Petition for Writ of Certiorari — Sumrall v. United States

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961001 DEC 20 19%

No. Iris

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CAPT JACK B. SUMRALL, COLONEL JAMES R. LEE,

TSGT ALFRED D. BURROWS, PETITIONERS

Vv.

UNITED STATES OF AMERICA, RESPONDENT

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Ormond R. Fodrea

Major, United States Air Force

Appellate Defense Counsel

Counsel for Petitioner

Marge A. Overly

Captain, United States Air Force

; Appellate Defense Counsel

Counsel for Petitioner

Air Force Legal Services Agency

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

202-767-1562

December 1996

QUESTIONS PRESENTED

1. Whether a sentence to a punitive discharge vioiates

the Eighth Amendment and is disproportionately severe in

Petitioners’ cases where, if executed, it will lead to loss of

retirement benefits including potentially over half of a million

dollars.

2. Whether a sentence to a punitive discharge that, if

executed, terminates retirement benefits, violates the Fifth

Amendment to the Constitution, where there was no

meaningful opportunity to be heard.

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS INVOLVED......... l

SIATEMENT OF THE CASE.......00000.. hablar aes 2

REASONS FOR GRANTING THE WRIT..............3

Ee i Teg Hees Wee.s NA woe ce eran 10

APPENDIX A (Opinion of the United States

Court of Appeals for the Armed Forces). .............-. la

APPENDIX B (Opinion of the United States

Air Force Court of Criminal Appeals) ................ 15a

iV

TABLE OF AUTHORITIES

Supreme Court Cases Page

Alexander v. United States, 509 U.S. 544 (1993) ....4,5

Atkins v. Parker, 472 U.S. 115 (1985). ..... cc cceees 6

Austin v. United States, 509 U.S. 602 (1993) ......... 4

Barry v. Barchi, 443 U.S. 55 (1979) ..........20005: 6

Board of Curators of University of

Missouri v. Horowitz, 435 U.S. 78 (1978) ........... 6

Board of Pardons v. Allen, 482 U.S. 369 (1987). ...... 7

Board of Regents v. Roth, 408 U.S. 564 (1972) ....... 6

Browning-Ferris Industries v.

Kelco Disposal, Inc., 492 U.S. 257 (1989). .......... 4

Cleveland Board of Education v. Loudermill,

SEE UD, ak GRE s ce 80 aaa Rete ae b4 heeeo 6,8

Connecticut Board of Pardons v. Dumschat,

Ae Se LEED 65 cas oa eke eee eee 7

Goldberg v. Kelly, 397 U.S. 254 (1970) ........... 4,5

Greenholtz v. Nebrasks Penal Inmates,

og ASS LG t. , Ce Een ree ger aA ane 7,8

Harmelin v. Michigan, 501 U.S. 957 (1991). 2.2.22... 4

Hewitt v. Helms, 459 U.S. 460 (1983) .............. 6

Leis v. Flynt, 441 U.S. 956 (1979) ...........00008- 6

Logan v. Zimmerman, 455 U.S. 422 (1982) .......... 6

Mathews v. Eldridge, 424 U.S. 319 (1976)........7.. 6

Memphis Light, Gas & Water Division v. Craft,

I 65 6 hc Ce eee eae oa ee 6

O'Bannon v. Town Court Nursing Center,

OFF. FTC LUEED F045 cook ew Flas aL 6

Ponte v. Real, 471 U.S. 491 (1985). ................ 6

United States v. Atkinson, 297 U.S. 157 (1936) ...... 10

United States ©. Frady, 456 U.S. 152 (1982)......... 10

United States v. Olano, 507 U.S. 725 (1993) ......... 0)

Military Cases:

United States v. Fisher, 21 M.J. 327 (C.M.A. 1986)....9

United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990). 9

Regulations:

Am Force instruction 36-3206 .................... 8

Air Force Instruction 36-3208 .................... &

Federal Statutes:

28 U.S.C.A. § 1259(3) (West Supp. 1996)........... l

10 U.S.C.A. § 867 (a) (West Supp. 1996)............ l

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ACE C45 PUREST CURR CR OES ReKe TEES 8

Oe RR EE Kibo oe v's2 09 DONE OES SRE Kea ie 7

Constitutional Provisions:

U.S. Constitution Amendment V ..............5,8,9

U.S. Constitution Amendment VIII ...........3,5,10

The Petitioners, Captain Jack B. Sumrall, Colonel James

R. Lee, and TSgt Alfred D. Burrows, respectfully pray that a

writ of certiorari issue to review the order and judgment of the

United States Court of Appeals for the Armed Forces entered

in their cases on 30 September 1996.

OPINIONS BELOW

The orders and judgment of the United States Court of

Appeals for the Armed Forces, reported at United States v.

Sumrall — M.J. — (1996), United States v. Lee _. MJ. —

(1996), United States v. Burrows —. M.J. (1996) are

located at Appendix A. The respective opinions of the United

States Air Force Court of Criminal Appeals are located at

Appendix B.

JURISDICTION

The final orders of the United States Court of Appeals for

the Armed Forces were entered on 30 September 1996. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec 1259

(3) (West Supp. 1995) and 10 U.S.C. Sec 867(a) (West Supp.

1994).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eight Amendment provides that . . .

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

The Fifth Amendment provides that . . .

No person shall . . . be deprived of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

Captain Sumrall confessed to Office of Special

Investigation agents when questioned (Pros Exh 1) and

pleaded guilty to touching his fourteen year old

step—daughter’s breasts and vagina and having her touch his

penis on multiple occasions. He has recognized the

seriousness of his offenses and acknowledged his guilt. R 88.

Prior to the offenses to which he pleaded guilty, Captain

Sumrall had no disciplinary history and an outstanding record

during 21 years of enlisted and commissioned service. He has

received 30 medals and ribbons. Pros Exh 5. He has

demonstrated uniformly outstanding performance during 2]

years of world-wide service, completing superbly whatever

was asked of him and accomplishing much more. Pros Exh 6,

Def Exh A9, C1-6, D1-5, E1-9, F1-7, G1-20, H1-10, 11-11,

Ji-14.

Captain Sumrall’s basic pay was $3427.10 per month.

Pros Exh 5S. If Captain Sumrall were allowed to retire at

twenty years, he would receive the resultant 50% of base pay

per month, i.e. $1713.55, or $20,562.60 per year. See 10

U.S.C. section 8991. Assuming the Petitioner would live until

the age of seventy-one (he is now 41), the uncompounded and

non-inflation adjusted total he would receive would be

$616,878.00.

After 26 years of outstanding service in the United States

Air Force, Petitioner Lee was charged with offenses related to

his sexual relationships with three young men. His service

record was impressive, including receiving two Air Medals

(1970, 1972) and two Distinguished Flying Cross awards.

By the time of trial Colonel Lee had, on his own

initiative, undergone therapy from six psychiatrists, two

psychologists, and two pastors (R. 93). Petitioner Lee pled

guilty to the charged offenses and was sentenced to a

dismissal and 7 years confinement. Based on his 26 years of

service the effect of an executed dismissal would be the loss

of $750,000 in present day terms. Def. Ex. I.

Petitioner Burrows had served 20 years in the United

States Air Force at the time of trial. Pros. Ex. 1. The character

of that service was excellent. Post Trial Matters, SJA

recommendation. His base pay per month was $1885.20. Pros.

Ex. 1. He was convicted, pursuant to his pleas of two counts

of indecent acts. Based upon a life expectancy of 74 years, the

amount of retirement pay forfeited by execution of the

discharge is about $407,196.00.

