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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1176

## Text

7

confinement, the FMR is obviously punitive. /d. at 424.
“This regulation imposes a forfeiture upon a servicemember
in the absence of any due process or adjudication of guilt.”
Id.

REASONS FOR GRANTING THE PETITION

The decision of the lower court is in direct conflict with
this Court’s decision in Bell v. United States, 366 U.S. 393
(1961). The lower court has applied common-law rules
governing contracts to military pay. And it has sanctioned
the forfeiture of military pay without Due Process_and in
violation of the Uniform Code of Military Justice. The
decision also raises substantial questions about the nature
military jurisdiction. Are servicemembers who are not
entitled to pay or performing military duties still subject to
trial by court-martial? This case presents a rare opportunity to
address both the status-based nature of military pay and the
Due Process protections afforded servicemembers with
respect to it.

The Court of Appeals’ Decision that Military Pay
is Conditioned Upon the Performance of Useful
Military Duties and can be Forfeited Before a
Service Member has been Convicted by a Court-
Martial Conflicts with this Court’s Decision in Bell
v. United States, 366 U.S. 393 (1961).

Bell v. United States, 366 U.S. 393 (1961), involved three
servicemembers who, after their capture by Chinese forces
during the Korean War, became monitors for their captors at

8

their prison camp, wore Chinese military uniforms, and made
propaganda broadcasts on behalf of the Chinese government.
Bell v. United States, 149 Ct. C) 248 (Ct. Cl.-1960). Private
First Class Bell called President Harry Truman a war-monger
and offered to run a tank over his body. /d. at 252. After
they had refused repatriation, they were discharged from the
Army on January 23, 1954. Id.

They then brought suit for pay until their discharge. The
United States argued that they were not entitled to pay
because they had breached their enlistment contract by not
performing military duties. Bell, 366 U.S. at 401. This Court
rejected the government’s argument, upholding the weli-
settled principle that a service member’s pay is “dependent
upon statutory nght.” /d. “If a soldier's conduct falls below
a specified level he is subject to discipline, and his
punishment may include forfeiture of future but not of
accrued pay.” /d.

In reaching its decision, this Court relied upon numerous
court decisions and upon the opinions of the Attomeys
General and Judge Advocates General. Jd. These opinions
uniformly held that servicemembers are entitled to receive the
pay provided by statute, “unless he has forfeited it in
accordance with the provisions of law, whether he has
actually performed military service or not.” 13 Op. Atty.
Gen. 103, 104 (1869).

But in 1951, the Comptroller General responded to an
opinion of the Judge Advocate General of the Army that held
that the forfeiture of pay under the circumstances of this case
constituted illegal pretrial punishment. 30 Comp. Gen. 449
(1951). The Comptroller opined that servicemembers in
Petitioner's situation were no longer in a “full duty” status
and were not entitled to pay unless they were acquitted of
their suspected offenses at court-martial. /d.

9

The opinion of the Comptroller General was codified in
the FMR. Recently, citing the FMR, the Court of Federal
Claims and the Court of Appeals for the Federal Circuit have
declined to follow their previous decisions cited by this Court
in Bell, and have held that servicemembers who do not
perform useful and productive duties are not entitled to pay
and allowances. Simoy v. United States, 64 Fed. Appx. 745,
746 (Fed. Cir. 2003); Anderson v. United States, 70 Fed.
Appx. 572, 575 (Fed. Cir. 2003). The Federal Circuit has
determined this to be a “settled rule of law.” Simoy, 70 Fed.
Appx. at 575. The Court of Appeals for the Armed Forces
has adopted the holdings of these courts and applied their
decisions to Petitioner's case. “Where Petitioner was not
entitled to payment, nothing could have been forfeited.”
Fischer, 61 M.J. at 420.

The Comptroller General’s opinion, issued ten years
before Bell, should not have survived that decision. But it
has and the Courts of Appeal for the Armed Forces and for
the Federal Circuit have adopted the reasoning from that
opinion that was expressly rejected by this Court in Bell.
This Court should grant the petition because the lower court
has decided a federai question in a way that conflicts with
Bell v. United States.

Il.
The Decision of the Court of Appeals is Erroneous

The Court of Appeals erroneously applied this Court’s
decisions in Bell v. Wolfish, 441 U.S. 520 (1979) and
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) in
reaching its decision that the forfeiture of pay by active duty
servicemembers does not constitute illegal pretrial

10

punishment.

Applying the test set out in Bell v. Wolfish, the Court of
Appeals held that the forfeiture of Petitioner’s pay was
“reasonably related to the legitimate Government objective of
not paying people who are not performing duties.” Fischer,
61 M.J. at 420.

“This logic breaks down, however, because a
servicemember whce is later acquitted has performed the same
duties while in pretrial confinement and receives
compensation.” Fischer, 61 M.J. at 424 (Erdmann J.,
dissenting). And the servicemember who is in pretrial
confinement and has not reached his EAS, and who is
performing the same “duties” as the post-EAS
servicemember in the next cell, receives full pay and
allowances. In fact, the only servicemembers who forfeit pay
are those who are later convicted at court-martial. All other
servicemembers are entitled to pay regardless of their EAS.
“This is punishment.” Fischer, 61 M.J. at 424 (Erdmann J.,
dissenting).

Even if the performance of useful duties is not a pretext
for the intentional imposition of illegal pretrial punishment,
an application of this Court’s decision in Kennedy indicates
that the FMR operates as punishment.

The Court of Appeals erroneously applied the seven
factors set out by this Court in Kennedy. Kennedy, 372 U.S.
at 168.

The FMR imposed an affirmative disability on Petitioner.
While he was in confinement, his wife and seven-month-old
son, no longer entitled to government quarters or Petitioner’s
housing allowances, were given what was essentially a one-
day eviction notice by the government.

The Court of Appeals concedes that this “could be

11

viewed as a disability” but concluded that those in
Petitioner’s position “are not entitled to be paid.” Fischer, 61
M.J. at 420. But active duty servicemembers are entitled to
pay. 37 U.S.C. § 204(a)(1); Bell, 366 U.S. at 401. And it is
well settled that, with regard to military compensation, the
President may not diminish what Congress has given. United
States v. Symonds, 120 U.S. 46 (1887); United States v.
Williamson, 90 U.S. 411 (1874). To the extent that the FMR
conflicts with 37 U.S.C. § 204(a)(1) and terminates the pay
that Congress has authorized, it is a nullity. Petitioner was
entitled to pay and the forfeiture of that pay constitutes an
affirmative disability.

2. Historically Regarded as Punishment.

Forfeiture of pay has long been regarded as punishment
and continues to be “the most frequent of all the military
punishments.” WILLIAM WINTHROP, MILITARY LAW AND
PRECEDENTS 427-28 (2d ed. 1920). In Robertson v. Baldwin,
this Court, while discussing the history of maritime law,
noted that forfeitures, as a means of punishment, have existed
since “the maritime law of the ancient Rhodians, which is
supposed to antedate the birth of Christ by about 900 years.”
Robertson v. Baldwin, 165 U.S. 275 (1897).

In this country, forfeitures were established punishment
by 1668 where the Colonial General Court of Massachusetts
held that any mariner who departed his ship, “shall forfeit all
his wages.” Robertson, 165 U.S. at 287. The punitive
nature and usage of forfeitures by masters and commanders
in this country was perhaps best descnbed by the District.
Court for Pennsylvania in 1806:

The framers of maritime laws, knowing that
seaman are, by the nature of their
employment, subject to peculiar failings and

12

vices, the offspring of unpolished manners and
hardy, rude, and fearless habits, have
calculated their codes for reformation, where
practicable, and for punishment, where this
cannot be effected. Heavy forfeitures,
pecuniary mulcts, and corporal inflictions
(many now obsolete and disused) are to be
found in those laws, frequent and severe.

Watson v. The Rose, 1806 U.S. Dist. Lexis | (D.P.A. 1806).
Forfeitures have always been considered and employed as
punishment for mariners.

The Court of Appeals attempted to avoid the history of
forfeitures as a means of punishment by simply insisting
Petitioner's loss of pay and allowances was not forfeiture.
“Where Petitioner was not entitled to payment, nothing could
have been forfeited.” Fischer, 61 M.J. at 420. But active
duty servicemembers are entitled to pay unti! discharge or
until they have been sentenced at court-martial. 37 U.S.C. §
204(a)(1); Bell, 366 U.S. at 401. Forfeiture is defined as the
“{ljoss of some right or property as a penalty for some illegal
act.” BLACK’S LAW DICTIONARY 650 (6th Ed. 1990). The
loss of Petitioner's pay can only be characterized as
forfeiture. This has always been considered punishment for
sailors.

3. Scienter.

The Court of Appeals correctly notes that consciousness
of guilt is not a factor in determining whether to forfeit the
pay of servicemembers in Petitioner’s situation.

4. Retnbution and Deterrence.

The FMR does promote the “traditional aims of
punishment-retribution and deterrence.”” Kennedy, 372 U.S.
at 168-69. In fact, it is difficult to imagine a better form of

13

retribution and deterrence than that provided for by the FMR.
Not only was Petitioner held involuntarily held past his EAS,
he was confined without pay while the government took
ninety-seven days to bring him to court-martial for his guilty
plea. While he was in confinement, his family was evicted
from government quarters and denied Petitioner’s housing
allowance or any means to subsist.

The Court of Appeals held that the FMR is not aimed at
those accused of criminal misconduct but only “applies if a
neutral event occurs—-the person’s EAS date.” Fischer, 61
M.J. at 421. But the FMR does not stop the pay of all
servicemembers whose EAS passes. Only those who are
ultimately convicted at a court-martial are not paid under the
regulation. All other post-EAS servicemembers are paid.

5. Application to Criminal Behavior.

The FMR terminates that pay of servicemembers who are
accused of a crime, past their EAS, in pretrial confinement,
and who are ultimately convicted at a court-martial.

6. Alternative Purpose.

The Court of Appeals held that the FMR’s purpose is not
paying those who are not “providing productive service....”
Fischer, 61 M.J. at 421. But the pay of servicemembers is
status based and not determined by the performance of useful
duties. Bell, 366 U.S. at 401. There can be no non-punitive
purpose for denying pay and allowances to servicemembers
who will later be convicted by a court-martial.

7. Excessiveness.

The Court of Appeals held that the termination of pay and
allowances was not excessive. The Court compared
Petitioner to civilian employees. “In civilian life, pretrial
confinees may lose their jobs and are often not compensated
for the time spent in pretrial confinement.” Fischer, 61 M.J.
at 421. Petitioner is not a civilian. The termination of his

14

pay and allowances was excessive.

The application of this Court’s decisions in Bell v.
Wolfish and Kennedy v. Mendoza-Martinez indicates the
FMR punishes servicemembers before they have been
convicted by a duly constituted court-martial. The Court of
Appeals’ misapprehension of controlling precedent calls for
an exercise of this Court’s power of supervision. This Court
should grant the petition.

III.

This Issue is Important as the Court of Appeals
has Sanctioned the Creation of a Class of
Servicemembers who are not Paid as
Servicemembers and who do not Perform Military
Duties but Remain Subject to Court-Martial
Jurisdiction.

