                         UNITED STATES, Appellee

                                         v.

                         Rollan D. MEAD, Private
                           U.S. Army, Appellant

                                  No. 13-0459
                         Crim. App. No. 20110717

       United States Court of Appeals for the Armed Forces

                          Argued October 9, 2013

                       Decided November 21, 2013

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.

                                     Counsel


For Appellant: Captain Matthew M. Jones (argued); Colonel Kevin
Boyle, Lieutenant Colonel Peter Kageleiry Jr., and Major Jacob
D. Bashore (on brief); Lieutenant Colonel Imogene M. Jamison,
Major Amy E. Nieman, and Captain Robert A. Feldmeier.

For Appellee: Captain Samuel Gabremariam (argued); Colonel John
P. Carrell, Major Catherine L. Brantley, and Major Robert A.
Rodrigues (on brief); Captain Edward J. Whitford.

Military Judge:    James Varley




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mead, No. 13-0459/AR


     Judge STUCKY delivered the opinion of the Court.

     Appellant pled guilty to, and was convicted of, an offense

for which he had previously accepted nonjudicial punishment

(NJP) pursuant to Article 15, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 815 (2012).   After announcing the sentence,

the military judge explained how, in reaching the adjudged

sentence, he had compensated Appellant for the previous NJP.    We

granted review to determine whether Appellant was entitled to

have credit for the NJP applied to the sentence approved by the

convening authority pursuant to the pretrial agreement, as

opposed to the sentence adjudged at trial, and whether he was

entitled to restoration of the pay he had lost as a result of

the reduction in rank he suffered due to the NJP.   We hold that

Appellant was not entitled to have credit for the NJP applied

against the approved sentence or to be compensated for the pay

he lost due to the reduction in grade imposed at the NJP.

                      I. Posture of the Case

     In exchange for the convening authority’s agreement to cap

his sentence to confinement to twenty-four months, Appellant

pled guilty to, and was convicted of, drunken operation of a

vehicle, wrongful use of amphetamine, and involuntary

manslaughter by operating a motor vehicle in a culpably

negligent manner.   Articles 111, 112a, and 119, UCMJ, 10 U.S.C.

§§ 911, 912a, 919 (2012).   The military judge sentenced


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United States v. Mead, No. 13-0459/AR


Appellant to a bad-conduct discharge, confinement for thirty-

eight months, and forfeiture of all pay and allowances.

Pursuant to the pretrial agreement, the convening authority

reduced the period of confinement to twenty-four months, but

otherwise approved the adjudged sentence.     The United States

Army Court of Criminal Appeals affirmed.     United States v. Mead,

72 M.J. 515 (A. Ct. Crim. App. 2013).

                            II. Background

        On February 3, 2010, the brigade commander imposed NJP on

Appellant for the wrongful use of amphetamine between November

22 and 25, 2009, which was discovered during a unit urinalysis

inspection.    Punishment consisted of reduction from E-4 to E-1;

forfeiture of pay, suspended until August 2010; forty-five days

of extra duty; and an oral reprimand.

        On May 7, 2010, while driving drunk and fifteen miles per

hour over the speed limit of fifty miles per hour, Appellant

lost control of the vehicle he was driving, causing it to flip

over.    Appellant’s passenger, although wearing a seat belt,

suffered severe head trauma, causing his death.     The commander

did not vacate the suspension of Appellant’s NJP forfeiture,

which was later automatically remitted.      Instead, on February

10, 2011, when charges were preferred for voluntary manslaughter

and drunk driving, Appellant was also charged with the same use




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United States v. Mead, No. 13-0459/AR


of amphetamine for which he had been nonjudicially punished on

February 3, 2010.

     The military judge and counsel discussed, in a Rule for

Courts-Martial (R.C.M.) 802 conference before arraignment, that

Appellant had previously been punished under Article 15, for the

use of amphetamine charged in the Specification of Charge II.

The military judge summarized on the record that part of the

conference, as follows:

          We, also, went over issues of whether there’d
     been any pretrial confinement or pretrial punishment
     of the accused, as well as discussed the fact that the
     accused has, apparently, been punished for what has
     been charged as a specification of Charge II, that is
     the wrongful use of Amphetamines at a prior non-
     judicial punishment proceeding, which would appear to
     require that the accused receive [United States v.]
     Pierce[, 27 M.J. 367, 369 (C.M.A. 1989)] Credit toward
     any sentence adjudged by this court.

     Although offered the opportunity to contradict or add

anything, the defense specifically declined to do so.

     As part of his pretrial agreement, Appellant agreed to

enter into a stipulation of fact to be used during the plea

inquiry and by sentencing and reviewing authorities.    That

stipulation provided, in part, as follows:

     2.k. Between 22 November 2009 and 25 November 2009,
     Private Mead used amphetamine. The unit conducted a
     100 percent urinalysis in which Private Mead submitted
     a urine sample. Private Mead knew that the substance
     that he had willingly consumed was amphetamine when he
     used it, and Private Mead had no legal justification
     for using amphetamine. As a result, Private Mead was
     punished under Article 15, Uniform Code of Military


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United States v. Mead, No. 13-0459/AR


     Justice, for drug use. The accused was reduced to the
     rank of private (E-1) and served 45 days of extra
     duty. The forfeiture of $723.00 was suspended and
     subsequently remitted on 2 August 2010.

     The Government moved to admit Appellant’s NJP in

sentencing.   After a brief discussion of the punishment imposed,

the defense declined to object to it.   After announcing the

sentence, the military judge explained his reasoning:

          When arriving at the adjudged sentence in this
     case, I took into account the non-judicial punishment,
     or NJP, the accused has already received under Article
     15 of the Uniform Code of Military Justice. . . . If
     the accused had not received prior NJP for the offense
     listed in the Specification of Charge II, I would have
     adjudged an additional 2 months of confinement, in
     addition to what I just announced.

