              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
                           THE COURT EN BANC


                      UNITED STATES OF AMERICA

                                      v.

                         DAVID M. JONES
              LIEUTENANT COLONEL, U.S. MARINE CORPS
                         MILITARY JUDGE

                       STEPHEN P. HOWELL
              STAFF SERGEANT (E-6), U.S. MARINE CORPS
                      REAL PARTY IN INTEREST

                             NMCCA 201200264
        Review of Petition for Extraordinary Relief in the Nature of a
                             Writ of Prohibition

Sentence Adjudged: 29 April 2015.
Military Judge: LtCol D. M. Jones, USMC.
Convening Authority: Commanding General, Marine Corps
Recruit Depot/Eastern Recruiting Region, Parris Island, SC.
For Petitioner: Col Mark Jamison, USMC.
For Real Party in Interest: LT R. Andrew Austria, JAGC,
USN.

                           29 December 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MARKS, J., delivered the opinion of the court in which FISCHER,
S.J., HOLIFIELD, J., and CAMPBELL, J., concur. BRUBAKER, S.J.,
filed an opinion dissenting in part and concurring in part
joined by MITCHELL, C.J., KING, J., and RUGH, J.. PALMER, J.,
did not participate in the decision of this case.
MARKS, Judge:

     On 10 August 2015, the Government petitioned for
Extraordinary Relief in the Nature of a Writ of Prohibition
under the All Writs Act, 28 U.S.C. § 1651. The writ would
vacate the military judge’s (MJ) ruling directing the convening
authority (CA) to provide Staff Sergeant (SSgt) Howell
sentencing credit for illegal pretrial punishment from the date
his initial conviction was set-aside, 22 May 2014, until his
retrial on 29 April 2015. We stayed the post-trial proceedings
and now grant the Writ in part and deny it in part.

                         I.   Background

     On 12 October 2012, a general court-martial panel of
members with enlisted representation convicted SSgt Howell,
contrary to his pleas, of a violation of a general regulation,
rape, aggravated sexual contact, forcible sodomy, assault
consummated by a battery, and adultery, in violation of Articles
92, 120, 125, 128, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 920, 925, 928, and 934. The members sentenced
him to confinement for eighteen years, reduction to pay grade E-
1, total forfeitures, and a dishonorable discharge. The CA
approved the sentence and, except for the punitive discharge,
ordered it executed. SSgt Howell’s term of enlistment expired
on 26 November 2012 during post-trial confinement.

     On 22 May 2014, this court set aside the findings and
sentence of that court-martial for apparent unlawful command
influence and returned the record to the Judge Advocate General
for remand to the CA with a rehearing authorized. United States
v. Howell, No. 201200264, 2014 CCA LEXIS 321, unpublished op.
(N.M.Ct.Crim.App. 22 May 2014). The CA ordered a rehearing on
25 June 2014; SSgt Howell was released from confinement and
returned to active duty in a full-duty status the next day. He
was permitted to wear his pre-conviction rank insignia of E-6
and assigned commensurate duties. But, in accordance with
guidance from the Defense Finance and Accounting Service (DFAS)
General Counsel’s Office, SSgt Howell was paid as an E-1 while
awaiting his rehearing.

     On 17 September 2014, SSgt Howell filed a pretrial motion
seeking (1) restoration of back-pay from the date this court set
aside his sentence until that point and (2) restoration of pay
grade E-6 pay until a future sentence to reduction in pay grade.
The MJ denied the request to restore forfeited pay as premature
under Article 75(a), UCMJ, but ruled that SSgt Howell should be

                                2
paid as an E-6 pending his rehearing. The MJ concluded that
failure to pay SSgt Howell at pay grade E-6 following set aside
of his conviction amounted to illegal pretrial punishment in
violation of Article 13, UCMJ. Acknowledging no authority to
order the Government to pay SSgt Howell at pay grade E-6, the MJ
instead awarded one day of confinement credit for every day SSgt
Howell was paid at pay grade E-1 pending rehearing, from 22 May
2014 onward. The Government filed a motion for reconsideration,
and the MJ affirmed his earlier decision.

     On 29 April 2015, a general court-martial panel of members
with enlisted representation convicted SSgt Howell, contrary to
his pleas, of violating a lawful general order, abusive sexual
contact, and adultery, in violation of Articles 92, 120, and
134, UCMJ. The members sentenced SSgt Howell to confinement for
nine years, reduction to pay grade E-1, total forfeitures, and a
dishonorable discharge. Prior to the CA’s action, the
Government petitioned this court for a stay of post-trial
proceedings and the issuance of a Writ of Prohibition to vacate
the MJ’s ruling on confinement credit. We granted the stay of
post-trial proceedings pending resolution of the petition.

     II.   All Writs Act and Petition for Extraordinary Relief

A.   Jurisdiction

     By virtue of their Congressionally-prescribed appellate
functions, the military courts of appeals have the authority to
entertain petitions for extraordinary relief filed under the All
Writs Act, 28 U.S.C. 1651(a). Dettinger v. United States, 7
M.J. 216, 219-22 (C.M.A. 1979). SSgt Howell, the Real Party in
Interest, disputes our jurisdiction to consider the Government’s
petition in this case based on our inability to consider an
interlocutory appeal of the same ruling. Indeed, confinement
credit is not an enumerated order or ruling susceptible to
Government interlocutory appeal under Article 62, UCMJ. But the
Court of Appeals for the Armed Forces (CAAF) has repeatedly held
that Article 62 does not limit this court’s authority to
consider petitions for extraordinary relief. See United States
v. Dowty, 48 M.J. 102, 106-07 (C.A.A.F. 1998) (citing Dettinger,
7 M.J. at 219); see also United States v. Booker, 72 M.J. 787,
793-96 (N.M.Ct.Crim.App. 2013). SSgt Howell has offered no
precedent to the contrary.

     In its petition, the Government cites the unavailability of
Article 62 interlocutory review in support of its need for
extraordinary relief. As Judge Effron pointed out in his

                                 3
concurring opinion in United States v. Ruppel, 49 M.J. 247, 254
(C.A.A.F. 1998), the Government’s only means to appeal a
sentence credit is an extraordinary writ. In United States v.
Suzuki, 14 M.J. 491, 492 (C.M.A. 1983), the Court of Military
Appeals (CMA) expected that a CA would seek an extraordinary
writ if it believed an MJ had exceeded his or her authority to
award confinement credit. Therefore, we conclude that this
court has jurisdiction to entertain the Government’s petition.

      On petition for extraordinary relief from any party, this
court may “issue all writs necessary or appropriate in aid of
its jurisdiction and agreeable to the usages and principles of
law.” RULE FOR COURTS-MARTIAL 1203(b), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), Discussion; see also 28 U.S.C. § 1651(a), the
“All Writs Act.” We conclude this petition, seeking relief from
an MJ’s award of confinement credit for a violation of Article
13, UCMJ, requests an action in aid of our jurisdiction. We
turn now to the standard of review to guide our determination of
this writ’s necessity or appropriateness.