With more than one million servicemembers currently on
active duty, the issue of whether the pay of these
servicemembers continues to be status based, and under what
conditions they may lose their entitlement to pay, presents an
important federal question. But the Court of Appeals’
apparent rejection of the status-based nature of military pay
also has tremendous implications for the status-based nature
of court-martial junsdiction.

The Constitution conditions the exercise of court-martial
junsdiction on one factor: the military status of the accused.
Solario v. United States, 483 U.S. 435, 439 (1987). The test
for this jurisdiction is whether a person can be regarded as
falling within the term “land and naval forces.”’ Kinsella v.
United States, 361 U.S. 234, 241 (1960). In his opinion
reserving judgment in Kinsella v. Krueger, 351 U.S. 470
(1956), overruled by Reid v. Covert, 354 U.S. | (1957),

15

Justice Frankfurter stated that “the Constitution ‘clearly
distinguishes the military from the civil class as separate
communities’ and ‘recognizes no third class which is part
civil and part military—military for a particular purpose or in
a particular situation, and civil for all other purposes and in
all other situations...," Winthrop, Military Law and
Precedents (2d ed. 1896), 145.” Kinsella, 351 U.S. at 481-
482.

The Court of Appeals’ decision has established a third
class of citizens who are military for purposes of court-
martial jurisdiction but civilian in all other respects. Article
2, Uniform Code of Military Justice, confers court-martial
jurisdiction over those receiving pay or allowances and
performing military duties. 10 U.S.C. § 802(c) (2000). By
virtue of his pretrial confinement, Petitioner was no longer
wearing-military uniforms. Further, Petitioner had reached
his EAS and thus his contractual obligation of service had
ended.

At least as far back as Jn re Walker, 2 Am. "»nist 281
(Mass. 1830), servicemembers who committec cnmes shortly
- before their EAS could be retained on active duty past their
EAS for tnal by court-martial. But, until the decision of the
Court of Appeals, no court has ever held that military
jurisdiction continues Over citizens who wear no uniforms,
receive no pay or allowances, perform no military duties, and
have no enlistment contract. This perhaps explains the Court
of Appeals’ companson of Petitioner to similarly situated
federal civilian employees. Fischer,61 M.J. at 419. ' We
note that federal civilian employees may be suspended
without pay upon indictment, regardless of whether there is
pretrial confinement.” Jd.

The Court of Appeals decision has blurted the line
between servicemembers anid civilians. In fact, it is difficult

16

to establish any connection between Petitioner and the
military after his EAS without the status-based determination
that he was oui active duty. But military jurisdiction, like
military pay, is status based. Fischer, 61 M.J. at 423
(Erdmann, J. dissenting).

In holding that military pay is governed by contract
principles of useful performance, rathe1 ‘han the status based
nature of active duty, the Court of Appeals has created a new
class of servicemembers who are not subject to pay or
allowances but remain subject to court martial jurisdiction.
The legality of the Court of Appeals’ creation of this hybrid
class of servicemembers is an important question of federal
law that has not, but should be, decided by this Court. This
Court should grant the petition.

CONCLUSION
The petition for a writ of certioran should be granted.
Respectfully submitted,

BRIAN L. MIZER
Lieutenant, JAGC, USNR
Counsel of Record

JASON S. GROVER
Lieutenant Commander, JAGC, USN

Navy-Marine Corps Appellate
Review Activity

716 Sicard St. S.E., Suite 1000
Washington, D.C. 20374- 5047
202/685-7396

la
APPENDIX A
U.S. v. David E. FISCHER
No. 04-0756/MC.
UNITED STATES COURT OF

APPEALS FOR THE ARMED
FORCES

2005 CAAF LEXIS 1211
October 17, 2005, Decided

NOTICE: [*1] DECISION WITHOUT PUBLISHED
OPINION

PRIOR HISTORY: CCA 200200303. United States v.
Fischer, 2005 CAAF LEXIS 963 (C.A.A.F., Sept. 2, 2005)

OPINION:

Appellant's petition for reconsideration of the Court's
decision issued on September 2, 2005, denied.

2a

APPENDIX B

UNITED STATES, Appellee v.
David E. FISCHER, Lance
Corporal, U.S. Marine Corps,
Appellant

No. 04-0756

UNITED STATES COURT OF
APPEALS FOR THE ARMED
FORCES

61 M.J. 415; 2005 CAAF
LEXIS 963

May 3, 2005, Argued
September 2, 2005, Decided

SUBSEQUENT HISTORY: Reconsideration denied by
United States v. Fischer, 2005 CAAF LEXIS 1211 (C.A.A.F.,
Oct. 17, 2005)

PRIOR HISTORY: Crim. App. No. 200200303. Military
Judges: T.A. Daly and M. H. Sitler. United States v. Fischer,
60 M.J. 650, 2004 CCA LEXIS 143 (N-M.C.C.A., 2004)

COUNSEL: For Appellant: Lieutenant Bran L. Mizer,
JAGC, USNR (argued).

For Appellee: Captain Glen R. Hines, USMC (argued);
Colonel William K. Lietzau, USMC (on brief).

3a

JUDGES: EFFRON, J., delivered the opinion of the Court,
in which CRAWFORD and BAKER, JJ., joined.
ERDMANN, J., filed a dissenting opinion, in which

GIEP. XE, C.J., joined.

OPINIONBY: EFFRON

OPINION:

[*415] Judge EFFRON delivered the opinion of the
Court.

At a general court-martial composed of a military judge
sitting alone, Appellant was convicted, pursuant to his pleas,
of two specifications of indecent acts with a child under the
age of sixteen, in violation of Article 134, Uniform Code of
Military Justice (UCMJ), /0 U.S.C. § 934 (2000). He was
sentenced to a bad-conduct discharge, confinement for
twelve months, and reduction to pay grade E-1. Pursuant to a
pretrial agreement, the [*416] convening authority
suspended all confinement in excess of 270 days. The United
States Navy-Marine Corps Court of Criminal Appeals, sitting
en banc, affirmed the findings and sentence. United States v.
Fischer, 60 M.J. 650 [**2} (N-M. Ct. Crim. App. 2004).

On Appellant's petition, we granted review of the
following issue:

WHETHER APPELLANT WAS SUBJECTED
TO ILLEGAL PRETRIAL PUNISHMENT
AND DENIED DUE PROCESS OF LAW
WHEN HIS PAY WAS STOPPED WHILE HE
WAS IN PRETRIAL CONFINEMENT AFTER
THE END OF HIS OBLIGATED SERVICE.

4a

For the reasons set forth below, we affirm the decision of the
Navy-Marine Corps Court of Criminal Appeals.

I. BACKGROUND
A. PRETRIAL AND TRIAL PROCEEDINGS

Under Appellant's enlistment contract, his period of
obligated service ended on June 29, 2001. Eight weeks
earlier, on May 4, Appellant was placed in pretrial
confinement for various sexual offenses with minor females.
In recommending pretrial confinement, Appellant's
commander explained that he considered Appellant a flight
risk because of his upcoming end of obligated service (EAS)
date, June 29.

Appellant was still in pretrial confinement on June 29.
Under applicable military pay regulations, discussed infra,
the Government terminated his entitlement to military pay
and allowances. On July 11, defense counsel notified the
Depot Consolidated Administrative Center that Appellant's
pay had been stopped. Initially, defense [**3] counsel was
informed that Appellant's pay would be reinstated. Later, the
Government advised defense counsel that Department of
Defense (DoD) regulations prohibited reinstatement of
Appellant's pay because he had reached his EAS date and
was in pretrial confinement.

Appellant was convicted and sentenced on August 9,
2001. Appellant was paid for the period of pretrial
confinement before his EAS, but he was not paid for the
forty-one days of pretrial confinement that he served after his
EAS. On appeal, Appellant argues that the termination of his
pay amounted to illegal pretrial punishment in violation of
Article 13, UCMJ, 10 U.S.C. § 813 (2000).

B. PAY REGULATIONS

Sa

By statute, servicemembers who are on active duty are
entitled to the basic pay of the pay grade to which they are
assigned. 37 U.S.C. § 204(a)(1), see Bell v. United States,
366 U.S. 393, 401, 6 L. Ed. 2d 365, 81 S. Ct. 1230 (1961) (a
soldier's entitlement to pay is statutory, not contractual). The
Department of Defense Financial Management Regulations
(DoD FMR) provide implementing rules concerning the
obligation to pay servicemembers. See Paalan v. United
States, 51 Fed. Cl. 738, 745 (2002). [**4] In the course of
determining that Appellant's pay could not be reinstated, the
Depot Consolidated Administrative Center relied upon DoD
FMR, vol. 7A, ch. 1, subpara. 010302.G.4 (2005), ni which
provides: "If a member is confined awaiting court-martial
trial when the enlistment expires, pay and allowances end on
the date the enlistment expires. If the member is acquitted
when tried, pay and allowances accrue until discharge."

nl The Depot Consolidated Administrative Center

cited DoD FMR, vol. 7A, ch. 3, subpara. 030207.D.
This provision is identical to DoD subpara.
010302.G.4, the only difference being that subpara.
030207 appears in Chapter 3, which is entitled "Special
Pays -- Officers Only" as opposed to Chapter 1, which
is entitled "Basic Pay." Though subpara. 030207 was
cited by the Depot Consolidated Administrative
Center, Appellant's brief refers to subpara. 010302, and
the Government's brief refers to subpara. 030207. For
consistency, our discussion will cite to subpara.
010302, but the analysis would be no different for
subpara. 030207.

[**5]

The regulation is consistent with decisions of the
Comptroller General of the United States, n2 the United

States Court of Federal [*417] Claims, and the United
States Court of Appeals for the Federal Circuit. Well before

6a

the enactment of the UCMJ, the Comptroller General
determined that a soldier who reached EAS while in pretrial
confinement, and who was later convicted, was not entitled
to be paid subsequent to the EAS while in pretrial
confinement. E.g., Comptroller General McCarl to Maj. E.
C. Morton, United States Army, 11 Comp. Gen. 342 (1932).
In a 1937 decision, the Comptroller General stated:

An enlisted man of the Navy held for trial or for
sentence by court martial after expiration of
enlistment is being held to await the completion
of criminal proceedings against him under
authority of the Articles for the Government of
the Navy. He is no more entitled to pay when so
held after expiration of his enlistment than is a
civilian who is being held for trial on a criminal
offense by the civil authorities, and the fact that
the issuance of his discharge is delayed pending
the conclusion of the proceedings gives him no
right to pay beyond the period for which [**6]
he contracted to serve. The period of retention
for criminal proceedings is no part of the
enlistment contract and the obligation of the
Government . . . is to pay him for the period for
which he contracted to serve, not to pay him for
any period he may be held on criminal charges
after expiration of enlistment, any more than it
would be obligated to pay him after his
enlistment had expired if he were convicted and
sentenced to im™isonment.

Acting Comptroller General Elliot to the Secretary of the
Navy, 17 Comp. Gen. 103 (1937), 1937 U.S. Comp. Gen.
LEXIS 271, at *6-*7 (1937).