REASONS FOR GRANTING THE WRIT

I. A SENTENCE TO A PUNITIVE DISCHARGE

CONSTITUTES A VIOLATION OF THE

EIGHTH AMENDMENT AND IS

DISPROPORTIONATELY SEVERE IN

PETITIONERS’ CASES WHERE IT RESULTS IN

A LOSS OF RETIREMENT BENEFITS

INCLUDING POTENTIALLY OVER HALF OF A

MILLION DOLLARS

The Petitioners recognize that the Uniform Code of

Military Justice and military case law allows for punitive

discharge of military members, including retirement eligible

personnel. However, military law has been overtaken in recent

years by Constitutional law in this area! and the Petitioners’

raise their claims under the Eighth Amendment to the United

States Constitution.

The Eighth Amendment provides that “Excessive bail

! For example, two of the three cases cited by the Air Force Court

of Criminal Appeals on this point in United States v. Sumrall (AF

Ct. Crim App. 1996) are from the 1950s.

shall not be required, nor excnenve, fines imposed, nor cruel

and unusual punishments inflicted. ”2 This Honorable Court in

Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680 (1991)

(Justice Kennedy joined by Justices O’Connor and Souter in a

opinion concurring in result) recognized that there is a

principle of proportionality encompassed in the Eighth

Amendment that applies to noncapital cases. /d at 2703. This

principle holds that an otherwise lawful sentence may violate

the Eighth Amendment if it is sufficiently disproportionate

given the facts of the case. Jd at 2703-2704. These Eighth

Amendment protections extend to all criminal punishments

including civil forfeiture proceedings, Austin v. United Siates,

509 U.S. 602, 113 S.Ct. 2801 (1993), and all other forms of

monetary criminal punishment, Browning—Ferris Industries v.

Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909 (1989)

(punitive damages in civil case not covered). Forfeiture of

personal property interests as part of a criminal proceeding

imposed on top of a sentence to confinement and a

conventional fine is “clearly a form of monetary punishment

no different, for Eighth Amendment purposes, from a

traditional ‘fine.’ Accordingly, the forfeiture . . . should be

analyzed under the Excessive Fines Clause.” Alexander v.

United States, 509 U.S. 544, 113 S.Ct. 2766, 2775 (1993)

(where the accused’s interests in certain businesses were

adjudged forfeited to the United States in addition to the

imposition of a sentence of six years confinement and a

$100,000 fine for various pornography and RICO offenses).

Military members who have served twenty years or more

gain statutory entitlement to retirement pay. 10 U.S.C. sections

1401, 8911. Such Congressionally created entitlement creates

a property right in the benefits afforded by the statute. See,

e.g., Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017

9 ° . 2.8 :

“ Article 55, U.C.M.J., echoes this prohibition against cruel and

unusual punishment but does not specifically mention fines.

(1970). A deprivation of these property interests as part of a

criminal proceeding thus becomes a form of “monetary

punishment no different, for Eighth Amendment purposes,

from a traditional ‘fine.”” Alexander, 113 S.Ct. at 2775.3

Il. THE EFFECT OF THE SENTEN“E

(PUNITIVE DISCHARGE) VIOLATES THE DUE

PROCESS CLAUSE OF THE FIFTH

AMENDMENT TO THE CONSTITUTION

The Fifth Amendment guarantees that “no person shall . . .

be deprived of life, liberty, or property, without due process of

law.” At the time of trial Petitioners all had served at least

twenty years in the military, making them retirement eligible.

The Court of Appeals for the Armed Forces assumed, when

deciding, that Petitioners had a Constitutionally protected

interest. This Court has defined a Constitutionally protected

property interest, or “entitlement,” as:

. . . More than an abstract need or desire for [the

property] it. He must have more than a unilateral

expectation of it. He must, instead, have a

legitimate claim of entitlement to it. . . Property

interests, of course, are not created by the

Constitution. Rather they are created and their

dimensions are defined by existing rules or

understandings that stem from an independent

source such as state law—-rules or understandings

that secure certain benefits and that support claims

of entitlement to those benefits. Thus, the welfare

recipients in Goldberg v. Kelly [397 U.S. 254, 90

3 The solution to this problem is the creation of a new option to the

list of possible punishments that a court-martial may consider——a

discharge with no loss of retirement benefits. See, United States v.

Ives, —MJ_. (USCA Dkt No. 96-0619, Order Denying Petition) (J.

Sullivan, dissenting).

S.Ct. 1011, — L.Ed.2d. — (1970)] had a claim of

entitlement to welfare payments that was grounded

in the statute defining eligibility for them.

Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,

2709 (1972)

The hallmark of [a property interest], the court has

emphasized, is an individual entitlement grounded

in state law, which cannot be removed except “for

cause.” . . . Once that characteristic is found, the

types of interests protected as “property” are varied

and, as often as not, intangible, relating “to the

whole domain of social and economic fact.”

(citations omitted).

Logan v. Zimmerman, 455 U.S. 422, 431, 102 S.Ct. 1148,

1155 (1982). Where there is no independent basis in State or

other underlying law, there is no Constitutionally protected

interest. Leis v. Flynt, 441 U.S. 956, 99 S.Ct. 698 (1979). In

addition, “[t]he Sth Amendment does not apply to the indirect

adverse effects of governmental action.” O'Bannon v. Town

Court Nursing Center, 447 U.S. 773, 790, 100 S.Ct. 2467,

2477 (1980). In spite of these limitations, statutorily created

entitlements have been found in many benefit or other

programs established by state and federal statute and/or

regulation. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893,

(1976); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975);

Board of Curators of University of Missouri v. Horowitz, 435

U.S. 78, 98 S.Ct. 948 (1978); Memphis Light, Gas & Water

Division v. Craft, 436 U.S. 1, 98 S.Ct. 1555 (1978); Barry v.

Barchi, 443 U.S. 55, 99 S.Ct. 2642 (1979); Hewitt v. Helms,

459 U.S. 460, 103 S.Ct. 864 (1983); Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487

(1985); Ponte v. Real, 471 U.S. 491, 85 S.Ct. 2192 (1985);

Atkins v. Parker, 472 U.S. 115, 105 S.Ct. 2520, 2529 (1985).

Where a statute utilizes “mandatory language and... .

Structure” in creating an interest, that interest is protected

under the Due Process Clause of the 5th Amendment even if

the decision to grant the benefit sought is “necessarily

subjective and predictive [in] nature.” Board of Pardons vy.

Allen, 482 U.S. 369, 372, 107 S.Ct. 2415, 2417 (1987) citing

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct.

2100 (1979). In Greenholtz the interest in question was that of

the applicant in the granting of parole. “In deciding that this

Statute created a constitutionally protected liberty interest, the

Court found significant its mandatory language——the use of

the word ‘shall’-~and the presumption created——that parole

release must be granted unless one of four designated

justifications for deferral is found.” Allen, 107 S.Ct. at 2419.

This Honorable Court came to the same conclusion in Allen,

i.e. that inmate parole applicants had a protectable

entitlement. Welfare applicants also have a protected interest

in general relief payments where Statutory criteria are plain

and language mandatory. Griffith v. Detrich, 603 F.2d 118 (9th

Cir. 1979), cert. den. 445 U.S. 970, 100 S.Ct. 1349 (1980). By

contrast, a Connecticut commutation statute that imposed no

criteria or even definitions but rather “unfettered discretion”

on its Board of Pardons, created no entitlement. Connecticut

Board of Pardons v. Dumschat, 452 U.S. 458, 467. 101 S.Ct.

2460, 2465 (1981).

