UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         TOZZI, CAMPANELLA, and CELTNIEKS
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Private E1 JOSHUA A. HAUSER
                          United States Army, Appellant

                                    ARMY 20130734

                        Headquarters, 1st Cavalry Division
                        Rebecca Connally, Military Judge
               Colonel R. Tideman Penland Jr., Staff Judge Advocate


For Appellant: Lieutenant Colonel Peter Kageleiry Jr., JA; Major Robert N.
Michaels, JA; Major Daniel E. Goldman, JA (on brief); Major Yolanda McCray
Jones, JA; Major Daniel E. Goldman, JA (on reply brief) .

For Appellee: Colonel John P. Carrell, JA; Major Steven J. Collins, JA; Captain
Carling M. Dunham, JA (on brief).


                                   18 December 2014

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                                SUMMARY DISPOSITION
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CAMPANELLA, Judge:

        A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of absence without leave (AWOL), one
specification of willful disobedience of a superior commissioned officer, two
specifications of violating a lawful general regulation, one specification of violating
a lawful general order, one specification of false official statement, and one
specification of wrongful use of a controlled substance, in violation of Articles 86,
90, 92, 107, and 112a, Uniform Code of Military Justice, 10 U.S.C. § § 886, 890,
892, 907, 912a (2006) [hereinafter UCMJ]. The military judge sentenced appellant
to a bad-conduct discharge and confinement for 120 days, and credited appellant
with 84 days of confinement credit against the sentence to confinement. The
convening authority approved the sentence as adjudged including the confinement
credit.
HAUSER—ARMY 20130734

       This case is before our court for review under Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion but no relief.
Appellant alleges he did not receive appropriate sentencing credit, pursuant to
United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), for punishment he served as a
result of non-judicial punishment (NJP) for the same offense for which he was later
court-martialed and punished. Appellant requests the case be remanded for either a
sentence rehearing or fact-finding hearing to allow for a recalculation of his
punishment in light of his NJP. We disagree. 1

                                  BACKGROUND

       On 18 December 2012, appellant received NJP under Article 15, UCMJ, for
possessing and using spice on or about 8 November 2012. The record of trial neither
reflects any additional charges for which appellant may have been punished in that
NJP nor the specific punishment appellant received as a result.

       At trial on 16 August 2013, appellant, among other offenses, was charged
with and convicted of wrongfully violating a lawful general regulation by possessing
spice during the period between 16 October 2012 and 16 November 2012. The
stipulation of fact in this case states in pertinent part:

             On 18 December 2012, [appellant] received Field Grade
             Article 15 punishment for “spice” possession and use
             incident on or about 8 November 2012. As part of his
             punishment, [appellant] was restricted to the confines of
             Fort Hood. On or about 25 December 2012, [appellant]
             did not report for duty and remained absent until on or
             about 28 December 2012 . . . .

             When [appellant] returned from AWOL on or about 28
             December 2012, he was ordered to continue to serve his
             Article 15 punishment. However, on or about 14 January
             2013, the accused again left without authorization and did
             not return until on or about 5 February 2013 . . . .

             Upon return from AWOL on or about 5 February 2013,
             [appellant’s] Article 15 punishment resumed, and ag ain,
             he was restricted in accordance with the punishment order.
             However, on 25 February 2013, the accused again left
             without authority . . . .

1
 Appellant’s personal submission made pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), does not warrant relief.



                                          2
HAUSER—ARMY 20130734


Appellant’s NJP and the ensuing punishment were discussed in similar fashion
consistent with the stipulation of fact during the providence inquiry. 2

        Neither side objected to the military judge’s pretrial confinement credit
calculation of 84 days. The credit included 10 days of civilian confinement from 13
to 22 May 2013 followed by 74 days of additional pretrial confinement credit from 4
June to 16 August 2013. Appellant did not specifically mention the issue of Pierce
credit for his NJP either during trial or in his clemency submissions. The record of
trial contains no copy of appellant’s NJP.

                             LAW AND DISCUSSION

       Where one is prosecuted for the same conduct for which non -judicial
punishment has been previously imposed, “an accused must be given complete credit
for any and all non-judicial punishment suffered: day-for-day, dollar-for-dollar,
stripe for stripe.” United States v Pierce, 27 M.J. 367, 369 (C.M.A. 1989); see also
United States v. Porter, ARMY 20090974, 2010 CCA LEXIS 355, at *3 (Army Ct.
Crim. App. 20 Oct. 2010) (summ. disp.) ("Pierce credit is only granted if the court-
martial offense for which an accused is sentenced is substantially identical to the
prior Article 15 punishment offense.") (citing United States v. Bracey, 56 M.J. 387,
389 (C.A.A.F. 2002)).

      The accused is the gatekeeper regarding if, when, and how prior non-judicial
punishment for the same offense will be presented, considered, and credited.

         The accused may: (1) introduce the record of the prior NJP for
         consideration by the court-martial during sentencing; (2)
         introduce the record of the prior NJP during an Article 39(a),
         UCMJ, . . . session for purposes of adjudicating credit to be
         applied against the adjudged sentence; (3) defer introduction of
         the record of the prior NJP during trial and present it to the
         convening authority prior to action on the sentence; or (4)
         choose not to bring the record of the prior NJP to the attention
         of any sentencing authority. In that regard, we note that an
         accused may have sound reasons for not presenting the record
         of the prior NJP to any sentencing authority. Absent a

2
  The only difference between the stipulation and the colloquy is that appellant
indicated during the colloquy that between t he period of 15 January 2013 and 25
February 2013, after a week or two of restriction to a conference room, he got his
own barracks room. That said, he also indicated he had been performing extra duty
the night he went AWOL, even though by that time, he w as staying in a barracks
room.


                                         3
HAUSER—ARMY 20130734

         collateral issue, such as ineffective assistance of counsel,
         failure to raise the issue of mitigation based upon the record of
         a previous NJP for the same offense prior to action by the
         convening authority waives an allegation that the court-martial
         or convening authority erred by failing to consider the record
         of the prior NJP.”

United States v. Gammons, 51 M.J. 169, 183 (C.A.A.F. 1999) (emphasis added).

       While it seems appellant received NJP for at least one offense for which he
was later court-martialed, appellant chose “not to bring the record of the prior NJP
to the attention of any sentencing authority”. Id. (emphasis added).

       Although offered the opportunity by the military judge to comment on pretrial
confinement credit, appellant specifically declined to do so. Appellant also failed to
raise the issue to the convening authority. This case is distinct from this court’s
decision in United States v. Piompino, ARMY 20010126, 2002 CCA LEXIS 349, at
*4 n.2 (Army Ct. Crim. App. 29 Mar. 2002) (mem. op.), where Piompino’s appellate
defense counsel conditionally submitted an unauthenticated copy of the NJP
proceedings. We have no copy of the NJP in the record before us. Accordingly, we
have no way of determining the extent of appellant’s NJP, and we have no record to
determine how much or how little Pierce credit to award appellant. Appellant has
failed to meet his burden on this issue.

                                   CONCLUSION

       On consideration of the entire record and the submissions of the parties, we
hold the findings of guilty and the sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                                JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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