Ta

n2 The Comptroller General is the head of the
Government Accountability Office (GAO), formerly
known as the General Accounting Office. See GAO
Human Capital Reform Act of 2004, Pub. L. No. 108-
271, 118 Stat. 811 (2004). The GAO is an independent,
nonpartisan agency in the legislative branch that
reports to Congress on the activities of executive
branch agencies. Frederick M. Kaiser, General
Accounting Office and Comptroller General: A Brief
Overview, in Major Studies and Issue Briefs of the
Congressional Research Service (2000); Frederick C.
Mosher, The GAO: The Quest for Accountability in
American Government 2-3 (1979). A primary duty of
the Comptroller General involves issuance of opinions
on behalf of the legislative branch interpreting
legislation and determining the legality of financial
transactions. See Mosher, supra at 205-06.
[**7]
In 1951, shortly before the UCMJ took effect, the
Comptroller General ruled that the pre- UCMJ prohibition

against pretrial punishment n3 did not require payment of
pretrial confinees held beyond their EAS date:

a>—_—

The said provisions do not require any change in
the rule that the pay and allowances of an
enlisted person whose term of enlistment expires
while he is in confinement, awaiting trial by
court martial, terminate on the date of the
expiration of his term of enlistment unless he is
acquitted, in which event pay and allowances
accrue until he is discharged.

8a

Assistant Comptroller General Yates to the Secretary of the
Army, 30 Comp. Gen. 449 (1951), 1951 U.S. Comp. Gen.
LEXIS 86, at *6 (1951) [hereinafter Yates].

n3 "Nor shall any defendant awaiting trial be made
subject to punishment or penalties other than
confinement prior to sentence on charges against him."
Article of War 16, Manual for Courts-Martial, U.S.
Army (MCM) (1949 ed.), App. 1. “Nor shall any
accused who is confined while awaiting trial be made
subject to punishments or penalties cther than
confinement for any offense with which he stands
charged prior to execution of an approved sentence on
charges against him... and they will not forfeit pay or
allowances during the period of confinement except
pursuant to sentences ordered executed." MCM (1949
ed.), P 19a.

[**8]

In suits brought by pretrial confinees who reached their
EAS while in pretrial confinement against the Government
for pay and allowances for the time in pretrial confinement
past their EAS, tne United States Court of Federal Claims
and its predecessor court have followed the reasoning of the
Comptroller General's decisions, holding that "when an
enlisted person is in confinement awaiting tnal at the time his
term of enlistment expires, his pay and allowances terminate
on the date his enlistment expires unless he is subsequently
acquitted." Moses v. United States, 137 Ct. Cl. 374, 380
(1957); see also Singleton v. United States, 54 Fed. Cl. 689,
692 (2002). But cf. Rhoades v. United States, 668 F.2d 1213,
229 Ct. Cl. 282 (1982); Dickenson v. United [*418] States,
163 Ct. Cl. 512 (1963) (distinguishing the facts and holding
that the Comptroller General's rule did not apply under the
circumstances of the cases).

9a

According to the United States Court of Appeals for the
Federal Circuit, the authority for the military to hold an
enlistee in service after EAS without pay pending court-
martial unless there is an acquittal constitutes a "settled [**9]
rule of law." Simoy v. United States, 64 Fed. Appx. 745, 746
(Fed. Cir. 2003); see also Anderson v. United States, 70 Fed.
Appx. 572, 575 (Fed. Cir. 2003), Dock v. United States, 46
F.3d 1083 (Fed. Cir. 1995).

C. ARTICLE 13

Appellant contends that DoD FMR 010302.G.4, which
was the basis for terminating his pay after he reached his
EAS while in pretrial confinement, violated the Article 13,
UCM, right to be free from illegal pretrial punishment.
Article 13 provides: "No person, while being held for trial,
may be subjected to punishment or penalty other than arrest
or confinement upon the charges pending against him." We
have interpreted Article 13 to prohibit two types of activities:
(1) the intentional imposition of punishment on an accused
prior to trial, i.e., illegal pretrial punishment; and (2) pretrial
confinement conditions that are more ngorous than necessary
to ensure the accused's presence at trial, i.e., illegal pretrial
confinement. See United States v. Inong, 58 M.J. 460, 463
(C.A.A.F. 2003); United States v. McCarthy, 47 M.J. 162,
165 (C.A.A.F. 1997).

Appellant focuses his argument on the illegal pretrial
punishment [**10] prong of Article 13. A violation of this
prong “entails a purpose or intent to punish an accused before
guilt or innocence has been adjudicated." McCarthy, 47 M.J.
at 165. We apply this standard by examining the intent of
detention officials or by examining whether the purposes
served by the restriction or condition are "reasonably related
to a Jegitimate governmental objective." United States v.
King, 61 M.J. 225, 227 (C.A.A.F. 2005) (citing Bell v.

10a

Wolfish, 441 U.S. 520, 539, 60 L. Ed. 2d 447, 99 S. Ct. 1861
(1979); McCarthy, 47 M.J. at 165).

The question of whether Appellant is entitled to credit for
an Article 13 violation is reviewed de novo. United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). It is a mixed
question of law and fact, and the military judge's findings of
fact will not be overturned unless they are clearly erroneous.
Id. Appellant bears the burden of proof to establish a
violation of Article 13. Id.

II. DISCUSSION

Appellant does not dispute the lower court's finding that
neither Appellant's jailors nor his chain of command intended
to punish Appellant by stopping his pay. Instead, Appellant
asks {**11] this Court to find that the termination of
Appellant's pay, in accordance with DoD FMR 010302.G.4,
amounted to illegal pretrial punishment because it operated
as punishment imposed before trial.

A. REGULATORY PURPOSE

Appellant contends that the implicit purpose of DoD
FMR 010302.G.4 is to punish. Appellant interprets DoD
FMR 010302.G.4 as denying pay only to those who are
guilty, citing the provision that those who are held in pretrial
confinement past their EAS and later acquitted are
reimbursed for the time held without pay. The Department of
Defense regulations, however, are not so narrow.

A servicemember's pay is not terminated just because the
servicemember is placed in pretrial confinement. DoD FMR
010302.F.1 states that pay and allowances accrue to members
in military confinement unless: (a) confined by military
authorities on behalf of civil authorities; (b) pay and
allowances are forfeited by court-martial sentence; or (c) the
term of enlistment expires. A servicemember who is confined

lla

before trial is entitled to “receive pay until the end of his |
enlistment contract, regardless of the ultimate disposition of
the case." Paalan, 51 Fed. Cl. at 745. If a pretrial [**12]
confinee does not reach EAS until after the adjudication of
the case, the pretrial confinee is entitled to pay and
allowances for the time held in pretrial [*419] confinement,
regardless of whether the individual was found guilty or not

guilty.

Moreover, every servicemember's entitlement to pay is
terminated at EAS. See Simoy v. United States, 64 Fed. Appx.
745, 747 (Fed. Cir. 2003) (a service member's entitlement to
pay ceases when his enlistment expires"); Matter of: Courts-
martial Sentences-Records Lost Before Appellate Review-
Appellate Leave Benefits, 1996 U.S. Comp. Gen. LEXIS 442,
at *4-*5 (1996) ("It is a well settled rule that no credit for pay
and allowances accrues to a court-martialed enlisted member
during periods after the expiration of his term of enlistment .
...'). Although Appellant characterizes the regulations as
"terminating a serviceman's pay and allowances at the end of
his enlistment if the serviceman is in pre-trial confinement,"
there is no distinction between a servicemember in pretrial _
confinement and one in any other status. All servicemembers
lose their entitlement to pay and allowances upon expiration
of their enlistment contract.

A servicemember [**13] may be paid after an enlistment
expires in two situations. First, a servicemember who
remains in the service and performs productive work may be
paid. See United States v. Shattuck, 1989 CMR LEXIS 187, at
*5 (A.F.C.M.R. 1989); DoD FMR 010302.G.1. Standard
confinement duties, however, are not considered active-duty
work that would entitle a pretrial confinee held past EAS to
payment. See DoD FMR 010302.G.1; Combs v. United
States, SO Fed. Cl. 592, 594 n.2 (2001); Shattuck, 1989 CMR
LEXIS 187, at *5. The second situation is the focus of

12a

Appellant's concern. If a servicemember held in pretrial
confinement past EAS is later acquitted, the servicemember
is retroactively paid for the time spent in pretrial confinement
past the EAS date. See DoD FMR 010302.G.4. Appellant
assumes that because one group of pretrial confinees (the
group that is later acquitted) is reimbursed, then the other
group (the group that is later convicted) is being punished.
This argument takes too limited a view of the regulations.
Acquittal provides a rational, objective basis for
reimbursement. The Government's policy of retroactively
paying persons held [**14] past their EAS when a charge
has not been sustained at trial does not signify an intent to
punish the other group. In civilian criminal cases, for
example, the Government may be liable for reasonable
attomey's fees and litigation expenses to a prevailing
defendant if the Government position was "vexatious,
frivolous, or in bad faith." Hyde Amendment, Pub. L. No.
105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (codified in
statutory notes at 78 U.S.C. § 3006A (2000)). Although more
limited than the reimbursement provision of DoD FMR
010302.G.4, the Hyde Amendment reflects a policy to
compensate specific individuals because of a flaw in their
prosecution. It is not a policy designed to punish those who
are not compensated. Likewise, we should not assume that
the compensatory provisions of the military pay regulations
reflect an implicit intent to punish an individual in
Appellant's situation.

We note Appellant does not allege that he was held in
pretrial confinement without due process. Appellant was
placed in pretrial confinement in accordance with Rule for
Courts-Martial 305, which contains specific standards and
detailed requirements for notice and an opportunity [**15]
to respond. Following the determination that he should be

13a

held in pretrial confinement, Appellant's pay was terminated
in accordance with a neutral criterion, his EAS.

Appellant does not claim before this Court that the
termination of his pay violated the Thirteenth Amendment's
prohibition against involuntary servitude or that there is a
constitutional right to be paid while in pretrial confinement.
In that regard, we note that federal civilian employees may
be suspended without pay upon an indictment, regardless of
whether there is pretrial confinement. See 5 U.S.C. §
7513(b) (2000). As the Federal Circuit explained:

An indictment . . . will, as a general rule, provide
reasonable cause for an agency to believe that
the employee has committed such a crime, and,
when the nature of the crime alleged relates to
the employee's ability to perform his or her
duties, an agency may summarily suspend the
employee, without pay, pending the outcome of
the criminal proceedings.

[*420] Richardson v. United States Customs Serv., 47 F.3d
415, 419 (Fed. Cir. 1995). By contrast, the pay of military
personnel is not terminated upon the filing or [**16] referral
or charges, nor is it terminated upon pretrial confinement.
The fact that pay is terminated only when pretrial
confinement is combined with a neutral criterion, the
expiration of the term of service, underscores the non-
punitive nature of the policy. When the Government selects
one among many available objective cniteria for terminating
pay, the fact that other criteria could have been used does not
demonstrate that the selected point fails to serve a legitimate
Government objective. Like the indictment date, the EAS
date is a rationai, objective point for termination of pay, and
it is reasonably related to the legitimate Government

14a

objective of not paying people who are not performing
duties.