Air Force members, such as the Petitioners, who have

served twenty years or more may, upon the member's request,

be retired by the Secretary of the Air Force. 10 U.S.C.

sections 8911, 8914. “A member of the Air Force retired

under this chapter is entitled to retired pay computed under

chapter 871 of this title.” 10 U.S.C. 8929. The computation

table for calculating the exact monthly entitlement is at 10

U.S.C. 8991. For a member who had twenty years active duty,

this would work out to be 50% of base pay per month for life.

Retirement pay is in addition to other benefits such as life

long medical care.

Although the statute uses the word “may” when referring

to whether the Secretary of the Air Force will retire the

member at the time of his or her request, it is clear that this

only allows the Secretary discretion as to exactly when the

member is retired, i.e. at the time of the request, at some later

point, or when finally mandated by law. In any case, even this

Secretarial discretion is further limited. A retirement eligible

Air Force member can only be separated other than by

retirement under very specific conditions——all limited by

statute or regulation. See, e.g., 10 U.S.C. 1401 et. sec. (for

medical disability retirement); AFI 36-3206 (for officer

administrative separations); AFI 36-3208 (for enlisted

administrative separations). Any discretion left to the

Secretary certainly does not exceed that discretion residing

with a parole board as described in Greenholtz and Allen and

the Supreme Court has ruled that discretion «id not destroy

the entitlement.

In short, this “may” does not mean that the member is

not entitled to retirement and retirement pay. The

Congressional mandate is clear-—“[a] member of the Air

Force retired under this chapter is entitled to retirement pay.”

10 U.S.C. 8929. This is clearly an entitlement protected by the

Due Process Clause of the 5th Amendment of the United

States Constitution.

“The essential requirements of due process . . . are notice

and an opportunity to respond.” Loudermill, 105 S.Ct. at

1495. The Court of Appeals For the Armed Forces stated that

a retirement eligible service member is entitled to put into

evidence that a punitive discharge would deny them

retirement benefits. Sumrall, slip. op. 8. The Court further

found that allowing a retirement eligible member to present

this evidence during the sentencing proceeding of a

court-martial satisfied the due process clause requirements.

Id. However, the Court failed to resolve the question of how

Petitioners Sumrall and Burrows Fifth Amendment rights

were met, where they did not, in fact, get such a hearing.

Petitioners Burrows and Sumrall admit that they did not

attempt to convince the trial judge to disregard precedent and

consider the consequences of a punitive discharge on them as

retirement eligible members. The established rule. prior to the

Court of Appeals ruling in the Petitioner’s case. as recognized

by the Air Force Court of Criminal Appeals in Lee, has been

clear: such evidence is not admissible-—and military trial

judges are presumed to know and apply the law. See, e.g.,

United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990).

However, where existing military case law has prevented a

military member from exercising a Constitutional right-—the

issue should not be treated as waived but rather should be

treated as plain error. Thus, the Court of Appeals has erred if

the basis for their decision in this respect was waiver.

The Petitioner recognizes that for an error. not

challenged at trial, to reach the level of “plain error,” it must

be “obvious.” United States v. Fisher, 21 M.J. 327, 328

(C.M.A. 1986). As the Supreme Court has explained, “ ‘plain’

is synonymous with ‘clear’ or, equivalently, ‘obvious.’”

United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1777,

(1993). In other words, the error must be in direct conflict

with existing law.

In the Petitioner’s case, when making the decision as to

whether a trial judge’s decision was in conflict with existing

law, the determining law is not military case law dealing with

the exclusion of collateral consequences but rather the

Supreme Court case law recognizing Sth Amendment Due

Process rights. Thus where a trial judge’s ruling, even if in

accord with some military precedent, conflicts with a

10

Constitutional Due Process right, it should rise to the level of

plain error.

As the Supreme Court has explained and the Court of

Appeals for the Armed Forces recognized in Fisher,

The plain error doctrine is invoked to rectify those

errors that “seriously affect the fairness, integrity or

public reputation of judicial proceedings,” United

States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391,

392, 80 L.Ed. 555 (1936). As a consequence, it “is

to used sparingly, solely in those circumstances in

which a miscarriage of justice would otherwise

result.” United States v. Frady, [456 U.S. 152, 163

n.14, 102 S.Ct. 1584, 1592 n.14, 71 L.Ed.2d 816

(1982)]

Fisher, 21 M.J. at 329. Surely, where military case law

prevents a military member from exercising a fundamental

Constitutional due process right and thus prevents a military

judge from considering the impact of the loss of a sum of

money potentially in excess of over half a million dollars, that

should be treated by this Honorable Court as plain error and

thus not waived.

CONCLUSION

The punishment of punitive discharge in each of the

Petitioners’ cases means depriving that Petitioner and his

family of something in the order of over half a million dollars

earned during over two decades of dedicated service. Without

an opportunity to present the impact of this loss, Petitioner’s

Sumrall and Burrows due process rights were violated. In

addition, surely any fine assessed in such an amount, imposed

on top of lengthy terms of confinement and additional

forfeitures, constitutes a violation of the Eighth Amendment’s

prohibitions against cruel and unusual punishment and

1]

excessive fines. Such punishment is disproportionate and

excessive given the facts in the Petitioners’ cases.

December 1996

Respectfully submitted,

ORMOND R. FODREA,

Major, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

MARGE OVERLY,

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Appellate Defense Division

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A

UNITED STATES, Appellee

Jack B. SUMRALL, Captain

U.S. Air Force, Appellant

No. 95-0720

Crim. App. No. 31151

United States Court of Appeals for

the Armed Forces

Argued February 1, 1996

Decided Sep. 30, 1996

Counsel

For Appellant: Major Ormond R. Fodrea (argued); Colonel

Jay L. Cohen (on brief).

For Appellee: Captain R. Scott Howard (argued); Lieutenant

Colonel Michael J. Breslin (on brief).

Military Judge: J.C. Suhar

ho

mS

Opinion of the Court

SULLIVAN, Judge:

My object all sublime I shall achieve in time to

let the punishment fit the crime——the punishment fit

the crime.

This is a case where we must measure the sentence of a

court—martial against the yardstick of the Due Process Clause

of the Fifth Amendment of the Constitution.

Appellant was tried by a general court martial composed

of a military judge sitting alone at Ramstein Air Base,

Germany, on February 24, 1994. In accordance with his pleas,

he was found guilty of committing indecent acts with a female

under the age of 16 years (2 specifications), in violation of

Article 134. Uniform Code of Military Justice, 10 USC § 934.

He was sentenced to dismissal and confinement for 4 years.

The convening authority approved the sentence as adjudged

on May 2, 1994. The Court of Criminal Appeals in an

unpublished opinion affirmed on March 8, 1995.

On September 5, 1995, this Court specified the following

issue for review:

WHETHER THE EFFECT OF THE SENTENCE

(DISMISSAL) VIOLATES THE DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT TO THE

CONSTITUTION.

We hold that appellants court-martial sentence did not deprive

him of his retirement pay and other retirement benefits

without due process of law. See generally Weiss v. United

States,__U.S. —, 114 §.Ct. 752, 127 L.Ed.2d 1 (1994), and

United States v. Griffin, 25 MJ 423 (CMA 1988); see also 10

USC § 8911.

| WS. Gilbert, The Mikado, Act Il, lines 337-40 (1884).

3a

>

The record of trial in this case shows that appellant had

completed 21 years of enlisted and commissioned officer

service. It also shows that at the time of trial appellant’s base

pay was $3427.10 per month. His wife testified that it was her

understanding that she would receive no military benefits if

her husband was dismissed from the service. Finally, defense

counsel at least implicitly argued that appellant’s dismissal

would leave him and his family with nothing.

