# Petition for Writ of Certiorari — Sumrall v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1117

## Text

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961001 DEC 20 19%

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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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0378%3A1. Public record. Not legal advice.