B. REGULATORY EFFECT

Appellant next argues that even if the regulation is not
implicitly punitive, the policy is punitive in effect under the ©
factors set out by the Supreme Court in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168, 9 L. Ed. 2d 644, 83 S. Ct. 554
(1963). In Mendoza-Martinez, the Court set forth the
following seven factors for use in determining whether an
Act of Congress is punitive or regulatory in nature: (1)
whether the sanction involves an affirmative disability or
restraint; [**17] (2) whether it has historically been
regarded as punishment; (3) whether it comes into play only
on a finding of scienter; (4) whether its operation promotes
retribution and deterrence -- the traditional aims of
punishment; (5) whether the behavior to which it applies is
already a crime; (6) whether an alternative purpose to which
it may rationally be connected is assignable for it; and (7)
whether it appears excessive in relation to the alternative
purpose assigned. 372 U.S. at 168-69; see Fischer, 60 M.J. at
656-58 (Villemez, J., dissenting).

Our Court has not previously applied the Mendoza-
Martinez factors in the context of conducting a review under
Article 13, Assuming, without deciding, that the Mendoza-
Martinez factors are applicable to Article 13, these factors do
not support a finding that DoD FMR 010302.G.4 is punitive.

1. Affirmative Disability or Restraint

We first take into account whether DoD FMR
010302.G.4 imposes an affirmative disability or restraint. See
Mendoza-Martinez, 372 U.S. at 168. DoD FMR 010302.G.4
provides for the termination of pay for an individual in
Appellant's situation. Although termination {**18] of pay at

1Sa

EAS could be viewed as a disability, it is difficult to
characterize this as an affirmative disability because
Appellant, and those in his position, are not entitled to be
paid. See Yates; Shattuck, 1989 CMR LEXIS 187, at *4-*5.

2. Historic Perspective

The next factor considers the historical perspective on the
consequence of the regulation. Mendoza-Martinez, 372 U.S.
at 168. Appellant points out that "forfeiture of pay has long
been regarded as punishment." In the present case, there has
been no forfeiture of pay. Where Appellant was not entitled
to payment, nothing could have been forfeited.

Also, while we do not give great weight to negative
legislative history, we note that Congress has amended
provisions of the UCMJ addressing military pay on several
occasions, but has not disturbed the settled interpretation of
the relationship between Article 13 and termination of
military pay upon EAS. See, e.g., Military Justice Act of
1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983) (amending
Article 57, UCMJ, /0 U.S.C. § 857); National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-
106, tit. XI, 110 Stat. 461-67 (1996) [**19] (amending
Article 57, establishing Article 58b, /0 U.S.C. § 858b),
National Defense Authorization Act for Fiscal Year 1998,
Pub. L. No. 105-85, § 581-82, 1073(a)(9)-(11), 111 Stat.
1759, 1900 (1997) (amending Article 58b).

3. Scienter

As previously discussed, the pay of all servicemembers is
terminated when they reach EAS. Consciousness of guilt is
nota [*421) factor in determining whether to implement the
regulation, so the regulation has no role in a finding of
scienter.

l6a

4. Retribution and Deterrence

The fourth factor considers whether DoD FMR
010302.G.4 promotes the traditional aims of punishment --
retribution and deterrence. Mendoza-Martinez, 372 U.S. at
168. Appellant argues that "it is difficult to imagine a better
form of retribution and deterrence." The policy, however, is
not aimed at all who are accused of a crime and held in
pretrial confinement, but only applies if a neutral event
occurs -- the person's EAS date.

5. Application to Criminal Behavior

The fifth factor requires an evaluation as to whether the
policy is invoked as a result of behavior that is already a.
crime. Mendoza-Martinez, 372 U.S. at 168. [**20]

Appellant argues that this factor is met because the relevant
FMR provisions would not have been triggered if there was
no probable cause to believe Appellant violated the UCMJ.
However, the behavior to which DoD FMR 010302.G
applies is reaching the end of an enlistment contract, which is
notacrime. —

As noted above, a servicemember does not lose
entitlement to pay by virtue of being in pretrial confinement.
The deciding factor is whethei the servicemember has
reached EAS, not whether there is probable cause to believe
the individual violated the UCMJ. See DoD FMR
010302.G.4.

6. Alternative Purpose

The sixth factor considers whether there is a non-punitive
purpose to the regulation. Mendoza-Martinez, 372 U.S. at
168-69. Here, Appellant reiterates his argument that the
stated purpose of the FMR is pretext, specifically noting that

17a

DoD FMR 010302.G.4 returns pay and aliowances to
servicemembers in Appellant's position who are subsequently
acquitted.

However, there is an alternative, non-punitive purpose of
DoD FMR 010302.G.4. The alternative purpose is that a
servicemember held in pretrial confinement who has passed
EAS and who is not providing productive (**21] service is
not entitled to pay and allowances. As discussed above, EAS
is a neutral, non-punitive point in time which is reasonably
related to the legitimate governmental interest in terminating
the pay of persons who are not performing productive
service.

7. Excessiveness

The final factor considers whether the regulation is
excessive in relation to the alternative purpose assigned to it.
Mendoza-Martinez, 372 U.S. at 169. Appellant argues that
the FMR inflicts an excessive toll. We disagree. In civilian
life, pretrial confinees may lose their jobs and are often not
compensated for the time spent in pretrial confinement. The
military's policy to reimburse pretrial confinees who were
mistakenly held is more generous than the Hyde
Amendment, discussed above, that applies in civilian
criminal cases. Although Appellant may undergo personal
financial loss because of the policy reflected in the
regulations, the termination of pay upon the expiration of the
enlistment contract does not signify that the policy is
EXCESSIVE.

III]. CONCLUSION

As Appellant conceded, the brig authorities in this case
had no intent to punish Appellant. The regulation is not
implicitly [**22] punitive or punitive in effect. There is a
legitimate, non-punitive reason behind the regulation. The

18a

application of the policy was reasonable, given that
Appellant reached his EAS and did not perform productive
services. Under an Article 13 claim, we look to whether there
was intent to punish or a punitive effect. If Appellant takes
issue with the propriety of the underlying decisions as a
matter of fiscal law, he must pursue that issue before the
United States Court of Federal Claims.

As a final matter, Appellant also maintains that his Fifth
Amendment rights were violated because he was punished by
virtue of the application of DoD FMR 010302.G.4 without
due process of law. In view of our conclusion that the
regulation has a legitimate non-punitive [*422] purpose,
there is no punishment at issue in this case. Moreover, as
explained above, there was no forfeiture in this case because
Appellant had no entitlement to pay and allowances.

IV. DECISION

The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

DISSENTBY: ERODMANN

DISSENT:

ERDMANN, Judge, with whom GIERKE, Chief Judge,
joins (dissenting):

The majority opinion finds that terminating the pay of a
servicemember [**23] in pretrial confinement, whose term
of service has been involuntarily extended by the
Government, does not constitute illegal pretrial punishment
under Article 13, Uniform Code of Military Justice (UCM5J),
10 U.S.C. § 813 (2000). I would hold that the regulation
requiring the termination of pay under those circumstances is

i9a

punitive in effect and its application constitutes illegal
pretrial punishment.

Fischer was placed in pretrial confinement on May 4,
2001. His enlistment expired on June 29, 2001. Rather than
discharging him from military service at the end of his
enlistment and thereby losing jurisdiction over him, the
Marine Corps understandably extended his active duty status
pending court-martial. nl Fischer remained in confinement
and his pay and allowances were terminated. When Fischer
asked for his pay to be reinstated, the Government responded
that it was prohibited from paying him under Department of
Defense (DoD) regulations.

nl Rule for Courts-Martial 202(c)(1) provides that
a servicemember whose enlistment has expired may be
"held on active duty.” Marine Corps Manual for Legal
Administration § 1005 (31 Aug 99), details this
involuntary extension of active duty and requires that
proper administrative action be taken to effectuate the
extension. While the record in this case contains
references to the fact that Fischer's active duty was
extended, it contains no references to the
administrative action effectuating the extension.

{**24}

One of the basic guarantees under the Due Process
Clause is that a pretrial detainee cannot be punished until
there is a finding of guilt. Bell v. Wolfish, 441 U.S. 520, 533,
60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Article 13 of the
UCM, which prohibits pretrial punishment, has its roots in
this constitutional guarantee. Servicemembers who are
accused of crimes can be placed in pretrial confinement to
ensure that they will appear at trial and to prevent further
misconduct. Rule for Courts-Martial (R.C.M.) 305(h)(2)(B).
When placed in pretrial confinement, Article 13 protects

20a

them from conditions that constitute punishment, penalty or
excess. In this case we are called on to determine whether
terminating the pay and allowances of a servicemember, who
is in pretrial confinement and whose enlistment has been
involuntarily extended, constitutes punishment under Article
13.

The DoD regulation in question, the Department of

Defense Financial Management Regulation (DoD FMR), vol.
TA, ch. 1, 010302.G.4 (May 2005), n2 provides:

4. Confined Awaiting Trial by Court-Martial. If a member is
confined awaiting cor\rt-martial trial when the enlistment
expires, pay and allowances end on the date the [**25]
enlistment expires. If the member is acquitted when tried,
pay and allowances accrue until discharge.

n2 The May 2005 version of subpara. 010302.G.4
is identical to provisions that were in effect during
Fischer's pretrial confinement. See Department of
Defense Financial Management Regulation, vol. 7A,
ch. 3, 030207.D (Feb. 2000).

The majority focuses on the fiscal implications of the
regulation and relies, in part, on opinions of the Comptroller
General and Court of Claims. While these opinions are
iriteresting both from a fiscal and a historical perspective,
they do not provide any binding authority for this court as
they do not interpret Article 13 or the cases from this court or
the U.S. Supreme Court dealing with illegal pretrial
punishment. Nor do those opinions consider the "status"
based nature of court-martial jurisdiction under the UCMJ. It
is the primacy duty of this court to provide such
interpretat ons.

2la

I have no quarrel with the majonty's finding that a
servicemember's entitlement to [*423] pay is [**26]
terminated when his or her enlistment expires. That,
however, is simply not the situation in this case. One of the
mandatory factors underlying court-martial jurisdiction is
that the person to be tried must be subject to the UCMJ. In
other words, the person must be in a "status" in which he or
she is a “person{] . . . subject to" the UCMJ. See Article 2(a),
UCM], 10 U.S.C. § 802(a) (2000). Article 3(a), UCMJ, 10
U.S.C. § 803(a) (2000), makes it clear that personal
jurisdiction is "status based" under the UCMJ: ". . . a person
who is in a Status in which the person is subject to this
chapter . . ." Emphasis added. Holding Fischer beyond his
term of service continued his status as a "servicemember on
active duty” through disposition of the charges against him.
R.C.M. 202(c)(1).