Before this Court, appellant asserts that if he were

allowed to retire he would receive approximately $20,562.60

per year for the rest of his life. He further asserts that.

“assuming the appellant would live until the age of seventy

(he is now 40), the uncompounded and non-inflation adjusted

total he would receive would be $616,878 00.” Final Brief at

2. No legal objection to appellant’s sentence was made at trial.

The broad question presented in this case is whether a

court-martial sentence to a dismissal unlawfully denied

retirement benefits to appellant, a retirement eligible military

officer. At the outset, we recognize that appellant was not

sentenced to a forfeiture of his retirement pay or other

retirement benefits. For that matter there is no express

authorization in the Uniform Code of Military Justice or the

Manual for Courts—Martial for the denial of retirement

benefits. However, the Uniform Code of Military Justice does

authorize punitive discharges (dismissal for officers——see

Arts. 66(b)(1) and 71(b)&(c)(1), UCMJ, 10 USC § 866(b)(1)

and 871(b) & (c)(1), respectively) and appellant received that

punishment. Moreover, in certain cases, a punitive discharge

such as a dismissal might automatically trigger a loss of

retirement benefits as a matter of statutory law not found in

the Uniform Code of Military Justice. See McCarty v.

McCarty, 453 U.S. 210, 222 n.14, 101 S.Ct 2728, 2736 n.14

(1981); 5 USC § 8312 (loss of retired pay due to

court—martial conviction for certain national security

4a

offenses); 38 USC § 5303(a) (loss of veterans benefits when

dismissed from service by general court-martial). Finally, it

has also been held that a dismissal effectively terminates a

retired servicemember’s entitlement to retirement pay. See

Hooper v. United States, 326 F.2d 982, 988 (Ct. Cl. 1964)

(Admiral Hooper was tried in his retired status and was

receiving retired pay——see generally United States v. Hooper,

9 USCMA 637, 26 CMR 417 (1958)).

In this context we are not inclined to overlook this issue

simply because appellants court-martial sentence did not

expressly deny him retired pay. We recognize that the decision

to retire an Air Force officer in appellant’s grade and time in

service rests by statute with his service secretary. Title 10

USC § 8911 states:

(a) The Secretary of the Air Force may, upon

the officer's request, retire a regular or reserve

commissioned officer of the Air Force who has at

least 20 years of service computed under section

8926 of this title, at least 10 years of which have

been active service as a commissioned officer.

See also 10 USC § 638 (selective early retirement without

request).

In light of the above, the specified issue before us is

whether appellants court-martial denied him his retirement

pay and other retirement benefits without due process of law.

See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct.

2701, 2709 (1972). Appellant did not make this legal claim at

his court-martial or before the Court of Criminal Appeals.

Moreover, to our knowledge, he has not even requested

retirement, and the Secretary of the Air Force has not

otherwise retired him. See 10 USC §§ 8911 and 639 (service

secretary may postpone retirement decision pending

court-martial proceedings). Accordingly, a substantial

question exists whether he has a legally sufficient property

Sa

interest at the present time for purposes of a Due Process

Clause claim. See United States v. Larionoff, 431 U.S 864

(1977); Zucker v. United States, 758 F.2d 637 (Fed. Cir. 1985);

see also Norman v. United States, 392 F.2d 255. 265 (Ct. Cl.

1968), citing Bell v. United States, 366 U.S. 393 (1961). But

see Barker v. Kansas, 503 U.S. 594, 605, 112 S.Ct. 1619.

1626 (1992) (military retirement benefits are to be considered

deferred pay for past services for purposes of 4 USC § 11 1).

Assuming he does have such an interest, the next

question in this case is whether he was afforded due process at

his court-martial with regard to their taking or denial. See

Brock v Roadway Exp., Inc., 481 U.S. 252, 262, 107 S.Ct.

1740, 1747, 95 L.Ed.2d 239 (1987). The potential loss of

retirement benefits was a proper matter for consideration by

factfinders at appellant’s courts—martial. See generally RCM

1001(c)(1)(B), Manual for Courts—Martial, United States.

1984 (defense may present matters in mitigation “to lessen the

punishment to be adjudged by the court-martial”). This Court

has particularly held that retirement—eligible servicemembers

are entitled to put into evidence that a punitive discharge

would deny them retirement benefits. United States v. Griffin,

25 MJ 423 (1988). Furthermore, servicemembers associated

with loss of retirement pay, subject to foundational

requirements related to the reliability of their projections, may

present evidence of the potential dollar amount subject to loss.

Id.; cf. United States v. Henderson, 29 MJ 221 (CMA 1989).

Accordingly, to the extent that a dismissal affects retirement

benefits including pay, we conclude these procedures satisfy

the meaningful opportunity to be heard concerns of the Due

Process Clause. See generally Weiss v. United States, was aa

114 S.Ct. 752, 127 L.Ed. 1 (1994); Brock v. Roadway Exp.,

Inc., supra.

A second constitutional issue arising in this context is

whether an expected forfeiture of some $600,000 is “cruel and

6a

unusual” punishment within the meaning of the Eight

Amendment. See Harmelin v. Michigan, 501 U.S. 957, 111

S.Ct. 2680 (1991). Here, appellant argues that “[s]urely any

fine assessed in such amount [over half a million dollars]

constitutes cruel and unusual punishment under the Eighth

Amendment.” Final Brief at 4. We disagree.

Dismissal (a punitive discharge for officers) is a

punishment long known to our military and the armies of

other civilized countries. See United States v. Ohrt, 28 MJ

301, 306 (CMA 1989); see also W. Winthrop, Military Law

and Precedents 405—06 (2d ed. 1920 Reprint). Moreover,

forfeiture of pay and retired pay are punishments that are well

recognized punishments at American courts—martial. /d. at

427-31. See McCarty v. McCarty, 453 U.S. at 222 n.14.

Finally, the effect of dismissal on retirement pay has long

been recognized. See Hooper v. United States, supra (since

plaintiff was validly dismissed from the Navy, his entitlement

to retired pay no longer existed). Accordingly, dismissal with

its effect of denying future retirement pay is not cruel and

unusual? in the sense intended by the Eighth Amendment.

Harmelin v. Michigan, supra at 976, 111 S.Ct. at 2691.

A related constitutional issue also arising in this case is

whether the expected forfeiture of some $600,000 in

retirement pay is “an excessive fine” within the meaning of

the Eighth Amendment. See Austin v. United States, 509 U.S.

602, 113 S.Ct. 2801 (1993). Appellant argued before the

Court of Criminal Appeals that a huge forfeiture of money for

only 2 specifications of indecent acts with one girl was clearly

“disproportionate.” We note that the amount of retirement pay

* Article 53, Uniform Code of Military Justice prohibits “any other

cruel or unusual punishments.” Assuming that standard is more

favorable to a military accused than the Eighth Amendment we find

no violation of that standard in this case.

7a

purportedly forfeited in this case is clearly speculative to the

extent that it depends on a prediction of appellant’s life

expectancy. In any event, the 2 specifications of which

appellant was convicted involved numerous diverse sexual

acts committed with a minor by a military officer over a

lengthy period of time. See Alexander v. United States, 509

U.S. 544, 113 S.Ct. 2766, 2776 (1993). We find no excessive

or disproportionate forfeiture as prohibited by the Eighth

Amendment in these circumstances.

