Petition for Writ of Certiorari — Pena v. United States (No. 06-1340)
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“061340 APR 06 2007
.
OFFICE OF THE CLERK
No.
IN THE
Supreme Court of the United States
SENIOR AIRMAN TIMOTHY J. PENA,
Petitioner
UNITED STATES OF AMERICA.
Respondent
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
VICKI A. BELLEAU
CAPTAIN, U.S. AIR FORCE
Counsel of Record
MARK R. STRICKLAND
LT COLONEL, U.S. AIR FORCI
Counsel for Petitioner
APPELLATE DEFENSE DIVISION
AIR FORCE LEGAL OPERATIONS AGENCY
112 LUKE AVENUE, SUITE 343
BOLLING AFB. DC 20332-8000
(202) 767-1562
April 2007
QUESTIONS PRESENTED
1. Whether the Air Force Clemency and Parole Board
increased the severity of Petitioner’s sentence in
violation of Article 55, Uniform Code of Military Justice
and the Eighth Amendment_when it forced Petitioner to
fulfill conditions of mandatory supervision that are not
authorized by the Uniform Code of Military Justice.
2. Whether the imposition of conditions of mandatory
supervision on Petitioner violates the Due Process clause
because the military judge did not announce a period of
mandatory supervised release or any of its conditions as
part of the sentence.
ll
TABLE OF CONTENTS
Page
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CONSTITUTIONAL AND STATUTORY
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OF Pa ee Oi BE I a vocsccecrsiseyissessesvecensesrocens 3
REASONS FOR GRANTING THE WRIT.................. 1]
Bi Be SR I eS 20
APPENDIX A
United States v. Pena, 64 M.J. 259 (16 January 2007). la
APPENDIX B
United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim.
ii ceavieveeseneneseess 3la
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TABLE OF AUTHORITIES
Page
Constitutional Provisions
MED CEE NO NE TOTS 2, 12, 14, 16
Se PIII ia ics siinisccinieinwiiinrnrccseiccsasnie 2, 3, 12, 14, 16
Decisions of the Supreme Court of the United States
- Estelle v. Gamble, 429 U.S. 97 (1976).....00.cccccceeeeceeees 12
United States v. DiFrancesco, 449 U.S. 117 (1980)..... 19
Thornburgh v. Abbot, 490 U.S. 401 (1989) ooo. 18
Trop v. Dulles, 356 U.S. 86 (1958) ......cccceseeseseeseeseres 12
Wolff v. McDonnell, 418 U.S. 539 (1974) wo... 18
Military Cases
United States v. White, 54 M.J. 469 (C.A.A.F.
TEE vivdicepsceictahaontbcdassainteancrmaniadaae aida iit ee 12
Federal Statutes
I +3
10 U.S.C. § eet i peclsiicmnet eae 3,14
URe SOU
A OO i ee 3, 15
iis add § .. Sibethe iy ae eige mek ae eRe ECe Ae 14
A I ii
Other Federal Circuits
United States v.-Arrellano-Rios, 799 F.2d 520 (9th
A OIL sivoitAdarntnnalackeevetiadnccl saa ae ss eeeniieL sacs 19
United States v. Daddino, 3 F.3d 262 (7th Cir.
5 | MRE tL eA Ged eh Asay EON aD E 19
Vv
United States v. Falu,129 F. Supp. 2d 424
SRP a EE ei basilintecbkse i Nctdivintetebindsiatevéebmawinaisds 17
United States v. Wise, 391 F.3d 1027 (9th Cir.
MPUET: isciiikaceicaiategcatias chest ti es rg 17
Other Authority
Department of Defense Instruction (DoD]) 1325.7
Administration of Military Correctional Facilities
and Clemency and Parole Authority (July 2001)5, 16
Department of Defense 1325.7-M Sentence
Computation Manual (July 2004) .......cccceeccceseeeeeees 5
Rule for Courts-Martial 1003(b) .......000..cccc cc ccccesseseeeeees 15
Rule for Courts-Martial 1007(a) ............ccecceceeeeeeeee 16, 20
The Petitioner, Senior Airman Timothy J. Pena,
USAF, respectfully prays that a wnt of certiorari issue to
review the order and judgment of the United States Court
of Appeals for the Armed Forces entered in his case on
January 16, 2007.
OPINIONS BELOW
The order and judgment of the United States Court
of Appeals for the Armed Forces, United States v. Pena,
64 M.J. 259 (C.A.A.F. 2007), is located at Appendix A.
The opinion of the United States Air Force Court of
Criminal Appeals, United States v. Pena, 61 M.J. 776
( A.F. Ct. Crim. App. 15 September 2005) is located at
Appendix B.
JURISDICTION
The judgment of the United States Court of Appeals
for the Armed Forces was entered on January 16, 2007.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1259(3) and 10 U.S.C. § 867(a)(3).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment of the United States
Constitution states in relevant parts:
No person shall be ... deprived of life, liberty, or
property, without due process of law.
The Eighth Amendment of the United States
Constitution states:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishment inflicted.
Article 55, Uniform Code of Military Justice
(UCMJ) Section 855 of Title 10, United States Code
{herinafter Article 55j, provides :
Punishment by flogging, or by branding,
marking, or tattooing on the body, or any other
cruel or unusual punishment, may not be
adjudged by a court-martial or inflicted upon
any person subject to this chapter. The use of
3
irons, single or double, except for the purpose
of safe custody, is prohibited.
Article 56, Uniform Code of Military Justice
(UCMJ) Section 856 of Title 10, United States Code
[herinafter Article 56], provides :
The punishment which a court-martial may
direct for an offense may not exceed such limits
as the President may prescribe for that offense.
“The Secretary concerned may provide a system of
parole for offenders who are confined in military
correctional facilities and who were at the time of
commission of their offenses subject to the authority of
that Secretary.” Section 952 of Title 10, United States
Code.
STATEMENT OF THE CASE
This case presents the question of whether the Air
Force Clemency and Parole Board, with the imposition
of conditions on Petitioner through the Mandatory
Supervised Release Program, -increased Petitioner’s
sentence in violation of Article 55 and the Eighth
Amendment. Furthermore, this case presents the
4
question of whether the failure of the military judge
to announce a period of mandatory supervised release or
any of its conditions as part of the sentence was a
violation of the Due Process clause. The Air Force
Court of Criminal Appeals affirmed the approved
findings and sentence. The Court of Appeals for the
Armed Forces affirmed the Air Force Court of Criminal
Appeals’ judgment.
1. Facts
a. Background
On 3 September 2002, Petitioner was tried by a
military judge sitting alone at a general court-martial at
Buckley Air Force Base, Colorado. Petitioner entered
pleas of guilty pursuant to a pre-trial agreement to
various charges involving adultery, indecent assaults,
and indecent exposure. Petitioner was sentenced to a
dishonorable discharge, confinement for one year, and
reduction to the grade of E-1.
b. Mandatory Supervised Release
This case concerns Petitioner’s involuntary
placement on excess appellate Icave subject to
5
conditions of mandatory supervised release on his
minimum-release date from confinement. The
Mandatory Supervised Release (MSR) Program became
effective in August 2001. Department of Defense
Instruction (DoDI) 1325.7, Administration of Military
Correctional Facilities and Clemency and Parole
Authority, July 17, 2001, paragraph 6.20 (“Release of
Prisoners at their Minimum Release Date (MRD) to
Mandatory Supervision”), provides that inmates who
have been convicted of an offense that occurred on or
after 16 August 2001 and who are not paroled are
eligible for entry into the program. See DoDI 1325.7.
DOD 1325.7-M, DOD Sentence Computation Manual,
(27 Jul 2004) defines Mandatory Supervised Release
(MSR) as a form of conditional release granted to
individuals who have served their sentence to
confinement up to their minimum release date (MRD).
This form of release is served until the adjusted
maximum release date (AMXRD), unless otherwise
revoked or remitted by the Clemency and Parole Board
concemed.
The Air Force Clemency and Parole Board (the
Board) decides who will enter the program and what
the conditions will be on a case-by-case basis. The
Board’s policy is that a prisoner will be ordered to
6
accept conditions of mandatory supervision
under threat of a court-martial and/or a disciplinary
board. See Clemency and Parole Boards Mandatory
Supervised Release (MSR) Policy Letter, dated 23 May
2003.
Petitioner was convicted of offenses that occurred
before and after 16 August 2001. He began serving his
sentence to confinement when he was sentenced on 3
September 2002. After serving in confinement for
several months, he applied for parole. In February
2003, the Board denied Petitioner’s request for parole
and instead ordered that he be released with conditions
of mandatory supervision on his minimum-release date.
See Declaration of Senior Airman Pena, dated 10 July
2003. The minimum-release date is the earliest date
Petitioner could be released based on good-time credit
earned. The Board ordered Petitioner to submit a plan
within 30 days of the date of its letter or face
disciplinary action. /d. The Board required Petitioner
to state where Petitioner would live and with whom,
provide a statement of guaranteed employment, an offer
of cffective assistance to obtain cmployment, or
acceptance in a valid educational or vocational
program, and verify his intent to register as a sex
offender in the area where he intends to live. Jd.
In March 2003, Mr. Greg Newbold, the Review
Board Manager at the Naval Consolidated Brig
Miramar, informed Petitioner that his request for parole
was denied and that he would instead be involuntarily
subjected to conditions of mandatory supervision. See
Greg Newbold’s Declaration. He presented Petitioner
with a certificate issued by the Air Force Clemency and
Parole Board, dated 12 March 2003. Significantly, Mr.