B.   Standard of Review

     Traditionally, appellate courts employed extraordinary
writs “to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Roche v. Evaporated
Milk Ass’n, 319 U.S. 21, 26 (1943) (citations omitted). The
Supreme Court has distinguished a writ from the ordinary
appellate court function of identifying reversible errors: “Its
office is not to control the decision of the trial court, but
rather merely to confine the lower court to the sphere of its
discretionary power.” Will v. United States, 389 U.S. 90, 104
(1967) (citation and internal quotation marks omitted).

     Our superior military court has prefaced discussions of
extraordinary writs by cautioning, “The writ of mandamus is a
drastic instrument which should be invoked only in truly
extraordinary situations.” United States v. Labella, 15 M.J.
228, 229 (C.M.A. 1983).1 Reversal of a trial judge’s
discretionary decision requires that the decision “amount ‘to a
judicial usurpation of power,’ United States v. DiStefano, 464

1
  Although the extraordinary writ at issue in Labella was a writ of mandamus
instead of a writ of prohibition, the case law does not draw a distinction
among the types of extraordinary writs when discussing the standard for
granting one. See e.g. Gray v. Mahoney, 39 M.J. 299, 303 (C.A.A.F. 1994);
Satterfield v. Drew, 17 M.J. 269, 274 (C.M.A. 1984).


                                      4
F.2d 845, 850 (2d Cir. 1972) or be        ‘characteristic of an
erroneous practice which is likely        to recur.’ Daiflon, Inc. v.
Bohanon, 612 F.2d 1249, 1257 (10th        Cir. 1979), rev’d, 449 U.S.
33 . . . (1980).” Id. (additional         citations omitted).

     To prevail on a writ of mandamus, the CAAF has also
required a petitioner to show “(1) there is no other adequate
means to attain relief; (2) the right to issuance of the writ is
clear and indisputable; and (3) the issuance of the writ is
appropriate under the circumstances.” Hasan v. Gross, 71 M.J.
416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist.
Court for D.C., 542 U.S. 367, 380-81 (2004)). Our superior
court has emphasized the need for clarity, certainty, urgency,
and necessity when wielding the power of the extraordinary writ.

     The Labella court introduced and defined “judicial
usurpation of power” as a judicial decision “amount[ing] to more
than even ‘gross error.’” 15 M.J. at 229. As for what
constitutes an “erroneous practice likely to recur,” the Tenth
Circuit’s opinion in Daiflon sheds some light. Daiflon v.
Bohanon, 612 F.2d 1249 (10th Cir. 1979), rev’d sub nom Allied
Chemical v. Daiflon, 449 U.S. 33 (1980). Petitioner Daiflon
sought an extraordinary writ, contending that a trial judge’s
order for a new trial “exemplified an erroneous practice likely
to recur.”2 Id. at 1251. In response, the Tenth Circuit
clarified the petitioner’s burden: “To obtain relief Daiflon
must, of course, demonstrate that its right is clear and
indisputable. . . . Daiflon is required to show that the order
was not only erroneous under normal standards of appellate
review, but also that the ruling is so extraordinary as to
evidence arbitrariness and a clear abuse of discretion.” Id.
(citations omitted).

     While we cannot trace the “clear and indisputable” language
in Hasan directly to Daiflon, the language recurring in these
opinions points us to a definitive standard. Clear and
indisputable means there is no debate; any reasonable
disagreement has been settled, and a consensus has taken hold.
To ignore well-established consensus is to abuse one’s
discretion and usurp one’s judicial power. With this high
standard in mind, we turn to the law governing the MJ’s decision
at issue in this case.

2
  Pointing to the trial judge’s earlier order of dismissal of their case,
which the Court of Appeals for the Tenth Circuit vacated, Daiflon argued the
trial judge misunderstood his authority and would likely dismiss their case
again. See 612 F.2d at 1251.


                                      5
                         III.   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 require to
     insure his presence, but he may be subjected to minor
     punishment during that period for infractions or
     discipline.

Art. 13, UCMJ, 10 U.S.C. § 813.3

     The CAAF has characterized illegal pretrial punishment as
“involv[ing] a purpose or intent to punish, determined by
examining the intent of detention officials or by examining the
purposes served by the . . . condition, and whether such
purposes are ‘reasonably related to a legitimate governmental
objective.’” United States v. King, 61 M.J. 225, 227 (C.A.A.F.
2005) (quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979); United
States v. McCarthy, 47 M.J. 162, 165, 167 (C.A.A.F. 1997)). See
also United States v. Smith, 53 M.J. 168, 172 (C.A.A.F. 2000)
(the Government must identify “a legitimate nonpunitive basis”
for placing pretrial restrictions on an accused). In United
States v. Fischer, 61 M.J. 415, 421 (C.A.A.F. 2005), the CAAF
condensed the disjunctive King test into “intent to punish or a
punitive effect.” Without establishing a requirement to do so,
the CAAF applied the seven factors from the Supreme Court’s
opinion in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169
(U.S. 1963), to help determine whether a law, regulation, or
policy exacts a punitive effect: (1) Whether the sanction
involves an affirmative disability or restraint; (2) whether it
has historically been regarded as a punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its
operation will promote the traditional aims of punishment --
retribution and deterrence; (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.



3
  This analysis focuses exclusively on the first prong of Article 13. SSgt
Howell was released from confinement awaiting his second trial and did not
complain of conditions of arrest. There is no evidence of a need for
pretrial restraint to ensure presence at trial or disciplinary infractions
requiring minor punishment.
                                      6
     Upon finding a violation of Article 13, MJs may award
confinement credit as a remedy: “The power of military judges to
grant sentence credit for pretrial confinement and restraint
tantamount to confinement is a judicially-created remedy,
adopted by this Court under our supervisory powers to enforce
Article 13, UCMJ.” Ruppel, 49 M.J. at 254 (Effron, J.
concurring) (citing United States v. Larner, 1 M.J. 371 (C.M.A.
1976)).

             IV.   MJ’s Analysis and Conclusions of Law

     The deferential standard of review discussed supra requires
us to examine the MJ’s ruling for a usurpation of judicial power
or clear and indisputable legal error. Doing so, we find the MJ
neither usurped his power nor committed a clear and indisputable
error by finding a violation of Article 13 and awarding
confinement credit. But we do find clear and indisputable error
in his calculation of confinement credit.

A.   MJ’s Application of the Article 13 Standard

     The MJ cited McCarthy and Fischer for the proposition that
finding illegal pretrial punishment required evidence of either
a Governmental intent to punish or a punitive effect. The MJ
acknowledged DFAS’s good faith and sense of stewardship, and he
ascribed the conflict to a reasonable disagreement about the
law. Nonetheless, the MJ concluded that DFAS’s policy lacked a
legitimate government purpose and inflicted a punitive effect.