A final constitutional issue arising in this case is whether

the future denial of retirement pay and other retirement

benefits in addition to his court-martial sentence violates the

Double Jeopardy Clause of the Fifth Amendment. See United

States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892. 1902

(1989). More importantly, it is the Secretary of the Air Force

who denies retired status to a servicemember, 10 USC § 8911,

not this court-martial. This Court has no jurisdiction to review

a service secretary’s decision under 10 USC § 8911, when and

if such action is taken. See Art. 67, UCMSJ, 10 USC § 867

(1989). Finally, military retirement pay at least in part is

intended as reduced compensation for future services that

appellant by reason of his disinissal cannot perform. See 10

USC § 688; McCarty v. McCarny, 453 U S. at 221-22. In this

sense, denial of his retirement pay is remedial and might not

be considered a plain-error violation of the Double Jeopardy

Clause. See Austin v. United States, 509 US. at 619-23, supra

at 2811-12.

Moreover, the consequences that appellant suffers after

execution of a proper sentence under the law of the Uniform

Code of Military Justice is a matter outside our jurisdiction as

a court under Article 67. Even though a court-martial

sentence may result in a huge loss of retirement pay, loss of

veteran benefits, loss of the right to vote, or possess firearms,

etc., these consequeices all are beyond our jurisdiction.

Sa

Jurisdiction or judicial power is a matter of time and

place. The time when a court or an authority has jurisdiction

is determined by the law which invests that court or authority

with the power to act on a case. See United States v.

Boudreaux, 35 MJ 291, 296 (CMA 1992) (Sullivan, C.J.,

concurring in the result) (the “tunnel of power” case). The

area or scope of a court’s jurisdiction also is set by the law

that both defines and limits the power of the court to act.

Our Court has judicial power over a special field of law,

that field is defined in the Federal law of the Uniform Code of

Military Justice. We as a court tend and cultivate this special

field of justice in the military. We can use the Constitution as

a measure of fairness and a tool of redress in that field. The

criminal trial and the criminal sentence of appellant are within

that field. However, in this case, we can give no relief because

the consequences appellant complains of (the loss of

retirement pay) are outside the boundaries of our field of law.

See generally United States v. Blocker, 33 MJ 349 (CMA

1991). cf. United States v. Navy—Marine Corps Court of

Military Review v. Cheney, 29 MJ 98 (CMA 1989). Title 10

USC §§ 8911 and 639 are the laws that take away the

projected $600,000 pension. This is a civil, not a criminal law.

As much as we may like to measure that law, it is beyond our

power and reach. Perhaps another court can help appellant.

We cannot and will not.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.*

>It is my personal belief that something should be done about the

problem in the military justice system where the effect of the

court-martial sentence for a crime inevitably triggers a huge loss in

retirement pay. There is a solution to this problem. I have written

about it but can do no more. (See the order in United States v. lves,

attached as an Appendix.) Of course I will continue to apply the law

Qa

Chief Judge COX, Judges CRAWFORD and GIERKE,

and Senior Judge EVERETT concur.

|

an , , ,

hy ~ Cont. as it presently is. As Justice Oliver Wendell Holmes, Jr.,

once remarked in a discussion with the Solicitor General, John W.

|| Davis, when told many more Sherman Anti-Trust Laws were

headed to the Supreme Court:

“Well, bring em on and we'll decide them. Of course |

know, and every sensible man knows, that the Sherman

[Anti-Trust] Law is damned nonsense, but if my country

wants to go to hell, | am here to help it.”

W. Harbaugh, A Lawyer’s Lawyer: The Life of John W. Davis (Oxford

University Press).

10a

UNITED STATES, Appellee

V.

Kenneth L. IVES, Jr. (365—74—9640), Appellant)

USCA Dkt. No. 96—0619/AF

Crim. App. No. $29118

ORDER DENYING PETITION

On consideration of the petition for grant of review of the

decision of the United States Air Force Court of Criminal

Appeals, it is by the Court this 2nd day of July, 1996,

ORDERED:

That said petition be, and the same is hereby denied.

SULLIVAN, Judge (dissenting):

Under the existing law, | would grant and affirm this

case. However, I respectfully dissent from the law I must

apply in this case, and I hope my dissent will call attention to

what I perceive as a flaw in our system of justice and suggest

a remedy to this flaw.

It’s important to see the facts in this case in order to

outline the flaw in the system. Appellant was a Desert Storm

veteran and staff sergeant with 15 years of superior service. At

the time of his crime, he was within weeks of getting out of

the Air Force with early separation pay of over $200,000. He

is the sole supporter of his wife, his daughter, and his mother

who lives with him. This was his crime——at a party, two

women encouraged him to share one of their marijuana

cigarettes. A subsequent random drug test showed him

\ lla

positive for marijuana. He admitted to the offense and for

punishment was given confinement of 2 months, forfeiture of

$700.00 pay, reduction to E-3, and a bad—conduct discharge.

This is a typical result in a court-martial in the United

States military today. The punishment here was not

unexpected because the modern military is an all—volunteer

force with high standards. A conviction by a court-martial

even for a minor crime (by civilian standards) usually carries

with it a discharge from the service. Even a one-time first

offender usually gets a punitive discharge. The bad—conduct

discharge here carried with it an automatic loss of the

$200,000 early separation pay. In many cases where the

servicemember has served over 20 years and thus is entitled to

annual retirement pay and medical benefits for life, the loss of

these benefits is likewise automatic with a punitive discharge.

This additional loss of benefits can well result in a loss of over

a million dollars, depending on one’s rank and length of

service.

Presently, there are only five general punishments

available in a military trial: death, in rare cases; confinement;

loss of rank; monetary loss (forfeiture of pay and allowances

or fine), and a punitive discharge (or dismissal) from the

service. In the modern military, high standards are set and a

conviction of a crime in a court-martial usually brings on

discharge and the automatic loss of a pension and medical

benefits if a person has served over 20 years.

Time Magazine recently related a story of a Coast Guard

officer with 30 years of service who committed suicide during

a criminal investigation following the officer’s telling three

“sexist jokes” to 118 cadets in a dinner speech at the Coast

Guard Academy, Time Magazine related that the officer, with

a wife and two children, “feared the loss of a pension that a

court-martial might mean.” (“A Political Suicide,” Time

Magazine at 44 (May 13, 1993)). With regard to the case at

12a

bar, I doubt that there is any jurisdiction in America outside of

the military where a first-time offender, who takes several

puffs of a marijuana cigarette, is punished by 60 days in jail

and a fine of over $200,000.

My suggestion is that a new option be added to the list of

possible punishments that a court-martial may consider——a

discharge with no loss of retirement benefits.

This new punishment will allow better and more flexible

justice in the present system. Our Court must do justice within

the existing system. We cannot by judicial rulemaking or

legislation create a new type of punishment. However, the

President by exercising his power under Article 56, Uniform

Code of Military Justice, 10 USC § 856, or Congress by

legislation, can give the court-martial this new type of

punishment. The new punishment option for a court—martial

may not te able to help the instant appellant but future minor

criminal offenders may benefit from a punishment that better

fits the crime.

For the Court,

/s/ John A. Cutts, Il

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (McINTYRE)

Appellate Government Counsel

i ili

:

i

13a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES, Appellee

v.

James R. LEE (430—84~—3012), Appellant

USCA Dkt. No. 95—1160/AF

Crim. App. No. 30984

ORDER

On further consideration of the granted issues (43 MJ

432) in light of United States v. Sumrall, No. 95-0720,

—MJ— (Sept. 30, 1996), it is, by the Court, this 30th day of

September, 1996

ORDERED:

That the decision of the United States Air Force Court of

Criminal Appeals is affirmed.

For the Court,

/s/ JohnA. Cutts, III

Deputy Clerk of the Court

Judge EFFRON concurs in the result.