          In compliance with United States versus Pierce,
     27 M.J. 367, Court of Military Appeals, 1989, . . . I
     am going to state, on the record, the specific credit
     I gave the accused for his prior punishment in
     arriving at my adjudged sentence. In arriving at the
     adjudged sentence, I gave the accused credit for one
     30-day month of confinement credit for the 45 days of
     extra duty he served, as a result of the NJP. In
     addition, I gave the accused one 30-day month of
     confinement credit for the reduction to E1 he served,
     as a result of the reduction at the NJP proceeding,
     from February 2010 to present. As the accused was
     already an E1 at the time of this court-martial, I did
     not adjudge a reduction. However, if the accused had
     been an E4 today, I would have adjudged a reduction to
     E1.

          While case law would indicate that I have no duty
     to apply specific confinement credit against the
     adjudged sentence as a result of a prior reduction to
     E1 at an NJP proceeding, I believe it is within my
     discretion to do so, and I have chosen to do so in
     this case. Under the circumstances of this case, I
     have determined that it is appropriate to credit the
     accused with an additional 30[ ]days of confinement


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United States v. Mead, No. 13-0459/AR


     against the confinement I ultimately adjudged, to
     account for the period he served as an E1, between
     February 2010 and present.

     Appellant did not object.

     The military judge then discussed with Appellant how his

pretrial agreement would affect the adjudged sentence:    “My

understanding of the effect of the pretrial agreement on the

sentence is that the convening authority may approve the

adjudged forfeiture, as well the adjudged bad-conduct discharge,

but must disapprove any confinement in excess of 24 months.”

Both counsel agreed with the military judge’s understanding.

     As part of his post-trial clemency petition, Appellant

asked the convening authority to either disapprove the finding

of guilty for the offense of which he had previously accepted

NJP or to grant him twenty-two days of credit against the

pretrial agreement cap of twenty-four months.   In the conclusion

to the clemency petition, Appellant asked the convening

authority to disapprove the remaining period of confinement or

to grant him forty-five days of credit for the NJP punishment.

The convening authority did neither. He reduced the period of

confinement to two years, pursuant to the pretrial agreement,

but otherwise approved the adjudged sentence.

          III. The Court of Criminal Appeals’ Decision

     On appeal, Appellant argued that the credit he was awarded

for the NJP was “both illusory and improperly calculated.”


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United States v. Mead, No. 13-0459/AR


Mead, 72 M.J. at 516.   The CCA noted that, in the first

instance, Appellant had asked the military judge rather than the

convening authority to apply Pierce credit.     After a discussion

of the difficulties of applying such credit, the CCA held:

“Accordingly, we find no error.   The military judge, in his

discretion, awarded thirty days of confinement for the prior

reduction.   There was no objection, and we do not find any

requirement to convert the reduction into lost pay and then into

confinement in order to satisfy Pierce.”     Id. at 520.    The CCA

also determined that Appellant was not entitled to compensation

for the monetary loss he suffered as a result of the NJP

reducing him in grade from E-4 to E-1.     Id. at 518–20.

                          IV. Discussion

     Article 15(f) provides:

     The imposition and enforcement of disciplinary
     punishment under this article for any act or omission
     is not a bar to trial by court-martial for a serious
     crime or offense growing out of the same act or
     omission, and not properly punishable under this
     article; but the fact that a disciplinary punishment
     has been enforced may be shown by the accused upon
     trial, and when so shown shall be considered in
     determining the measure of punishment to be adjudged
     in the event of a finding of guilty.

“Article 15(f) leaves it to the discretion of the accused

whether the prior punishment will be revealed to the court-

martial for consideration on sentencing.”     Pierce, 27 M.J. at

369; accord United States v. Gammons, 51 M.J. 169, 179 (C.A.A.F.



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United States v. Mead, No. 13-0459/AR


1999) (stating accused is the “gatekeeper with respect to

consideration of an NJP record during a court-martial involving

the same act or omission”).

     In this case, it was clear to the parties and the military

judge that Appellant raised the issue of the NJP for the

military judge’s consideration:    (1) He stipulated to the NJP as

part of his pretrial agreement; (2) He declined to object to the

military judge’s statement that it appeared it would be

necessary to provide credit against the adjudged sentence

because of the NJP; (3) The defense declined to oppose the

admission of the NJP during the sentencing hearing; (4)

Appellant declined to question the military judge’s calculation

of the NJP credit or the adjudged sentence; and (5) Appellant

agreed with the military judge that the convening authority

could approve a sentence that included confinement for two

years.   The military judge considered the NJP and specifically

awarded Pierce credit for it.     Neither Article 15(f) nor this

Court’s case law grants him more.

     Appellant also argues that he is entitled to compensation

for the pay he forfeited as a result of his reduction in grade

from E-4 to E-1 imposed by the NJP.    We disagree.   The money

Appellant forfeited as a result of the reduction in grade was

not punishment imposed by the NJP.     It was merely a consequence

of the reduction in grade -- a recognition that as he no longer


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United States v. Mead, No. 13-0459/AR


held the grade of E-4, he was no longer expected to perform the

duties of an E-4 and, therefore, was not entitled to be paid as

such.1

                          V.   Judgment

     The judgment of the United States Army Court of Criminal

Appeals is affirmed.




1
  Nor has this Court required compensation for forfeited pay in
sentence reassessment cases. See United States v. Josey, 58
M.J. 105, 108 (C.A.A.F. 2003) (“Because the factors applicable
to imposing a reduction in rank reflect highly individualized
judgments about military status, it is not appropriate to impose
a generally applicable monetary formula for crediting periods of
confinement or other punishments against a sentence to
reduction.”).

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