     While we are under no obligation to apply the Mendoza-
Martinez factors in this case, they provide a useful framework
for identifying any punitive effect of DFAS’s policy. Fischer,
61 M.J. at 423 (Erdmann, J., dissenting). We can only speculate
as to conclusions the MJ might have gleaned from such an
analysis, but our analysis supports his finding of punitive
effect.

     1)   Affirmative disability of restraint. Reduction in pay
grade involves an affirmative disability or restraint, because
the service member receives less money. Admittedly, once a
member’s pay grade is reduced, affirmative action is required to
restore it. DFAS’s policy of continuing to pay a member as an
E-1 following set aside simply maintains the status quo. But
with each disbursement, DFAS makes a determination of a member’s
pay entitlement. The difference between compensation at a
member’s original and post-trial pay grades is concrete and


                                  7
quantifiable, and the member’s loss of pay pursuant to the
policy grows each pay period.

     2)   Historical perspective. Reduction in pay grade has
historically been regarded as a punishment, and it remains an
authorized punishment under the Uniform Code of Military
Justice. It is imposed most commonly via Article 15, UCMJ,
nonjudicial punishment, courts-martial, and pay grade
determinations associated with administrative separation for
misconduct, often pursued in lieu of court-martial.4 See R.C.M.
1003(b)(4); Art. 15(b)(2)(D). DFAS’s policy applies only
following a court-martial sentence.

     3)   Scienter. DFAS’s policy only comes into play on a
finding of scienter, either through a guilty plea at court-
martial or a verdict finding criminal scienter on the part of
the accused. The policy applies exclusively to service members
(1) who were convicted of UCMJ violations at court-martial, (2)
whose conviction and/or sentence was set aside, and (3) who face
rehearing or retrial upon their CA’s renewed probable cause
determinations that they committed alleged crime(s).

     4)   Retribution and deterrence. The DFAS policy promotes
the same traditional aims of punishment as the punishment of
reduction in pay grade itself. Deprivation of pay to hold a
service member accountable for criminal misconduct and the
consequential impact to personal finances are well-recognized
means to promote the traditional aims of punishment –
retribution and deterrence. DFAS and the dissent point to
fiscal law as the rationale behind the policy. But this
justification falls short. Even sincere belief in the
obligation to enforce an order does not shield the enforcer from
the consequences of that order.

     5)   Application to criminal behavior. The behavior to
which DFAS’s policy applies is necessarily a crime. First,

4
  Less common are non-punitive reductions of pay grade for performance
problems. For example, the Navy and Marine Corps provide for non-punitive
reduction in pay grade for incompetence. See Military Personnel Manual,
NAVPERS 15560D, § 1450-010, CH-11 (13 April 2005); Marine Corps Promotions
Manual, Marine Corps Order P1400.32D Ch 2, Volume 2, Enlisted Promotions,
Chapter 6, Nonpunitive Reductions (14 June 2012). The Army permits
administrative reduction of pay grade for inefficiency. See Army Regulation
600-8-19, Chapter 10, § III (2 February 2015). It is also possible to reduce
a member’s pay grade following discovery of erroneous promotion through
administrative error. See Financial Management Regulation, DoD 7000.14-R,
Volume 7A, Chapter 1, Table 1-5 Termination or Reduction of Active Duty Pay
and Allowances (May 2015).
                                     8
there must be a court-martial conviction, and an appellate court
must set aside all or part of the conviction or sentence. Then,
the CA must decide to re-prefer vacated criminal charges, prefer
new criminal charges, and/or convene a rehearing on the
sentence. DFAS’s policy does not apply unless a CA persists in
the prosecution of a crime.

     6)   Alternative purpose. DFAS asserts it withholds pay to
comply with fiscal law and legal precedent regarding entitlement
to pay following set aside of a court-martial sentence. As
previously stated, the agency that enforces a court-martial
order cannot disassociate itself from the effects of that order
by simply citing its legal obligation to enforce it.

     7)   Excessiveness. According to the precedent from our
superior court, the punitive effect of pay deprivation while
awaiting rehearing is not only excessive but unjustified.

     We conclude that the MJ did not commit a clear and
indisputable error in finding a punitive effect to DFAS’s
policy. We now turn to the CMA and CAAF case law on which the
MJ relied to find an Article 13 violation.

B.   CMA and CAAF Case Law Precedent

     Once a court-martial sentence is set aside and thus
invalidated, the Government can no longer execute it. A
member’s transition from serving a post-trial sentence to
awaiting a rehearing on a set aside conviction or sentence has
long presented questions for CAs and military courts. As
detailed below, our superior court has ruled on how UCMJ
Articles, Rules for Courts-Martial, and other federal
regulations apply to multiple forms of set aside punishment –
confinement, forfeiture, and reduction in pay grade.

     The CMA has held that “implicit in ordering a new trial is
a change in the accused’s status from sentenced prisoner to one
awaiting retrial.” Johnson v. United States, 42 C.M.R. 9, 10
(C.M.A. 1970) (citation omitted). No vestiges of the former
court-martial should linger, as:

      “[a]n order granting a new trial reopens the whole
      case, which then stands for trial de novo, and places
      the accused in the same position as if no trial had
      been had.” 24 CJS, Criminal Law, § 1511. As stated
      in Salisbury v Grimes, 223 Ga 776, 158 SE2d 412
      (1967), the grant of a new trial “wiped the slate

                                 9
      clean as if no previous conviction and sentence had
      existed.” See also Manor v. Barry, 62 Ariz 122, 154
      P2d 374 (1944), and 39 Am Jur, New Trial, § 204,
      wherein it is declared: ‘An order directing a new
      trial has the effect of vacating the proceedings and
      leaving the case as though no trial had been had.’

Id.

     The most conspicuous manifestation of the Johnson Court’s
clean slate requirement is the law regarding confinement. When
a sentence to confinement is set aside, the Government must
release the accused. Only if R.C.M. 305 and the criteria for
pretrial confinement are met can the Government leave the
accused in confinement. See Moore v. Akins, 30 M.J. 249 (C.M.A.
1990).

     Article 75, UCMJ, governs restoration of rights,
privileges, and property when a sentence is set aside, but it
affects issues of pay in particular. Two military cases
involving post-set aside restoration of pay and pay grade are
most relevant to our analysis of the MJ’s ruling in this case.
The first, Keys v. Cole, 31 M.J. 228, 230 (C.M.A. 1990),
established two important precedents: (1) the military courts’
unique jurisdiction to interpret Articles 13 and 75, UCMJ, in
the context of military pay and (2) the interpretations
themselves.