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (OVERLY)

Appellate Government Counsel (INFELISE)

a

l4a

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

UNITED STATES, Appellee

v.

Alfred D. BURROWS (548—06-7992),

Appellant

USCA Dkt. No. 96—0118/AF

Crim. App. No. 31112

ORDER

On further consideration of the granted issue (43 MJ

474) in light of United States v. Sumrall, No. 95-0720,

—MJ_— (Sept. 30, 1996), it is, by the Court, this 30th day of

September, 1996

ORDERED:

That the decision of the United States Air Force Court of

Criminal Appeals is affirmed.

For the Court,

/s/_ John A. Cutts, II

Deputy Clerk of the Court

Judge EFFRON concurs in the result.

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (OVERLY)

Appellate Government Counsel (BRESLIN)

15a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Captain JACK B. SUMRALL, 434~90-6135

United States Air Force

ACM 31151

8 March 1995

Sentence adjudged 24 February 1994 by GCM

convened at Ramstein Air Base, Germany.

Military Judge: John C. Suhar (sitting alone).

Approved sentence: Dismissal and confinement for

4 years.

Appellate Counsel for Appellant: Colonel Jay L.

Cohen, Lieutenant Colonel Frank J. Spinner, and

Major Ormond R. Fodrea.

Appellate Counsel for the United States: Colonel

Jeffrey T. Infelise, Colonel Thomas E. Schlegel, and

Captain R. Scott Howard.

l6a

Before

SNYDER, PEARSON, and SCHREIER

Appellate Military Judges

OPINION OF THE COURT

PEARSON, Judge:

With the benefit of a pretrial agreement, appellant pled

guilty in a bench trial general court—martial to sexually abusing

his minor stepdaughter over a three year period. The court

sentenced him to a dismissal and 4 years confinement which

the convening authority approved. In a single assignment of

error, appellant contends his sentence to a dismissal constitutes

“excessive, cruel, and unusual punishment” and is

inappropriately severe. We affirm the approved sentence.

FACTS

Appellant compiled an outstanding military record

during his 21 years of active enlisted and commissioned

service. During his 17th year of that service, he started to

sexually abuse his then 12—year—old stepdaughter A.

Appellant would fondle her breasts and vagina and have her

masturbate him.

In the summer of 1992, A shared her secret of abuse with

some other children who had been sexually abused. Although

A’s mother was told about her report, she did not believe it,

and A recanted. During the summer of 1993, appellant

renewed the abuse.

On November 14, 1993, appellant found himself in a

criminal interrogation after A finally reported the abuse again.

After a proper rights advisement, appellant initially denied

abusing A. However, after further questioning, he admitted

some of the acts she reported. In a subsequent interview, he

admitted more sexual misconduct with her.

17a

A did not testify at trial in person. Instead, the parties

Stipulated to her testimony. A’s stipulation of expected

estimony paints a more tragic picture of abuse than appellant

rendered during his plea inquiry with the judge. See R.C.M.

910(e). According to A, appellant fondled her breasts monthly

and her vagina at least 15 times, including 7 or 8 times after

her 1992 report. A said after she recanted her report of abuse,

appellant told her “sarcastically,” “What's the matter did you

get scared?” A also said appellant would insert his fingers into

her vagina, and give her money or let her have privileges in

exchange for sexual touching.

DISCUSSION

The Eight Amendment prohibits cruel and unusual

punishment as does Article 55, Uniform Code of Military

Justice, 10 United States Code § 855. Specifically, Article 55

prohibits flogging, branding, marking, tattooing, or “any other

cruel of unusual punishment.”

Basically, appellant contends his dismissal constitutes a

financial flogging disproportionate to his crimes because

execution of that punishment will deprive him of “over half a

million dollars” in retired pay. We conclude otherwise. Article

66(c), UCMJ, 10 U.S.C. 866(c).

Dismissal is a punitive separation from the armed forces

specifically authorized under military law, see Article 56,

UCMJ, 10 U.S.C. § 856; R.C.M. 201(f)(1)(A)(ii),

1003(b)(10)(A); and neither rank nor lengthy service insulates

an officer from that authorized punishment, see, e.g., United

States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956)

(dismissal of lieutenant colonel with 28 years service).

Moreover, even a retired officer is subject to court-martial

jurisdiction and a sentence to dismissal, which would

terminate retirement pay. United States v. Hooper, 9

U.S.C.M.A. 637, 26 C.M.R. 417 (1958) (court-martial of

18a

retired Navy rear admiral for sex-related offenses); see also

United States v. Sloan, 35 M.J. 4 (C.M.A. 1992)

(court-martial of retired enlisted sergeant major for sex acts

with minors committed before retirement).

The bottom line for us is whether the punishment of

dismissal is appropriate under the unique circumstances of

this case. See United States v. Healy, 26 M.J. 394 (C.M.A.

1988); United States v. Snelling, 14 M.J. 267 (C.M.A. 1982).

We conclude it is. Accordingly, the findings and sentence are

AFFIRMED.

Senior Judge SNYDER and Judge SCHREIER concur.

OFFICIAL

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief, Court Administrator

19a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

Colonel JAMS R. LEE, 430—84—3012

United States Air Force

ACM 30984

7 September 1995

—_ 5

Sentence adjudged 21 October 1993 by GCM

convened at Tinker Air Force Base, Oklahoma.

Military Judge: Donald E. Weir (sitting alone).

Approved sentence: Dismissal and confinement for

7 years.

Appellate Counsel for Appellant: Colonel Jay L.

Cohen, Lieutenant Colonel Frank J. Spinner,

Captain Robert I. Smith, and Captain Marge A.

Overly.

Appellate Counsel for the United States: Colonel

Jeffrey T. Infelise, Colonel Thomas E. Schlegel, and

Captain Jane L. Harless.

20a

Before

PEARSON, BECKER and MORGAN

Appellate Military Judges

OPINION OF THE COURT

MORGAN, Judge:

Appellant was convicted pursuant to his guilty pleas of

seven specifications of sodomy with three different teenage

boys in violation of Article 125 of the Uniform Code of

Military Justice! (UCMJ), one specification of conduct

unbecoming an officer for having a disgraceful and

unprofessional relationship with a USAF male E-5, (SSgt M),

in violation of Article 133,* and fourteen specifications of

indecent acts with the same pore boys and SSgt M, in

violation of Article 134, UCMJ.> He assigns three errors: that

his sentence to a dismissal and seven years confinement

constituted cruel and unusual punishment in violation of the

Eighth Amendment; that the sentence was inappropriately

severe; and that the military judge erred in not reopening the

providence inquiry when evidence arose suggesting lack of

mental responsibility. Finding these assignments of error

meritless, we affirm.

While assigned to the United States Transportation

Command, (USTRANSCOM), appellant rose to a position of

prominence and respect in his church, where he was the youth

choir director and an adult chaperon at a number of youth

functions. The record reveals that he used this position to

1 10 U.S.C. § 925 (1988).

2 10 U.S.C. § 933 (1988).

310 U.S.C. § 934 (1988).

21a

form close relationships with CL and JL, junior high school

age twin brothers, and BW, all of whom were, when he first

began the acts here charged, under the age of 16. Over a

period of time spanning August 1, 1988, through October of

1992, appellant engaged in various indecent acts with the

three boys, and orally and anally sodomized two of them on a

number of occasions. These acts were variously performed

while the appellant accompanied the boys on camping trips,

trips to visit appellant’s father-in-law, and in motel rooms,

the appellant’s house, his car, and even in the

USTRANSCOM headquarters building on Scott Air Force

Base. The record further reveals that during a period of April

through October of 1992, the appellant performed various

indecent acts with SSgt M, including arranging a temporary

duty assignment so as to be with SSgt M in California and

vacationing with him in Arkansas. At trial appellant pled

guilty to all charges and specifications, but limited his

description of the acts substantiating Charge I to incidents of

oral sex only. Two of the three boys, however, testified to

specific incidents of being anally sodomized by appellant.