Newbold told Petitioner that if he refused to accept the
conditions, he could be subject to a court-martial and/or
a disciplinary board for failing to obcy a lawful order
and/or dercliction of duty. The consequences from a
disciplinary board could include the loss of good-time
credit carned and confinement privileges.
c. Conditions Imposed by MSR
The certificate issued by the Board stated that the
Petitioner’s period of supervised release would run
from 22 June 2003 to 2 September 2003. See SrA
Timothy Pena’s Declaration. The certificate mandated
that upon his release Petitioner must go without delay
to his designated residence, report in person to the
probation officer within three days, notify the Miramar
Brig of his arrival at his destination, and remain within
8
the limits prescribed by the probation officer. /d. The
certificate listed nine special conditions.
must:
Enroll in a community-based sex
offender treatment program at his
vwn expense, and the program
should have a duration of at least
24 months;
Have no contact with the victims;
Abstain from the use and
possession of pornographic or
sexually stimulating materials;
Consent to allow the probation
officer to conduct periodic
unannounced examinations of his
computer and to consent to have
installed on Petitioner’s
computer, at Petitioner's
expense, a system to monitor
Petitioner’s use of the computer;
Petitioner
5. Not frequent adult bookstores,
sex shops, topless bars, or other
locations that act as a sexual
stimulus;
6. Register as a sex offender;
- 7. Attend and participate in three
Alcohelics Anonymous mectings
weekly;
8. Waive confidentiality in his
relations with the sponsor; and
9. Abstain from consuming alcohol.
Id.
On 17 May 2003, Petitioner submitted a letter to
the Brig’s commander through Mr. Newbold. Jd. The
letter challenged the decision to impose mandatory
supervision and complained that some of the conditions
could not be met without significant hardship. /d. The
commander did not respond to Petitioner’s letter.
10
It is undisputed that Petitioner earned and was
entitled to good-time credit while serving in
confinement. Petitioner was rcleased from confinement
on his minimum-release date, 22 June 2003. Petitioner
only agreed to conditions of mandatory supervision
because of the threat of a prosecution and a disciplinary
board. /d.
When Petitioner was released, he was not allowed
to stop in Colorado en-route to his designated residence
in Illinois so that he could ship his household goods
from Colorado to Illinois. /d. From the time of his
release until 2 September 2003, he attended Alcoholics
Anonymous classes three nights each week and a sex
offender treatment program on each Monday. /d. He
also went to appointments on an ad hoc basis and he
was required to report to the parole officer within 30
minutes of being notified that he must provide a urine
sample. /d., para. 7. During this period, he was unable
to find work to support his family because he was
required to fulfill conditions of mandatory supervision.
Id., para. 6.
ii
2. Proceedings Below
The Court of Appeals for the Armed Forces
determined that the conditions of mandatory supervised
rclease on Petitioner did not constitute cruel or unusual
punishment in violation of the Eight Amendment and
that Petitioner did not demonstrate that the mandatory
supervised release program produced an impermissible
increase in punishment adjudged by court-martial. The
Court of Appeals for the Armed Forces affirmed the
Court of Criminal Appeals’ ruling.
REASONS FOR GRANTING THE WRIT
In its decision below, the United States Court of
Appeals for the Armed Forces incorrectly concluded that
the conditions of mandatory supervised release imposed
on Petitioner did not constitute cruel and unusual
punishment. Furthermore, the lower court incorrectly
concluded that Pctitioner failed to demonstrate that his
involuntary participation in Mandatory Supervised
Release (MSR) program produced an impermissible
increase in punishment adjudged by court-martial.
12
In Estelle v. Gamble, 429 U.S. 97, 102-03 (1976),
this Court said the Eighth Amendment prohibits
“punishments which are incompatible with ‘the evolving
standards of decency that mark the progress of a
maturing society,’ . . . or which ‘involve the unnecessary
and wanton infliction of painf.]’’ See also Trop v.
Dulles , 356 U.S. 86 (1958).
The Eighth Amendment and Article 55, UCMJ,
prohibit the infliction of cruel and/or unusual
punishment on military members. Whenever the
severity of a sentence is unlawfully increased, Article
55, UCMJ, and the Eighth Amendment are violated. See
United States v. White, 54 M.J. 469, 472 (C.A.A.F.
2001).
The Air Force Clemency and Parole Board
unlawfully modified and increased the severity of
Petitioncr’s approved sentence by imposing conditions
of mandatory supervision upon him. None of the
conditions are authorized by the Uniform Code of
Military Justice (UCMJ). No other statute authorizes the
forcible imposition of such conditions on Petitioner.
And there is no case law that supports the imposition of
such conditions solely on the basis of a regulation and in
13
the absence of a statute. The imposition of such
conditions resulted in illegal post-trial punishment.
Petitioner was ordered to accept conditions of
mandatory supervision against his will. He was
threatened to accept them on pain of a court-martial
and/or a disciplinary board and he_ begrudgingly
accepted those conditions. Petitioner has now
involuntarily fulfilled those conditions.
Each of the conditions imposed on Petitioner was a
form of punishment. Besides being ambiguous, they
infringed upon a number of his constitutional rights.
Those conditions that required his presence and time,
such as attendance at a treatment program and other
meetings, impacted his liberty interest. Likewise, those
that prohibited him from doing certain things, such as
consuming alcohol and possessing legal materials, or
that prohibited him from going to certain places or
associating with certain types of persons, also adversely
impacted his liberty interest, his right to privacy, and
his right to assembly and religion. Those that required
him to pay moncy, such as for payment for treatment,
computer monitoring, or transportation--impacted his
property interest. Those that required that he answer
questions, such as to the parole officer or while
14
submitting to a polygraph, impacted his right against
self-incrimination. Those that required that he submit
to a plethystnograph impacted his right to privacy.
Those that required that he submit a urine sample
infringed upon his right against unreasonable searches
and seizures. Those conditions that prohibited him
from changing residences or employment infringed
upon his right to travel. All of the conditions were a
type of sanction. Congress recognized that these types
of conditions were punishment when it expressly
authorized their use as punishment in civilian criminal
trials. See 18 U.S.C. § 3583 (“Inclusion of a term of
supervised release after imprisonment [in the
sentence]”). Because these conditions, unauthorized
punishments, Petitioner was subjected to illegal post-
trial punishment in violation of the Eighth Amendment
and Article 55, UCMJ.
Article 56, UCMJ, states that the punishment a
court-martial may impose may not exceed the limits
prescribed by the President. By implication, the types
of punishment that may be imposed are also limited to
those prescribed by the President. For Petitioner’s
offenses, the President has prescribed a reprimand,
forfeiture of pay and allowances, a finc, reduction in
pay grade, restriction to specified limits, hard labor
15
without confinement, confinement, and = a
punitive discharge. Rule for Courts-Martial (R.C.M.)
1003(b) (“Authorized punishments”). The Rule
expressly states that only those punishments may be
adjudged.
In the present casc, the Board not only imposed
unauthorized punishment, but it also increased the
sentence without any statutory authority. Petitioner was
to fulfill the conditions only after successfully serving
his sentence to confinement based on good-time credit
earned.
Petitioncr acknowledges that Congress has
authorized the Secretary of Defense to provide a system
of parole for military offenders who are in confinement.
10 U.S.C. § 952. Parole, however, is something that an
accused applies for and voluntarily agrees to. DoDI
1325.7, para. 6.17.1. When an accused is placed on
parole, the accused agrees to the terms and conditions of
parole. See 497a.c.(2), Manual for Courts-Martial (2005
ed.) (“Parole” is defined as “word of honor” because it is
agreed to). When this promise is forced on somconc
under the pain of disciplinary or criminal sanction, it
ceases to be “parole.” A truc parole program requires
the inmate to voluntarily apply for and accept
16
conditions. Any other view of parole would be unfaithful
to Congressional intent and the Department of Defense
Instruction (DoDI) 1325.7.
The conditions of mandatory supervision were not
authorized under the UCMJ or any other statute and
they changed and increased the severity of Petitioner’s
approved sentence, thercby violating Petitioner’s rights
under Article 55 and the Eight Amendment.
Petitioner’s Fifth Amendment rights were also
violated, contrary to the Court of Appeals for the
Armed Forces decision.
The Fifth Amendment provides that “No person . . .
shall be deprived of life, liberty, or property, without
due process of law.” Rule for Courts-Martial (R.C.M.)
1007(a) states that the sentence must be announced in
the presence of all parties, including the accused.
Manual for Courts-Martial, United States (MCM) (2005
ed.). Although the Court of Appeals for the Armed
Forces has not had occasion to consider R.C.M. 1007(a)
as it applics to mandatory supervised release, other
federal courts that have imposed conditions of
supervised release have consistently held that such
17
conditions must be authorized by statute and
announced at trial as part of the sentence for its
imposition to be legal. See United States v. Falu, 129
F. Supp. 2d 424 (D. P.R. 2000); United States v. Wise,
391 F.3d 1027 (9" Cir. 2004). The imposition of the
term and conditions of supervised release in federal
criminal trials is always a part of the sentence
announced at trial and the same should be true in
courts-martial, if they are to be imposed at all.
There are several important policy reasons why the
Duc Process Clause requires this outcome. One
consideration is that the accused should have an
opportunity to recommend, comment on, or otherwise
object to proposed terms and conditions of mandatory
supervision. This consideration goes to Petitioncr’s
right to due process of law at its most basic level.
Petitioner was not given any opportunity to object to
the imposition of mandatory supervision or _ its
conditions.
Another reason is that the record cannot be fully
developed for purposes of appeal. As it is, the Air
Force Clemency and Parole Board, which is not a
judicial body, determined that mandatory supervision
was appropriate and what the conditions would be.
18
Such determinations are purportedly made on the
basis of “all pertinent information,” including
statements from the victims and the witnesses. None of
this information is contained in the record of trial.
Petitioner has no idea what the Air Force Clemency and
Parole Board did or did not consider. Petitioner did not
have an opportunity to challenge the information or
cross-cxamine witnesses as he would in a fedcral
criminal trial.
The conditions of supervised release are not
reasonably related to a legitimate penological interest.
