with those published by the [DOJ], which govern the computation of 

sentences of Federal prisoners and military prisoners under the jurisdiction of the 

[DOJ].” DoDI 1325.4, p. 22. 

7

 The relevant part of these Federal procedures, now found in 18 U.S.C. § 3585, 

require a defendant be given confinement credit, “as a result of any other charge for 

(continued . . .) 
HARRIS—ARMY 20170100 

5 

reading of DoDI 1325.4 is the sole basis for what trial practitioners for the past 30 

years have called ‘Allen credit.’” Atkinson, 74 M.J. at 647. 

 As discussed in Atkinson, the DoD instructions have changed dramatically 

since Allen. DoDI 1325.4 is no longer in effect, and has been replaced by DoDI 

1325.07. We agree with the Atkinson court’s analysis of the current status of DoD 

policy on this issue, and find we must apply the current DoDI to compute sentencing 

credit, not the DoDI that existed when Allen was decided. 

Plain Language 

We begin our interpretation of DoDI 1325.07 where all such interpretation 

must begin—with the plain language of the text. See e.g. United States v. Ron Pair 

Enterprises, Inc., 489 U.S. 235, 241 (1989). 

DoDI 1325.07 does not contain the reference to following DOJ procedures 

formerly found in DoDI 1325.4. Instead, the current instruction requires that 

“[s]entence computation shall be calculated [in accordance with] DoD 1325.7-M.” 

DoDI 1325.07, para. 3.a. DoD 1325.7-M, DoD Sentence Computation Manual [DoD 

1325.7-M], (27 Jul. 2004), requires that prisoners receive “all sentence credit 

directed by the military judge,” and that military judges “will direct credit for each 

day spent in pretrial confinement . . . for crimes for which the prisoner was later 

convicted.” DoD 1325.7-M, para. C2.4.2. 

Critically, however, DoDI 1325.07 states: 

Notwithstanding any other provision of this instruction or [DoD 

1325.7-M], if a prisoner (accused) is confined in a non-military facility 

for a charge or offense for which the prisoner had been arrested after 

the commission of the offense for which the military sentence was 

imposed, the prisoner (accused) shall receive no credit for such time 

confined in the non-military facility when calculating his or her 

sentence adjudged at court-martial. 

DoDI 1325.07, para. 3.c (emphasis added). 

As such, notwithstanding DoD 1325.7-M, which might otherwise grant credit, 

the appellant is entitled to no credit for his time spent in Florida pretrial 

 

(. . . continued) 

which the defendant was arrested after the commission of the offense for which the 

sentence was imposed; that has not been credited against another sentence.” 

(emphasis added). 
HARRIS—ARMY 20170100 

6 

confinement if he was in such pretrial confinement “for a charge or offense for 

which [appellant] had been arrested after the commission of the offense for which 

the military sentence was imposed . . . .” The crucial question is: what does the 

DoDI mean by “confined . . . for a charge,” and specifically, what does the word 

“for” mean in this context? 

When a term is not otherwise defined, courts will accord that term its ordinary 

meaning. United States v. Hendrix, (C.A.A.F. __M.J. __, slip op. at 5 (C.A.A.F. 19 

Jun. 2018). The word “for” has different meanings in different contexts. In the 

context at issue, we find the correct meaning of “for” is closest to “because of” or 

“on account of.” Webster’s Third New International Dictionary 886 (1981). 

DoDI 1325.07, para. 3.c therefore prohibits awarding credit for time spent in 

pretrial confinement “in a non-military facility [because of] a charge or offense for 

which the prisoner had been arrested after the commission of the offense for which 

the military sentence was imposed . . . .” 

Application of the Law to the Facts 

Considering the plain language of DoDI 1325.07, the military judge’s finding 

of fact that appellant was confined in Florida because of his offense of failure to 

appear resolves the issue raised on appeal unless the military judge’s finding is 

clearly erroneous. 

The clearly erroneous standard of review is a heavy burden for an appellant to 

overcome. Even if this court disagrees with the military judge’s characterization of 

the facts, we will not decide a military judge’s factual findings are clearly erroneous 

unless the record affords no other reasonable conclusion. “At least one court has 

defined the clearly-erroneous standard by stating that it must be ‘more than just 

maybe or probably wrong; it must . . . strike us as wrong with the force of a fiveweek-old, unrefrigerated dead fish.’” United States v. French, 38 M.J. 420, 425 

(C.M.A. 1993) (quoting Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 

F.2d 228, 233 (7th Cir. 1988)). 

 In this case, appellant was pending charges for child pornography when he 

was placed in civilian confinement in Florida. The Florida child pornography 

charges were not resolved until appellant’s guilty plea for failure to appear. While 

these facts weigh in appellant’s favor, they are not conclusive of the question of 

whether the appellant was actually in confinement because of the offense of failing 

to appear. The military judge accurately observed appellant was not confined by the 

state of Florida when he was facing only the child pornography charges. The state 

of Florida did not confine appellant until after he fled to Cambodia and failed to 

appear to face the Florida child pornography charges. Appellant was charged and 

placed in pre-trial confinement for the offense of fleeing Florida’s criminal process. 
HARRIS—ARMY 20170100 

7 

The state of Florida was not acting on behalf of the Army and he was not being held 

in confinement at the request of the Army. The fact appellant’s confinement by the 

state of Florida exceeded his eventual sentence for the crime of failure to appear 

does not obligate the Federal government to lessen the appellant’s punishment for 

different offenses against the Federal sovereign. 

Under these circumstances, we cannot say that the military judge’s finding 

that the appellant was in pretrial confinement because of failing to appear was 

clearly erroneous.8

 

 Once it is settled that appellant was confined by the state of Florida because 

of failing to appear, the result required by DoDI 1325.07 para. 3.c is clear: the 

appellant was confined in a non-military facility because of an offense for which he 

was arrested after the commission of the offense for which the military sentence was 

imposed. Therefore, notwithstanding any credit appellant might have otherwise been 

entitled to under DoD 1325.7-M, appellant is not entitled to credit for the time he 

spent in Florida confinement pending trial for his failure to appear. 

Article 66(c) 

 In exercising our Article 66(c) review of the findings and sentence approved 

by the convening authority, we do not award appellant any additional confinement 

credit. To the extent that the military judge’s ruling may appear harsh for not 

granting credit for appellant’s confinement in Florida, we note that prior to 

sentencing appellant, the military judge stated on the record that he fully considered, 

as a mitigating factor, the lengthy period of time appellant spent in Florida pretrial 

confinement. 

 

8

 Under the plain language of DoDI 1325.07, para. 3.c, it does not matter whether 

appellant was also in civilian pretrial confinement because of the pending Florida 

child pornography charges. Paragraph 3.c clearly states the restriction contained 

therein applies notwithstanding any provision of DoD 1325.7-M, that may otherwise 

provide for credit. 
HARRIS—ARMY 20170100 

8 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and sentence 

are AFFIRMED. 

Senior Judge MULLIGAN and Judge WOLFE concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: