United States v. Howell

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

Stephen P. HOWELL, Staff Sergeant

United States Marine Corps, Appellant/Cross-Appellee

v.

UNITED STATES

Appellee/Cross-Appellant

Nos. 16-0289 & 16-0367

Crim. App. No. 201200264

Argued May 11, 2016—Decided July 19, 2016

Military Judge: David M. Jones

For Appellant/Cross-Appellee: Lieutenant R. Andrew

Austria, JAGC, USN (argued).

For Appellee/Cross-Appellant: Lieutenant Robert J. Miller,

JAGC, USN (argued); Colonel Mark K. Jamison, USMC

(on brief).

Judge SPARKS delivered the opinion of the Court, in

which Senior Judge LAMBERTH joined. Judge

STUCKY filed a separate concurring opinion concurring

in the result. Judge OHLSON filed a separate opinion

concurring in part and dissenting in part, in which

Chief Judge ERDMANN joined.

_______________

Judge SPARKS delivered the opinion of the Court.1

This matter is before us as a result of a petition for

extraordinary relief filed by the Government pursuant to the

All Writs Act, 28 U.S.C. §1651(a). In its petition for

extraordinary relief in the nature of a writ of prohibition,

the Government asked the United States Navy-Marine

Corps Court of Criminal Appeals to prohibit enforcement of

an order by the military judge granting Appellant/Cross-

Appellee (Appellant) confinement credit pursuant to Article

1 Senior Judge Royce C. Lamberth, of the United States

District Court for the District of Columbia, sat by designation

pursuant to Article 142(f), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 942(f) (2012).

United States v. Howell, Nos. 16-0289 & 16-0367/MC

Opinion of the Court

13, UCMJ, 10 U.S.C. § 813 (2012). The lower court granted

the Government’s writ petition in part and denied in part.

Appellant then filed a writ-appeal with this Court,

challenging the lower court’s jurisdiction to hear the

Government’s petition for extraordinary relief. The Judge

Advocate General of the Navy certified four additional issues

for review by this Court.2 We hold that the Court of

Criminal Appeals had jurisdiction under the All Writs Act to

entertain the Government’s petition for a writ of prohibition.

We further hold that under the facts of this case, 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.

Background

On October 12, 2012, Appellant, then a Staff Sergeant

(E-6) in the Marine Corps, was tried by a general

court-martial consisting of members. Contrary to his pleas,

he was convicted of violating a general regulation, rape,

2 The Judge Advocate General of the Navy certified the case

for review of four issues:

I. Whether the Government may invoke Article 66, UCMJ, as

the jurisdictional basis for an extraordinary writ pursuant

to the All Writs Act when the issue is not included as a

basis for Government appeal under Article 62, UCMJ?

II. Whether the military judge, in finding an Article 13,

UCMJ, violation, exceeded his authority by rejecting

applicable holdings of the U.S. Court of Appeals for the

Federal Circuit and the Court of Federal Claims, in order

to conclude that [Appellant] was entitled to pay at the E-6

rate pending his rehearing?

III. Whether the lower court erred by concluding that the

setting aside of [Appellant’s] findings and sentence

rendered his reduction to pay grade E-1 prospectively

unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed

reduction to pay grade E-1 and the sentence is

subsequently set aside, does the action of paying that

member at the E-1 rate pending rehearing constitute

illegal pretrial punishment in the absence of any punitive

intent?

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Opinion of the Court

aggravated sexual contact, forcible sodomy, assault

consummated by a battery, and adultery, in violation of

Articles 92, 120, 125, 128, and 134, UCMJ, 10 U.S.C. §§ 892,

920, 925, 928, and 934. The members sentenced Appellant

to a dishonorable discharge, confinement for eighteen years,

forfeiture of all pay and allowances, and reduction to pay

grade E-1. The convening authority approved the sentence

as adjudged.

On May 22, 2014, the lower court set aside the findings

and sentence and authorized a rehearing. United States v.

Howell, No. NMCCA 201200264, 2014 CCA LEXIS 321, at

*38 (N-M. Ct. Crim. App. May 22, 2014) (unpublished). The

convening authority ordered the rehearing on June 25, 2014.

The next day, Appellant was released from confinement,

returned to full duty status, permitted to wear his

preconviction rank insignia of E-6 and assigned

commensurate duties. However, in accordance with

guidance from the Defense Finance and Accounting Service

(DFAS), the command determined that Appellant was to be

paid as an E-1 pending the rehearing results.