See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)
(prison regulations are lawful if they reasonably relate
to a legitimate penological interest.) Aside from the fact
that the conditions of supervised release are not
authorized or reasonably related to a_ legitimate
penological interest, any information that the Board
could have relied upon should have been available to
the court-martial when Petitioner was sentenced. The
offenses and the victims remain the same. Petitioner’s
behavior in confinement is not a factor since Petitioner
apparently behaved well in confinement and earned
good-credit time or he would not have been considered
for early release under mandatory supervision. And
similar to Wolff v. McDonnell, 418 U.S. 539 (1974)
19
(Due process required advance notice where a
prison's policies take away good time, a right provided
by state statute creating an interest for petitioner),
taking away Petitioner’s good-time credit in order to
impose mandatory supervised release violates the Due
Process Clause.
Even in cases where the government has a statutory
right to appeal a sentence in federal criminal trials, the
defendant has an expectation of finality in the sentence
once the appeals have ended. United States v.
DiFrancesco, 449 U.S. 117, 136 (1980) (holding that the
expectation of finality for a defendant serving
confinement arises when the appeal is concluded or the
time to appeal is expired). The Seventh and Ninth
Circuits have further held that the defendant’s
expectation of finality can arise even earlier in such
cases: when the defendant completes his sentence of
incarceration. United States v. Daddino, 3 F.3d 262 (7"
Cir. 1993) (reversing an order amending the sentence to
require the defendant to pay the costs of incarceration
and supervision and remanding with instructions for the
district court to vacate that portion of the sentence);
United States v. Arrellano-Rios, 799 F.2d 520, 524 (9"
Cir. 1986). In the present case, the government does not
have a statutory right to appeal the sentence, the
20
government is not appealing the sentence, and
Petitioner has already completed his sentence to
confinement. Petitioner, therefore, should have an
expectation of finality in his sentence.
The military judge did not announce any term or
condition of mandatory supervised release as part of
Appellant’s sentence and Appellant did not have an
opportunity to object to the additional punishment. The
additional punishment was clearly laid out by the Air
Force Clemency Parole Board in the nine conditions that
it required Petitioner to fulfill. The Court of Appeals for
the Armed Forces incorrectly held that the imposition of
mandatory supervised release did not violate R.C.M.
1007(a) and Petitioner’s due process rights.
CONCLUSION
The Court of Appeals for the Armed Forces erred
when it concluded that the conditions of mandatory
supervised release imposed on Petitioner did not
constitute crucl and unusual punishment. It further erred
when it failed to find that the conditions of mandatory
supervision on Petitioner violated the Due Process
Clause. Thus, the decision of the court below represents
a significant departure from this Honorable Court’s Fifth
and Eighth
21
—
Amendment jurisprudence. Therefore,
Petitioner respectfully requests this Honorable Court to
grant his petition for a writ of certiorari.
April 2007
Respectfully submitted,
VICKI A. BELLEAU
CAPTAIN, U.S. AIR FORCE
Counsel of Record
MARK R. STRICKLAND
LT. COLONEL, U.S. AIR FORCE
Counsel for Petitioner
Appcllate Defense Division
Air Force Legal Operations Agency
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562
la
Appendix A
UNITED STATES, Appellee
v.
TIMOTHY J. PENA, Senior Airman
U.S. Air Force, Appellant
64 M.J. 259
United States Court of Appeals for the Armed
is Forces
Argued October 16, 2006
Decided January 16, 2007
EFFRON, C.J., delivered the opinion of the court, in
which ERDMANN, J. and BAKER, J., joined.
STUCKY and RYAN, JJ., did not participate.
Counsel
2a
For Appellant: Captain Vicki A. Bellcau
(argued); Lieutenant Colonel Mark R. Strickland and
Major Sandra K. Whittington (on brief).
For Appellee: Captain Jefferson E. McBride
(argued); Colonel Gary F. Spencer and Lieutenant
Colonel Robert V. Combs (on _ brief).
Military Judge: Patrick M. Rosenow
Chief Judge EFFRON delivered the opinion of the
Court.
A general court-martial composed of a military
judge sitting alone convicted Appellant, pursuant to
his pleas, of attempted indecent assault, indecent
assault, indecent exposure, indecent language, and
adultery, in violation of Articles 80 and 134,
Uniform Code of Military Justice (UCMSJ), 10
U.S.C. §§ 880, 934 (2000), respectively. The
sentence adjudged by the court-martial and approved
by the convening authority included a dishonorable
discharge, confinement for one year, and reduction
to the lowest enlisted grade. The convening authority
deferred mandatory forfeitures until the date of the
3a
action, and waived automatic forfeitures for
a period of six months, directing payment of the
mandatory forfeitures to Appellant’s spouse for the
benefit of his children. The United States Air Force
Court of Criminal Appeals affirmed. United States v.
Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005).
On Appellant’s petition, we granted review of the
following issues:
I. WHETHER THE APPELLANT WAS
IMPROPERLY PLACED ON EXCESS
APPELLATE LEAVE AND DENIED PAY
AND ALLOWANCES IN VIOLATION OF
ARTICLE 76a, UCMJ, WHEN HIS
SENTENCE TO CONFINEMENT WAS
NOT COMPLETED OR REMITTED AND
HE WAS FORCED TO~- FULFILL
CONDITIONS OF MANDATORY
SUPERVISION UPON HIS RELEASE
FROM CONFINEMENT.
ll. WHETHER THE AIR FORCE
CLEMENCY AND PAROLE BOARD
INCREASED THE SEVERITY OF
APPELLANT'S SENTENCE IN
4a
VIOLATION OF ARTICLE 55,
UCM], AND THE EIGHTH
AMENDMENT WHEN IT FORCED
APPELLANT TO FULFILL CONDITIONS
OF MANDATORY SUPERVISION THAT
ARE NOT AUTHORIZED BY THE UCM5J.
Ill. WHETHER THE IMPOSITION OF
CONDITIONS OF MANDATORY
SUPERVISION ON APPELLANT
VIOLATES THE DUE _ PROCESS
CLAUSE BECAUSE THE MILITARY
JUDGE DID NOT ANNOUNCE A
PERIOD OF MANDATORY
SUPERVISED RELEASE OR ANY OF
ITS CONDITIONS AS PART OF THE
SENTENCE.
IV. WHETHER APPELLANT'S PLEAS OF
GUILTY ARE IMPROVIDENT BECAUSE
THE MILITARY JUDGE DID NOT
INFORM APPELLANT PRIOR TO
ACCEPTING HIS PLEAS THAT HE
COULD BE ADDITIONALLY PUNISHED
IN UNSPECIFIED WAYS.
Sa
Appellant, who was_ sentenced to
confinement for one year, served all but seventy-two
days of that period in confinement at the Naval
Consolidated Brig Miramar, in San _ Diego,
California. During the remaining seventy-two days,
the Government placed Appellant in the Department
of Defense (DoD) Mandatory Supervised Relcase
program against his wishes.
The granted issues concern Appellant's early release
from his sentence to confinement. Part 1 of this
opinion summarizes the relationship between the
DoD Mandatory Supervised Release program and
other confinement and release programs in the
military justice system. Part II describes the
sentencing proceedings at Appellant's trial and the
terms and conditions applied to Appellant through
the Mandatory Supervised Release program. Part Ill
considers whether those terms or conditions provide
a basis for relief under applicable standards of
review. For the reasons set forth below, we affirm.
I. THE DoD MANDATORY SUPERVISED
RELEASE PROGRAM
6a
Persons sentenced to confinement by a court-
martial serve their period of imprisonment. in
facilities administered by the DoD, subject to
exceptions not pertinent to the present appeal. Dep't
of Defense Dir. 1325.4, Confinement of Military
Prisoners and Administration of Military
Correctional Programs and Facilities (Aug. 17,
2001) [hereinafter DoD Dir. 1325.4]. The DoD
traditionally has administered a variety of carly
release procedures for persons in confinement, such
as good time and earned credits, return to duty
programs, and parole. See Dep't of Defense, Instr.
1325.7, Administration of Military Correctional
Facilities and Clemency and Parole Authority,
Ta
enclosure 26, para. E26.1-E26.5. (July 17, 2001,
incorporating Change 1, June 10, 2003) [hereinafter
DoD Instr. 1325.7].
Parole is a form of conditional release from
confinement under the guidance and supervision of
a United States probation officer. Id. at enclosure 2,
para. E2.1.11. In addition, parole is a voluntary
program, in which the inmate applies to participate
during the balance of his or her period of approved
confinement. Id. at para 6.17; Dep't of
Defense, Sentence Computation Manual 1325.7-M,
at AP1.1.12 (July 27, 2004, Administrative
Reissuance, incorporating Change |, Aug. 30, 2006)
[hereinafter DoD Manual 1325.7-M]. The decision
as to whether parole should be granted is vested in
the Clemency and Parole Boards of the military
departments. The decision is highly discretionary.
See DoD Instr. 1325.7, at para. 6.16. Prior to release
on parole, the inmate must have an approved parole
supervision plan, and agree in writing to abide by the
plan and conditions of supervision. Id. at para.
6.17.9.1. Violation of the terms and conditions may
result in revocation of parole. Id. at para. 6.17.10. In
8a
gencral, the supervision of persons on parole is
designed to enhance the person's reintegration into
civilian society. See id. at para. 6.17.9.2.
In 2001, the DoD introduced an additional carly
release mechanism, the Mandatory Supervised
Release program. Mandatory Supervised Release
covers specified classes of prisoners who have
served sufficient time in confinement to be
considered -for parole, but who are not granted
parole. Id. at para. 6.20.1. As with parole,
Mandatory Supervised Release applies from the time
of release from prison until the end of the prisoner's
approved sentence, and it may be revoked for
violation of the terms and conditions of the program.
Id. at paras. 6.17.9.4, 6.17.9.6, 6.20.6.;DoD Manual
1325.7-M, at AP1.1.12.
In contrast to parole, which is a voluntary program,
a prisoner may be placed involuntarily on
Mandatory Supervised Release. See generally
Policy Letter, Clemency and Parole Boards
Mandatory Supervised Release Policy (May 23,
2003) (in Bricf of Appellant at app. E). In addition
to the conditions that may be imposed during
parole, the Clemency and Parole Board may use the
9a
Mandatory Supervised Release program to impose
"any additional reasonable supervision conditions .
.. that would . . . further an orderly and successful
transition to civilian life for released prisoners, and
which would better protect the communities into
which prisoners are released." DoD Instr, 1325.7, at
para. 6.20.2. A prisoner who refuses to accept
Mandatory Supervised Release or the conditions
imposed by the Clemency and Parole Board is
subject to discipline, including trial by court-
martial. Clemency and Parole Boards Mandatory
Supervised Release Policy Letter (May 23, 2003).
See Policy Letter at P E.5.
Mandatory Supervised Release differs in significant
respects from the authority of the federal civilian
courts to include in a sentence “a term of
supervised release after imprisonment." 18 U.S.C. §
3583(a) (2000). Unlike the federal civilian
program, which is based on express statutory
authority and involves terms that are adjudged as
part of the sententc, the military's Mandatory
Supervised Release program is based on executive
authority, and involves terms that are imposed by
executive branch officials well after
completion of trial.
10a
II. THE ADJUDICATION AND
ADMINISTRATION OF APPELLANT'S
SENTENCE
A. THE PROCEEDINGS AT TRIAL
After Appellant entcred a plea of guilty to various
charged offenses, the military judge conducted an
inquiry into the providency of the plea. See Rule
for Courts-Martial (R.C.M.) 910. As part of the
inquiry, the military judge explained the maximum
punishment Appellant faced, based solely on the
offenses to which he pled guilty. Appellant agreed
with the military judge that he faced a dishonorable
discharge from the service, forfeiture of all pay and
allowances, forty-nine yearsof confinement,
reduction to the grade of E-1, and a fine. The
military judge asked Appellant if he had any
questions about the specific punishments he faced,
and Appellant responded in the negative. In
addition, the military judge asked defense counsel
whether he and Appellant had discussed the
administrative ramifications of the punishments.
Defense counsel responded in the affirmative.
lla
Neither the military judge nor defense counsel
mentioned any specific administrative consequence.
Subsequently, during the sentencing proceeding the
military judge reminded Appcllant that he was
facing a lengthy amount of confinement and asked
him whether he had any additional questions.
Appellant responded in the negative. The military
judge sentenced Appellant to a dishonorable
discharge, one year of confinement, and reduction
to the grade of E-1.
B. PLACEMENT OF APPELLANT IN THE
MANDATORY SUPERVISED RELEASE
PROGRAM
The Air Force assigned Appellant to serve his
period of confinement at the Naval Consolidated
Brig Miramar. During that period, the Air Force
Clemency and Parole Board determined that he
would not be granted parole. The Board ordered
him to participate in the Mandatory Supervised
Release program for a seventy-two day period,
terminating on his maximum release date at the end
of the adjudged period of confinement.
12a
The Certificate of Mandatory Supervised Release
(certificate) issued to Appellant by the Board set
forth sixteen conditions gencrally applicable to
persons in the program, along with an attachment
containing nine additional conditions tailored to
Appellant's circumstances. The additional
conditions required Appellant to: (1) participate in a
community-based sex offender treatment program
with a duration of at least twenty-four months, at
his own expense; (2) have no contact with the
victims without the prior approval of his probation
officer; (3) abstain from the use and possession of
pornography or sexually stimulating materials; (4)
consent to periodic examinations of his computer,
to include retrieval and copying of all data from his
computer and/or removal of his computer
equipment for the purpose of conducting a more
thorough inspection; and consent to having
installed on his computer, at his expense, any
hardware or software monitoring systems; (5)
abstain from adult book stores, sex shops, topless
bars, or other locations that act as a sexual stimulus;
(6) register as a sex offender in accordance with
state law; (7) attend and participate in three
13a
meetings weekly concerning alcohol and
narcotics abstention; (8) waive confidentiality in his
rclations with the sponsor of the treatment program
so that his probation officer may monitor his
progress in the program; and (9) abstain from
consuming alcohol. The certificate provided that
the term of mandatory supervision would expire on
Appellant's maximum release date. The
confinement officials at Miramar advised Appellant
that he was required to accept the conditions in the
certificate. If Appellant refused to do so, he could
be prosecuted in a court-martial for failure to obcy
an order or dereliction of duty, and he could be sent
before a disciplinary board with the potential of
losing good time credits and confinement
privileges.
A month prior to his proposed release under the
Mandatory Supervised Release program, Appellant
submitted a letter to the Commander of the
confinement facility at Miramar requesting
permission to decline participation in the program
without losing his good time credits. Appellant
stated that he could adhere to all of the conditions
in the attachment cxcept for participation in the sex
offender treatment program. He noted that while
l4a
the state of Illinois would pay for his
participation in a treatment program in Chicago, he
would have to make a six-hour round trip from his
expected place of residence. He added that he had
not yet obtained a job, his wife was unable to work
duc to the imminent birth of a child, and his family
would have no income. He also noted that his
mother would provide his family with room, board,
and incidentals, but that the burden would stretch
“her financial situation beyond its limits.” He stated
that "the bottom line is we cannot pay for
transportation [to the treatment program] until I
have secured a job and financially reestablished
[my] family."
Appellant did not receive a response. When he
reached his minimum release date with seventy-two
days left in his period of confinement, he was
released into the Mandatory Supervised Release
program on June 22, 2003. The post-trial record
contains a declaration signed by Appellant on July
10, 2003, in which he noted a number of problems
created by his participation in the Mandatory
Supervised Release program. The declaration notes
that he was unable to stop in Colorado to ship his
household goods to Illinois, that he incurred a ten
lSa
dollar per week expenditure for
transportation to the sex offender treatment
program, that he was required to attend Alcoholics
Anonymous classes three times a week at night and
sex offender treatment classes once a week during
the day, that he had various other appointments and
a requirement to give a urine sample on short notice
every two weeks, and that the conditions of
mandatory supervision Icft him unable to find work
to support his family. The declaration was
submitted when Appellant had completed eighteen
out of the seventy-two days of his period of
mandatory supervised release. Although the
declaration noted that he was not employed, it did
not describe his living circumstances, sources of
support, or overall financial condition. The record
contains no further information documenting the
impact of the Mandatory Supervised Release
program on Appellant during the remaining fifty-
four days that he was in the program. In addition,
the record contains no indication that he was
subjected to any of the conditions of the Mandatory
Supervised Release-program after the end of the
seventy-two day period.
Ill. DISCUSSION
16a
A. THE TERMS AND CONDITIONS OF
APPELLANT'S MANDATORY SUPERVISED
RELEASE (ISSUES Il, Il, AND _ IV)
At the outset, we note that Appellant has challenged
the authority of the DoD to establish the Mandatory
Supervised Release program in the absence of
express statutory auihority. Appellant asks us to
invalidate a program under which the DoD releases
individuals from prison prior to the completion of
their adjudged sentence to confinement. On direct
appeal, the scope of our review docs not extend to
supervision of all aspects of the confinement and
release process. United States v. Towns, 52 M.J.
830, 833 (A.F. Ct. Crim. App. 2000), aff'd, 55 M.J.
361 (C.A.A.F. 2001). Our review of post-trial
confinement and release conditions on direct appeal
is limited to the impact of such conditions on the
findings and the sentence. See Article 67(c),
UCMJ, 10 U.S.C. § 867(c) (2000); United States v.
Spaustat, 57 MJ. 256, 263 (C.A.A.F. 2002)
(responsibility for determining how much good
time credit, if any, will be awarded is an
17a
administrative responsibility, vested in
the commander of the confinement facility).
Accordingly, our review in the present appeal
focuses on whether the post-trial conditions at
issuc: (1) constituted cruel or unusual punishment
or otherwise violated an express prohibition in the
UCMJ; (2) unlawfully increased Appellant's
punishment; or (3) rendered his guilty plea
improvident. To the extent that the issucs raised by
Appellant otherwise challenge the administration of
the Mandatory Supervised Release program, those
matters -- including questions regarding the
underlying Icgal authority for the program -- are not
before us on direct review.
1. Cruel or Unusual Punishment
The Eighth Amendment prohibits "cruel and
unusual punishments." U.S. Const. amend. VIII.
Similarly, Article 55, UCMJ, 10 U.S.C/ § 855
(2000), prohibits "cruel or unusual punishment."
Article 55, UCMJ, also prohibits specified
punishments, such as use of irons except for the
purpose of safe custody, which are not dt issue in
the present appeal. See also Article 12, UCMSJ, 10
U.S.C. § 812 (2000) (prohibition on confinement in
18a
immediate association with enemy prisoners).
We review allegations of cruel or unusual
punishment under a de novo standard. United
States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001).
In our evaluation of both constitutional and
statutory allegations of cruel or unusual
punishment, we apply the Supreme Court's Eighth
Amendment jurisprudence "in the absence of
legislative intent to create greater protections in the
UCMJ." United States v. Lovett, 63 M.J. 211, 215
(C.A.A.F. 2006).
The Eighth Amendment prohibits punishments that
are "incompatible with the evolving standards of
decency that mark the progress of a maturing
society, or which involve the unnecessary and
wanton infliction of pain." Id. at 214 (quoting
Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct.
285, 50 L. Ed. 2d 251 (1976)). Although the
conditions at issue in the present appeal implicate
other legal issues, as discussed below, none of these
conditions constitute cruel or unusual punishment
within the Eighth Amendment standards articulated
by the Supreme Court. E.g., 18 U.S.C. § 3583
19a
(2000) (describing the conditions of mandatory
release that may be imposed in criminal trials in the
federal district courts).
2. Impact on the adjudged sentence
Appellant contends thathis punishment was
increased without providing the requisite
constitutional, statutory, and regulatory components
of notice and an opportunity to respond. We review
such claims de novo. United States v. Rollins, 6]
M.J. 338, 343 (C.A.A.F. 2005).
/
The military sentencing process provides notice of
the punishments at issuc, an adversarial proceeding,
and formal announcement of the sentence. See U.S.
Const. amend. V; Articles 53, 56, and 60, UCMJ,
10 U.S.C. §§ 853, 856, 860 (2000); R.C.M. 1001-
1007. A servicemember "cannot be subjected to a
sentence greater than that adjudged" by the court-
martial. United States v. Stewart, 62 M.J. 291, 294
(C.A.A.F, 2006) (citing Waller v. Swift, 30 M.J.
139, 143 (C.M.A. 1990)). Cf. White, 54 M.J. at 472
(noting our Court's "authority to ensure that the
severity of the adjudged and approved sentence has
not been unlawfully inc»cased by prison officials"),
20a
Although reviewing authorities have the power to
commute a sentence to a different form of
punishment, see Article 60(c)(2), UCMJ; Article
71, UCMJ, 10 U.S.C. §§ 871 (2000), this authority
may not be exercised in a manner that increases the
severity of the punishment. United States v. Carter,
45 M.J. 168, 170 (C.A.A.F. 1996); Waller, 30 M.J.
at 143; see R.C.M. 1107(d)(1), 1107(f(2). The
question of whether a change in the form of
punishment increases the severity of the
punishment is contextual, requiring consideration
of "all the circumstances in a particular case."
Carter, 45 M.J. at 170.
The foregoing considerations apply only to matters
that constitute "punishment" within the meaning of
the criminal law. As a gencral matter, the collateral
administrative consequences of a sentence, such as
early release programs, do not constitute
punishment for purposes of the criminal law. See,
e.g., United States v. Griffin, 25 MJ. 423, 424
(C.M.A. 1988) (impact of conviction on retirement
benefits is a collateral administrative consequence,
inappropriate for consideration at sentencing);
United States v. Murphy, 26 M.J. 454, 457 (C.M.A.
1988) (classifying eligibility for a_ particular
2la
squadron as a collateral administrative
consequence not to be considered in sentencing);
United States v. Hannan, 17 M.J. 115, 123 (C.M.A.
1984) (recognizing parole eligibility as a collateral
administrative consequence of sentence). Whether a
particular aspect of an early release program is
administered in a manner that constitutes
punishment requires a_ case-specific inquiry.
Compare California Dep't of Corrections v.
Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed.
2d 588 (1995), with Lynce v. Mathis, 519 U.S. 433,
117 S. Ct. 891, 137 L. Ed. 2d 63 (1997). Cf. United
States v. Fischer, 61 M.J. 415, 420 (C.A.A.F. 2005)
(setting forth factors to be considered in
determining whether governmental actions are
regulatory or punitive in nature) (citing Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168, 83 S. Ct.
554, 9 L. Ed. 2d 644 = (1963))).
The terms and conditions of Appellant's Mandatory
Supervised Release, as initially conveyed to him,
potentially raised serious questions as to whether
Appellant's sentence had been increased. On its
face, the attachment accompanying the Certificate
of Mandatory Release suggested that Appellant was
22a
required to subject himself involuntarily to
a scx offender treatment program for twenty-four
months, a period extending well beyond his
maximum release date. In addition, the attachment
suggested that Appellant was required to expend a
substantial amount of his own funds to pay for the
treatment program and computer software. As the
record indicates, however, and as defense counsel
confirmed during oral argument, none of the
conditions were imposed upon Appellant after his
maximum release date, and he was not required to
pay for his treatment program or any computer
software.
Although the defense brief sets forth a facial
challenge to the Mandatory Supervised Release
program and the conditions communicated to
Appellant prior to his release, the defense has
provided few details as to any actual impact on
Appellant. On May 17, 2003, prior to his. release,
Appellant submitted a request for exemption from
one of the conditions, participation in a treatment
program, based upon concern as to what might occur
upon release. That statement provides no
information as to what actually happened to
Appellant after he was released. On July 10, 2003,
23a
eighteen days after he was released under the
Mandatory Supervised Release program, Appellant
signed a declaration describing various difficulties
that he had encountered in moving his
household goods and obtaining cmployment as
result of the requirements imposed by the Mandatory
Supervised Release program. He also noted that he
was required to expend ten dollars a week for
transportation to a _ treatment program. The
declaration, however, does not indicate what impact,
if any, the Mandatory Supervised Release program
had on Appellant's sentence during the remaining
fifty-four days prior to his maximum release date.
In the context of an issue that requires a showing of
increased punishment, it is not sufficient to show
that the conditions of mandatory release imposed
some burdens on a released prisoner. All conditions
of release impose burdens to some degree. Those
burdens, however, must be assessed in the context of
releasc from a sentence to confinement. The
question in each case is whether the burdens are
such that they result in an increase in the punishment
of confinement adjudged by the court-martial.
Carter, 45 M.J. at 170. Such an assessment requires
a casc-specific analysis. See id.
24a
We do not take lightly the impact of the Mandatory
Supervised Release program on Appellant during the
initial eighteen day period or during the subsequent
fifty-four days. Likewise, we do not disregard the
possibility that the Mandatory Supervised Release
program could be imposed in a manner that
increases the punishment above the punishment
adjudged by a court-martial. The burden, however, is
on the party challenging the conditions to
demonstrate that there has been an increase above
the punishment of confinement
imposed at trial.
When an appellant asks us to review the post-trial
administration of a sentence, we arc typically
confronted by issues in which the pertinent facts are
not in the record of trial. In such a case, it its
particularly important that the appellant provide us
with a "clear record” of the facts and circumstances
relevant to the claim of legal crror. See United States
v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997). The
information about the personal, psychological,
economic, and family impact of such measures is
primarily in the control of the party appealing the
sentence, and that party bears the responsibility of
25a
submitting detailed documentation. The generalized
statements in Appellant's July 10, 2003, declaration,
which cover only a portion of the time Appellant
was in the Mandatory Supervised Release program,
do not provide the clear record upon which we
could evaluate whether the conditions of mandatory
supervised release in this case produced an increase
in Appellant's sentence. Accordingly, Appellant has
not demonstrated that his participation in the
Mandatory Supervised Release program produced an
impermissible increase in the punishment adjudged
by the court-martial.
3. Effect on the providency of the guilty plea
We review claims as to the providency of a plea
under a de novo standard. United States v. Harris, 61
M.J. 391, 398 (C.A.A.F. 2005). An appellant who
challenges the previdency of a guilty plea must
demonstrate "a substantial basis in law and fact for
questioning the guilty plea." United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991) (quotation marks
omitted). As a general matter. the military judge
docs not have an affirmative obligation to initiate an
inquiry into early release programs as part of the
plea inquiry. See Hannan, 17 M.J. at 123. When the
26a
challenge concerns an appellant's claimed
misunderstanding of the collateral consequences of a
court-martial, such as an early release program, an
appellant must demonstrate that:
the collateral consequences are major
and the appellant's misunderstanding of
the consequences (a) results foreseeably
and almost inexorably from __ the
language of a pretrial agreement; (b) is
induced by the trial judge's comments
during the providence inquiry; or (c) is
made readily apparent to the judge, who
nonetheless fails to correct that
misunderstanding. In short, chief
reliance must be placed on defense
counsel to inform an accused about the
collateral consequences of a _ court-
martial conviction and to ascertain his
willingness to accept those
consequences.
United States v. Bedania, 12 M.J. 373, 376 (C.M.A.
1982). In the present case, Appellant has not
27a
demonstrated that the collateral consequences
actually imposed increased his punishment. See
supra Part II].A.2. Moreover, ncither the text of the
plea agreement nor the record of the military judge's
plea inquiry contains any language that would have
placed an obligation on the military judge to address
the Mandatory Supervised Release program at that
time. Sce United States v. Miller, 63 M_J. 452, 457
(C.A.A.F. 2006). We also note that Appellant has
not claimed that his counsel was ineffective with
respect to explaining collateral consequences, so we
need not address whether counsel was under any
obligation to do so. See id. at 458. Under the
circumstances of. this case, Appellant has not
demonstrated that his plea was improvident.
B. APPELLATE LEAVE (ISSUE 1)
During Appellant's period of confinement. he
forfeited his entitlement to pay and allowances
following a six-month period in which the
forfcitures were waived by the convening authority.
See Article 58b(a), UCMJ, 10 U.S.C. § 8S58b(a)
(2000) (providing for mandatory forfeiture of pay
and allowances “during any period of confinement
28a
or parole" when the approved sentence of a
general court-martial includes a punitive discharge).
Following his release from confinement under the
Mandatory Supervised Release program, Appellant
was placed on appellate leave under Article 76a,
UCMSJ, § 10 U.S.C. 876a (2000) (providing
discretion, under military department regulations, to
place a service member on involuntary appellate
leave after the convening authority's action pending
completion of appellate review when the sentence
includes an unsuspended punitive discharge). The
pertinent Air Force regulation provides: "An accused
awaiting appellate review of an unsuspended
punitive separation, who . . . already completed the
period of confinement, may be involuntarily placed
on excess leave .. . ." Dep't of the Air Force, Instr.
51-201, Administration of Military Justice para.
