U.S. v. Fischer, 61 M.J. 415

Trial Stages: Pretrial: Pretrial Punishment

1. Article 13, UCMJ, prohibit two types of activities: (1) the intentional imposition of punishment on an accused prior to trial, i.e., illegal pretrial punishment; and (2) pretrial confinement conditions that are more rigorous than necessary to ensure the accused’s presence at trial, i.e., illegal pretrial confinement
2. a violation of the illegal pretrial punishment prong of Article 13 entails a purpose or intent to punish an accused before guilt or innocence has been adjudicated; this standard is applied by examining the intent of the detention officials or by examining whether the purposes served by the restriction or condition are reasonably related to a legitimate governmental objective
3. the government’s policy of retroactively paying persons held past their EAS when a charge has not been sustained at trial does not signify an intent to punish the other group; acquittal provides a rational, objective basis for reimbursement
4. the pay of military personnel is not terminated upon the filing or referral or charges, nor is it terminated upon pretrial confinement; the fact that pay is terminated only when pretrial confinement is combined with a neutral criterion, the expiration of the term of service, underscores the non-punitive nature of the policy; the EAS date is a rational, objective point for termination of pay, and it is reasonably related to the legitimate government objective of not paying people who are not performing duties
5. the following seven factors may be used in determining whether a DoD financial management regulation is punitive or regulatory in nature: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation promotes retribution and deterrence -- the traditional aims of punishment; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned
6. terminating the pay of a servicemember in pretrial confinement whose obligated service has expired in accordance with a DoD financial management regulation did not constitute illegal pretrial punishment; there was no intent to punish; the regulation was not implicitly punitive or punitive in effect; there was a legitimate, non-punitive reason behind the regulation; and the application of the policy was reasonable, given that servicemember had reached his EAS and was not performing productive services

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the question of whether an accused is entitled to credit for an Article 13 violation is reviewed de novo; it is a mixed question of law and fact, and the military judge’s findings of fact will not be overturned unless they are clearly erroneous; the accused bears the burden of proof to establish a violation of Article 13

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. by statute, servicemembers who are on active duty are entitled to the basic pay of the pay grade to which they are assigned; a soldier’s entitlement to pay is statutory, not contractual; DoD financial management regulations provide that if a servicemember is confined awaiting court-martial trial when the enlistment expires, pay and allowances end on the date the enlistment expires and if the member is acquitted when tried, pay and allowances accrue until discharge
2. by regulation, decisions of the Comptroller General, and federal case law, servicemembers who reach their EAS while in pretrial confinement, and who are later convicted, are not entitled to be paid subsequent to the EAS while in pretrial confinement
3. a servicemember’s pay is not terminated just because the servicemember is placed in pretrial confinement; DoD regulations state that pay and allowances accrue to members in military confinement unless: (a) confined by military authorities on behalf of civil authorities; (b) pay and allowances are forfeited by court-martial sentence; or (c) the term of enlistment expires; a servicemember who is confined before trial is entitled to receive pay until the end of his enlistment contract, regardless of the ultimate disposition of the case; if a pretrial confinee does not reach EAS until after the adjudication of the case, the pretrial confinee is entitled to pay and allowances for the time held in pretrial confinement, regardless of whether the individual was found guilty or not guilty
4. every servicemember’s entitlement to pay is terminated at EAS; but by regulations, a servicemember may be paid after an enlistment expires in two situations; first, a servicemember who remains in the service and performs productive work may be paid; standard confinement duties, however, are not considered active-duty work that would entitle a pretrial confinee held past EAS to payment; second, if a servicemember held in pretrial confinement past EAS is later acquitted, the servicemember is retroactively paid for the time spent in pretrial confinement past the EAS date