UNITED STATES, Appellee 

v. 

Darryl S. PHILLIPS, Major 

U.S. Marine Corps, Appellant 

No. 06-0600 

Crim. App. No. 200400865 

United States Court of Appeals for the Armed Forces

Argued January 10, 2007 

Decided March 26, 2007 

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

BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued). 

For Appellee: Lieutenant Craig A. Poulson, JAGC, USN (argued); 

Commander P. C. LeBlanc, JAGC, USN (on brief); Commander C. N. 

Purnell, JAGC, USN. 

Military Judge: S. M. Immel 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Phillips, No. 06-0600/MC 

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Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of officer members 

convicted Appellant, contrary to his pleas, of conspiracy to 

steal government property, willful dereliction of duty, 

destruction of nonmilitary government property, larceny of 

government property, wrongful appropriation of government 

property, conduct unbecoming an officer, obstructing justice 

(four specifications), obtaining services by false pretense 

(three specifications), obtaining personal services at 

government expense, and fraternization, in violation of Articles 

81, 92, 109, 121, and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 881, 892, 909, 921, 934 (2000). The 

offenses primarily involved the creation of shell companies and 

fraudulent charges of more than $400,000 on government credit 

cards. 

 The sentence adjudged by the court-martial included a 

reprimand, confinement for five years, dismissal, and a $400,000 

fine. The sentence also contained a contingent confinement 

provision under Rule for Courts-Martial (R.C.M.) 1003(b)(3): if 

the fine was not paid, Appellant would be required to serve an 

additional five years of confinement. The convening authority 

approved the sentence, but disapproved that portion of the fine 

in excess of $300,000, and suspended for a period of twenty-four 

months execution of that portion of the sentence adjudging a 
United States v. Phillips, No. 06-0600/MC 

3

fine in excess of $200,000. The convening authority ordered the 

sentence executed, except for that part of the sentence 

extending to dismissal. 

Subsequently, the Commanding General, Marine Corps Base, 

Camp Pendleton (commanding officer), ordered a fine enforcement 

hearing under R.C.M. 1113(d)(3) to determine whether Appellant’s 

failure to pay the approved fine was due to indigence. After 

the hearing, the commanding officer ordered Appellant to serve 

an additional five years of confinement for willful failure to 

pay the unsuspended fine. 

The United States Navy-Marine Corps Court of Criminal 

Appeals set aside the findings of guilty as to the charges of 

conspiracy to steal government property and destruction of 

nonmilitary government property, and affirmed the remaining 

findings. United States v. Phillips, No. NMCCA 200400865, 2006 

CCA LEXIS 61, at *39, 2006 WL 650022, at *13 (N-M. Ct. Crim. 

App. Mar. 16, 2006) (unpublished). The court reassessed the 

sentence in light of its actions, and affirmed the sentence as 

approved by the convening authority. 2006 CCA LEXIS 61, at *39-

*40, 2006 WL 650022, at *13. 

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

issues: 

I. WHETHER A SUBSTITUTE CONVENING AUTHORITY CAN 

ORDER ADDITIONAL CONFINEMENT EXECUTED FOR 
United States v. Phillips, No. 06-0600/MC 

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FAILURE TO PAY AN ADJUDGED FINE AFTER THE 

SENTENCE HAS BEEN APPROVED AND EXECUTED. 

II. IF APPELLANT’S CONTINGENT CONFINEMENT WAS 

WITH PROPER AUTHORITY, WHETHER IT WAS 

APPROPRIATE IN LIGHT OF OTHER POSSIBLE 

PUNISHMENTS ADEQUATE TO MEET THE 

GOVERNMENT’S NEED. 

We hold that the commanding officer who executed the 

contingent confinement provision was authorized to do so. We 

further hold that the commanding officer was not required to 

consider alternatives to contingent confinement after concluding 

that Appellant was not indigent. 

I. BACKGROUND 

A. FINES AND CONTINGENT CONFINEMENT 

As part of the sentence, a court-martial “may adjudge a 

fine in lieu of or in addition to forfeitures.” R.C.M. 