As I read the majority opinion, once a servicemember's
term of enlistment is involuntarily extended, the obligation to
provide pay and allowances is extended as well except in the
event that the servicemember is in pretrial confinement. The
result of this view is that the Government can, solely for its
OWN purposes, imprison a presumptively innocent [**27]
individual, unilaterally continue military status with all its
obligations and duties and at the same time take away one of
the basic rights associated with active duty military status --
the right to pay. n3 I cannot join the majority's view that
these circumstances do not constitute a violation of Article
13.

n3 37 U.S.C. § 204(a)(1) (2000) provides that
members of a uniformed service on active duty are
entitled to pay.

As the majority notes, this court has not previously
applied the criteria of Kennedy v. Mendoza-Martinez, 372

22a

U.S. 144, 168, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), in order
to determine whether conditions of pretrial confinement
violate Article 13. Were | to apply those factors, I would
disagree with the conclusion reached by the majority that the
regulation at issue is not punitive in effect. However, I do not
believe that such an analysis is necessary. In my view, this
court's Article 13 jurisprudence provides a proper framework
for determining whether Fischer was subject to unlawful
[**28] pretrial punishment.

Article 13 prohibits two types of activity: (1) the
intentional imposition of punishment on an accused prior to
trial; and (2) pretrial confinement conditions that are more
rigorous than necessary to ensure the accused's presence at
trial. United States v. Inong, 58 M.J. 460, 463 (C_A.A.F.
2003); United States v. McCarthy, 47 M.J. 162, 165
(C.A.A.F. 1997). The first prong prohibits a purpose or intent
to punish, determined by examining the intent of detention
officials or by examining the purposes served by the
restriction or condition, and whether such purposes are
"reasonably related to a legitimate governmental objective. . .
." Bell, 441 U.S. at 539, McCarthy, 47 M.J. at 165. The
second prevents unduly rigorous circumstances during
pretrial detention. Conditions that are sufficiently egregious
may give rise to a permissive inferen~e that an accused is
being punished, or the conditions may be so excessive as to
constitute punishment. Id.; United States v. James, 28 M.J.
214, 216 (C.M.A. 1989). A determination of whether Fischer
is entitled to relief for unlawful pretrial [**29] punishment
involves independent, de novo review. United States v.
Smith, 53 M.J. 168, 170 (C.A.A.F. 2000), McCarthy, 47 M.J.
at 165; see Thompson v. Keohane, 516 U.S. 99, 113, 133 L.
Ed. 2d 383, 116 S. Ct. 457 (1995).

Fischer's active duty military status was extended in
virtually every respect save one -- he was no longer paid. The

23a

sole reason that his pay was stopped, as opposed to other
servicemembers extended on active duty, was that he was in
pretrial confinement. Fischer was in pretrial confinement
because both his Commanding Officer and the Initial Review
Officer found that he constituted a flight msk and a threat to
commit serious misconduct. I find no reasonable relation to a
legitimate government objective served by terminating an
active duty servicemember's pay and allowances because he
or she is in pretrial confinement. Since Fischer's pay would
not have been terminated except for the pretrial [*424]
confinement, its effect on Fischer is obviously punitive.

The regulation's objective, as characterized by the
majority, is that servicemembers held in pretrial confinement
are not considered to be performing “active duty work" and
therefore should not be entitled [**30] to pay. This logic
breaks down; however, because a servicemember who is later ~
acquitted has performed the same duties while in pretrial
confinement and receives compensation. Servicemembers in
pretrial confinement are not automatically excused from
performing useful duties. Military appellate case law is
replete with cases discussing various duties performed by
pretrial confinees. See, e.g., United States v. Nelson, 18
C.M.A. 177, 178-79, 39 C.M.R. 177, 178-79 (1969), United
States v. Palmiter, 20 M.J. 90, 94 (C.M.A. 1985); United
States v. Dvonch, 44 M.J. 531, 533 (A.F. Ct. Crim. App.
1996). Similarly, an active duty servicemember in pretrial
confinement who has not been involuntarily extended
performs those same duties and receives his or her pay and
allowances.

Forfeiting pay traditionally has been regarded as a form
of punishment in the military services. See generally United
States v. Stebbins,61M.J. , (11-18) 61 M.J. 366, 2005
CAAF LEXIS 923 (C.A.A.F. 2005). This regulation imposes
a forfeiture upon a servicemember in the absence of any due

24a

process or adjudication of guilt. The effect of this action as
punishment is illustrated [**31] by how the forfeiture is
linked to the results of trial. If a servicemember in Fischer's
situation is acquitted, he or she is paid retroactively. n4 But if
that person is convicted, there is no pay adjustment. While
the initial termination of pay was based solely on Fischer's
pretrial confinement status, the ultimate termination of his
pay in this situation is based solely on a finding of guilt. This
is punishment.

n4 The majority's conclusion that this payment is
akin to compensation for the accused when the charge
has not been sustained at trial creates a dangerous
precedent. An acquittal in a criminal action does not
mean that the Government was wrong in bringing the
charges, nor should an acquittal entitle an accused to
compensation. It merely means that the court-mar*.al
did not find the accused guilty beyond a reasonable
doubt.

The nexus between the permanent termination of pay and
a finding of guilt raises an additional concern which I believe
further highlights the unlawful nature of this deprivation.
[**32] Congress has delegated to the President the authority
to establish maximum punishments. Article 56, UCMJ, /0
U.S.C. § 856 (2000). Under the Rules for Courts-Martial, the
President has directed that the only authorized punishment
involving a loss of pay is a forfeiture of pay to be accrued.
See R.C.M. 1003(b)(2) and discussion. Additionally,
execution of any punishment to forfeit pay is effective and
executed only after trial. See Article 57, UCMJ, 10 U.S.C. §
- 857 (2000). Tying the deprivation of Fischer's pay to his
conviction creates a punishment beyond that authorized by
the UCMJ and the Manual for Courts-Martial, United States
(2002 ed.).

25a

There is no legitimate governmental objective in DoD
FMR 010302.G.4 that outweighs its clear punitive effect, and
the regulation therefore constitutes illegal pretrial punishment
in violation of Article 13. 1 would hold that the regulation is
unenforceable and Fischer is entitled to his full pay and
allowances for the period in question. I therefore dissent.

26a
APPENDIX C

UNITED STATES v. David E.
FISCHER, Lance Corporal (E-3),
U.S. Marine Corps

NMCCA 200200303

UNITED STATES NAVY-
MARINE CORPS COURT OF
CRIMINAL APPEALS

60 M.J. 650; 2004 CCA LEXIS
143

June 30, 2004, Decided

SUBSEQUENT HISTORY: Motion granted by United
States v. Fischer, 60 M.J. 368, 2004 CAAF LEXIS 1072
(C.A.A.F., 2004)

Review granted by United States v. Fischer, 61 M.J. 13, 2005
CAAF LEXIS 155 (C.A.A.F., 2005)

Affirmed by United States v. Fischer, 2005 CAAF LEXIS 963
(C.A.A.F., Sept. 2, 2005)

PRIOR HISTORY: [**1] Sentence adjudged 9 August
2001. Military Judge: M.H. Sitler. Review pursuant to
Article 66(c), UCMJ, of General Court-Martial convened by
Commanding General, Marine Corps Recruit Depot, Eastern
Recruiting Region, Parris Island, SC.

DISPOSITION: The court concluded that the findings and
sentence were correct in law and fact, and that no error

27a

materially prejudicial to the substantial rights of the appellant
was committed.

CORE TERMS: pretrial, confinement, regulation, military,
enlistment, court-martial, servicemember, entitlement,
questioned, active duty, prong, allowances, sentence,
presumption of innocence, military service, duty, forfeiture,
expiration, soldier, legitimate governmental, detainee, grade,
punitive, convenience, stoppage, rigorous, arrest, senior,
punish, appropriate relief

COUNSEL: CDR GEORGE REILLY, JAGC, USN,
Appellate Defense Counsel.

Capt GLEN HINES, USMC, Appellate Government
Counsel.

JUDGES: BEFORE THE COURT EN BANC. RITTER,
Senior Judge, delivered the opinion of the Court in which
DORMAN, Chief Judge, CARVER, Senior Judge, PRICE,
Senior Judge, SUSZAN, Judge, and REDCLIFF, Judge,
concur. VILLEMEZ, Judge, filed a dissenting opinion, with
HARRIS, Judge, joining.

OPINIONBY: RITTER

OPINION: [*650] RITTER, Senior Judge:

A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of two
specifications of indecent acts with a child under the age of
16, in violation of Article 134, Uniform Code of Military
Justice, 1/0 U.S.C. § 934. The appellant was sentenced to a
bad-conduct discharge, confinement for 12 months, and
reduction to pay grade E-1.

28a

We have carefully considered the record of trial, the
appellant's single assignment of error, and the Government's
response. We conclude [**2] that the findings and sentence
are correct in law and fact, and that no error materially
prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.

[*651] The appellant's pay was terminated pursuant to
Department of Defense regulations upon the expiration of his
enlistment while he was in pretrial confinement. See
Department of Defense Financial Management Regulation
(DODFMR), Volume 7A, PP 010302FIc, G3 and G4. nl At
trial, he asserted that he had a statutory right to military pay
while in pretrial confinement, even after the expiration of his
term of enlistment. See 37 U.S.C. § 204(a)(1). On appeal,
the appellant contends that the military judge erred by
applying this regulation, rather than the statute, in denying
his motion for appropriate relief. .

nl Formerly PP 030206A3, 030207C, and
030207D.

Jurisdiction Regarding Entitlement to Pay

As a preliminary matter, the Government contends that
this court lacks subject matter jurisdiction over [**3]
military pay issues. We agree generally with that proposition,
but find that we have jurisdiction to decide the underlying
issue before us.

The jurisdiction of this court is narrowly proscribed by
Congress. See Arts. 62, 66, 69, and 73, UCMJ, see also
Clinton v. Goldsmith, 526 U.S. 529, 535, 143 L. Ed. 2d 720,
119 S. Ct. 1538 (1999)(construing similar language in Article
67(c), UCM, defining the jurisdiction of our superior court).
At issue in this case is our authority under Article 66(c),
UCMS, which provides in part:

29a

In any case reviewed by it, the Court of Criminal
Appeals may act only with respect to the
findings and sentence as approved by the
convening authority. It may affirm only such
findings of guilty and the sentence or such part
or amount of the sentence, as it finds correct in
law and fact and determines, on the basis of the
entire record, should be approved.

Were the appellant making a specific request of this court
to determine his entitlement to back pay under the
administrative regulations, we would be without jurisdiction
to act. Cf. United States v. Webb, 53 M.J. 702, 703 (Army
Ct.Crim.App. 2000)(holding that a Court of Criminal
Appeals does not [**4] have jurisdiction to adjudicate a
claim for retired pay). However, the appellant's motion at
trial claimed the stoppage of his pay constituted unlawful
pretrial punishment. n2 Record at 70, Appellate Exhibit
XX VII. On appeal, he claims that the military judge erred in
denying his motion. Appellant's Bnef of 9 Jun 2003 at 3. An
evaluation of whether the stoppage of the appellant's pay
violated Article 13, UCMJ, is properly within this court's
subject matter jurisdiction. See generally United States v.
Anderson, 49 M.J. 575 (N.M.Ct.Crim.App.

1998 (invalidating brig's procedure of placing all pretrial
detainees facing more than five years confinement in
maximum custody as a violation of Article 13, UCM5J).

n2 In addition, the appellant asserted his period of
unpaid pretrial confinement violated the / 3th
Amendment to the United State: Constitution's
prohibition against involuntary servitude. The military
judge correctly held that 13th Amendment did not
apply to military service. See United States v. Allen,
31 M.J. 572, 635 (N.M.C.M.R. 1990), United States v.

30a

Shy, 10 M.J. 582 (A.C.M.R. 1980). The appellant has
not advanced that argument on appeal.
[**5]

Illegal Pretrial Punishment

Whether a pretrial detainee suffered unlawful punishment
is a mixed question of law and fact that qualifies for
independent review. See United States v. Pryor, 57 M.J. 821,
825 (N.M.Ct.Crim.App. 2003), rev. denied 59 M.J. 32
(C.A.A.F. 2003). The burden of proof is on the appellant to
show a violation of Article 13, UCMJ. See United States v.
Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). Article 13
prohibits two things: (1) the intentional imposition of
punishment on an accused before his or her guilt is
established at trial, i.e., illegal pretrial punishment, and (2)
arrest or pretrial confinement conditions that are more
rigorous than necessary to ensure the accused's presence at
trial, i.e., illegal pretrial confinement. See United States v.
Inong, 58 M.J. 460, 463 (C.A.A.F. 2003).

The "punishment prong" of Article /3 focuses on intent,
while the "rigorous circumstances" prong focuses on the
conditions of pretrial restraint. See Pryor, 57 M.J. ai 825
(citing United States v. McCarthy, 47 M.J. 162, 165 [*652}]
(C.A.A.F. 1997)). As a detainee's pay status is [**6] nota
condition of the restraint, nor relevant to ensuring presence at
trial, the appellant's claim only implicates the punishment
prong of Article 13. To determine if the stoppage of the
appellant's pay violated the punishment prong of Article 13,
we must determine whether this pretrial action was intended
to be punishment and whether it furthered a legitimate
governmental objective. See Anderson, 49 M.J. at 576, see
generally Bell v. Wolfish, 441 U.S. 520, 538-39, 60 L. Ed. 2d
447, 99 §. Ct. 1861 (1979).

3la

1. There was no intent to punish the appellant.

We find that the military judge's findings of fact on this
issue are fully supported by the record, and adopt those
findings here. Record at 89; Appellate Exh?dit XXXVI. The
record is clear, from the appellant's own evidence submitted
in support of the motion, that there was no punitive intent:
behind the stoppage of his pay. To the contrary, when the
trial defense counsel first inquired of brig staff about the
status of the appellant's pay, the staff indicated that the
appellant should have been receiving pay, and that it would
be restarted. Only after researching the applicable regulations
did the staff inform the trial defense [**7] counsel that the
appellant could not be paid. We agree with the military judge
that the local authorities were merely carrying out the
regulation, and not attempting to punish the appellant.

2. The regulation does not operate as punishment.

We then turn to the question of whether the DODFMR
provisions at issue further a legitimate governmental interest.
Three subparagraphs of P 010302 of the DODFMR operate
to deny pay to service members in the appellant's situation:

010302. Unauthorized Absence and Other Lost
Time

F. Military Confinement

1. General. Pay and allowances
accrue to a member in military
confinement except when:

32a

c. The term of enlistment
expires. See subparagraph 010302.G
below.

G. Term of Enlistment Expires

3. Enlistment Expires Before Trial. An enlisted
member retained in the Military Service for the
purpose of trial by court-martial is not entitled to
pay for any period after expiration of the
enlistment unless acquitted or the charges are
dismissed, or the member is retained in or
restored to a full-duty status.

4. Confined Awaiting Trial by Court-Martial. If
[**8] a member is confined awaiting court-
martial trial when the enlistment expires, pay
and allowances end on the date the enlistment
expires. If the member is acquitted when tried,
pay and allowances accrue until discharge.

By statute, service members on active duty are entitled to
the basic pay at the pay grade to which they are assigned. See
37 U.S.C. § 204(a})(1). As the appellant correctly points out,
nothing in the statute expressly prohibits a service member
who has been extended involuntarily to secure court-martial
jurisdiction from receiving basic pay. See Paalan v. United
States, 51 Fed. Cl. 738, 744-745 (2002). However,
regulations may supplant the military's liability to pay active-
duty service members in certain situations, such as pretrial
confinement. /d. (citing Dock v. United States, 46 F.3d
1083, 1091-92 (Fed. Cir. 1995)). Whether the statute
“trumps” the regulation, or the regulation is an authorized
implementation of statutory authority, is a question outside

33a

the proper purview of this court. The appellant may seek
relief on this basis, if he chooses, from the Board for
Correction of Naval Records under [**9] /0 U.S.C. § 1552,
and, if he deems necessary, from the United States Court of
Federal Claims under the Tucker Act, 28 U.S.C. § 1491, ora
United States District Court under the Little Tucker Act, 28
U.S.C. § 1346(a)(2). See Keys v. Cole, 31 M.J. 228, 234
(C.M.A. 1990); United States v. Webb, 53 M.J. at 704.

For our purposes, it is sufficient to evaluate the purpose
of the applicable DODFMR [*653] provisions, which is
evident from the text and the overall goal of P 010302. The
military, like any other executive branch agency, has a duty
to spend its financial resources wisely. This regulation denies
payment to those service members who do not continue to
serve in a full duty status and provide productive service in
furtherance of the military mission, whether it is because they
have commenced an unauthorized absence, incapacitated
themselves as a result of certain diseases, or are being held in
pretrial confinement past the end of their active obligated
service pending trial by court-martial. We find this to be a
legitimate governmental interest, not punitive in nature, and
[**10] that the military judge properly denied the appellant's
motion for appropriate relief under Article 13, UCMJ. The
appellant's assignment of error is without merit.

Conclusion

We therefore affirm the findings and sentence, as
approved by the convening authonty.

CHIEF JUDGE DORMAN, Senior Judge CARVER,
Senior Judge PRICE, Judge SUSZAN, and Judge
REDCLIFF concur.

DISSENTBY: Villemez

34a
DISSENT: VILLEMEZ, Judge (dissenting):

Numerius, the governor of Narbonensis, was on
trial before the Emperor [Julian], and contrary to
the usage in criminal cases, the trial was public.
Numerius contented himself with denying his
guilt, and there was not sufficient proof against
him. His adversary, Delphidius, "a passionate
man," seeing that the failure of the accusation
was inevitable, could not restrain himself, and
exclaimed, "Oh, illustrious Caesar! If it is
sufficient to deny, what hereafter will become of
the guilty?” to which Julian replied, “If it
suffices to accuse, what will become of the
innocent?" Rerum Gestarum, L.X VIII, c.1.

Coffin v. United States, 156 U.S. 432, 455, 39 L. Ed. 481, 15
S. Ct. 394 (1895).

This case and its proper judicial resolution revolve
around three seemingly simple, fundamental [**11] concepts
and principles: the jurisdiction of this court to consider the
appellant's plea of error, the appellant's military status, and--
most basic of all to our criminal justice system in this
country, both in and out of the military services--the almost-
sacred principle of the presumption of innocence. I
respectfully disagree with the way the majority of this court
has chosen to apply these concepts to the facts and
circumstances of this case. I believe that the appellant is
entitled to appropriate relief, because the termination of his
statutonily-based military pay, merely because he was in
pretrial confinement beyond his original "term of
enlistment” upon the expiration of his tour of active service
(EAS), violates Article 13, UCMJ, which prohibits the

35a

pretrial "punishment or penalty other than arrest or
confinement... ." (Emphasis added).

Jurisdiction

Under the duties and responsibilities given us by Article
66(c), UCMJ, this court may only "affirm such findings of
guilty and the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines,
on the basis of the entire record, should be approved.” In
Burns v. Wilson, 346 U.S. 137, 142, 97 L. Ed. 1508, 73 S. Ct.
1045 (1953), [**12] the Supreme Court states: "The military
courts, like the state courts, have the same responsibilities as
do the federal courts to protect a person from the violation of
his constitutional nghts." While in United States v. Tardif,
57 M.J. 219, 223 (C.A.A.F. 2002), our senior court
concludes: "Our Court has consistently recognized the broad
power of the Courts of Criminal Appeals to protect an
accused. We have consistently recognized that the charter of
Courts of Criminal Appeals on sentence review is to 'do
justice.” (Internal citations omitted). Thus, as the Supreme
Court observes in Estep v. United States, 327 U.S. 114, 120,
90 L. Ed. 567, 66 S. Ct. 423 (1946): "Judicial review may
indeed be required by the Constitution.” (Citation omitted).

In Ex parte Young, 209 U.S. 123, 143, 52 L. Ed. 714, 28
S. Ct. 441 (1908)(quoting Cohens v. Virginia, 19 U.S. 264, 6
Wheat, 264, 404, 5 L. Ed. 257{1821), the Supreme Court
reasons:

"It is most true that this court will not take
jurisdiction if it should not; but it is equally true
that it must take jurisdiction if it should. The
judiciary cannot, as the [*654] legislature may,
avoid a measure because it approaches the
confines of the Constitution. We cannot pass
[**13]} it by because it is doubtful. With

36a

whatever doubts, with whatever difficulties, a
case may be attended, we must decide it, if it be
brought before us. We have no more right to
decline the exercise of jurisdiction which is
given, than to usurp that which is not given. The
one or the other would be treason to the
Constitution. Questions may occur which we
would gladly avoid, but we cannot avoid them.
All we can do is to exercise our best judgment,
and conscientiously perform our duty."

See also Dombrowski v. Pfister, 380 U.S. 479, 483-84, 14 L.
Ed. 2d 22, 85 S. Ct. 1116 (1965).

The majority opinion in this case correctly establishes the
jurisdiction of this court to review and rule on the trial
judge's denial of the appellant's court-martial motion
claiming the stoppage of his pay constituted unlawful
punishment applied pretrial, in violation of Article 13,
UCM J. I disagree, however, with the general conclusion
reached in the majority opinion that it is beyond this court's
proper purview to determine whether the statute establishing
a servicemember’s pay “trumps” the Department of Defense
Financial Management Regulation (DODFMR) at Volume
7a, P 030207, or if that DODRMR provision cutting [**14]
off the pay of a post-EAS pretrial confinee is an authorized
implementation of statutory authority. I do not believe that
answering that statutory-construction question is necessary
per se in this case, because the clear effect of the questioned
DODFMR provision is the creation, pretrial, of an illegal or,
at the very least, an improper punishment condition. If in
different circumstances the resolution of that question
becomes necessary in determining whether an appellant had
been subjected to an action with adverse constitutional-nghts
implications, this court does have the authority to make that

37a

determination, simply in the context of remedying the
adverse impact on an appellant. nl Such is not the case
herein, however, as the questioned DODFMR provision
implodes under the excessive weight of its own internal
illogicalness.

nl In regards to the issue or potential issue of "the
interplay between pay mandating (or limiting) statutes
and pay administrating regulations,” the appellant
notes and develops the point that when Congress grew
concemed about some military members continuing to
receive active duty pay and allowances while serving
extended periods of post-trial confinement, statutory
action and not mere regulatory action was taken to
effect a change. Appellant's Brief of 9 Jun 2003 at 8-
le.

