Howell v. U.S., 75 M.J. 386

Military Justice Personnel: Military Judge: Discretion

1. a military judge, in finding an Article 13, UCMJ, violation for the government’s failure to pay appellant at his prior pay grade pending the results of a rehearing of his court-martial, did not exceed his authority by not following Article III courts’ holdings that appellant was only entitled to be paid as an E-1 pending the results of a rehearing; determining whether the government’s action of not paying appellant as an E-6 (his pay grade prior to his initial conviction) pending the results of the rehearing amounted to an Article 13, UCMJ, violation is properly within the jurisdiction of the military courts; this determination necessarily requires an interpretation of Article 75(a), UCMJ, an article that provides for the restoration of property when a court-martial sentence has been set aside by an appellate court; this is the sort of issue for which the military court ought not to defer to an Article III court’s interpretation
2. under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit

Military Justice Personnel: Convening Authority: Action

1. the convening authority is required to direct application of all confinement credits for violations of Article 13 against the approved sentence

Trial Stages: Pretrial: Pretrial Punishment

1. a military judge, in finding an Article 13, UCMJ, violation for the government’s failure to pay appellant at his prior pay grade pending the results of a rehearing of his court-martial, did not exceed his authority by not following Article III courts’ holdings that appellant was only entitled to be paid as an E-1 pending the results of a rehearing; determining whether the government’s action of not paying appellant as an E-6 (his pay grade prior to his initial conviction) pending the results of the rehearing amounted to an Article 13, UCMJ, violation is properly within the jurisdiction of the military courts; this determination necessarily requires an interpretation of Article 75(a), UCMJ, an article that provides for the restoration of property when a court-martial sentence has been set aside by an appellate court; this is the sort of issue for which the military court ought not to defer to an Article III court’s interpretation
2. the question of whether particular conditions amount to punishment before trial is a matter of intent, which is determined by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective; in the absence of a showing of intent to punish, a court must look to see if a particular restriction or condition, which may on its face appear to be punishment, is instead but an incident of a legitimate nonpunitive governmental objective; irrespective of any intent to punish, Article 13, UCMJ, is violated if the activity at issue serves no legitimate, nonpunitive purpose
3. under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit

Trial Stages: Merits: New Trial

1. after a new trial is ordered, no vestiges of the former court‑martial should linger; an order granting a new trial reopens the whole case, which then stands for trial de novo, and places the accused in the same position as if no trial had been had; the grant of a new trial wipes the slate clean as if no previous conviction and sentence had existed; under this longstanding interpretation of what a rehearing entails, if an accused is released from confinement awaiting rehearing, his pay status – at least insofar as the UCMJ is concerned – should be the same as if he had never been tried in the first instance

Trial Stages: Sentence and Punishment: Credits

1. the convening authority is required to direct application of all confinement credits for violations of Article 13 against the approved sentence
2. under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. once a court-martial sentence is set aside and thus invalidated, the government can no longer execute it; a set-aside sentence is no longer enforceable pending a rehearing

Trial Stages: Sentence and Punishment: Forfeitures › Generally

1. if a rehearing is ordered after a sentence has been set aside, under Article 75, UCMJ, the government is within its statutory rights to not restore to an accused any forfeiture of pay and allowances an appellant has already suffered as a result of the original conviction and sentence until after a rehearing is completed; but that article does not provide for the withholding of pay during the interim period after the findings and sentence are set aside, and the accused is returned to full duty status and his previous rank

Trial Stages: Initial Review: Execution of Sentences

1. once a court-martial sentence is set aside and thus invalidated, the government can no longer execute it; a set-aside sentence is no longer enforceable pending a rehearing

Trial Stages: Writs and Interlocutory Appeals: All Writs Act

1. the All Writs Act grants the power to all courts established by Act of Congress to issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; the All Writs Act is not an independent grant of jurisdiction, nor does it expand a court’s existing statutory jurisdiction; rather, the All Writs Act requires two determinations: (1) whether the requested writ is “in aid of” the court’s existing jurisdiction, and (2) whether the requested writ is “necessary or appropriate”
2. under the circumstances of this case, the CCA had jurisdiction under the All Writs Act to entertain a government’s petition for an extraordinary writ to remedy an alleged Article 13, UCMJ, violation; based on the CCA’s statutory jurisdiction under Article 66, UCMJ, jurisdiction under the All Writs Act for CCAs included matters that had the potential to directly affect the findings and sentence; because the government’s specific complaint in this case regarding the military judge’s ruling on confinement credit under Article 13, UCMJ, directly affected the findings and sentence, the CCA had jurisdiction to issue a writ
3. a writ of prohibition, like mandamus, is a drastic instrument which should be invoked only in truly extraordinary situations; to prevail, the petitioner must show that (1) there is no other adequate means to attain relief, (2) the right to issuance of the writ is clear and indisputable, and (3) the issuance of the writ is appropriate under the circumstances

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. Article 62 limits interlocutory appeals – an appeal that occurs before the trial court’s final ruling on the entire case; this case was not an interlocutory appeal because the trial court had issued findings and sentence and the military judge had authenticated the record before the government appealed

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the jurisdiction of CCAs is generally limited to appeals by the United States under Article 62, UCMJ, and review of the findings and sentences of certain courts-martial under Article 66(b), UCMJ
2. under the circumstances of this case, the CCA had jurisdiction under the All Writs Act to entertain a government’s petition for an extraordinary writ to remedy an alleged Article 13, UCMJ, violation; based on the CCA’s statutory jurisdiction under Article 66, UCMJ, jurisdiction under the All Writs Act for CCAs included matters that had the potential to directly affect the findings and sentence; because the government’s specific complaint in this case regarding the military judge’s ruling on confinement credit under Article 13, UCMJ, directly affected the findings and sentence, the CCA had jurisdiction to issue a writ
3. the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court

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

1. CAAF has statutory jurisdiction to review the decision of a CCA under Article 67, UCMJ; Article 67(a)(2), UCMJ, provides that CAAF shall review the record in all cases reviewed by a CCA which the JAG orders sent to CAAF for review
2. the doctrine of potential jurisdiction allows appellate courts to issue opinions in matters that may reach the actual jurisdiction of the court

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

1. jurisdiction is a question of law that an appellate court reviews de novo
2. under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1 were set aside and he was pending a rehearing, there was no intent to punish the accused by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; thus, no violation of Article 13, UCMJ, occurred and the military judge abused his discretion in awarding confinement credit