9.12.1 (Nov. 2, 1999). Although a person on
involuntary appellate Icave remains subject to
military jurisdiction and possible recall, the
individual returns to civilian life throughout the
period of leave. Sce 10 U.S.C. § 701(e) (2000)
(providing that any Icave prior to discharge is still
considered military service); 10 U.S.C. § 706(c)
(2000) (acknowledging that a person on cxcess leave
may obtain civilian employment). While on
29a
involuntary = appellate —_ leave, the individual is
not entitled to pay and allowances. Sec Dep't of
Defense, Dir. 7000.14-R, Department of Defense
Financial Management Regulation, volume 7A, ch.
35, § 350101, para. B (Nov. 2005) (requiring pay
only for the portion of appellate leave that a
servicemember chooses to take as accrued leave);
Dep't of the Air Force, Instr. 36-3003, Military
Leave Program para. 6.8 (Oct. 20, 2005) (providing
excess leave for a servicemember that has exhausted
accrued leave, and noting that "[e]xcess leave is a
nO-pay status").
Appellant contends that he should not have been
placed on involuntary appellate leave for two
reasons. First, he contends that as a practical matter
he remained on active duty because the conditions
imposed upon him by the Mandatory Supervised
Release program constituted military duties for
which he should have been paid. We need not decide
whether such a claim is withia the scope of our
review under Article 67, UCMJ, because Appellant
has not demonstrated that the conditions of his
supervised release were so restrictive in nature or
duration that they had the claimed effect of retaining
him on active duty without pay. See supra Part
30a
IIl.A.2. Second, he contends that he did not
"complete" his period of confinement under the Air
Force Regulation because he was under a continuing
threat of return to prison if he violated the terms of
his release. The relationship between completion of
confinement and commencement of Icave is a matter
governed by administrative regulations and service
practices. Appellant has not demonstrated that the
applicable regulations, cither on their face or as
applied, violated Article 76a, UCMJ, or any other
provision of the UCMJ. Under these circumstances,
Appellant has not demonstrated that this claim falls
within the scope of our review under Article 67,
UCM.
IV. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
3la
Appendix B
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES
Vv.
Senior Airman TIMOTHY J. PENA
United States Air Force
61 M.J. 776
15 September 2005
GCM convened at Buckley Air Force Base,
Colorado on 3 September 2002. Military Judge:
Patrick M. Rosenow.
Appellate Counsel for Appellant: Major Andrew S.
Williams (argued), Colonel Beverly B. Knott,
Colonel Carlos L. McDade, Major Terry L.
McElyea, and Major Sandra K. Whittington.
32a
Appellce Counsel for the United States:
Captain Stacey J. Vetter (argued), Colonel LeEllen
Coacher, Licutenant colonel Gary F. Spencer,
Lieutenant Colonel Robert V. Combs, Major John C.
Johnson, and Major Jin-Hwa Frazier.
Before
BROWN, MOODY, and FINCHER
Appellate Military Judges
OPINION OF THE COURT
SMITH, Judge:
Before STONE, MOODY, and SMITH, Appellate
Military Judges.
Consistent with his pleas, the appellant was found
guilty of several sex-related offenses that occurred
over a three-year period. Apart from a single charge
of attempted indecent assault, in violation of Article
80, UCMJ, 106 U.S.C. § 880, the appellant's
misconduct was detailed in 15 _ separate
specifications that alleged violations of Article 134,
UCMS, 10 U.S.C. § 934. A military judge sitting as
33a
a general court-martial sentenced him to a
dishonorable discharge, confinement for | year, and
reduction to E-1. The convening authority approved
the sentence as adjudged. ;
In an issue of first impression for this Court, the
appellant challenges his release from confinement
under the Mandatory Supervised Release (MSR)
program. He challenges both the legality of MSR
and its application in his case. Finding no error, we
affirm the findings and ~_ sentence.
Background
The appellant's minimum release date from
confinement was 22 June 2003. His maximum
release was 2 September 2003. On 2] February
2003, the Air Force Clemency and Parole Board
(AFC&PB) notified the appellant he had been
denicd clemency and parole, but advised him that
the AFC&PB was directing MSR upon his minimum
release date. The term of mandatory supervision was
to run from 22 June 2003 to 2 September 2003. The
appellant was released from confinement on 22 June
2003.
34a
The appellant filed a writ of mandamus with this
Court on 14 July 2003, asking for his release from
the MSR program and an adjustment to the effective
date of his placement on appellate leave. The Writ
raised four issues, in|[**3] substance the same
issues raised now on appeal under Article 66,
UCMJ, 10 U.S.C. § 866. nl Citing Clinton v.
Goldsmith, 526 U.S. 529, 143 L. Ed. 2d 720, 119 S.
Ct. 1538 (1999), on 14 August 2003 we held that
this Court did not have jurisdiction to grant the
requested relief. United States v. Pena, ACM 35397,
Misc. Dkt. No. 2003-04 (14 Aug 2003) (unpub. op.).
On 9 September 2003, the Court of Appeals for the
Armed Forces denied the appellant's writ-appeal
petition. United States v. Pena, 59 MJ. 135
(C.A.A.F. 2003).
nl The appellant assigns four errors in this appeal:
I. Whether the appellant was improperly
placed on excess appellate leave and
denied pay and allowances in violation of
Article 76a, UCMJ, 10 U.S.C. § 876a,
when his sentence to confincment was not
completed or remitted and he was forced
35a
to fulfill conditions of
mandatory supervision upon his release
from confinement.
ll. Whether the AFC&PB increased the
severity of the appellant's sentence in
violation of Article 55, UCMJ, 10 U.S.C.
§ 855, and the Eighth Amendment of the
Constitution when it forced the appellant
to fulfill conditions of mandatory
supervision that are not authorized by the
Uniform Code of Military Justice
(UCM)J).
II. Whether the imposition of conditions
of mandatory supervision on the appellant
violates the Due Process Clause of the
Constitution because the military judge
did not announce a period of MSR or any
of the programs conditions as part of the
sentence.
IV. Whether the appellant's pleas of guilty
are improvident because the military judge
did not inform the appellant prior to
36a
accepting his pleas that he could
be additionally punished in unspecified
ways.
Jurisdiction to Consider MSR
The threshold issue is whether we have jurisdiction
on questions concerning MSR, or whether the
program is an administrative consequence beyond
the scope of our Article 66(c), 10 U.S.C. § 866(c),
review authority. We possess "no . . . authority over
actions administering sentences of military
prisoners." United States v. Towns, 52 M.J. 830,
833 (A.F. Ct. Crim. App. 2000), aff'd, 55 M.J. 361
(C.A.A.F. 2001). Further, "as an Article I Court,
and thus a creature of Congress, we cannot be
certain that we were intended to oversee the
conduct of prison affairs at any institution whercin
a post-conviction military prisoner is housed, and
nothing in our search of our statutory charter or
precedent suggests that we were.” United States v.
Haymaker, 46 M.J. 757, 760 (A.F. Ct. Crim. App.
1997), affd, 50 MJ. 127 (C.A.A.F. 1998).
37a
Mindful of our precedent and limited authority, we
do not reject the appellant's challenge simply
because his complaint implicates the administration
of his sentence. Under Article 66(c), UCMJ, we
have the duty and authority to review
sentence appropriateness and determine whether the
sentence is correct "in law." United States v. Erby,
54 M.J. 476, 478 (C.A.A.F. 2001). Therefore. we
have the authority to assess the nature and general
application of MSR to satisfy ourselves "that the
severity of the adjudged and approved sentence has
not been unlawfully increased by prison officials,
and to ensure that the sentence is executed in a
manner consistent with Article 55[, UCMIJ, 10
U.S.C. § 855,] and the Constitution." United States
v. White, 54 M.J. 469, 472 (C.A.A.F. 2001). See
also Erby, 54 M.J. at 478.
MSR Program
1. The Federal System
MSR is a relatively recent form of conditional
release for Department of Defense (DOD)
38a
prisoners, but supervised release has existed far
longer in the federal civilian system. "In the
Sentencing Reform Act of 1984, § 212(a)(2), 98
Stat. 1999, Congress eliminated most forms of
parole in favor of supervised release, a form of
postconfinement monitoring overseen by the
sentencing court, rather than the Parole
Commission." Johnson v. United States, 529 U.S.
694, 696-97, 146 L. Ed. 2d 727, 120 S. Ct. 1795
(2000).
Supervised release in the federal civilian system is
part of the sentence adjudged. 18 U.S.C. § 3583. n2
MSR functions as:
a form of government supervision after a
term of imprisonment. Unlike parole,
which has the effect of reducing the stated
term of imprisonment, supervised release
is a term of supervision in addition to, and
following, a term of imprisonment
imposed by a court. Supervised release is
similar to probation, with the exception
that supervised release follows a term of
imprisonment whereas probation cannot
be ordered if a term of imprisonment is
39a
imposed for the same or a different
offense.
Honorable Harold Baer Jr., The Alpha & Omega of
Supervised Release, 60 Alb. L. Rev. 267, 269
(1996) (citations omitted).
n2 See also 18 U.S.C. § 3551 (authorized
sentences); 18 U.S.C. § 3553(c) (imposition of a
sentence; the court, at the time of sentencing, shall
State in open court the reasons for its imposition of
the particular sentence); 18 U.S.C. App. § 5DI1.]
(imposition of a term of supervised release requires
the court to order a term of supervised release to
follow imprisonment when a sentence to
imprisonment of more than one year is imposed or
if required by specific statute).
2. The DOD
The DOD MSR program bears little resemblance to
the federal system's scheme of supervised release,
primarily because supervised release in the military
40a
is not imposed as part of an accused's sentence.
DOD's version of supervised release must be
considered with parole, given the interrclationship
between the two forms of release. Parole is defined
as a form of “conditional release from confinement
under the guidance and supervision of a U.S.
{United States] probation officer." DOD Directive
(DODD) 1325.4, Confinement of Military Prisoners
and Administration of Military Correctional
Programs and Facilities, E2.1.6 (17 Aug 2001).