     Specialist (Spec.) Keys filed a petition for extraordinary
relief with two complaints: (1) his pay forfeited pursuant to
his original sentence had not been restored, and (2) he had not
been paid since the expiration of his enlistment period. Id. at
230. Presented with arguments invoking UCMJ Articles 13 and
75(a), the CMA commented on its uniquely appropriate
jurisdiction, even in the context of military pay:

           Moreover, the nature of the claims makes them
      peculiarly of the sort that is appropriate for this
      Court to consider. As to the claim for back pay, Keys
      relies upon an interpretation of various provisions of
      the Uniform Code of Military Justice and how they
      apply to a court-martial sentence that has been set
      aside by an appellate court. This is not the sort of
      theory that a court in the military justice system
      ought to defer to administrative processing as a
      predicate to the court's considering it.


                                10
Id. Early in its Keys opinion, the CMA acknowledged “the normal
pay channels to retrieve the disputed pay” but asserted its
superior expertise and jurisdiction with regard to UCMJ
provisions. Id. Later, the CMA reiterated that its
jurisdiction in matters of pay depended on the implication of a
UCMJ provision. Id. at 234. Ultimately deciding that Article
75(a) and pay regulations did not support his petition, the CMA
referred Spec. Keys to what was then the United States Claims
Court to pursue his claim for pay previously forfeited. Id.

     Addressing Spec. Keys’ claims, the CMA divided its opinion
into two subheadings, “Return of Forfeited Pay” and “Pay Pending
Rehearing.” The organization of the opinion reflected the
court’s bifurcated interpretation of Article 75(a), UCMJ –
looking backward vice forward from the point of set aside.
Spec. Keys argued that Article 13 compelled the Government to
return forfeited pay once the sentence was set aside. Id.
Citing Article 75(a), the CMA disagreed. However, the court
repeatedly suggested that continuing forfeitures post-set aside
might violate Article 13. In fact, the CMA cited Article 13
when clarifying its interpretation of Article 75(a):

    It is clear to us that the unambiguous language of
    this statute implies that, if a new trial or rehearing
    is ordered, as in this case, all property -- i.e.
    forfeitures -- will not be restored until that
    rehearing is held. Again, of course, this provision
    would not entitle the United States to continue in the
    interim to withhold pay otherwise due by relying on
    the forfeiture element of a set-aside sentence. See
    generally Art. 13; cf. Moore v. Akins, supra.

Id. at 232.

     Proceeding to its analysis of “Pay Pending Rehearing,” the
C.M.A. began:

    If an accused is in pretrial confinement awaiting
    rehearing, his pay status -- at least insofar as the
    Uniform Code of Military Justice is concerned --
    should be the same as if he had never been tried in
    the first instance.

Id. Like SSgt Howell, Spec. Keys was awaiting rehearing after
the Army Court of Military Review set aside the findings and
sentence from his prior court-martial. Id. at 229. In both
cases, their enlistment contracts expired during their initial

                               11
confinement. Id. But unlike SSgt Howell, Spec. Keys remained
in confinement. Id. at 230. Had Spec. Keys been released and
restored to full duty, his Article 13 argument regarding
deprivation of pay might have been successful. Id. at 232-33.
Citing DoDPM provisions5, the CMA concluded that service members
beyond their end of active obligated service (EAOS) but restored
to full duty status pending a rehearing are entitled to full pay
and allowances. Id. at 233. The remaining question is the pay
grade, addressed in the second pivotal case, United States v.
Combs, 47 M.J. 330, 332 (C.A.A.F. 1997).

     In Combs, the CAAF held that a command’s decision not to
restore a newly released service member’s rank and pay grade
while he awaited rehearing constituted illegal pretrial
punishment in violation of Article 13, UCMJ. The CAAF’s opinion
ratified the lower court’s matter of fact statement that without
an approved sentence to reduction in pay grade, a service member
is entitled to the privileges and pay of his or her original
rank pending a new, approved sentence. Id. The CAAF “agree[d]
with the Court of Criminal Appeals that reduction in rank is a
well-established punishment, which unlawfully imposed, warrants
sentence relief under [Article 13.]” Id. at 333. Finding “an
essentially unrebutted case for sentence relief under Article
13” stemming from this “unlawful demotion,” the CAAF awarded 20
months’ confinement credit, one month for each month Airman
Basic Combs served in a full-duty status as an E-1. Id.

     The circumstances of Technical Sergeant (TSgt) Combs’s
reduction in pay grade differ from those of SSgt Howell’s.
Following his release from confinement, TSgt Combs’s command
briefly allowed him to wear his E-6 rank. Id. at 332. But the
command quickly reversed its decision and required him to
replace his E-6 rank insignia and identification card with those
of an E-1, or Airman Basic. Id. Airman Basic Combs and SSgt
Howell both suffered the financial loss of receiving only E-1
pay. But unlike Airman Basic Combs, SSgt Howell regained his
visible rank and position, wearing an E-6’s uniform and
performing commensurate duties. Regardless of the difference in
degree of “ignominy” suffered, SSgt Howell still suffered a
quantifiable reduction in his pay grade.

     In his concurring opinion, Chief Judge Cox asserted that
reduction in rank pending rehearing violated Article 13, per se.

5
  The provisions of DoDPM paragraph 10317, “Term of Enlistment Expires,” now
appear, substantively unchanged, in the Department of Defense Financial
Management Regulation, DoD 7000.14-R, Volume 7A, Chapter 1, paragraph
010402.G, “Term of Enlistment Expires.”
                                     12
Chief Judge Cox discounted the legal arguments for reduction and
other restrictions imposed on Airman Basic Combs and focused
instead on the unrebutted effect of reduced rank and pay in
finding an Article 13 violation: “This case is simple to me. . .
. The point is the fact that his rank was reduced, not whether
such reduction was right or wrong as a matter of law.” Id. at
334 (Cox, C.J., concurring).

     From Johnson to Combs, our superior court has enforced the
Supreme Court’s interpretation of every service member’s
statutory right to pay. Section 204(a) of Title 37, U.S. Code,
entitles a member of a uniformed service on active duty to
“basic pay of the pay grade to which assigned or distributed, in
accordance with their years of service.” The Supreme Court
upheld this statutory entitlement in Bell v. United States, 366
U.S. 393, 401-02 (1961). “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 and status, however ignoble a soldier he
may be.” Id. (emphasis added) (footnote omitted).

C.        Starting Date for Confinement Credit

     In Keys, the CMA highlighted the significance of release
from confinement and return to full duty status in the DoDPM
regulations governing pay after “‘Term of Enlistment Expires.’”
31 M.J. at 233. The CMA ultimately concluded that because Spec.
Keys never left confinement or returned to full duty, the
regulations governing post-enlistment pay prevented restoration
of his pay. Id. The current version of that pay regulation6 is
substantively unchanged. When a member is confined following
court-martial, “pay and allowances end on the date the
enlistment expires unless the sentence is completely overturned
or set aside . . . . Pay and allowances will not accrue again
until the date the member is restored to a full-duty status.”7

     In Combs, the CAAF assigned confinement credit as of the
date of release from confinement and return to full duty, not
the set aside date. 47 M.J. at 334. Defining the parameters of
the illegal pretrial punishment, the CAAF limited credit to “the

6
  Department of Defense Financial Management Regulation, DoD 7000.14-R, Volume
7A, Chapter 1, section 010402 (May 2015).
7
    Id.