After referral of the charges, Appellant filed a motion,

seeking, in relevant part, payment as an E-6 pending the

results of the rehearing. The military judge noted that he

did not have the authority to order the Government to

restore Appellant to the grade of E-6 pending the rehearing.

Instead, the military judge concluded that the Government’s

failure to pay Appellant as an E-6 following set aside of his

conviction and the command’s decision to return him to full

duty status amounted to illegal pretrial punishment in

violation of Article 13, UCMJ. Accordingly, the military

judge granted one day of confinement credit for every day

from May 22, 2014, onward that Appellant was paid at the

E-1 rate.

Following the military judge’s ruling, the Office of the

General Counsel for DFAS provided the Government with

its legal opinion that Article 75(a), UCMJ, as interpreted by

Dock v. United States, 46 F.3d 1083 (Fed. Cir. 1995) and

Combs v. United States, 50 Fed. Cl. 592 (Fed. Cl. 2001),

provided binding legal authority to pay Appellant at the E-1

rate until the results of the rehearing were known. Based

on this legal opinion, the Government filed a motion asking

the military judge to reconsider the pay issue.

The military judge did not believe that the Government

was acting in complete disregard of Appellant’s rights.

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Opinion of the Court

Rather, “DFAS and the Court simply disagree on what rank

[Appellant] should be paid at pending his re-trial.” The

military judge found that DFAS’s pay position was taken in

good faith based on statutory interpretation and case law.

Nonetheless, the military judge adhered to his initial Article

13, UCMJ, determination.

At the rehearing, the members convicted Appellant,

contrary to his pleas, of violating a lawful general order,

abusive sexual contact, and adultery, in violation of Articles

92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934.

Appellant was sentenced to a dishonorable discharge,

confinement for nine years, forfeiture of all pay and

allowances, and a reduction to E-1.

Prior to the convening authority’s action, the

Government filed a petition for extraordinary relief in the

nature of a writ of prohibition with the lower court. The

Government requested that the lower court vacate the

military judge’s ruling directing the convening authority to

provide Appellant with Article 13, UCMJ, sentencing credit.

In United States v. Jones, No. NMCCA 201200264, 2015

CCA LEXIS 573, at *27, 2015 WL 9487941, at *9 (N-M. Ct.

Crim. App. Dec. 29, 2015),3 a divided court, en banc, granted

the writ petition in part and denied in part. The lower court

agreed with the military judge that after Appellant’s first

conviction was vacated and he was released from

confinement and returned to full duty status, he should have

been paid as an E-6 pending the results of the rehearing.

The lower court found that the military judge erred only in

setting the start date for the Article 13, UCMJ, credit as the

date when the findings were first set aside, when instead

any credit due should not have begun until the date

Appellant was released from confinement. Accordingly, the

Court of Criminal Appeals issued a writ of prohibition

vacating the military judge’s award of confinement credit for

the period from the set aside of sentence on May 22, 2014, to

the last day in confinement on June 25, 2014. The petition

was otherwise denied.

I.

Jurisdiction is a question of law that this Court reviews

de novo. LRM v. Kastenberg, 72 M.J. 364, 367 (C.A.A.F.

2013). This Court has statutory jurisdiction to review the

3 Howell is the real party in interest in Jones.

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Opinion of the Court

decision of the Court of Criminal Appeals under Article 67,

UCMJ, 10 U.S.C. § 867 (2012). Article 67(a)(2), UCMJ,

provides that this Court shall review the record in “all cases

reviewed by a Court of Criminal Appeals which the Judge

Advocate General orders sent to the Court of Appeals for the

Armed Forces for review.” The jurisdiction of the Courts of

Criminal Appeals has generally been limited to appeals by

the United States under Article 62, UCMJ, 10 U.S.C. § 862

(2012), and review of the findings and sentences of certain

courts-martial under Article 66(b), UCMJ, 10 U.S.C. § 866(b)

(2012).

Certified Issue I asks whether the Government may

invoke Article 66, UCMJ, as the jurisdictional basis for an

extraordinary writ to remedy an alleged Article 13, UCMJ,

violation when the issue is not included as a basis for

government appeal under Article 62, UCMJ.

As an initial matter, whether Article 62, UCMJ, limits

the use of the All Writs Act is not before us. Article 62

limits interlocutory appeals – “[a]n appeal that occurs before

the trial court’s final ruling on the entire case.” Black’s Law

Dictionary 118 (10th ed. 2014). Here, the trial court issued

findings and sentence, and the military judge authenticated

the record before the Government petitioned for relief. This

was not, therefore, an interlocutory appeal.

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.” 28 U.S.C.

§ 1651(a). The All Writs Act is not an independent grant of

jurisdiction, nor does it expand a court’s existing statutory

jurisdiction. Clinton v. Goldsmith, 526 U.S. 529, 534-35

(1999). 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.” Denedo v.

United States, 66 M.J. 114, 119 (C.A.A.F. 2008) (internal

quotation marks omitted).

Whether issuance of the requested writ was “in aid of” the

lower court’s jurisdiction

In the context of this case, writ jurisdiction under the All

Writs Act is limited to those matters that are “in aid of [the

Court of Criminal Appeals] respective jurisdiction[]” under

Article 66, UCMJ. 28 U.S.C. § 1651(a). Article 66(b)(1),

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UCMJ, requires the Court of Criminal Appeals to review the

record in each trial by court-martial “in which the sentence,

as approved, extends to death, dismissal of a commissioned

officer, cadet, or midshipman, dishonorable or bad-conduct

discharge, or confinement for one year or more.”4 In Article

66(c), Congress conferred upon the Court of Criminal

Appeals an “awesome, plenary, de novo power of review.”

United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).

Under this power, the Courts of Criminal Appeals may only

“affirm … such findings of guilty, and the sentence or such

part or amount of the sentence, as it finds correct in law and

fact and determines, on the basis of the entire record, should

be approved.” Article 66(c), UCMJ.

Jurisdiction under the All Writs Act is therefore limited

to matters that “ha[ve] the potential to directly affect the

findings and sentence.” Ctr. For Constitutional Rights v.

United States, 72 M.J. 126, 129 (C.A.A.F. 2013) (citing

Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012)); see also LRM,

72 M.J. at 368. We can readily conclude that the

Government’s specific complaint regarding the military

judge’s ruling on confinement credit directly affects the

findings and sentence. The convening authority is required

“to direct application of all confinement credits for violations

of Article 13 ... against the approved sentence.” United

States v. Spaustat, 57 M.J. 256, 263-64 (C.A.A.F. 2002).

Accordingly, we answer Certified Question I in the

affirmative and deny Appellant’s writ-appeal petition for

review.

Whether issuance of the writ was “necessary and

appropriate”

A writ of prohibition, like mandamus, is a “drastic

instrument which should be invoked only in truly

extraordinary situations.” United States v. Labella, 15 M.J.

228, 229 (C.M.A. 1983). 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

4 Although the convening authority has not yet approved the

sentence, the doctrine of potential jurisdiction allows appellate

courts to issue opinions in matters that may reach the actual

jurisdiction of the court. See FTC v. Dean Foods Co., 384 U.S. 597,

603 (1966) (the power to issue writs “extends to the potential

jurisdiction of the appellate court where an appeal is not then

pending but may be later perfected”).

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Opinion of the Court

indisputable; and (3) the issuance of the writ is appropriate

under the circumstances.” Hasan, 71 M.J. at 418 (citing

Cheney v. United States Dist. Court for D.C., 542 U.S. 367,

380-81 (2004)). With these principals in mind, we will

establish the necessity and appropriateness of the

Government’s writ of prohibition as we proceed through our

analysis of the remaining certified questions.

II.

Certified Issue II asks whether the military judge, in

finding an Article 13, UCMJ, violation, exceeded 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 the rehearing.

Determining whether the Government’s action of not

paying Appellant as an E-6 pending the results of the

rehearing amounted to an Article 13, UCMJ, violation is

properly within the jurisdiction of the military courts, as

well as this Court. This determination necessarily requires

interpretation of Article 75(a), UCMJ, 10 U.S.C. § 875(a)

(2012), and how this article applies when court-martial

findings and sentences have 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.

Article 75(a), UCMJ, provides:

Under such regulations as the President may

prescribe, all rights, privileges, and property

affected by an executed part of a court-martial

sentence which has been set aside or disapproved,

except an executed dismissal or discharge, 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.

In Dock, the United States Court of Appeals for the

Federal Circuit concluded that Article 75(a), UCMJ:

[P]lainly requires that, with two exceptions, if a

member’s court-martial sentence is set aside or

disapproved, all rights, privileges, and property are

to be restored to the member. The first exception is

that a set-aside or disapproved sentence does not

undo an already executed dismissal or discharge.

The second exception, controlling here, is that if a

rehearing is ordered, and the member is

resentenced, then only that part of the executed

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Opinion of the Court

first sentence that is not included in the second

sentence shall be restored to the member.

46 F.3d at 1087. Relying upon Dock, the United States

Court of Federal Claims held in Combs that when a new

trial is conducted, entitlement to restoration of pay is

dependent upon the outcome of the new trial. 50 Fed. Cl.

at 600.

In reliance upon these holdings, the Government, based

on guidance received from DFAS, took a wait-and-see

approach to restoring Appellant’s pay grade until after the

results of the rehearing were known. We acknowledge that

this position is not an inherently unreasonable

interpretation of Article 75(a), UCMJ. However, under the

facts of this case, we disagree with this interpretation.

As we stated in Keys v. Cole, 31 M.J. 228 (C.M.A. 1990):

It is clear to us that the unambiguous language of

[Article 75(a), UCMJ] implies that, if a new trial or

rehearing is ordered, as in this case, all property—

i.e. forfeitures—will not be restored until that

rehearing is held. Again, of course, this provision

would not entitle the United States to continue in

the interim to withhold pay otherwise due by relying

on the forfeiture element of a set-aside sentence.

However, it does quite clearly entitle the United

States to retain pay already withheld prior to the

sentence being set aside, until such time as either a

decision is made not to hold a rehearing or a

rehearing is held.

Id. at 232 (second emphasis added) (citation omitted).

The Government is within its statutory rights to not

restore to an accused any forfeiture of pay and allowances he

has already suffered as a result of the original conviction

and sentence until after the rehearing is completed. But,

Article 75(a), UCMJ, 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.

Historically, we have found that after a new trial is

ordered, no vestiges of the former court-martial should

linger, as:

“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.” 24 CJS, Criminal Law, § 1511.

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Opinion of the Court

As stated in Salisbury v. Grimes, 223 Ga 776, 158

S.E.2d 412 (1967), the grant of a new trial “wiped

the slate clean as if no previous conviction and

sentence had existed.” See also Manor v. Barry, 62

Ariz 122, 154 P.2d 374 (1944), and 39 Am Jur, New

Trial, § 204, wherein it is declared:

“An order directing a new trial has the effect of

vacating the proceedings and leaving the case as

though no trial had been had.”

Johnson v. United States, 19 C.M.A. 407, 408, 42 C.M.R. 9,

10 (1970).

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

Uniform Code of Military Justice is concerned – should be

the same as if he had never been tried in the first instance.

The problem with the Federal Circuit’s analysis of

Article 75(a), UCMJ, is that, as with all appellate courts,

review of the issue is necessarily retrospective. In other

words, both conditions contained in the statutory provision

will have been satisfied. First, the convening authority will

have ordered a rehearing and secondly, the results of the

rehearing will have been adjudged. However, if the

perspective is shifted to the point at which the convening

authority receives the decision of the appellate court setting

aside the findings and/or the sentence, the logic of our

approach becomes more evident. Upon receipt of the

decision, the convening authority has a number of options

before him or her. The decision might be made to simply

forego a rehearing and return the accused to duty.

Alternatively it might be decided that the accused should be

administratively separated rather than retried. However, if

a hearing is ordered and the accused is not confined, it

makes perfectly good sense to restore the accused fully,

including his preconviction pay grade, until the results of

the hearing are known. Often, it takes some time before a

rehearing is concluded. For an accused returned to full

duty, the longer it takes, the greater the possibility the

accused may suffer an unnecessary hardship, particularly if

the accused was previously a senior noncommissioned

officer. Although the record does not disclose a particular

hardship in this case, it does reveal a lengthy gap between

when the rehearing was ordered on June 25, 2014, and when

it ultimately concluded on April 29, 2015.

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The military judge, under the facts of this case, did not

clearly and indisputably err in not following the Article III

courts’ interpretation of Article 75(a), UCMJ.5 Accordingly,

we answer Certified Issue II in the negative.

III.

Certified issue III asks whether the lower court erred in

concluding that the setting aside of the findings and

sentence rendered unexecuted the portion of Appellant’s

sentence reducing his pay grade to E-1 pending rehearing.

We conclude that this certified issue rests on an incorrect

premise – namely, that the lower court found Appellant’s

sentence unexecuted after it was set aside. The Court of

Criminal Appeals decision never stated that a set-aside

sentence becomes “unexecuted.” Rather, the lower court

concluded: “Once a court-martial sentence is set aside and

thus invalidated, the Government can no longer execute it.”

Jones, 2015 CCA LEXIS 573, at *15, 2015 WL 9487941, at

*5. The Court of Criminal Appeals correctly reached this

determination because, as discussed in Certified Issue II,

Appellant’s set-aside sentence was no longer enforceable

pending a rehearing. See United States v. Von Bergen,

67 M.J. 290, 294 (C.A.A.F. 2009) (“‘[T]he effect of ordering a

rehearing is ... to place the United States and the accused in

the same position as they were at the beginning of the

original trial.’” (alteration in original) (quoting United States

v. Staten, 21 C.M.A. 493, 495, 45 C.M.R. 267, 269 (1972)).

Accordingly, we answer Certified Issue III in the negative.

IV.

Certified Issue IV asks whether the Government’s action

of paying Appellant at the E-1 rate pending his rehearing

constituted illegal pretrial punishment, in violation of

5 We are cognizant of the fact that our conclusions are at odds

with those of the Federal Circuit and the Court of Federal Claims.

We do, however, feel that it is important to express our view with

the hope that Congress and the President will clarify this aspect of

Article 75(a), UCMJ. See generally Military Justice Review

Group, Dep’t of Defense, Report of the Military Justice Review

Group Part I: UCMJ Recommendations 657 (2015)

(recommending that Article 75, UCMJ, be amended to require the

President to establish rules governing the eligibility for pay and

allowances during the period after a court-martial sentence is set

aside or disapproved).

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Opinion of the Court

Article 13, UCMJ, in the absence of any punitive intent. We

answer this certified issue in the negative.

Article 13, UCMJ, provides:

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, but

he may be subjected to minor punishment during

that period for infractions of discipline.

In United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985),

we set out the process for evaluating alleged Article 13,

UCMJ, violations:

[T]he 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.”

[I]n 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.

Id. at 95 (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979)).

Therefore, the following pertinent questions arise relevant

to the facts of this case:

1. Did the Government intend to punish Appellant by

paying him as an E-1 pending the rehearing?

2. If there was no punitive intent, did the Government’s

interpretation of Article 75(a), UCMJ, further a

legitimate nonpunitive governmental objective?

Unlike the situation we faced in United States v. Combs,

47 M.J. 330 (C.A.A.F. 1997),6 here the record is clear that

there was no punitive intent behind the Government’s

decision to pay Appellant as an E-1 pending the rehearing

results. The military judge explicitly found that the

Government had not acted in complete disregard of the

6 Following this decision, the appellant pursued a back pay

claim in the United States Court of Federal Claims in Combs, 50

Fed. Cl. 592.

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accused’s rights. He also found that DFAS had taken a

good-faith position it believed was supported by regulations,

statutes, and case law interpreting Article 75(a), UCMJ, in

concluding that there was no authority to pay Appellant at

his former pay grade pending the results of the rehearing.

As discussed above, we disagree with the Government’s

interpretation of Article 75(a), UCMJ. Nonetheless, there

was a legitimate debate on the proper interpretation of

Article 75(a), UCMJ, and disbursements to accused persons

pending rehearings. From the record before us, we have no

question that the Government legitimately believed that

Appellant was not entitled to be paid as an E-6 pending the

results of his rehearing. Accordingly, we conclude that there

was no intent to punish Appellant by the Government’s

decision to pay him at the E-1 rate pending the results of his

rehearing.

We address briefly Appellant’s contention that even if

there was no intent by the Government to punish, the

Government’s action of paying him at the E-1 rate still had a

punitive effect. To the extent that any dicta in United States

v. Fischer, 61 M.J. 415, 420-22 (C.A.A.F. 2005), suggests

that such an effect is sufficient to trigger an Article 13,

UCMJ, violation, we reject that view. The record must

disclose an intent to punish on the part of the Government.

Irrespective of any intent to punish, Article 13, UCMJ, is

violated if the activity at issue serves no legitimate,

nonpunitive purpose. The Government’s interpretation of

Article 75(a), UCMJ, was in furtherance of a legitimate,

nonpunitive governmental objective to provide an accused

pending rehearing with the proper pay entitlement as

prescribed by Congress. For these reasons, we hold that

there was no Article 13, UCMJ, violation.

Conclusion

Having concluded that issuance of the Government’s writ

of prohibition was in aid of the lower court’s jurisdiction, we

hold that the Government has shown a clear and

indisputable right to the issuance of the writ. Here, the

military judge exceeded his authority by applying

confinement credit to remedy conduct that did not violate

Article 13, UCMJ. We further hold that there is no other

adequate means for the Government to obtain relief and

that issuance of the writ is both appropriate and necessary

under the circumstances.

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Opinion of the Court

Decision

Appellant’s writ-appeal petition is denied. Certified

Question I is answered in the affirmative. Certified

Questions II, III, and IV are answered in the negative.

Accordingly, the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is set aside. The record of

trial is returned to the Judge Advocate General of the Navy

for remand to that court for review of the petition for

extraordinary relief consistent with this opinion.

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Judge STUCKY, concurring in the result.

I agree with Judge Sparks that the Government’s peti-

tion for the writ was not an interlocutory appeal under Arti-

cle 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 862 (2012), that both the Court of Criminal Appeals and

this Court have jurisdiction to consider the issue, and the

action of paying Appellant at the E-1 rate pending his re-

hearing did not amount to illegal pretrial punishment. I dis-

agree, however, with the conclusion that the military judge

did not “clearly and indisputably err in not following the Ar-

ticle III courts’ interpretation of Article 75(a), UCMJ.” Unit-

ed States v. Howell, __ M.J. __, __ (10) (C.A.A.F. 2016).

The military judge quite properly recognized that he had

no authority to order any particular military pay action with

regard to Appellant, and took the alternative of awarding

confinement credit. However, the military judge took this

action because he had an underlying disagreement with the

interpretation of the restoration provisions of Article 75(a)

contained in Dock v. United States, 46 F.3d 1083, 1087–88

(Fed. Cir. 1995), and Combs v. United States, 50 Fed. Cl.

592, 600 (Fed. Cl. 2001). Congress has given jurisdiction

over pay claims to these Article III and Article I courts, see

28 U.S.C. § 1491(a) and § 1295(a) (2012). In my opinion, the

decisions of those courts, within their jurisdiction, are bind-

ing on us. I would therefore answer Certified Issue II in the

affirmative and would refrain from answering Certified Is-

sue III.

I concur in the result.

United States v. Howell, No. 16-0289/MC & 16-0367/MC

Judge OHLSON, with whom Chief Judge ERDMANN

joins, concurring in part and dissenting in part.

OVERVIEW

In various cases during the past few decades, this Court

has concluded that: (a) the effect of ordering a rehearing in a

case is to place the accused in the same position he or she

was in before the original trial began, United States v. Von

Bergen, 67 M.J. 290, 294 (C.A.A.F. 2009); (b) an accused’s

pay status while awaiting rehearing should be the same as if

the accused had never been tried in the first place, Keys v.

Cole, 31 M.J. 228, 232 (C.M.A. 1990); (c) in determining

whether there was illegal pretrial punishment under Article

13, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 813 (2012), we look not only at whether there was an “in-

tent” to punish an accused, but also at whether there was a

“punitive effect,” United States v. Fischer, 61 M.J. 415, 421

(C.A.A.F. 2005); and (d) the “primary mechanism” for ad-

dressing Article 13, UCMJ, violations is to award confine-

ment credit. United States v. Zarbatany, 70 M.J. 169, 174

(C.A.A.F. 2011).

In the instant case, Appellant’s1 convictions and sentence

were vacated by the United States Navy-Marine Corps

Court of Criminal Appeals (CCA) and a rehearing was or-

dered. Pending this rehearing, Appellant’s E-6 rank was re-

stored, he was placed in an E-6 billet, and he performed E-6

duties. And yet, Appellant was paid at the E-1 pay grade—a

fact that he repeatedly protested—and his loss of pay

amounted to more than $20,000.

Based on these facts and the case law cited above, I con-

clude that the military judge did not err in finding that the

circumstances in the instant case constituted illegal pretrial

punishment, nor did he err in awarding confinement credit

to Appellant based on this illegal pretrial punishment. Ac-

1 The accused in this case stands before this Court as both an

Appellant and as a Cross-Appellee. In the course of this dissent I

refer to him simply as “Appellant.”