"Parole may be granted until the expiration of a
prisoner's full sentence regardless of good conduct
time or other sentence reductions." DOD
Instruction ¢DODI) 1325.7, Administration of
Military Correctional Facilities and Clemency and
Parole Authority, P6.17.9.4 (17 Jul 2001). Parole is
voluntary, in that an inmate must apply and be
approved for participation. Before being released
on parole, the inmate must have an approved parole
supervision plan (projecting expected living
arrangements and employment situation) and agree
in writing to abide by the plan and the conditions of
supervision. Air Force Instruction (AFI) 31-205,
The Air Force Corrections System, P10.15 (9 Apr
2001).
4la
MSR was not explicitly defined in DOD
publications when the appellant was placed on
supervised release, although the narrative guidance
in DODI 1325.7 characterized MSR as a supervised
release for prisoners not granted parole prior to
their minimum release date. DODI 1325.7, PP 1.4,
6.20.1. MSR is now defined as "la] form of
conditional release granted to individuals who have
served their sentence to confinement up to their
MRD [minimum release date]. This form of release
is served until the [adjusted maximum release date],
unless otherwise revoked or remitted by the
Clemency and Parole Board concerned." DOD
1325.7-M, DOD Sentence Computation Manual,
AP 1.1.12 (27 Jul 2004).
Unlike the federal civilian system, MSR in DOD is
not part of the adjudged or approved sentence, and
the period of supervision docs not extend past a
prisoner's maximum release date. The purpose of
MSR is described in DODI 1325.7, P6.20.1.
The supervised release of prisoners who
arc not granted parole prior to their MRD
is a highly effective technique to provide
an orderly transition to civilian life for
released prisoners and to better protect the
42a
communitics into which such
prisoners are released. Accordingly, it
shall be the policy of the Department of
Defense to use supervised release in all
cases except where it is determined by the
Service Clemency and Parole Boards to be
inappropriate.
Like the DOD publications it implemented, AFI 31-
205 did not define MSR when the appellant was
placed on supervised release. n3 The current version
of the instruction describes the eligibility of
prisoners for MSR who are not approved for parole:
Mandatory supervision only applics to
inmates, whose approved finding of guilty
included at least one offense that occurred
on or after August 16, 2001. The
AFC&PB- will normally place _ the
following inmates, who are not paroled,
under supervised release on __ their
minimum release dates: an inmate
convicted of a violent offense or a sex
offense (sec sex offense list at Enclosure
27, DODI 1325.7), if they have an
43a
approved sentence to confinement of
12 months or greater; an inmate with an
approved sentence to confinement of 3
years or greater; and other inmates
deemed appropriate for
mandatory supervision by the
confinement/corrections facility
commander anid the AFC&PB. The
Board's decision is final. Inmates placed
on mandatory supervised release shall be
deemed as if on parole until the expiration
of their sentence to confinement.
AFI 31-205, P10.22 (emphasis _ added).
n3 In this opinion, subsequent references to MSR
from AFI 31-205 are from the current version of the
instruction dated 7 Apr 2004, unless otherwise
indicated.
Unlike parole, MSR is involuntary in the sense the
inmate does not apply for it. See DODI 1325.7, P1.4.
44a
The priméry distinction between MSR _ and
parole is program cligibility, which is based on
timing: an jnmate is eligible for MSR on his or her
minimum release date and for parole on his or her
"parole el gibility date." See AFI 31-205, P10.12. n4
n4 Eligib lity is the same under current and former
instructions.
In execution, MSR is virtually identical to parole.
An inmaéte selected for MSR must provide the
AFC&PE with a release plan and agree in writing to
abide by the plan and the conditions of supervision.
AFI 31-205, P10.15. "The prisoner's written relcase
plan shal] include, at a minimum, the same
provisions required of a parole plan." DODI 1325.7,
P6.20.2. MSR violations are "considered equivalent
to a violation of the terms and conditions of parole
and processed" according to parole revocation
procedures, DODI ~1325.7, P6.20.6. And, as
highlighted above, "Inmates placed on mandatory
4Sa
supervised release shall be deemed as if on
parole until the expiration of their sentence to
confinement." AFI 31-205, P10.22.
3. The Appellant's Supervised Release
In a 21 February 2003 memorandum notifying the
appellant of his MSR, the AFC&PB informed him
that failure to provide a release plan would make
him "subject to a disciplinary and adjustment board
and possible loss of good conduct time. thus
delaying your release." In a declaration from the
Revicw Board Manager at the Naval Consolidated
Brig Miramar submitted to this Court by the
appellant, he recalled that, "I told Airman Pena that
he was required to accept the conditions of the
[MSR] certificate and *hat, if he failed to do so, he
may be subject to another court-martial for failing to
obcy a lawful order and/or dereliction of duty. I also
told him that he would te subject to a disciplinary
board where he could forfeit good-time credit earned
and lose confinement privileges." On 17 May 2003,
the appellant submitted a memo to the Miramar brig
commander contesting the AFC&PB's decision to
place him in the MSR program. In a 10 July 2003
46a
declaration to this Court (originally submitted with
his extraordinary writ petition), the appellant
contended that he never received a response to his
memorandum. Based on matters submitted in
response to our 14 January 2005 order to provide
information and associated documents, it appears the
appellant decided in carly June 2003 to sign the
MSR paperwork.
The government construes the appellant's decision to
sign the MSR paperwork to mean he voluntarily
participated in the MSR. But, in his 10 July 2003
declaration, the appellant contended otherwise: "I
involuntarily agreed to those [MSR] terms and
conditions because | was ordered to do so and, if I
refused to do so, I was told I could be subject to a
court-martial and other disciplinary action, including
the loss of yood-time credit and confinement
privileges."
The appellant was required to sign an MSR
agrecment virtually identical to the standard parole
agreement used by the DOD. DODI 1325.7,
Enclosure 20. The basic MSR agreement in this case
contained 16 specific conditions, with 9 additional
47a
conditions with which the appellant "solemnly
promised to abide." The condition of most direct
concern to the appellant was participation and
progress in a community-based sex offender
treatment program, at his own expense, that "should
have a duration of at least 24 months" (according to
the agreement's conditions).
In his declaration, the appellant described the
hardships occasioned by the MSR program. He had
to proceed directly to his home of residence in
Illinois and was not allowed to stop in Colorado and
arrange for his household goods shipment. His
required participation in Alcoholics Anonymous
took 4 1/2 hours per week between attendance and
travel time. His approved sex offender treatment
program was tn Chicago, which met at mid-day on
Mondays and took 4 hours per week between
attendance and travel time, and cost him a $ 10
roundtrip train ticket to Chicago each time. And,
about every two wecks he had to report to his
probation officer (the MSR is administered through
federal probation officers) within 30 minutes of
being notified to provide a urine specimen,
regardless of his work commitments. He contends
48a
the combined conditions prevented him from
finding employment. There is no indication of any
problem with the appellant's actual participation in
the program.
With 72 days of confinement left to serve, the
appellant appeared to have only negative options if
he did not agrec to the MSR terms--lose his credits
and privileges and possibly face a second court-
martial. It scems counterintuitive that an inmate
would want to remain in jail, but this is a case where
there was some logic to it--the appellant would have
been released largely obligation-free on his
maximum release date.
The appellant signed the MSR agreement on 22 June
2003 and was released. The departure of an inmate
from the confinement facility is deemed to constitute
acceptance of the terms and condition of supervised
release. DODI 1325.7, P6.20.4.
MSR Legal Basis
There is no explicit statutory basis for a DOD
version of supervised release. However, the Service
Secretaries have been given broad authority to
49a
establish correctional facilities, manage inmate
populations, and develop a system for the release of
prisoners. Service Secretaries are required to provide
for the "education, training, rehabilitation, and
welfare of offenders" confined in military
correctional facilities. 10 U.S.C. § 951. Congress has
specifically provided for a system of parole in the
DOD. 10 U.S.C. § 952. And, each Secretary must
establish 2 system for the emission or suspension of
the unexecuted part of the sentences of selected
offenders. 10 U.S.C. § 953. It is apparent from the
legislation enacted in 10 U.S.C. §§ 951-953 that
Congress meant the Service Secretaries to have
broad discretion in the administration of corrections
facilities and treatment of personnel confined. n5
nS 10 U.S.C. §§ 951-953 Originated in House of
Representatives (H.R.) 5783, a 1968 bill introduced
in the House Committee on Armed Services. The
Provost Marshal of the Army testified that the
"principal purpose of H.R. 5738 is to atiain
uniformity among the Armed Forces in the
administration of military correctional facilities and
50a
the treatment of persons sentenced to
confinement under the Uniform Code of Military
Justice." Subcommittee No. 1 Consideration of H.R.
5783, to Amend Titles 10, 14, and 37, United States
Code, to Provide for Confinement and Treatment of
Offenders Against the Uniform Code of Military
Justice, 90th Cong. 8373 (1968) (statement of Major
General Carl C. Turner, Provost Marshal,
United States Army).
DOD implements these Title 10 provisions through
DODD 1325.4 and DODI 1325.7. The directive
charges the Service Secretaries to comply with Title
10, Chapter 48, Military Correctional Facilities, and
allows the Seéretaries to "consider release of eligible
prisoners from confinement under parole supervision
consistent with the ends of justice and public safety."
DODD 1325.4, P4.6.
Service Secretaries are directed to accomplish a
number of specific tasks, among them:
Issue regulations on the confinement of
military prisoners and administration of
military corrections programs and
Sila
facilities that are consistent with this
Directive. Provide programs for work.
education, training, rehabilitation. the
welfare of military prisoners, return to
duty, and clemency and parole that are
consistent with Chapter 47, Sections 801-
946, and Chapter 48, of 10 U.S.C.. and the
MCM [Manual for Courts-Martial.] Retain
clemency and parole authority over a
member of a Service in that Military
Department, including when the member
is located in a _ correctional facility
operated by another Military Department.