I. WHETHER DISMISSAL CONSTITUTES

CRUEL AND UNUSUAL PUNISHMENT

Without objection from trial counsel, appellant was

permitted to offer evidence showing that, according to

actuarial tables, the value of his retirement based upon his 25

years of active duty service could amount to close to

$750,000. Appellant urged the military judge to take careful

account of the financial injury to his wife anc family attending

any forfeitures. The thrust of appellant’s sentencing case was

that confinement would sever the course of counseling and

therapy essentia! to his rehabilitation, and that financial

penalties would not only injure his wife and family, but would

diminish his capability to pay for the counseling, therapy, and

22a

prescriptions needed to assist his young victims, something

which ACM 30984 through counsel he offered to do.* We

infer that this had an impression on the military judge, as

forfeitures formed no part of his sentence.

Appellant now argues that, in his circumstances, the

punishment of dismissal from the service, with the attendant

consequence of loss of retired pay, offends the Eighth

Amendment's prohibition of cruel and unusual punishment or

excessive fines.” Appellant’s argument suffers from a number

of infirmities, not the least of which is that the loss of retired

pay is not a component of the sentence. It is, rather, a

potential consequence of the sentence. The general rule has

been that collateral consequences of a sentence are not

properly a part of the sentencing consideration. See United

States v. Cleckley, 8 U.S.C.M.A. 83, 23 C.M.R. 307, 309

(1957) (“we are not disposed to interpret the financial statutes

to restrict the power of a court to sentence as authorized by

military law. . . . To reach a contrary conclusion would throw

the whole system of sentencing in military courts out of

4 Appellant's victims, and the parents of CL and JL, testified to

grave, and enduring, psychological damage occasioned by

appellant’s conduct. CL, particularly, suffered from panic attacks,

unwillingness to go into men’s locker rooms, severe weight loss,

depression and sleeplessness. At the time of trial he was undergoing

treatment with anti-depressants and anti-anxiety prescription

drugs. BW would testify only under the condition that his mother

not be present at trial. The record, including a voluminous clemency

submission, is silent as to whether appellant followed-up on his

offer to fund therapy.

> In addition to appellant’s Eighth Amendment protection, Article

55. UCMJ, 10 U.S.C. § 855, entitled “Cruel and Unusual

Punishments Prohibited,” provides “({p]unishment by flogging, or

by branding, marking, or tattooing on the body, or any other cruel

or unusual punishment, may not be adjudged by a court-martial or

inflicted upon any person subject to this chapter.”

23a

balance.””); United States v. Quesinberry, 12 U.S.C.M.A. 609,

31 C.M.R. 195, 198 (1962) (courts—martial are to concern

themselves with the appropriateness of a particular sentence

for an accused “without regard to the collateral administrative

effects of the penalty under consideration”). Compare United

States v. Pajak, 11 U.S.C.M.A. 686, 29 C.M.R. 502 (1960)

(plea of guilty not improvident even where appellant unaware

that Hiss Act would have effect of denying him retirement

earned after 25 years active service) with United States v.

Paske, 11 U.S.C.M.A. 689, 29 C.M.R. 505 (1960) (staff judge

advocate did not err in failing to advise convening authority of

adverse financial consequence of sentencing as a result of

decision of comptroller general). This rule has remained

undisturbed after more than 30 years. See, e.g., United States

v. McElroy, 40 M.J. 368, 372 (C.M.A. 1994), cert. denied, 115

S. Ct. 1256 (1995); United States v. Griffin, 25 M.J. 423, 424

(C.M.A.), cert. denied, 487 U.S. 1206 (1988) (“The general

rule concerning collateral consequences of a sentence is that

‘courts—martial [are] to concern themselves with the

appropriateness of a particular sentence for an accused and his

offense, without regard to the collateral administrative effects

of the penalty under consideration.’ We see no need to relax

this rule today.” (citations omitted)). There is authority for the

proposition, however, that the loss of retired pay for one who

is retirement eligible is a collateral consequence only in

theory, and “in reality, the impact of an adjudged punishment

on the benefits due an accused who is eligible to retire is often

the single most important sentencing matter to that accused

and the sentencing authority.” Griffin, 25 M.J. at 424. Cf.

Henderson v. United States, 29 M.J. 221, 222 (C.MA. 1989)

(loss of retired pay for one three years away from retirement

so collateral as to be inadmissible).

Whether the loss of retirement benefits and pay is a direct

or a collateral consequence of the imposition of a punitive

discharge, it is indisputable that it is a consequence of the

24a

sentence and forms no part of the sentence itself. The Eighth

Amendment states, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishment

inflicted.” We reject out of hand analysis of appellant's case

under the “cruel and unusual punishment” portion of the Eighth

Amendment, as loss of retired pay is in no sense a punishment

administered by court-martial. See Walton v. Arizona, 497 U.S.

639, 670 (1990) (Scalia, J., concurring) (last portion of Eighth

Amendment only regulates punishments, which to offend that

amendment must be cruel and unusual.) We doubt that punitive

discharge from the service is cruel in the context intended by

the Constitution. Certainly it is not unusual.

We likewise doubt that the probability of a loss of retired

pay attending a punitive discharge is reviewable against the

constitutional prohibition of “excessive fines.” The

“entitlement” to military retired pay following 20 years of

service is, strictly speaking, not an entitlement at all, as it is at

all times discretionary with the Secretary of the Air Force. 10

U.S.C. § 8911 (1994). The Secretary, similarly, is empowered

to commute, remit, or suspend a dismissal, which may not be

executed until the Secretary has approved it and the Court of

Appeals for the Armed Forces has either rejected a petition for

review, or ruled on the case, and if a petition for certiorari is

filed, the Supreme Court has acted on such petition. 10 U.S.C.

§ 871 (1994). Read together, these two statutes mean that the

Secretary of the Air Force is free to disapprove appellant's

dismissal and approve his retirement.

Nor is appellant's assumption of an automatic loss of

retired pay and its reduction to a dollar figure the legal

equivalent of a fine.® The punishment available at

© The Court of Military Appeals has reserved opinion as to whether

an actuarial estimate of the value of retired benefits could be

relevant evidence, even in sentencing. United States v. Henderson,

29 M.J. 221, 222 (C.M.A. 1989).

25a

court—martial is precisely articulated, and its aus may be

precisely ascertained. Article 56 of the UCM)’ permits the

President to prescribe forms of punishment, of which a fine is

one. R.C.M. 1003(b)(3). A fine, imposed as part of a sentence

adjudged, is a sum certain, is intended to be and is imposed as

punishment. As a judgment of the court, it makes the accused

immediately liable to the United States for the entire amount

of money specified in the sentence. As such, it is amenable to

analysis with reference to the strictures of the Eighth

Amendment.

By contrast, the loss of military non—disability retirement

eligibility is neither a sum certain, nor is it a judgment of a

court—martial. While Griffin appears to stand for the

proposition that a sentencing authority may, with the

permission of the accused, be instructed upon and consider

the likelihood of the loss of retirement eligibility that would

likely result from the sentence of a punitive discharge for a

retirement eligible accused, we do not believe that Griffin

requires the military judge to allow actuarial evidence of the

potential economic consequences which might ensue.®

Indeed, holding in favor of appellant on Eighth Amendment

grounds would have the practical consequence of declaring

the punitive discharge of any retirement eligible accused

constitutionally impermissible, a result which would have

astounded the drafters of the Bill of Rights.