1003(b)(3). The rule contains the following authority to impose 

contingent confinement: 

In order to enforce collection, a fine may be 

accompanied by a provision in the sentence that, 

in the event the fine is not paid, the person 

fined shall, in addition to any period of 

confinement adjudged, be further confined until a 

fixed period considered an equivalent punishment 

to the fine has expired. 

Article 60(c), UCMJ, 10 U.S.C. § 860(c) (2000), requires 

the convening authority to take action on the sentence of the 

court-martial. The convening authority has broad power under 
United States v. Phillips, No. 06-0600/MC 

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Article 60(c)(2), UCMJ, to “approve, disapprove, commute, or 

suspend the sentence in whole or in part.” 

When taking action on the sentence, the convening 

authority’s “approval or disapproval shall be explicitly 

stated.” R.C.M. 1107(d)(1). “If only part of the sentence is 

approved, the action shall state which parts are approved.” 

R.C.M. 1107(f)(4)(A). “[W]hen appropriate,” the action shall 

state “whether an approved sentence is to be executed or whether 

all or any part of the sentence is to be suspended.” R.C.M. 

1107(f)(4)(B). 

Certain portions of a sentence may take effect prior to the 

convening authority’s action. See, e.g., Article 57(a)(1), 

UCMJ, 10 U.S.C. § 857(a)(1) (2000) (forfeitures of pay and 

allowances; reduction in rank); Article 57(b), UCMJ 

(confinement). A fine, however, does not become due until 

ordered into execution by the convening authority. Unless a 

different date or payment schedule is set forth in the convening 

authority’s action or otherwise agreed to by the convening 

authority, payment of the fine is due on the date that the 

convening authority takes action on the sentence. Article 

57(c), UCMJ; Article 71(c)(2), UCMJ, 10 U.S.C. § 871(c)(2) 

(2000); R.C.M. 1113(b). See, e.g., United States v. Palmer, 59 

M.J. 362, 363 (C.A.A.F. 2004) (the appellant was informed by 

letter that he had thirty days from date of convening 
United States v. Phillips, No. 06-0600/MC 

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authority’s action on sentence to pay fine, and subsequently the 

appellant was granted an additional thirty-day extension of time 

to pay). 

After the convening authority takes action on the results 

of a general court-martial, the convening authority forwards the 

record to the Judge Advocate General concerned to initiate 

appellate review. Articles 65(a), 66, 69(a), UCMJ, 10 U.S.C. § 

865(a), 866, 869(a) (2000); R.C.M. 1111(a)(1). The convening 

authority may recall or modify his or her action in a general 

court-martial at any time prior to forwarding the record for 

review so long as the modification does not result in action 

less favorable to the accused than the earlier action. R.C.M. 

1107(f)(2). After the convening authority has taken action on 

the sentence and has forwarded the record for review, reviewing 

authorities may return the case to the convening authority with 

direction to take further action in the case. Id. 

The question of who may convert contingent confinement into 

actual confinement in the event of failure to make timely 

payment is not addressed in the UCMJ, and is covered only 

obliquely in the Manual for Courts Martial, United States (MCM). 

As we noted in Palmer, 59 M.J. at 366 n.7, the MCM suffers from 

a “lack[] [of] specific guidance regarding the procedures 

applicable to a delinquent, but not indigent accused.” In 

particular, the MCM does not identify the proper authority to 
United States v. Phillips, No. 06-0600/MC 

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execute contingent confinement, referring only to “the authority 

considering imposition of confinement” in the context of 

addressing claims of indigency: 

Confinement may not be executed for failure to pay a 

fine if the accused demonstrates that the accused has 

made good faith efforts to pay but cannot because of 

indigency, unless the authority considering imposition 

of confinement determines, after giving the accused 

notice and opportunity to be heard, that there is no 

other punishment adequate to meet the Government’s 

interest in appropriate punishment. 

R.C.M. 1113(d)(3). We have recognized, however, that a 

commanding officer empowered to order contingent confinement is 

not acting in the capacity of the convening authority who 

approved the results of the court-martial under Article 60(c), 

UCMJ, but as the “authority considering imposition of 

confinement” for nonpayment of the fine under R.C.M. 1113(d)(3). 

Palmer, 59 M.J. at 364 n.5. Exercise of the authority to impose 

contingent confinement by the officer serving as a person’s 

commanding officer subsequent to action under Article 60(c), 

UCMJ, does not violate the MCM. Id. 

