U.S. v. Zarbatany, 70 M.J. 169

Trial Stages: Pretrial: Pretrial Punishment

1. conversion of confinement credit to forms of punishment other than those found in RCM 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, does not preclude forms of relief other than confinement credit; and RCM 305(k) does not exclusively delimit the form of relief lawfully available for violations of Article 13, UCMJ
2. 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
3. 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; 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
4. 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 RCM 305(k) 69 (the primary mechanism for addressing violations of Article 13, UCMJ, and the remedy for illegal pretrial confinement has been confinement credit; the plain language of RCM 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 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; as a result, RCM 305(k)’s plain language excludes a punitive discharge from permissible applications of illegal confinement credit under the rule).
5. although RCM 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; other relief may range from disapproval of a bad-conduct discharge, to complete dismissal of the charges, depending on the circumstances
6. the question of what relief is due to remedy an Article 13 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 appellant, and whether the relief sought is disproportionate to the harm suffered or in light of the offenses for which appellant was convicted
7. 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 appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review

Trial Stages: Sentence and Punishment: Credits

1. conversion of confinement credit to forms of punishment other than those found in RCM 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, does not preclude forms of relief other than confinement credit; and RCM 305(k) does not exclusively delimit the form of relief lawfully available for violations of Article 13, UCMJ
2. 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
3. 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 RCM 305(k)
4. the primary mechanism for addressing violations of Article 13, UCMJ, and the remedy for illegal pretrial confinement has been confinement credit; the plain language of RCM 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 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; as a result, RCM 305(k)’s plain language excludes a punitive discharge from permissible applications of illegal confinement credit under the rule
5. although RCM 305(k) is the principal remedy for Article 13, UCMJ, violations, it is not the sole remedy; courts must consider other relief for violations of Article 13, UCMJ, where the context warrants; other relief may range from disapproval of a bad-conduct discharge, to complete dismissal of the charges, depending on the circumstances
6. the question of what relief is due to remedy an Article 13 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 appellant, and whether the relief sought is disproportionate to the harm suffered or in light of the offenses for which appellant was convicted
7. 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 appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a remand of this case to the CCA for a new Article 66(c), UCMJ, review, is necessary to determine whether the circumstances of appellant’s case warrant additional relief for a violation of Article 13, UCMJ, as a matter of law, or whether such relief would be disproportionate, where (1) the pretrial confinement conditions in this case violated Article 13, UCMJ, and constituted pretrial punishment, (2) after the convening authority’s action, 415 days of excess confinement credit remained, and the only meaningful relief that could be provided to appellant would have to be addressed to his punitive discharge, and (3) it is unclear whether the lower court operated under a correct view of the law in reviewing appellant’s sentence and in exercising its appropriateness power - i.e., it is unknown if the CCA considered such relief unwarranted, unavailable, or available but disproportionate, it is unclear whether the CCA operated on the belief that meaningful relief was required where proportionate under the circumstances, and it appears that the CCA may have subsumed the issue of meaningful relief into a question of credit conversion under RCM 305(k) alone, and then as a question of sentence-appropriateness review under Article 66(c), UCMJ, where it operates at its broadest discretion

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. a judgment regarding sentence appropriateness should necessarily encompass a judgment that any additional Article 13, UCMJ, relief would be disproportionate in the context presented
2. 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 appellant may have suffered and the seriousness of the offenses of which he was convicted; furthermore, the issue of meaningful relief must be reviewed independent of the CCA’s sentence appropriateness review

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review

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

1. the proper application of credit for illegal pretrial punishment is a question of law, reviewed de novo by an appellate court
2. whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review