                                     13
period of time which [Airman Basic Combs] was on active duty and
suffered the ignominy and other harm from this unlawful
demotion.” Id.

     In this case, the MJ awarded confinement credit as of 22
May 2014, the date this court set aside SSgt Howell’s sentence.
The CA ordered a rehearing in his case on 25 June 2014, and SSgt
Howell was released from confinement and restored to full duty
on 26 June 2014. His enlistment contract had expired on 26
November 2012. Keys, Combs, and the pay regulations require
SSgt Howell be released from confinement and returned to a full-
duty status to receive pay past his EAOS. The MJ misattributed
the following passage in the Combs opinion to CAAF: “However,
he did not have an approved sentence for that misconduct and was
entitled to wear the rank of technical sergeant and to be paid
in that grade effective as of our October 8, 1992, decision
until such time as he had an approved sentence.” Id. at 332.
This language came from the Air Force Court of Criminal Appeals
(AFCCA) unpublished opinion, which was extensively reproduced in
the CAAF’s opinion. While the CAAF cited AFCCA’s conclusion,
they credited Airman Basic Combs for his reduction in pay grade
as of 20 October 1992, his date of release, not 8 October 1992,
the date of set aside. Id. at 334. The MJ failed to cite any
other support for his contrary conclusion that SSgt Howell
should receive credit for reduced pay when no pay was due.

D.   Application of Writ Standard

     Thus the Government has met its burden for a writ of
prohibition for the first 35 days of confinement credit but not
for the balance from 26 June 2014 until the effective date of
SSgt Howell’s subsequent court-martial sentence. We find the
award of confinement credit from 22 May through 25 June 2014 to
be a clearly and indisputably erroneous application of the law
to the facts. In awarding confinement credit for the period
before SSgt Howell’s release and return to full duty, the MJ
ignored settled case law and regulation and pointed to no
precedent supporting his chosen start date. His disregard of
settled precedent evinced an abuse of discretion and usurpation
of his judicial power.

     The Government has not, however, met its burden for a writ
of prohibition for the remaining confinement credit. The MJ did
not usurp his judicial power by ruling on SSgt Howell’s
complaint of illegal pretrial pay deprivation. The dissent
argues that the MJ exceeded his authority by entertaining a pay
claim, a matter reserved for DFAS and the Article III courts.

                                14
However, in Keys, the CMA explicitly asserted its right to
interpret Articles 13 and 75(a), UCMJ, in matters of pay. The
CAAF unreservedly exercised the same jurisdiction and awarded
Article 13 credit for pay grade reduction in Combs. Here, the
MJ followed this precedent and respected DFAS’s authority over
disbursement of pay by limiting his order to the award of
confinement credit and declining to issue any orders regarding
disbursement of pay. The MJ acted within the same sphere of
discretionary power the CAAF inhabited in Combs. See Will v.
United States, supra. As such, the Government has failed to
prove usurpation of judicial power.

     We further find no clear and indisputable error in the MJ’s
determination of illegal pretrial punishment following
restoration to full-duty. The MJ’s interpretation of Article
75(a) aligns with the CMA’s precedent in Keys. The CAAF’s
precedent in Combs and in particular Chief Judge Cox’s
concurrence accommodates any distinctions in the facts before
the MJ. Concluding that the MJ’s decision was a product of
unquestionably erroneous legal analysis requires ignoring
reasonable interpretations of applicable precedent from our
superior court.

     We need not address the MJ’s efforts to distinguish his
case from Dock v. United States, 46 F.3d 1083 (Fed. Cir. 1995)
and Combs v. United States, 50 Fed. Cl. 592 (Ct. Fed. Cl. 2001).
The decisions of the Federal Circuit, the Court of Claims, and
the CAAF leave gaps and seams where reasonable but conflicting
legal interpretations can arise. The conflicting
interpretations of DFAS and the MJ are evidence of dispute, not
clarity. While future statutory amendments or authoritative
court interpretations may prove the MJ wrong, the Government
cannot prove clear and indisputable error at this time. The
MJ’s interpretation of relevant, binding case law as it applied
to pretrial punishment is reasonable enough to provide him a
solid legal foundation from which to withstand a charge of clear
an indisputable error.

     The Government had no other mechanism with which to
challenge the MJ’s order of confinement credit and seek relief
for the CA. The right to issuance of the writ is clear and
indisputable with regard to the first 35 days of confinement
credit but not for the balance of credit for the days following
release from confinement and return to full-duty status. It
would not be appropriate to disregard our superior court’s
precedent and issue the writ to prevent confinement credit from


                               15
26 June 2014 onward, but it is appropriate for the first 35
days. See Hasan, 71 M.J. at 418.

                           Conclusion

     Accordingly, upon consideration of the Petition for
Extraordinary Relief in the Nature of a Writ of Prohibition, the
Petition is granted in part and denied in part. A Writ of
Prohibition is hereby issued vacating the MJ’s award of
confinement credit for the period from the set aside of sentence
on 22 May 2014 to the last day in confinement on 25 June 2014.
The Petition is otherwise denied. The stay in post-trial
processing is lifted.

     Senior Judge FISCHER, Judge HOLIFIELD, and Judge CAMPBELL
concur.


BRUBAKER, Senior Judge (concurring in part and dissenting in
part):

     I agree that if it was proper to award credit under Article
13, UCMJ, such credit should have begun running upon the real
party in interest’s (real party’s) release from confinement. I
thus concur in the portion of the opinion partially granting the
writ. But I would have found it improper to grant any credit
here. Unlike cases relied on by the majority, this case does
not implicate punitive actions by command or detention
officials——or any other government officials. It presents,
instead, a pure pay entitlement question. In my view, the
military judge misused Article 13 to litigate and remedy the
correctness of an agency’s good faith pay entitlement
determination. This conflicts with express Congressional intent
that such controversies are within the exclusive jurisdiction of
designated Article III courts. Extraordinary relief is
appropriate because the military judge’s ruling is an
unwarranted intrusion into those courts’ province, fails to
accord due respect to an agency pay determination, and is bound
to recur. I thus respectfully dissent from the portion of the
opinion partially denying the writ.

     The entire analysis of the military judge——and the
majority——regarding the applicability of Article 13 crumbles if
the real party was not entitled to pay at pay grade E-6 while
pending a rehearing. The United States Court of Appeals for the
Armed Forces (CAAF) has been consistent about this simple
premise: it is not illegal punishment to withhold pay from a

                               16
service member to which he is not statutorily entitled. United
States v. Fischer, 61 M.J. 415, 419-20 (C.A.A.F. 2005); United
States v. Allen, 33 M.J. 209, 215 (C.M.A. 1991). So if the real
party was entitled only to E-1 pay, failing to pay him at the E-
6 rate could not by itself be punishment——by whatever analysis
or factors one may apply.