 Under R.C.M. 1113(d)(3), an accused who fails to pay an 

executed fine is entitled to the opportunity to show indigence 

and demonstrate past good faith efforts to pay before being 

ordered into confinement for failure to pay. If the accused 

demonstrates indigence, the authority considering confinement 

must determine, after notice to the accused and a hearing, that 
United States v. Phillips, No. 06-0600/MC 

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no alternative punishment is adequate to meet the government’s 

interest in punishment. Id. If an accused cannot demonstrate 

indigence, the authority considering confinement need not 

consider alternatives before executing contingent confinement. 

Palmer, 59 M.J. at 365-66. The authority considering 

confinement may choose to consider alternative punishments as a 

matter of discretion in the case of a nonindigent accused, but 

is not required to do so. See id. at 366. 

B. CONTINGENT CONFINEMENT IN THE PRESENT CASE 

The convening authority in Appellant’s court-martial took 

his action on the sentence under Article 60(c), UCMJ, on June 

10, 2004. As noted at the outset of this opinion, the convening 

authority approved the adjudged fine in part, suspended part of 

the fine, and approved the balance of the sentence, including 

the contingent confinement provision. 

On June 10, 2005, the commanding officer notified Appellant 

of his failure to pay the fine, and stated his intent to conduct 

a fine enforcement hearing under R.C.M. 1113(d)(3) if the fine 

was not paid in full by June 16, 2005. When Appellant failed to 

pay the fine in full, the commanding officer ordered a fine 

enforcement hearing under R.C.M. 1113(d)(3) to determine whether 

the contingent confinement provision of Appellant’s sentence 

should be converted to actual confinement due to Appellant’s 

failure to pay. 
United States v. Phillips, No. 06-0600/MC 

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The fine enforcement hearing officer determined, based on a 

preponderance of the evidence presented at the hearing, that 

Appellant was not indigent. The hearing officer found that, 

although Appellant had remitted payments totaling $790 in 

partial fulfillment of his debt, he failed to make bona fide 

efforts to pay the fine, and had engaged in asset-shifting to 

avoid payment. The hearing officer noted that Appellant had 

offered to repay the fine under an installment plan upon his 

release from confinement. However, he concluded that neither 

Appellant’s proposed payment plan nor any other alternative to 

confinement was adequate to meet the Government’s interest in 

carrying out the adjudged sentence. 

The staff judge advocate considered the hearing officer’s 

findings, and recommended, based on Appellant’s “subterfuge, 

previous conduct designed to remove assets from his control, and 

his willful failure to take reasonable steps to liquidate assets 

to pay his fine,” that the five-year period of contingent 

confinement be executed. After considering the results of 

trial, fine enforcement hearing report, staff judge advocate’s 

recommendation, and matters submitted by defense counsel, the 

commanding officer ordered execution of the contingent 

confinement provision “for contumacious conduct (i.e., willful 

failure to pay).” 
United States v. Phillips, No. 06-0600/MC 

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The Court of Criminal Appeals held that R.C.M. 1107(d)(1) 

did not prohibit the execution of the fine enforcement provision 

in this case, and that the Commanding General, Marine Corps 

Base, Camp Pendleton, was the proper authority to act in this 

matter. Phillips, 2006 CCA LEXIS 61, at *39, 2006 WL 650022, at 

*13. 

II. DISCUSSION 

A. AUTHORITY TO EXECUTE CONTINGENT CONFINEMENT 

The first granted issue requires us to determine whether 

the convening authority’s action on June 10, 2004, approving the 

sentence under Article 60(c), UCMJ, precluded a different 

officer from converting the contingent confinement provision of 

the sentence into actual confinement when Appellant failed to 

pay the fine. We review this question of law de novo. 

Appellant argues that the Government’s window to order him 

into contingent confinement expired on the date the convening 

authority ordered the sentence executed because the convening 

authority did not expressly convert contingent confinement to 

actual confinement at that time. According to Appellant, the 

commanding officer could not impose contingent confinement after 

the sentence was executed and the record forwarded for review, 

citing R.C.M. 1107(f)(2) (permitting a convening authority to 
United States v. Phillips, No. 06-0600/MC 

11

modify his or her action at any time before forwarding the 

record for review). 