DODD 1325.4, P5.3 (subparagraph citations
omitted).
The Service Secretaries discharge _ their
corrections responsibilities through clemency
and parole boards. The boards assist the
individual Sccretaries in executing clemency
and parole authority and by scrving as the
primary departmental authority for
administration of clemency and parole
52a
policies and programs. DODI
1325.7, P6.16.3. The Secretary of the Air
Force created the AFC&PB to assist him as
required. AFI 31-205, P10.8.
The Air Force implements supervised release
through AFI 31-205. In explaining the
"Conditions for Release on Parole/MSR," the
instruction provides that:
The AFC&PB paroles inmates when it is
consistent with the ends of justice and as
soon as inmates demonstrate they can
assume the responsibilities of productive,
law-abiding citizens. Parole is not a means
to manage inmate populations. Prior to
release on parole, inmates must have an
approved supervision plan and agree in
writing to abide by the plan and the
conditions of supervision.
AFI 31-205, P 10.15. The “Parole/MSR"
paragraph caption is illustrative of the
instruction's guidance on MSR __ generally;
supervised release is clearly treated as a form of
parole.
3. Discussion
Although not assigned as a specific error, the
appellant urges us to find DOD's MSR program
to be illegal. He contends, by analogy to 10
U.S.C. § 952, that MSR must be statutorily
authorized and, because Congress has not done
so, DOD has exceeded its rulemaking authority
by creating an MSR program. We do not agree.
We conclude that DOD may establish a MSR
program option without explicit authority from
Congress. We read 10 U.S.C. §§ 951-953 to
grant the Service Secretaries the authority and
discretion to fashion programs for the release of
inmates. We do not construe Congress’ specific
authorization of parole in 10 U.S.C. § 952 to
prohibit other forms of conditional release not
specifically mentioned in the statute. The
legislative history indicates 10 U.S.C. § 952 was
intended to authorize each Service to have a
parole program. Moreover, Congress declined to
define what could constitute "parole" by
authorizing Service Secretaries to devise a
"system of parole.” 10 U-S.C. § 952.
54a
After considering the entire regulatory scheme,
we reach the inescapable conclusion that DOD's
MSR is, for all practical purposes, parole. It may
be an involuntary form of our traditional notion
of parole, in that the inmate does not ask or apply
for it, but it is parole nevertheless. n6 In gencral,
"parole" is the "release of a prisoner from
imprisonment before the full sentence has been
served." Black's Law Dictionary 1139 (7th ed.
1999). Apart from the differences in calculating
release eligibility dates, MSR and parole are
virtually indistinguishable. Therefore, we
conclude that MSR as devised and implemented
in the DOD is part of the "system of parole”
authorized by See a
n6 The federal civilian courts have reached
similar conclusions. "Supervised release is
essentially similar to parole. The nature of
supervised release, which is normally imposed to
follow a term of imprisonment, see 18 U.S.C. §
3583(a), is virtually the same as the nature of
5Sa
probation, which may be imposed in lieu of
imprisonment, sec 18 U.S.C. §§ 3561-3566
(1988). United States v. Meeks, 25 F.3d 1117,
1121 (2d Cir. 1994), Further:
Supervised release and parole are
virtually identical systems. Under
cach, a defendant serves a portion of
@ sentence in prison and a portion
under supervision outside prison
walls. If a defendant violates the
terms of his release, he may be
incarcerated once more under the
terms of his original sentence. More
specifically, a defendant's original
sentence determines the length of the
term of parole (indirectiy) or
supervised release (directiy). It is
also the original sentence _ that
establishes how long the defendant
may be required to serve following
revocation in the case of both parole
and supervised release violations.
Finally, it is the original sentence
56a
that is executed when the defendant
is returned to prison after a violation
of the terms of both parole and
supervised release.
United States v. Paskow, 1\ F.3d 873, 881 (9th Cir.
1993).
ls MSR Punishment?
In his second assigned error, the appellant contends
that the MSR terms and conditions amount to
punishment. Specifically, he claims that the
AFC&PB increased the severity of his sentence in
violation of Article 55, UCMJ, and the Eighth
Amendment, because he was forced to fulfill
conditions of mandatory supervision not authorized
by the UCMJ.
We review claims of crue! and unusual punishment
under the Eighth Amendment and Article 55, UCM],
de novo. United States v. Smith, 56 M.J. 290, 292
(C.A.A.F. 2002) (citing United States v. White, 54
57a
M.J. 469, 471 (C.A.A.F. 2001)). The Supreme
Court's Eighth Amendment jurisprudence applies to
issues raised under Article 55. UCMS, alleging
confinement was administered in a cruel and unusual
manner. United States v. Brennan, 58 M.J. 351, 353
(C.A.A.F. 2003). The Supreme Court has concluded
that an official violates the Eighth Amendment only
when two requirements are met: (1) the deprivation
alleged must be, objectively, a "sufficiently serious
act Or omission" that results in the denial of "the
minimal civilized measure of life's necessities," and
(2) the prison official must have a "sufficiently
culpable state of mind" amounting to "deliberate
indifference" to inmate health or safety. Farmer vy.
Brennan, 511 U.S. 825. 834, 128 L. Ed. 2d 8] 1, 114
S. Ct. 1970 (1994).
The MSR conditions imposed in the appellant's case
were neither cruel and unusual punishment under the
Farmer Eighth Amendment analysis, n7 nor cruel or
unusual punishment under Article 5$, UCMJ. See,
e.g., Brennan, 58 M.J. at 351; White, 54 M.J. at 469:
Erby, 54 M.J. at 476: United States v. Avila, 53 M.J.
99 (C.A.A.F. 2000); United States v. Sanchez, 53
M.J. 393 (C.A.A.F. 2000).
wr ere rene eens Footnotes ------------..-
58a
n7 See also Smith v. Doe, 538 U.S. 84, 105,
155L. Ed. 2d 164, 123 S. Ct. 1140 (2003)
(nonpunitive purpose of implementing
regulations/instructions).
te ile End Footnotes- - - -----------
Indeed, we do not construe the conditions of MSR as
punishment at all. "The infliction of punishment is a
deliberate act intended to chastise or deter. This is
what the word means today; it is what it meant in the
eighteenth century." Wilson v. Seiter, 50i U.S. 294,
300, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (quoting
Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.
1985)). Nothing in the record indicates a punitive
intent by the DOD, the Air Force, or the AFC&PB
in enacting and implementing MSR. Finally, unlike
the federal civilian system, supervised release in the
DOD is not itself punishment because it is not part
of the sentence. See generally United States v.
Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997).
Accordingly, we hold that the AFC&PB did not
increase the severity of the appellant's sentence in
violation of Article 55, UCMJ, and the Eighth
Amendment. n8
59a
n8 In light of our conclusion about the nature of
MSR, we need not decide whether the appellant
exhausted his administrative remedies prior to
alleging cruel and unusual punishment. We believe
the appellant could have requested modification or
removal of some or all MSR conditions through his
probation officer or to the AFC&PB. However, there
is no indication that avenuc was clearly explained to
him.
Jurisdiction to Review the Administration of MSR
We have concluded that there is adequate legal
authority for a DOD MSR program, and _ that
implementation of the program does not amount to
punishment in the military system. The issuc
remains whether we have jurisdiction to review the
actual administration of MSR in the appellant's case.
The appellant's first assigned error questioned
whether he was "improperly placed on excess
appellate leave and denied pay and allowances in
60a
violation of Article 76a, UCMJ, when his sentence
to confinement was not completed or remitted and
he was forced to fulfill conditions of mandatory
supervision upon his release from confinement."
Consistent with this Court's decisions in Towns and
Haymaker, we conclude that we do not have
jurisdiction to review MSR administration. Again,
we possess "no general supervisory authority with
respect to military justice or authority over actions
administering sentences of military prisoners."
Towns, 52 M.J. at 833. The administration of
sentences, to include placement of released inmates
on excess appellate leave, is a matter Icft to the
military departments. n9
n9 The Air Force procedures for required ‘and
voluntary excess leave are set out in AFI 51-201,
Administration of Military Justice, P9.12 (2 ‘Nov
1999), We note the instruction should, but does not,
explicitly mention MSR in the context of release of
inmates on parole and MSR.
6la
Grafting Federal MSR Practice into the Rules for
Courts-Martial
In his final two assignments of error, the appellant
would have us graft federal civilian MSR procedures
to court-martial practice and procedure. n10 In light
of our conclusions above, we find no basis to apply
the extensive, and fundamentally different, federal
civilian MSR scheme to military practice. There is
also no basis to require MSR consideration in
military presentencing procedure; it is well
established that members are sentenced without
regard to collateral administrative effects of the
sentence. United States v. Murphy, 26 M.J. 454, 457
(C.M.A. 1988); United States v. Griffin, 25 M.J.
423, 424 (C.M.A. 1988): United States y.
Quesinberry, 31 C.M.R. 195, 198, 12 C.M.A. 609
(C.M.A. 1962); Cf United States v. Hannan, 17 M.J.
L15, 123 (C.M.A. 1984) (holding that the military
judge was free to inquire whether accused and
counsel had discussed parole eligibility or other
possible collateral results of conviction, but was
under no obligation to do so).
62a
n10 The appellant contends the imposition of
conditions of mandatory supervision on him violates
the Due Process Clause because the military judge
did not announce a period of MSR or any of its
conditions as part of the sentence. The appellant
aiso contends that his pleas of guilty are improvident
because the military judge did not inform him prior
to accepting his pleas that he could be additionally
punished in unspecified ways.
Conclusion
The approved findings and sentence are correct in
law and fact, and no crror prejudicial to the
substantial rights of the appellant occurred. Article
64(c), UCMSJ; United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved
findings and sentence are
AFFIRMED.
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