U.S. v. Luster, 55 M.J. 67

Trial Stages: Sentence and Punishment: Evidence

1. there is no per se rule precluding defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged simply because he is not actually retirement eligible at the time of his court-martial; it may be a critical matter of which the members should be informed in certain cases before they decide to impose a punitive discharge
2. a military judge has a certain amount of discretion in determining to allow evidence regarding the loss of retirement benefits in a particular case, but the decision should not be based solely on the number of months until an accused’s retirement where other facts and circumstances indicate that the loss of these benefits is a significant issue in the case
3. defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged (1) appellant was serving an enlistment which would normally result in his eligibility for retirement; (2) the probability of retirement was not otherwise shown to be remote; (3) the expected financial loss was substantial; (4) the military judge effectively established a guarantied retirement standard before the evidence could be admitted; (5) the military judge’s conclusion concerning appellant’s retirement chances was based on speculation; and (6) the members were fully capable of and responsible for determining the likelihood that appellant would not retire under prevailing regulations
4. appellant was prejudiced by military judge’s erroneous decision to exclude defense evidence of an accused’s estimated retirement pay at various ranks if he is not punitively discharged where: (1) appellant needed only complete his current term of enlistment to be eligible to retire; (2) appellant had no record of prior convictions or nonjudicial punishment; (3) appellant had reliable evidence of projected loss; (4) the decision to award a punitive discharge was a close call; and (5) appellant was significantly disadvantaged when he was required to present a more general sentencing case relying on oblique references in voir-dire questions to the members and in counsel’s argument