United States v. Howell, No. 16-0289/MC & 16-0367/MC

Judge OHLSON, concurring in part and dissenting in part

cordingly, to the extent that the majority opinion2 holds oth-

erwise, I respectfully dissent.

ANALYSIS

I concur with the majority’s decision on Certified Issues

I, II, and III, but part ways as to Certified Issue IV. In my

view and as explained in greater detail below, the military

judge did not clearly and indisputably err in finding illegal

pretrial punishment under Article 13, UCMJ, when the

Government continued to enforce a set-aside punishment by

paying Appellant at the E-1 pay grade while assigning him

duties commensurate with an E-6 pay grade.

Certified Issue IV asks whether the Government’s deci-

sion to pay Appellant at the E-1 pay grade after his sentence

was set aside constitutes illegal pretrial punishment under

Article 13, UCMJ. In analyzing this issue, I initially observe

that Appellant’s case is before this Court because of the

CCA’s decision to deny a writ sought by the Government to

prohibit the military judge from awarding Article 13, UCMJ,

confinement credit to Appellant. The case law pertaining to

such writs is clear. “[T]he issuance of [an extraordinary] writ

is a matter vested in the discretion of the court to which the

petition is made.” Cheney v. United States Dist. Court for

D.C., 542 U.S. 367, 391 (2004). A writ of prohibition will only

issue if the Government establishes that: “(1) there is no

other adequate means to attain relief; (2) the right to issu-

ance of the writ is clear and indisputable; and (3) the issu-

ance of the writ is appropriate under the circumstances.”

Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). Further,

this type of writ is a drastic remedy that should only be in-

voked in extraordinary cases. See Cheney, 542 U.S. at 380.

When Appellant’s case is viewed within this legal frame-

work, I conclude that the CCA appropriately denied the writ

because the military judge did not clearly and indisputably

err in finding illegal pretrial punishment under Article 13,

UCMJ.

Turning to the primary issue, Article 13, UCMJ, prohib-

2 The term “majority opinion” refers to the opinion authored by

Judge Sparks, which commands a majority of three or more judges

of this Court on each of the four certified issues.

2

United States v. Howell, No. 16-0289/MC & 16-0367/MC

Judge OHLSON, concurring in part and dissenting in part

its, in relevant part, illegal pretrial punishment or penalty.

See Fischer, 61 M.J. at 418. There is illegal pretrial punish-

ment when the Government has “a purpose or intent to pun-

ish” as determined by examining either (1) “the intent of

[the government] officials” or (2) “the purposes served by the

restriction or condition, and whether such purposes are rea-

sonably related to a legitimate governmental objective.”

Zarbatany, 70 M.J. at 174 (internal quotation marks omit-

ted) (quoting United States v. King, 61 M.J. 225, 227–28

(C.A.A.F. 2005)). This Court therefore “look[s] to whether

there was intent to punish or a punitive effect.” Fischer,

61 M.J. at 421 (emphasis added).

I agree with the majority that there is no evidence in the

record that government officials at the command level had

an intent to punish Appellant.3 However, I disagree with the

majority’s decision not to consider the punitive effects of

3 I note that officers in Appellant’s chain of command were not

the only government officials directly involved in this case. In a

November 13, 2014, memorandum addressing the matter of pay in

Appellant’s case, the Office of the General Counsel for the Defense

Finance and Accounting Service (DFAS) stated that there were

two potential ways to comply with federal civilian court rulings on

military pay. One was to pay Appellant at the E-1 pay grade; the

other was to pay Appellant at his preconviction rate, i.e., at the E-

6 pay grade. However, DFAS asserted that the latter course of ac-

tion would “place [Appellant] in debt for the overpayment if the

reduction is imposed at rehearing.” This assertion is at best ques-

tionable because any punishment awarded at a subsequent re-

hearing would only apply prospectively, see Article 57, UCMJ,

10 U.S.C. § 857 (2012), and only the portion of the first court-

martial punishment that had already deprived Appellant of prop-

erty would continue to be enforced if the same punishment was

imposed on rehearing, Article 75(a), UCMJ, 10 U.S.C. § 875(a)

(2012). And importantly, in its memorandum DFAS failed to ac-

count for this Court’s case law addressing an accused’s status

when awaiting a rehearing. Accordingly, by allowing military au-

thorities to rely on a bureaucratic decision instead of this Court’s

interpretation of military justice matters when deciding what con-

stitutes Article 13, UCMJ, illegal pretrial punishment, the majori-

ty cedes far too much of our institutional authority in regard to

determining what Articles 13 and 75 mean in any particular crim-

inal case. See Garrett v. Lowe, 39 M.J. 293, 296 n.4 (C.M.A. 1994)

(noting this Court’s special competence in interpreting the UCMJ).