[**15]

Military Status

There is no issue with a servicemember being retained
beyond his or her EAS for the purpose of facing a court-
martial for an offense or offenses alleged to have occurred
before the expiration of his or her active-duty enlistment
period. n2 To borrow a phrase, when done correctly it is an
“altogether fitting and proper" procedure by which to ensure
the integrity of the military justice system. What "legally"
happens when this is done is that the suspected or accused
servicemember is involuntarily extended on active duty,
never actually being permitted to separate or leave active-
duty, despite the passing of his EAS or contractual end-of-
enlistment date. This is a permissible action, because
enlistment in the military--while a contract--is much more in
context and effect than a normal commercial contract. It

creates a status that is not affected by a breach of that
contract.

38a

n2 For guidance on extending a servicemember
beyond his or her EAS, see MILPERSMAN, art. 1160-
050. See also Department of Defense (DOD) Directive
5154.29: DOD Pay and Allowances Policy and
Procedures; and DOD Financial Management
Regulation, DOD 7000.14-R, Volume 7A, Military
Pay Policy and Procedures - Active Duty and Reserve
Pay.

[** 16]

The Supreme Court long ago established the principle
that entry into military service effects a definite and
discernible change of status, when it concluded:

Enlistment is a contract; but it is one of those
contracts which changes the status; and, where,
that is changed, no breach of the contract
destroys the new status or relieves from the
obligations which its existence imposes.

By enlistment the citizen becomes a soldier.
His relations to the State and the public are
changed. He acquires anew [*655] status, with
correlative rights and duties; and although he
may violate his contract obligations, his status as
a soldier is unchanged.

In re Grimley, 137 U.S. 147, 151-52, 34 L. Ed. 636, 11 S. Ct.
54 (1890). Just as clearly established is the principle that the
military status of a servicemember does not terminate by the
mere appearance of a specific date on the calendar, and it
certainly does not end automatically at a servicemember's
EAS.

39a

Thus, the individual, despite the passing of his or her
original "contractual" discharge date, remains on active duty
and subject to in personam jurisdiction, until properly
separated. Providing guidance on this issue, our senior
[**17] court in United States v. Melanson, 53 M.J. 1, 2
(C.A.A.F. 2000), held that military jurisdiction terminates
only upon the delivery of a valid discharge certificate, a final
accounting of pay, and completion of the clearing process
required under the appropriate service regulations to separate
one from the military service. n3 The Court of Appeals for
the Armed Forces, then the Court of Military Appeals, in
United States v. Poole, 30 M.J. 149, 151 (C.M.A. 1990)
stated:

Despite any prior intimation to the contrary, .. .
we now hold that jurisdiction to court-martial a
servicemember exists despite delay -- even
unreasonable delay -- by the Government in
discharging that person at the end of an
enlistment and that no "constructive discharge"
results when a servicemember is retained on
duty beyond the end of an enlistment.

(Internal citation omitted). See also United States v.
Williams, 53 M.J. 316, 317 (C.A.A.F. 2000); United States v.
King, 42 M.J. 79, 80 (C.A.A.F. 1995), United States v.
Batchelder, 41 M.J. 337 (C.A.A.F. 1994); United States v.
King, 27 M.J. 327, 329 (C.M.A. 1989); [**18] United States
v. Howard, 20 M.J. 353 (C.M.A. 1985); United States v.
Wheeley, 6 M.J. 220(C.M.A. 1979).

n3 A DD 214 is an individual's discharge
certification, and the most common type of proof of
military service. It has been issued to veterans
discharged from all branches of the military service
since 1950. In addition to personal information, such

40a

as one's name, social security number, and date of
birth, it includes all relevant service dates, such as
entry and separation dates. Among other things, it also
lists net active service time, branch of service, type of
discharge received, and any time lost due, for instance,
to periods of unauthorized absence. See

http://www. valaro.com/gy/coe/id49_m.him.

In the case of Dickenson v. Davis, 245 F.2d 317, 319
(10th Cir. 1957), cert. denied, 355 U.S. 918, 2 L. Ed. 2d 278,
78 S. Ct. 349 (1958), the U.S. Court of Appeals for the Tenth
Circuit states: "Service in the military, whether by enlistment
or otherwise, creates a status [**19] which is not and cannot
be severed by breach of contract unfortified by a proper
authoritative action." Thus, the question is whether in this
case, the "breach of contract” has been fortified, or not, "by a
proper authoritative action." /d. :

Entitlement to Pay

In his Brief, the appellant does an excellent job in
establishing and explaining the statutory basis for a
servicemember's entitlement to pay. All of which basically
boils down to the fact that a servicemember is entitled to a
base pay calculated on his or her pay grade and time in
service. With certain well-established exceptions--such as the
withholding of forfeitures properly awarded at a disciplinary
proceeding--the individual continues to be so entitled to his
or her pay until properly discharged, as noted above, and that
is based solely on his or her status as an active-duty
servicemember, not on the type or quality of his or her actual
performance of duty.

In Bell v. United States, 366 U.S. 393, 401-02, 6 L. Ed.
2d 365, 81 S. Ct. 1230 (1961), the Supreme Court states:

4la

A soldier's entitlement to pay is dependent upon
statutory right. In the Armed Force, as
everywhere else, there are good men and rascals,
courageous {**20] men and cowards, honest
men and cheats. If a soldier's conduct falls below
a specified level he is subject to discipline, and
his punishment may include the forfeiture of
future but not of accrued pay. But a soldier who
has not received such a punishment from a duly
constituted court-martial is entitled to the
statutory pay and allowances of his grade [*656]
and status, however ignoble a soldier he may be.

(Footnotes omitted). In Bell, the Supreme Court quotes
affirmatively from an almost-100-year-old opinion of the
Attorney General:

"In the naval, as in the military service, the nght
to compensation does not depend upon, nor is it
controlled by, ‘general principles of law’; [sic] it
rests upon, and is governed by, certain statutory
provisions or regulations made in pursuance
thereof, which specially apply to such service.
These fix the pay to which officers and men
belonging to the Navy are entitled; and the rule
to be deduced therefrom is that both officers and
men become entitled to the pay thus fixed so
long as they remain in the Navy, whether they
actually perform service or not, unless their right
thereto is forfeited or lost in some one of the
modes prescribed [**21] in the provisions or
regulations adverted to." 15 Op. Atty. Gen. 175,
176. -

42a

Bell v. United States, 366 U.S. at 403-04. The "modes
prescribed in the provisions or regulations" referred to above
as proper and legitimate methods to take away a
servicemember's entitled pay seem to be such things as the
withholding of pay forfeited by a court-martial sentence, or
pay for days during which the individual was absent without
proper authority from his or her unit. n4 That the post-EAS-
pay regulation might be included in that group will be
addressed below.

n4 See generally Bell v. United States, 366 U.S.
393, 6 L. Ed. 2d 365, 81 S. Ct. 1230 (1961), Cowden
v. United States, 600 F.2d 1354, 220 Ct. Cl. 490
(1979); Dickenson y. United States, 163 Ct. Cl. 512
(1963); and Walsh v. United States, 43 Ct. Cl. 225
(1908).

Post-EAS-Entitlement to Pay

In Dickenson v. United States, 163 Ct. Cl. 512, 519
(1963), the Court of Claims found that: "In the absence
[**22] of the issuance of a discharge to the plaintiff by the
Amy, his status as a soldier was not affected in any way by
the expiration of the term of his enlistment... ." That court
went on to conclude that the servicemember's entitlement to
the statutory pay and allowances of his grade and status
"continues even though he is placed in arrest or confinement
for trial on court-martial charges." Id. at 520-2] (emphasis
added). The pivotal point for the court--the lynchpin of its
decision--was the fact that the plaintiff was held in the
military service beyond his EAS for the convenience of the
Government, which, thus, entitled him to his pay, despite the
expiration of his contracted enlistment. Id. at 514.

In this case, almost by definition, the appellant also was
extended on active duty for the convenience of the
Government; for I do not believe anyone would argue it was

43a

for the appellant's convenience. Likewise, there is no debate
that the appellant, when extended on active duty to face
disciplinary action, continued to be entitled to his statutory-
based pay, as determined by his pay grade and number of
years of service in the Marine Corps. [**23] The only real
issue is whether the passing of the appellant's now-
eviscerated EAS date served to legitimately end his total pay
entitlement, solely due to his residence in pretrial
confinement. The majority concludes with a "Yes," while I
reason "NO" to be the correct answer.

Prohibited Pretrial Punishment
Article 13, UCMJ:

No person, while being held for trial, may be
subjected to punishment or penalty other than
arrest or confinement upon the charges pending
against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the
circumstances required to insure his presence,
but he may be subjected to minor punishment
during that period for infractions of discipline.

The confiscation of the appellant's entire pay entitlement,
due se!ety to his post-EAS pretrial confinement, violates the
provisions of Article 13, UCMJ, both as an improper
punishment and as an improper penalty, which is defined as a
"punishment imposed on a wrongdoer, especially in the form
of imprisonment or fine." n5

n5 BLACK'S LAW DICTIONARY 1153 (7th ed.
1999).
[**24]

{[*657] The majority opinion focuses on its conclusion
that only one of the two prongs of the illegal pretrial

44a

punishment prohibition of Article ]3--the "punishment"
prong--applies in this case. Before addressing that prong, I
wonder why it cannot additionally be argued that the second
prong, as it relates to pretrial confinement conditions that are
more rigorous than necessary to ensure an accused's presence
at trial, is applicable to this case as well? Certainly taking
away all of a pretrial confinee's pay is a condition more
rigorous than necessary to ensure his or her presence at trial.
Is not locking up the individual sufficient to ensure presence
at trial, for money would only aid in his possible absence
from trial if he were free to move about as desired?

Addressing the perhaps more cogent aspect of the issue,
the majority opinion looks at the “punishment prong" of the
Article 13 prohibition too literally and technically. Perhaps,
as Albert Einstein said: "This is too difficult for a
mathematician. It takes a philosopher." n6 As the Court of
Claims reasons in Cowden v. United States, 220 Ct. Cl. 490,
499, 600 F.2d 1354, 1359 (1979): “Retention without pay is a
kind [**25] of punishment. Such was not the intent of
Congress in enacting the military pay statutes or the Uniform
Code of Military Justice."

n6 Profess >r Einstein was referring to the
preparation of his income tax return. See Albert
Einstein, Fort Liberty: Using the First Amendment to
Protect the Second (visited 22 Jun 2004) <
http://www.fortliberty.org/quotes/quotes-taxes.shtmI>.

The majority opinion in this case centers on the vanilla
intent of the brig personnel and local authorities in merely
carrying out the mandate of the relevant regulation in cutting
off the appellant's pay at his EAS, solely due to his being
held in pretrial confinement. The string, however, must
further be pulled. The just-following-orders explanation is
but a deflection, not a "defense," in this case, as the

45a

Government is the Government. If the trail leads back to an
unconstitutional effect resulting from the implementation of
the questioned regulation, such must surely override the
purest of intentions.

