U.S. v. Guardado, 79 M.J. 301

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Pretrial Punishment

1. appellant bears the burden of proof to establish a violation of Article 13, UCMJ

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. appellant bears the burden of proof to establish a violation of Article 13, UCMJ

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Proof, persuasion

1. appellant bears the burden of proof to establish a violation of Article 13, UCMJ

Trial Stages: Pretrial: Pretrial Punishment

1. Article 13, UCMJ, provides in part that no person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence; 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
2. in this case, the military judge did not err in denying appellant’s motion for confinement credit under Article 13, UCMJ, for the government’s failure to restore him to his original E-8 pay status after his original court-martial sentence (and reduction to E-1) was set aside and he was pending a sentence rehearing; the military judge correctly found that paying appellant as an E-1 was not punishment, but rather the result of the Defense Finance and Accounting Service following binding judicial authority from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims, and the policy served a legitimate, nonpunitive governmental objective of providing appellant with the proper pay pending in light of the jurisdiction of those courts to adjudicate military pay disputes
3. Article 75(a), UCMJ, provides that all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing
4. (in Howell v. US (75 MJ 386 (CAAF 2016), the CAAF contradicted precedent from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims and held that after a rehearing is ordered and the accused is no longer confined, the accused should then receive full restoration of rank and pay; although the CAAF adheres to this interpretation of Article 75(a), UCMJ, its interpretation of Article 75(a), UCMJ, was not binding upon DFAS when resolving military pay disputes because proper pay determination is not within the CAAF’s statutory jurisdiction, as Congress has specified that the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims have jurisdiction over such disputes; the CAAF urged Congress and the President to establish rules that clarified this aspect of Article 75(a), UCMJ; in the 2017 National Defense Authorization Act, Congress did just that when it amended Article 75, UCMJ, to allow the President to determine by regulation the pay of servicemembers after the executed portion of their court-martial is set aside; on March 1, 2018, the President amended Rule for Courts-Martial 1208(b) to require pay at the pretrial grade while an accused awaits a rehearing; although the President could have made this change effective immediately, he instead chose not to make it effective until January 1, 2019, a date after appellant’s rehearing)

Trial Stages: Sentence and Punishment: Credits

1. in this case, the military judge did not err in denying appellant’s motion for confinement credit under Article 13, UCMJ, for the government’s failure to restore him to his original E-8 pay status after his original court-martial sentence (and reduction to E-1) was set aside and he was pending a sentence rehearing; the military judge correctly found that paying appellant as an E-1 was not punishment, but rather the result of the Defense Finance and Accounting Service following binding judicial authority from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims, and the policy served a legitimate, nonpunitive governmental objective of providing appellant with the proper pay pending in light of the jurisdiction of those courts to adjudicate military pay disputes

Trial Stages: Appeals: Remedies › Generally

1. Article 75(a), UCMJ, provides that all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing
2. (in Howell v. US (75 MJ 386 (CAAF 2016), the CAAF contradicted precedent from the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims and held that after a rehearing is ordered and the accused is no longer confined, the accused should then receive full restoration of rank and pay; although the CAAF adheres to this interpretation of Article 75(a), UCMJ, its interpretation of Article 75(a), UCMJ, was not binding upon DFAS when resolving military pay disputes because proper pay determination is not within the CAAF’s statutory jurisdiction, as Congress has specified that the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims have jurisdiction over such disputes; the CAAF urged Congress and the President to establish rules that clarified this aspect of Article 75(a), UCMJ; in the 2017 National Defense Authorization Act, Congress did just that when it amended Article 75, UCMJ, to allow the President to determine by regulation the pay of servicemembers after the executed portion of their court-martial is set aside; on March 1, 2018, the President amended Rule for Courts-Martial 1208(b) to require pay at the pretrial grade while an accused awaits a rehearing; although the President could have made this change effective immediately, he instead chose not to make it effective until January 1, 2019, a date after appellant’s rehearing)

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

1. the question of whether appellant is entitled to credit for an Article 13, UCMJ, 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; appellant bears the burden of proof to establish a violation of Article 13, UCMJ