If the contingent confinement provision of an appellant’s 

sentence could be executed only at the same time a fine takes 

effect, a convening authority would have to determine that an 

accused willfully failed to pay a fine under R.C.M. 1113(d)(3) 

even before the fine was due. See Article 57(c), UCMJ. The 

texts of the applicable rules and statutes do not mandate such a 

conclusion, and we decline to interpret those provisions in a 

manner that would generate an unreasonable result. 

Contingent confinement is an enforcement mechanism that may 

be included in a sentence to a fine, allowing the proper 

authority to order into confinement an accused who fails to pay 

the fine. The procedural requirements of R.C.M. 1113(d)(3) 

ensured that due process was satisfied before confinement was 

ordered in the present case. 

R.C.M. 1113(d)(3) also makes it clear that the predicate to 

converting contingent to actual confinement is the failure by a 

servicemember to pay a fine that is due. Inasmuch as a fine is 

not due until the sentence is executed, contingent confinement 

may be executed only after: (1) the fine is executed, (2) the 

accused has an opportunity to pay, and (3) fails to do so. 

In this case, a year passed between the date of execution 

of Appellant’s sentence and the date he was ordered to pay the 
United States v. Phillips, No. 06-0600/MC 

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unsuspended fine. When he failed to pay the fine, the 

commanding officer properly ordered a fine enforcement hearing, 

determined that Appellant was not indigent, and ordered him into 

contingent confinement for willful failure to pay. Although 

Appellant characterizes the commanding officer as a “substitute” 

convening authority, the commanding officer did not execute 

contingent confinement in the capacity of a “substitute” for the 

convening authority over Appellant’s court-martial; he acted as 

“the authority considering imposition of confinement” under 

R.C.M. 1113(d)(3). We find no error in the execution of 

contingent confinement in this case. 

B. CONSIDERATION OF ALTERNATIVE PUNISHMENTS 

The second granted issue requires us to determine whether 

the commanding officer was obligated to consider alternative 

punishments before ordering Appellant into contingent 

confinement. We review the decision to convert a fine into 

confinement for abuse of discretion. Palmer, 59 M.J. at 366.

 The fine enforcement hearing officer determined that 

Appellant was not indigent, and the staff judge advocate and the 

commanding officer accepted his conclusion. The determination 

that Appellant was not indigent is not at issue in the present 

appeal under the granted issues.* 

 

* Appellant, in his reply brief, raised the question of whether 

the length of the contingent confinement period was appropriate 
United States v. Phillips, No. 06-0600/MC 

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The authority considering imposition of contingent 

confinement is not required by R.C.M. 1113(d)(3) or any other 

provision of the MCM to consider alternatives to confinement for 

a nonindigent accused. Because Appellant failed to establish 

that he is indigent, the commanding officer was not required to 

consider whether Appellant’s proposed payment plan or any 

alternative punishment would be adequate to meet the 

Government’s interests. Compare Palmer, 59 M.J. at 365 (no 

requirement to consider whether the appellant’s proposed payment 

plan would satisfy ends of justice where the appellant was not 

indigent and was “engaged in conduct designed to remove assets 

from his control and did not take reasonable steps to liquidate 

assets to make timely payment”), with United States v. Tuggle, 

34 M.J. 89, 92 (C.M.A. 1992) (error in failing to consider 

alternatives to confinement where the appellant’s “financial 

 

in view of subsequent adjustments in the fine. See R.C.M. 

1003(b)(3) (describing contingent confinement as a “fixed period 

considered an equivalent punishment to the fine”). The issue of 

whether the contingent confinement period imposed in this case 

constituted an “equivalent punishment” is not within the scope 

of the granted issues, and we decline to address it. We take 

this opportunity, however, to note the need for guidance on 

contingent confinement procedures in cases involving delinquent, 

nonindigent servicemembers. See Palmer, 59 M.J. at 366 n.7. 

Such guidance should address the considerations applicable to 

the imposition of contingent confinement when the original fine 

has been substantially reduced by partial payment, subsequent 

official action, or both. 
United States v. Phillips, No. 06-0600/MC 

14

limitations clearly could have placed him at some level of 

indigence”). 

III. CONCLUSION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.