     The central question the trial court faced, then, was the
correctness of Defense Finance and Accounting Service’s (DFAS)
pay determination——that is, litigation over whether the United
States owed the real party more pay. The pleadings and rulings
made no pretense about this. The real party’s pleading was,
after all, a “Motion for Appropriate Relief (Restore Pay Grade
and Back Pay).”1 And the military judge began his “Analysis and
Conclusions of Law” right out of the box by posing the pay
entitlement question——“Is the Accused entitled to pay at the E-6
rate while he is pending re-trial?”——then answering it——“YES.”2
He even conceded that “[t]he dispute centers on how to interpret
the law regarding at which rank the Accused should be paid
pending his rehearing.”3

     Such disputes belong in Congressionally-designated Article
III courts. Our superior court has explained:

          In the Tucker Act, 28 [U.S. Code] § 1491 (1982),
          Congress made such matters exclusively the province of
          the United States Claims Court or, where appropriate,
          the Federal District Courts, 28 USC § 1346. Cf. Bell
          v. United States, 366 U.S. 393, 81 S. Ct. 1230, 6 L.
          Ed. 2d 365 (1961). We have recently reaffirmed our
          position that such claims must be placed before those
          fora in view of their particular expertise in dealing
          with claims for pay. Keys v. Cole, supra; accord B-
          189465, 57 Comp. Gen. 132 (1977) (decisions of United
          States Court of Military Appeals strictly limited to
          matters of military justice and do not extend to
          status of servicemember's pay).

Allen, 33 M.J. at 215-16; cf. Keys v. Cole, 31 M.J. 228, 234
(C.M.A. 1990) (“[W]e hesitate . . . to interpret military-pay
regulations under circumstances where there is another court
whose expertise is in that area of the law.”). See also Jan's

1
    Appellate Exhibit II at 1.
2
    AE X at 6.
3
    Id.
                                    17
Helicopter Serv. v. FAA, 525 F.3d 1299, 1304 (Fed. Cir. 2008).

     The Court of Federal Claims not only had jurisdiction over
the real party’s complaint, but, if it ruled in his favor,
adequate remedies. See 28 U.S. Code § 1491(a)(2) (the Court of
Federal Claims “may, as an incident of and collateral to any
such judgment, issue orders directing restoration to office or
position, placement in appropriate duty or retirement status,
and correction of applicable records . . . .”). In fact, the
remedies available to the Court of Federal Claims would have
been far more apt than the only remedy in a military judge’s
arsenal: ordering early release from a lawfully-imposed prison
sentence.

     Perversely, the majority’s opinion gives those in the real
party’s position a disincentive to bring the issue to the court
that could rule authoritatively on the substantive pay question
and, if appropriate, directly remedy the purported pay shortage.
As I address further below, the Court of Federal Claims may well
be cool to the real party’s assertion that, contrary to the
agency determination, there is Congressional authorization to
pay him at the grade of E-6 while pending a rehearing. So why
would a future litigant take his chances before that court when
this court——a military court of criminal appeals——has found it
appropriate to grant confinement credit under the circumstances?
Nearly a year of credit, as awarded here, is a powerful
incentive to avoid the Court of Federal Claims and instead
litigate the pay entitlement question before a court-martial.

     The United States Court of Appeals for the Federal Circuit
has spoken forcefully about analogous efforts to avoid the Court
of Federal Claims’ exclusive jurisdiction:
     This court and its sister circuits will not tolerate a
     litigant's attempt to artfully recast its complaint to
     circumvent the jurisdiction of the Court of Federal
     Claims. . . . The circuits have consistently rebuffed
     such blatant forum shopping to avoid adequate remedies
     in an alternative forum.

Consol. Edison Co. of N.Y. v. United States, 247 F.3d 1378, 1385
(Fed. Cir. 2001) (citations omitted).

     The military judge’s ruling also bypasses the Secretary of
Defense’s expressly delegated authority to settle such claims
administratively. In 31 U.S. Code § 3702(a) Congress directs
that, except as otherwise provided by law, the Secretary of
Defense shall settle claims involving uniformed service members’

                               18
pay and allowances. Under this authority, for instance, the
Secretary has established the Defense Office of Hearings and
Appeals (DOHA), an administrative body with authority to
consider appeals from initial determinations and to affirm,
modify, reverse, or remand the determination. 32 C.F.R. 282;
DoD Instruction 1340.21 (May 12, 2004). Decisions from DOHA
carry the weight of a formal administrative adjudication and are
reviewed under a highly deferential “arbitrary and capricious”
standard. Miglionico v. United States, 108 Fed. Cl. 512, 523
(Fed. Cl. 2012).

     A court-martial ruling on the correctness of a pay
determination as here thus is contrary to express Congressional
intent for such disputes to be settled either administratively
by the Secretary of Defense or judicially by a designated
Article III court. I see no indication that Congress intended
Article 13 as offering an alternative forum to litigate good
faith agency pay determinations in a court-martial.

     This is not to imply that a court-martial is stripped of
its responsibility to address, in appropriate cases, whether a
deprivation of pay constitutes illegal pretrial punishment in
violation of Article 13. But this court should require a
disciplined approach to this analysis, strictly remaining within
the sphere established by Article 13 jurisprudence, while
mindful and respectful of the spheres occupied by executive
agencies and duly designated Article III courts. Otherwise,
left unchecked, lower courts may be tempted to use Article 13 to
grant relief for matters over which they lack jurisdiction and
competence. See, e.g., United States v. Reinert, No.
20071195/20071343, 2008 CCA LEXIS 526, *37-38 unpublished op.
(Army Ct.Crim.App. 7 Aug 2008) (“nothing in Article 13, UCMJ, or
any other article of the Code, authorizes a military judge to
sanction illegal pretrial punishment outside the bounds of the
court-martial over which he presides.”).

     The military judge, rather than respecting the sphere
occupied by Article III courts while analyzing an Article 13
claim, cast aside their rulings when inconsistent with his own
reading of pay regulations and statutes. See, e.g., AE X at 10
(“To the extent that the Dock Court4 rules that Article 75(a) is
an ‘entitlement to pay provision’ vice a ‘restoration’
provision, this Court rejects that proposition.”) (emphasis
added).