The majority opinion narrows the consideration to the
“punishment prong" of Article 13, UCMJ, and, to support
{**26] its conclusion that there was no requisite intent to
punish the appellant, affirmatively cites both Bell v. Wolfish,
44] U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) and
United States v. Anderson, 49 M.J. 575 (N.M.Ct.Crim.App.
1998), concluding both that in the appellant's case there was
no specific intent by local authorities to punish the appellant
and that the questioned regulation serves to further a
legitimate governmental interest. Concerning the first aspect,
the majority opinion holds that the local authorities were
merely carrying out the regulation, with no personal intent to
"punish" the appellant. Regarding the latter factor, the
majority opinion finds that, as a pretrial confinee past his
EAS, the appellant was not serving in the "full-duty status"
required by the regulation for one past his or her original
EAS to be continued to be entitled to his or her statutorily-
based pay.

As mentioned, the majority opinion herein looks to this
court's prior opinion in Anderson for guidance in considering
the issue of pretrial punishment. I would urge a closer
reading of Anderson, especially footnote 2 at page 577,
where this court, in considering the "intent" factor, [**27]
states: "Although we don't suggest that this was the intention
of the policy, we are also concerned about the policy's
coercive effect on pretrial confinees. It places considerable
pressure on them... ."

46a

Additionally, as also mentioned above, the majority
opinion cites Bell v. Wolfish. In that case, the Supreme Court
concludes:

Thus, if a particular condition or restriction of
pretrial detention is reasonably related to a
legitimate governmental objective, it does not,
without more, amount to "punishment."
Conversely, if a restriction or condition is not
reasonably related to a legitimate goal - if it is
arbitrary or purposeless - a court permissibly
may infer that the purpose of the governmental
action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees. n7

[*658] Bell, 441 U.S. at 539, (internal citation and footnote
omitted). See also United States v. McCarthy, 47 M.J. 162,
165 (C.A.A.F. 1997) and United States v. James, 28 M.J. 214
(C.M.A. 1989).

n7 "Qua: in the capacity of ... ." BLACK'S LAW
DICTIONARY 1252 (7th ed. 1999).
(**28]

In providing this guidance, in Bell, 441 U.S. at 537, the
Supreme Court was borrowing from its prior decision in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 9 L.
Ed. 2d 644, 83 S. Ct. 554 (1963), where the Court had
previously reasoned:

The punitive nature of the sanction here is
evident under the tests traditionally applied to
determine whether an Act of Congress is penal
or regulatory in character, even though in other
cases this problem has been extremely difficult

47a

and elusive of solution. Whether the sanction
involves an affirmative disability or restraint,
whether it has historically been regarded as a
punishment, whether it comes into play only on
a finding of scienter, whether its operation will
promote the traditional aims of punishment -
retribution and deterrence, whether the behavior
to which it applies ‘s already a crime, whether an
alternative purpose to which it may rationally be
connected is assignable for it, and whether it
appears excessive in relation to the alternative
purpose assigned are all relevant to the inquiry,
and may often point in differing directions.
Absent conclusive evidence of congressional
intent as to the penal nature of a statute, [**29]
these factors must be considered in relation to
the statute on its face. Here, although we are
convinced that application of these criteria to the
face of the statutes supports the conclusion that
they are punitive, a detailed examination along
such lines is unnecessary, because the objective
manifestations of congressional purpose indicate
conclusively that the provisions in question can
only be interpreted as punitive.

(Internal citations and footnotes omitted).

When we consider the facts of this case alongside these
criteria, we may only conclude that the effect of the no-post-
EAS-pay-for-pretrial-detainees regulation is clearly pretrial
punishment and a violation of basic due process. First, the
forfeiture of one's entire pay and allowances is and “has
traditionally been regarded as a punishment." Second, it is
automatic at the arrival of the pretrial detainee’s original
EAS, a date already neutered by the individual having been

48a

involuntarily extended on active duty for the convenience of
the Government, so that he or she might be processed for
disciplinary action. Thus, it is automatic, taking effect prior
to any guilt-determinative judicial action, and not coming
{**30] “into play only on a finding of scienter." Third, the
deprivation of income due to an artificial status being placed
on a pretrial detainee does not "promote the traditional aims
of punishment - retribution and deterrence." Fourth, the
“behavior to which it applies"--merely being in pretrial
confinement after one’s now-meaningless EAS--is not
“already a crime.” Fifth, there is no "alternative purpose to
which it may rationally be connected... ." Kennedy, 372
U.S. at 168-69. And, if | may be so very presumptuous as to
offer a sixth factor: It just does not appear to be
"fundamentally fair."

Presumption of Innocence

In tracing the history of the principle of the "presumption
of innocence," in Coffin v. United States, 156 U.S. 432, 453-
56, 39 L. Ed. 481, 15 S. Ct. 394 (1895), the Supreme Court
offers, as the starting point for its lengthy historical review of
the principle: "Greenleaf traces this presumption to
Deuteronomy, and quotes Mascardus De Probationibus to
show that it was substantially embodied in the laws of Sparta
and Athens." Jd. at 454. In focusing on this country's
application of the concept, the Court states: "The principle
that there [**31] is a presumption of innocence in favor of
the accused is the undoubted law, axiomatic and elementary,
and its enforcement lies at the foundation of the
administration of our criminal law." Id. at 453.

Thus, the "presumption of innocence" is such an accepted
and basic principle in our judicial system in this country that
little needs to be said about it as it applies to this case, except
to offer a clarification of the Supreme Court's pronouncement

49a

concerning the concept in Bell, which has been affirmatively
cited by both the majority opinion in (*659] this case and in
this dissent above. In Bell, the Court, after reviewing the
questioned physica} conditions involved in a particular,
challenged pretrial confinement circumstance, which had
been attacked, in part, as a violation of the presumption of
innocence, concludes that the principle "has no application to
a determination of a pretrial detainee during confinement
before his trial has even begun." Bell, 44] U.S. at 533.

The nature of the due-process violation is decidedly
different in this case, to the point that, I believe, the
presumption of innocence does have an "application" to this
case [**32] and the adverse affects on the appellant of the
questioned, pay-depriving regulation. In Bell, physical
conditions of the questioned pretrial confinement were being
challenged. As noted above, the Court held that the issue is
whether the challenged condition of pretrial confinement
was, in fact, punishment--and, thus, improper--or whether it
is "reasonably related to a legitimate governmental objective
....' Id. at 539. In this case, we are not considering a
physical condition of the appellant's pretrial confinement,
such as the sleeping arrangements of detainees, which was
the genesis of the challenge in Bell, along with other
conditions of confinement and management practices. In this |
case, we are examining the validity of the adverse impact of a
condition separate from, but superimposed on the appellant's
pretrial confinement, to the extent that it becomes improper
"punishment" in violation of Article 13, UCMJ, in that it is
not “reasonably related to a legitimate governmental
objective.” Id.

Legitimate Governmental Objective

To completely cut off one’s statutory pay entitlement, due
solely to being in pretrial confinement, after the individual's

50a

[**33] now-rendered-meaningless original EAS, serves no
legitimate governmental objective. To say that the individual
is no longer in the "full-duty” status required by the
questioned regulation to entitle one to his or her statutory pay
and allowances, because a now-meaningless date passes, is
artificial and appears to be without sound logic. As discussed
above, the pretrial detainee's original EAS is meaningless,
because the Government, for its convenience, involuntarily
extended him or her on active duty--thus rendering his EAS
date a nullity--for the purpose of facing disciplinary
proceedings. No one debates the continued entitlement of the
individual to his or her statutory pay after being so extended
on active duty. No one even questions the individual's
continued pay entitlement after being placed in pretrial
confinement. However, all supposedly changes when the
individual's now-meaningless EAS pops up on the calendar.

I believe this to be a problem, because: (a) there is no
meaningful change in the individual's status at his or her
original EAS, and (b) he or she is being hit with improper
disparate--and perhaps harsh--treatment for no valid reason.
The individual, [**34] extended on active duty past his or
her original, now-meaningless EAS date, is in the location
and "fully" performing the "duty" assigned to him or her,
which are exactly the same as the day before, when he or she
was still entitled to pay. Additionally, the now-pay-deprived
individual is in the same place doing the same duties as the
still-being-paid pre-EAS pretrial detainee in the next cell.
And the logic and justification for this disparate treatment is
what? And the real difference between the two? Perhaps it
lies in one being “smarter” then the other, in that he or she
had the "foresight" to commit his or her alleged offense
earlier in his or her enlistment?

Improper Adverse Consequences

Sla

Before ending this consideration with a list of adverse
consequences that render this questioned regulation a
violation of the appellant's due-process rights, the
counterpoint is made that a civilian does not get paid by the
state for being in pretrial confinement. While that is a true
statement as far as it goes, it does not apply to the facts of
this case. For a servicemember the Government is his or her
employer. If a salaried civilian employee is placed in pretrial
confinement, he [**35] or she is entitled to a bail hearing
and normally would continue to receive his or her salary,
until actually fired for an inability to come to work. For a
servicemember in the appellant's circumstances, the "firing"
and end of employment--and logical end of one's [*660] pay
entitlement--comes only with the awarding of a punitive
discharge at the conclusion of the court-martial proceedings.

The following adverse consequences of the questioned
pay-depriving regulation render it an improper pretrial
punishment in violation of Article 13, UCMJ, and a violation
of the appellant's right to the due process of law:

-- The questioned regulation is arbitrary and
capricious, in that it aetificially and
automatically impases a total forfeiture of
statutorily-based pay and allowances, without
any meaningful change in status; and as such, it
is not reasonably-related to a legitimate
governmental objective; forfeitures may only be
imposed as part of a legitimately awarded
sentence;

-- It violates the basic principle of the
presumption of innocence, and is not "saved" by
the provision that returns all of the pretrial
money so withheld upon an acquittal at court-
martial; as likely hardship [**36] created by this

52a

artificially-imposed forfeiture of all pay and
allowances may not be capable of repair, such
as: adverse consequences and hardships for the
appellant's family, the repossession of the
appellant's property for inability to meet
payment schedules; inability to hire, if desired,
civilian counsel for court-martial representation;
ng

-- The potential to place improper pressure
on the appellant to plead guilty and accept a
pretrial agreement, in order to sooner extricate
himself from a no-pay situation; and

-- By removing the potential punishment of
forfeitures at the appellant's court-martial,
increasing the likelihood that more confinement
might be awarded to “compensate” for the
inability to award forfeitures.

n8 While representation by a civilian defense
counsel is not a guaranteed right, it is an important
personal option that does much to protect the integrity
of the military justice system in the eyes of the general
public.

For all these reasons and those discussed above, the
questioned [**37] regulation must implode from the excess
weight of its own illogicalness. While its intent might be
admirable--saving the Government money--its effect is to
impose an impermissible form of pretrial punishment or
penalty on the appellant, in violation of Article 13, UCMJ.
Thus, the appellant is entitled to appropriate relief, since the
impressing of seaman fell out of favor in this country some
time ago.

53a

Judge HARRIS concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0706%3A1. Public record. Not legal advice.