710 U.S.C. § 856 (1994).

8 Affixing a dollar value to the loss of retirement eligibility

necessarily depends upon the manipulation of a vast number of

variables and assumptions relating to life expectancies, the value of

benefits, inflation, and future legislation, a sentencing procedure we

do not believe Griffin and Henderson approve.

26a

WHETHER APPELLANT’S SENTENCE IS

INAPPROPRIATE

Appellant points with justifiable pride to his lengthy and

honorable service, including flying combat missions in the

C-130 in Vietnam. Unfortunately, that service is, in part, what

enabled him to insinuate himself so effectively into the

confidence of his victims and their families. The cynical

exploitation of appellant’s standing and accomplishments in

the Air Force, his perverse twisting of Biblical scripture to not

merely rationalize, but sanctify his crimes to his victims, and

the callous disregard for the physical and psychological health

of those victims dwarf in their enormity the achievements of

appellant’s career. Even allowing for multiplicity, counsel for

all sides and the military judge agreed that appellant could

have been sentenced to 106 years in prison, while his pretrial

agreement called for a maximum of 15 years confinement,

total forfeitures, and a dismissal. Under the circumstances, we

cannot say that confinement for seven years, a dismissal, and

no forfeitures is inappropriately severe.

Ill. PROVIDENCY OF THE GUILTY PLEA

Appellant’s last assignment of error hinges on the

testimony of a psychiatrist who testified during the sentencing

portion of the trial, Dr. John R. Smith. In his brief, appellant

asserts that Dr. Smith testified to the effect that appellant had

“no power to change” the sexual behavior. (Emphasis

appellant’s.) Based upon this testimony, appellant argues the

judge should have reopened the providency inquiry to further

explore whether a sanity defense might obtain. A complete

reading of the record does not support the inference appellant

wishes the court to draw. The reference to “no power to

change” was to the development of appellant’s homosexual

27a

orientation,” not to his ability to differentiate right from

wrong. Dr. Smith specifically testified that appellant “does not

have any significant psychiatric disorder of the type that

would interfere with his ability to think, to behave rationally

and reasonably.” This evidently was the conclusion of the

sanity board requested by the appellant, which, according to

Dr. Smith, did not turn out as appellant had hoped. Although

the record shows that a sanity board was conducted, and that

the appellant’s expert witness had examined it, it was not

introduced at trial, and trial defense counsel specifically

denied that her investigation had revealed any facts giving rise

to a defense. The military judge is entitled to afford weight to

that judgment of trial defense counsel. United States v. Clark,

28 M.J. 401 (C.M.A. 1989). We do not, therefore, find even

the possibility of such a defense, much less a substantial basis

in law and fact for questioning the plea sufficient for us to

upset the trial judge’s determination in this case. United States

v. Prater, 32 M.J. 433, 436 (C.M.A. 1991); United States v.

Logan, 22 U.S.C.M.A. 349, 351, 47 C.M.R. 1, 3 (1973).

Accordingly, the findings and sentence are correct in fact

and in law, and are

AFFIRMED.

Senior Judge PEARSON concurs.

Judge BECKER (concurring in the result):

? The recitation to this portion of Dr. Smith’s testimony is particularly

ironic, since it was the stated purpose of appellant's trial defense

counsel to use Dr. Smith to testify to the contrary, that is, that

appellant differed from the ordinary homosexual pedophile in that he

was capable of reorienting his sexual proclivities through

rehabilitation.

28a

I agree with the lead opinion’s holding in the Eighth

Amendment issue, and most of its analysis. Loss of retirement

pay due to a punitive discharge is not part of a court—martial’s

sentence. Accordingly, it is neither a “cruel and unusual

punishment” nor an “excessive fine” within the meaning of

the Eighth Amendment.

However, I dissociate myself from portions of the lead

opinion which, in my view, imply that loss of retirement pay

should be considered a mere collateral consequence of

punishment and, therefore, is not a permissible sentencing

factor. See slip op. at 34. To the contrary, I believe the loss of

such benefits to an otherwise retirement—eligible accused is a

proper matter in mitigation. See R.C.M. 1001(c)(1)(B);

United States v. Griffin, 25 M.J. 423, 424 (C.M.A.), cert.

denied, 487 U.S. 1206 (1988).

I also dissociate myself from the lead opinion’s

implication that evidence of the dollar value of retirement

benefits may not be admissible, even if loss of benefits is a

proper sentencing consideration. See slip op. at 5, n.8.

Approximating a potential financial loss from a punitive

discharge is not an impractical task. Indeed, the parties here

did so without apparent difficulty or controversy. Military

judges have the discretion in this area to avoid confusion,

misleading members, undue delay, waste of time, and

needless accumulation of evidence. Mil. R. Evid. 403.

Therefore, we need not fear that litigants will run amok in

fiscal intricacies. If the potential loss of retirement benefits is

a legitimate mitigating factor-—and I believe it is, at least

when an accused is retirement—eligible--then the sentencing

authority should be allowed to hear something about what

they are worth.

These portions of the lead opinion are not necessary to

its otherwise excellent analysis of the appellant’s Eighth

Amendment argument. They are dicta, and should not be

29a

taken as authority for excluding evidence of how much a

retirement—eligible accused stands to lose if the sentence

includes a punitive discharge. I fully concur with the lead

opinion’s resolution of the remaining assignments of error.

OFFICIAL

LAURA L. GREEN

Clerk of Court

30a

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Technical Sergeant ALFRED D. BURROWS, FR548—06-7992

United States Air Force

ACM 31112

18 September 1995

Sentence adjudged 15 February 1994 by GCM

convened at McChord Air Force Base, Washington.

Military Judge: Martha H. Bower.

Approved sentence: Dishonorable discharge,

confinement for 42 months, and reduction to E-1.

Appellate Counsel for Appellant: Colonel Jay L.

Cohen, Captain Marge A. Overly, and Captain

Margarete A. Wiemer.

Appellate Counsel for the United States: Colonel

Jetfrey T. Infelise, Colonel Thomas E. Schlegel, and

Captain Timothy G. Buxton.

Before

PEARSON, BECKER, and MORGAN

Appellate Military Judges

PER CURIAM:

We conclude that civilian trial defense counsel knowingly

and intelligently waived any issue concerning the admissibility

3la

of evidence about Mrs. Burrows’ entitlement to a portion of

appellant's retirement benefits. In this regard, defense counsel

even offered to stipulate to the effect that a change in federal

law, 10 United States Code § 1408, had on appellant’s

retirement benefits when the prosecutor offered this evidence

in rebuttal to defense financial hardship evidence. Even if

defense counsel did not knowingly and intelligently waive the

issue, we conclude that plain error is not present so as to

excuse his failure to object. See United States v. Pagel, 40 M.J.

771 (A.F.C.M.R. 1994); United States v. Spears, 39 M.J. 823

(A.F.C.M.R. 1994). Appellant's sentence to a punitive

discharge is not cruel and unusual punishment. United States v.

Lee, — M.J. — (A.F. Ct.Crim. App. Sep. 7, 1995).

We have examined the record of trial, the assignment of

errors, and the government's reply thereto and have concluded

that the findings and sentence are correct in law and fact, the

sentence is appropriate, and no error prejudicial to the

Substantial rights of the appellant was committed.

Accordingly, the findings of guilty and the sentence are

AFFIRMED.

OFFICIAL

ALVIN J. STRIBLING

Technical Sergeant, USAF

Chief, Court Administrator