4
    Referencing Dock v. United States, 46 F.3d 1083 (Fed. Cir. 1995).


                                        19
     DFAS’s interpretation is also entitled to respect. DFAS
operates under the statutory auspices of 10 U.S. Code § 191.
Under this authority, the Secretary of Defense designated DFAS
as the single agency within the Department of Defense (DoD)
responsible for “providing finance and accounting services and
monitoring compliance with all statutory and regulatory
requirements within its functional area.” DoD Directive
5118.05, ¶4 (Apr. 20, 2012). Even if under this scheme, DFAS’s
determination does not merit the full measure of deference
accorded an administrative agency acting within an express
Congressional delegation, Chevron, U.S.A., Inc. v. NRDC, Inc.,
467 U.S. 837 (1984), it surely is owed at least the level of
respect envisioned in Skidmore v. Swift & Co., 323 U.S. 134
(1944). See Christensen v. Harris County, 529 U.S. 576, 587
(2000). Yet the military judge accorded it none, stating, “the
Court does not believe that the government is acting in complete
disregard for the rights of the Accused on an issue for which
there can be no reasonable debate. Rather, DFAS and the Court
simply disagree on what rank the Accused should be paid at
pending his re-trial.”5

     Proper application of Article 13——one according due respect
to DFAS’s determination and Article III courts with authority
over pay questions——does not start by deciding a pay matter over
which the court has no expertise or jurisdiction, then cloaking
a remedy under Article 13 to circumvent the court’s lack of
jurisdiction. It begins, instead, by assessing whether a
restriction or condition resulted from an intent or purpose to
punish, determining the latter by “examining the purposes served
by the restriction or condition, and whether such purposes are
‘reasonably related to a legitimate governmental objective.’”
United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005) (quoting
Bell v. Wolfish, 441 U.S. 520, 539 (1979)) (additional citation
omitted).

     As the military judge found, Government officials had no
intent to punish the real party. Indeed, command authorities
did everything in their power to comply with the law and to
remove all adverse consequences resulting from the original
conviction and sentence. The pay entitlement question was the
one matter over which they had no power. And DFAS, as the
military judge found, took a good faith position they believed
was backed by statutory and competent judicial authority that


5
  AE XLV at 5 (emphasis added). While the military judge uses the term “rank”
here, “pay grade” would be more accurate. As I explain later, these are not
coterminous and the distinction matters.
                                     20
there was no fiscal authority to pay the real party at his
former grade.

     This squarely differentiates this case from United States
v. Combs, 47 M.J. 330 (C.A.A.F. 1997). There, command
authorities stripped the appellant of his rank, ordering him to
remove his rank from his uniform and to secure a new
identification card showing him in the grade of E-1 and
forbidding him from wearing his previous rank. Combs, 47 M.J.
at 331. In its opinion, a plurality of the CAAF included a long
block quote from the lower court’s unpublished opinion,
including a claim that the appellant was “entitled to wear the
rank of technical sergeant and to be paid in that grade . . . .”
Id. Without specifically endorsing this claim, the plurality
concluded that the appellant’s affidavit was “unrebutted and
unequivocally established the punitive intent of command
authorities towards this servicemember.” Id. at 332 (emphasis
added) (citations omitted). Based on this, it found that the
appellant was entitled to confinement credit for the period of
time that he “suffered the ignominy and other harm from the
unlawful demotion” while pending a rehearing. Id. at 334.

     Here, in contrast, there is not a shred of evidence of
punitive intent by command authorities——as both the military
judge and the majority acknowledge. Command efforts not to
punish the real party included allowing him to wear and present
himself in the rank of Staff Sergeant. He was thus freed of the
ignominy suffered by Technical Sergeant Combs. And the decision
to pay him at the E-1 rate was no mere local command decision.
It was a good-faith agency determination based on a DoD-wide
policy that there was no statutory authorization to pay the real
party at the E-6 rate.

     Even if one can read the plurality’s opinion as
substantively ruling that Combs was entitled to be paid at the
E-6 rate while pending a rehearing——a dubious proposition——this
was directly undermined by the very court with jurisdiction to
determine such matters. In Combs v. United States, the Court of
Federal Claims held that “[g]iven the fact that [Article 75], as
interpreted by the Dock court, clearly operates to entitle
plaintiff only to E-1 pay, any decision of a prior court
awarding him E-6 pay would be clearly erroneous.” 50 Fed. Cl.
592, 604 (Fed. Cl. 2001) (footnote omitted). It went on to note
that the CAAF, while lacking jurisdiction over pay matters, does
have jurisdiction over whether Article 13 was violated and that
it may find a violation based on factors beyond a pure pay
entitlement question, such as when a command takes a lawful

                               21
action but is motivated by a punitive intent. Id. (citing
United States v. Washington, 42 M.J. 547, 562 (A.F.Ct.Crim.App.
1995). To contrast, this case does involve a pure pay
entitlement question, and there is no indication that command
authorities were motivated by punitive intent. The military
judge’s——and the majority’s——reliance on the CAAF’s decision in
United States v. Combs, then, is misplaced.

Analyzing Punitive Purpose

     The key to assessing punitive purpose is not whether a
military criminal court agrees with DFAS’s interpretation, but
whether in making the determination, DFAS was pursuing a
legitimate governmental interest. That interest——adherence to
fiscal law and only paying claims to which the recipients are
positively entitled——is more than legitimate. It is mandatory.
DFAS is not free to pay a service member based on what a
military judge might deem fair or equitable or even right in his
own mind. Indeed, DFAS is statutorily prohibited from making or
authorizing an expenditure unless expressly authorized by law.6
That authorization derives from Congressional statutes, not
rulings by a military criminal court. See Office of Pers. Mgmt.
v. Richmond, 496 U.S. 414, 424-25, 432 (1990) (“‘no money can be
paid out of the Treasury unless it has been appropriated by an
act of Congress’” and “‘not a dollar of [the Treasury] can be
used in payment of any thing not thus previously sanctioned.
Any other course would give to the fiscal officers a most
dangerous discretion’”) (quoting Cincinnati Soap Co. v. United
States, 301 U.S. 308, 321 (1937) and Reeside v. Walker, 52 U.S.
272 (1851)). See also Dock, 46 F.3d at 1086.

     Of course, the legitimacy of the governmental interest
would be undermined if the pay determination were unreasonable
or plainly contrary to controlling fiscal law. That is not the
case here. DFAS’s interpretation is, instead, a faithful and
reasonable reading of Article 75(a) as interpreted by courts
with competent jurisdiction over fiscal law matters. The Court
of Federal Claims in Combs, applying the principles of Dock, 46
F.3d at 1087-88, rejected the claim that Combs was entitled to
pay at the E-6 rate while a rehearing on his court-martial was
pending. Because the original sentence and the sentence on
rehearing both included reduction to pay grade E-1, he was
entitled to pay only at the pay grade of E-1. Combs, 50 Fed.

6
  31 U.S. Code § 1341 (“No money shall be drawn from the Treasury, but in
consequence of Appropriations made by Law.”) (“Anti-Deficiency Act”).
Officials who violate the Act face administrative discipline and criminal
sanctions, including fines and imprisonment. 31 U.S. Code §§ 1349, 1350.
                                     22
Cl. at 600. The Court of Federal Claims stated explicitly that
Combs’ “only right to pay is what Congress has given him, and in
this case, Congress clearly has said, with [Article 75(a)], that
[Combs] is entitled to the E-1 rate only.” Id. at 605 (citation
omitted).