3

United States v. Howell, No. 16-0289/MC & 16-0367/MC

Judge OHLSON, concurring in part and dissenting in part

government action to determine whether an Article 13,

UCMJ, violation occurred here. As I read this Court’s case

law, the punitive effect inquiry is nothing more than an ex-

amination of whether the purpose of a condition had a legit-

imate, nonpunitive governmental objective.4 I find nothing

of the sort in the instant case.

First, a reduction in pay is an authorized punishment for

a court-martial conviction. See Rule for Courts-Martial

1003(b)(4); United States v. Simpson, 10 C.M.A. 229, 232,

27 C.M.R. 303, 306 (1959) (recognizing a reduction in pay

grade as a “permissible punishment” at court-martial). At

the time the Government paid Appellant at the E-1 pay

grade while he performed duties commensurate with an E-6

pay grade there was no court-martial conviction and there-

fore no valid punishment to impose because the CCA had set

aside the findings and sentence. See Von Bergen, 67 M.J. at

294.

Second, the Government benefitted from Appellant’s con-

tinued reduction in rank because it obtained Appellant’s

services at a reduced pay rate. The majority suggests that

this windfall serves a legitimate governmental objective “to

provide an accused pending rehearing with the proper pay

entitlement as prescribed by Congress.” United States v.

Howell, __ M.J. __, __ (12) (C.A.A.F. 2016). However, as even

the majority concludes, Article 75(a), UCMJ, did not provide

the Government with a statutory basis for denying Appel-

lant pay at the E-6 pay grade while he awaited rehearing.5

4 Compare Fischer, 61 M.J. at 418 (“examining the intent of

[government] officials or … the purposes served by the restriction

or condition [to see if they are] reasonably related to a legitimate

governmental objective” for an Article 13, UCMJ, violation (inter-

nal quotation marks omitted) (citation omitted)), with id. at 421

(examining punitive intent or punitive effect for an Article 13,

UCMJ, violation).

5 The statutory framework instead suggests that the Govern-

ment should have paid Appellant at the E-6 pay grade. Congress

has provided that an active duty servicemember is “entitled to the

basic pay of the pay grade to which assigned.” 37 U.S.C. § 204(a)

(2012). Appellant was assigned duties commensurate with the pay

grade of E-6. Had the Government not erroneously interpreted

Article 75(a), UCMJ, it would have assigned Appellant to the E-6

4

United States v. Howell, No. 16-0289/MC & 16-0367/MC

Judge OHLSON, concurring in part and dissenting in part

Without any valid basis to reduce Appellant’s pay grade, I

conclude that the Government’s pay entitlement decision

was not “proper,” and therefore the Government did not

have a legitimate governmental basis to compensate Appel-

lant at the E-1 pay grade while it received services commen-

surate with the E-6 pay grade.

For these reasons, I conclude that the military judge did

not clearly and indisputably err in finding that it was illegal

pretrial punishment “to have the Accused on full duty, wear-

ing the rank of Staff Sergeant and performing the duties of a

Staff Sergeant but receiving pay as E-1.” Accordingly, I re-

spectfully dissent from the majority’s holding that there was

no Article 13, UCMJ, violation and would answer Certified

Issue IV in the affirmative.

CONCLUSION

I concur with the majority’s resolution of Certified Issues

I, II, and III, and I respectfully dissent from the majority’s

decision with respect to Certified Issue IV. I therefore would

affirm the judgment of the United States Navy-Marine

Corps Court of Criminal Appeals.

pay grade, and it would have paid him at this pay grade. See 37

U.S.C. § 204(a); cf. Bell v. United States, 366 U.S. 393, 401–02

(1961) (“[A] soldier who has not received such a punishment from

a duly constituted court-martial is entitled to the statutory pay

and allowances of his grade and status, however ignoble a soldier

he may be.”).

5