     Without straying into the Court of Federal Claims’ lane and
prognosticating on how it would rule on this matter during the
pendency of a rehearing vice after it, it should suffice to say
that DFAS had a legitimate governmental interest in determining
that Dock and Combs, read together, indicate a lack of fiscal
authority to pay the real party at the E-6 rate. A court-
martial simply is not the proper venue to litigate the
correctness of this good faith, reasonable agency interpretation
of fiscal law. As the CAAF said in Fischer, “[i]f 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.” 61 M.J. at 421.

Analyzing Punitive Effect

      I agree with the majority that it is uncertain that the
military judge was required to apply the factors enunciated in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)7, but I
disagree that, assuming they apply, application of those factors
supports the military judge’s conclusions. I would analyze the
factors as follows:

1.   Affirmative Disability or Restraint. Not paying a service
member pay to which he is not entitled is not an affirmative
disability or restraint. Fischer, 61 M.J. at 419-20 (“it is
difficult to characterize this as an affirmative disability
because Appellant, and those in his position, are not entitled
to be paid.”) (citation omitted). Also, the nature of a
reduction in pay grade is different from uncollected
forfeitures. Once a reduction is effected, the service member
is permanently assigned the lower pay grade absent an
affirmative promotion or restoration to the previously-held
grade. But forfeitures are collected——and thus executed——one
paycheck at a time.
2.   Historical Perspective. While reduction in pay grade
itself is historically regarded as punishment, paying the real

7
  See Fischer, 61 M.J. at 419 (“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 . . . .”).
                                     23
party at the pay grade to which entitled cannot be so regarded.
Id. (“Where Appellant was not entitled to payment, nothing could
have been forfeited.”)
3.   Scienter. DFAS’s policy is triggered by objective facts: a
court-martial sentence including reduction in pay grade; a
subsequent decision setting aside the sentence with a rehearing
authorized; and a convening authority’s action ordering a
rehearing. It applies to a class of people with no
consideration given to the service member’s state of mind or
consciousness of wrongdoing.
4.   Retribution and Deterrence. The policy attempts only to
effect Congressional intent as interpreted by courts of
competent jurisdiction on a pay entitlement based on neutral
facts. Particularly given that the pay entitlement did not
affect the real party’s rank of Staff Sergeant and the respect
and other privileges attendant to that rank, the policy did not
promote retribution and deterrence.
5.   Application to Criminal Behavior. The behavior to which
the policy applies——pending a rehearing on a set-aside sentence,
whether or not the underlying guilt is sustained——is not already
a crime.
6.   Alternative Purpose. As discussed above, a powerful
alternative purpose to which the policy may rationally be
connected is assignable: adherence to fiscal law. Paying a
service member only as authorized by Congress is mandatory and
cannot be viewed as punishment.
7.   Excessiveness. An accused in this position continues to
receive full pay and allowances, albeit at the E-1 pay grade.
If that is all he is entitled to, it cannot be viewed as
excessive.
     Thus, assuming that the Mendoza-Martinez factors apply,
they lead to the conclusion that DFAS paying the real party in
accordance with its good-faith interpretation of fiscal law did
not have a punitive effect.

Misconceptions in the Military Judge’s Analysis

     Finally, I wish to address three misconceptions in the
military judge’s analysis:

     1. The real party’s performance of Staff Sergeant duties
entitled him to E-6 pay. It did not. “A member's pay is
defined by act of Congress and is not a quid pro quo for
                               24
services rendered to the military.” Dock, 46 F.3d at 1086.
Rank and pay grade, moreover, are closely associated but not
coterminous. Entitlement to pay at one pay grade and
authorization to wear a higher rank is not foreign to the
military. Frocking of enlisted personnel in the Marine Corps
exemplifies an administrative authorization to do just that.8
Command authorities allowing the real party to wear Staff
Sergeant and to perform commensurate duties to avoid the
ignominy of a reduction does not equate to fiscal authorization
to pay him at the E-6 rate.

     2. Paying the real party at the reduced rate is offensive
to the Constitutional presumption of innocence. First, DFAS’s
interpretation required no adverse presumption: by their
reading, because there is no positive Congressional authority
otherwise, an accused is not entitled to pay at the higher grade
unless the rehearing fails to include a sentence of reduction in
pay grade. This is no different from withholding already-
collected forfeitures of pay. Second, this was a pretrial,
administrative determination. As the Supreme Court said in the
context of pretrial confinement, “[t]he presumption of innocence
is a doctrine that allocates the burden of proof in criminal
trials . . . . Without question, [it] plays an important role
in our criminal justice system. . . . But it has no application
to a determination of the rights of a pretrial detainee during
confinement before his trial has even begun.” Wolfish, 441 U.S.
at 533. Likewise, the presumption of innocence, crucial to an
accused’s right during the trial to sit silent and require the
Government to prove his guilt, has no application to a pretrial
administrative determination regarding his pay entitlement.

     3. The military judge found that a DoD regulatory
provision9 was “exactly on point”10 and favored the real party——
despite the provision facially pertaining to forfeitures, not
reduction in pay grade. DoD pay regulations treat these two
distinct punishments distinctly.11




8
     Marine Corps Order P1400.32D, paragraph 4500.
9
     DoD 7000.14-R (DoDFMR), Vol. 7A, Chapter 48, Section 480802.A.
10
     AE X at 8.
11
     See, e.g., DoDFMR 4803 and 480801.
                                          25
Appropriateness of Extraordinary Relief

     The military judge’s misapplication of Article 13 to
settle a pay dispute was more than gross error. It strayed
from the limited jurisdiction of a court-martial, see
Denedo v. United States, 66 M.J. 114, 134 (C.A.A.F. 2008)
and Article 18, UCMJ (“general courts-martial have
jurisdiction to try persons subject to this chapter for any
offense made punishable by this chapter . . . .”), and into
the special province of Article III courts Congressionally
empowered to settle controversies over military pay. 28
U.S. Code § 1491.

     If allowed to stand, this erroneous use of Article 13
is also likely to recur. DFAS must look to positive law——
Congressional statutes as interpreted by courts of
competent jurisdiction over pay matters——to determine pay
entitlements. Decisions of this or any criminal court
cannot create authorization to pay those pending a
rehearing at a certain pay grade. So we have a stand-off:
Article I criminal courts on one side, holding that persons
pending a rehearing are entitled to pay at their previously
held pay grade and to sentence relief if paid otherwise;
and an executive agency on the other, faithfully applying
competent fiscal authority to find the opposite: that such
payments are not authorized by the law. Because DFAS
cannot change its policy based on a criminal court ruling,
its policy must continue. Future litigants in the real
party’s position, naturally, will continue to seek
confinement credit rather than placing the substantive
question before the court with legitimate authority to
answer it. Under these circumstances, I would find that
issuing the writ is necessary “to confine the lower court
to the sphere of its discretionary power.” Will v. United
States, 389 U.S. 90, 104 (1967).

    Chief Judge MITCHELL, Judge KING, and Judge RUGH join.

                             For the Court



                             R.H. TROIDL
                             Clerk of Court




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