              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM 38929
                          ________________________

                            UNITED STATES
                                    Appellee
                                       v.
                            Sean C. MOONEY
                Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

           Appeal from the United States Air Force Trial Judiciary


                            Decided 21 March 2017
                          ________________________

Military Judge: Francisco Mendez.
Approved sentence: Dishonorable discharge, confinement for 2 years, forfeiture
of all pay and allowances, and reduction to E-1. Sentence adjudged 1 Septem-
ber 2015 by GCM convened at Dover Air Force Base, Delaware.
For Appellant: Major Isaac C. Kennen, USAF; Captain Annie W. Morgan,
USAF; Brian L. Mizer, Esquire.
For Appellee: Major Clayton H. O’Connor, USAF; Gerald R. Bruce, Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges
Senior Judge DUBRISKE delivered the opinion of the Court, in which Judges
HARDING and C. BROWN joined.
                          ________________________

                 PUBLISHED OPINION OF THE COURT
                      ________________________
DUBRISKE, Senior Judge:
   Consistent with his pleas pursuant to a pretrial agreement (PTA), Appel-
lant was convicted by a military judge sitting alone of one specification of sex-
                   United States v. Mooney, No. ACM 38929


ual assault of a child and one specification of sexual abuse of a child, in viola-
tion of Article 120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b.
    Appellant was sentenced to a dishonorable discharge, 45 months of confine-
ment, forfeiture of all pay and allowances, and reduction to E-1. The convening
authority only approved two years of confinement in accordance with the terms
of the PTA; he otherwise approved the remainder of the adjudged sentence.
   Appellant raises two issues on appeal. First, he argues it was error for the
convening authority to order his military confinement run consecutively with
confinement imposed by a federal district court for a different offense involving
the same victim. Second, Appellant claims he is entitled to post-trial confine-
ment relief under Article 12, UCMJ, 10 U.S.C. § 812, as he continues to be
housed with foreign nationals while confined in a federal detention center.
    We find Appellant is not entitled to relief on these issues and, therefore,
affirm the findings and sentence.

                                I. BACKGROUND
    The charged offenses in this case stemmed from Appellant’s sexual rela-
tionship with a 14-year-old child, SB. Appellant met SB through their mutual
association with a local volunteer fire department. Appellant, who was 21
years of age at the time, engaged in sexual intercourse with SB on at least five
occasions. SB also sent sexually explicit photographs of herself to Appellant by
text message. Appellant’s misconduct was eventually discovered by SB’s
mother, who informed Air Force law enforcement authorities.
    While he was awaiting trial by court-martial for his sexual activity with
SB, Appellant was arrested by the United States Marshals Service and de-
tained in a federal detention center. Appellant was later charged by the United
States Attorney’s Office (USAO) with receipt of child pornography based on
photographs SB sent to Appellant’s cell phone. Appellant pleaded guilty to this
charge in federal district court and was sentenced to 72 months of confinement
approximately a week before his general court-martial convened. Appellant’s
plea agreement with the USAO required him to also plead guilty to offenses
still pending trial by court-martial.

                                II. DISCUSSION

A. Imposition of a Consecutive Sentence to Confinement
    As consideration for Appellant’s offer to plead guilty, the general court-
martial convening authority agreed to approve no more than two years of con-
finement if confinement was adjudged at trial. The PTA contained no other
restrictions on the convening authority’s ability to act on Appellant’s sentence.

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                  United States v. Mooney, No. ACM 38929


The document did not in any way address the terms of Appellant’s conviction
or sentence in federal district court.

    There were also no discussions by the parties at trial regarding the impact,
if any, of Appellant’s federal sentence on his court-martial conviction. How-
ever, Appellant’s trial defense counsel acknowledged during his sentencing ar-
gument the possibility of consecutive sentences when discussing the amount of
time Appellant could potentially spend in confinement for both his federal and
military convictions.

     The staff judge advocate (SJA) for the general court-martial convening au-
thority first raised the question of consecutive confinement sentences in his
addendum to the SJA’s recommendation. Although recognizing there was con-
flicting guidance between Department of Defense (DoD) regulations and the
UCMJ, the SJA opined Article 14, UCMJ, 10 U.S.C. § 814, and DoD regulatory
guidance permitted the imposition of consecutive sentences. Trial defense
counsel, in response to the addendum, disagreed with the SJA’s legal assess-
ment.

  At action, the convening authority directed Appellant’s sentence to confine-
ment would be served after the completion of his term of federal incarceration:

       Upon completion of his federal sentence as adjudged in the
       United States District Court for the District of Delaware, AIR-
       MAN BASIC MOONEY will be remanded from the Federal Bu-
       reau of Prisons’ [sic] System to the Air Force Security Forces
       Center Confinement and Corrections Directorate for the comple-
       tion of his approved military confinement sentence, which will
       be served consecutively.

    Similar to the arguments raised by trial defense counsel during clemency,
Appellant claims on appeal that Article 57a(b), UCMJ, 10 U.S.C. § 857a(b),
which addresses a convening authority’s ability to defer a sentence to confine-
ment, is dispositive. Citing our superior court’s opinion in United States v.
Bramer, 45 M.J. 296 (C.A.A.F. 1996), Appellant simply argues that since the
convening authority is unable to defer Appellant’s sentence to confinement un-
der Article 57a(b), UCMJ, as he was not in the custody of a state government
or foreign country, his military sentence to confinement began to run concur-
rently with his federal sentence as of the date the convening authority took
action.

   We review post-trial processing issues de novo. United States v. Sheffield,
60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004).



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                   United States v. Mooney, No. ACM 38929


    While we agree with Appellant that Bramer is controlling, we disagree with
his interpretation that its holding is dispositive in his favor. We read Bramer
and the cases citied therein to allow the convening authority to rely on regula-
tory guidance in determining whether a sentence should run consecutively or
concurrently when there is not a specific statutory provision at play. As the
various provisions of Article 57 and Article 57a, UCMJ, were not directly ap-
plicable to Appellant’s case, the Government was correct in relying on regula-
tory guidance when ordering Appellant’s confinement sentence to run consec-
utively with his federal sentence that he was already serving.

     The imposition of consecutive sentences to confinement has historically
been a part of military law. United States v. Bryant, 30 C.M.R. 133, 138 (C.M.A.
1961). In fact, prior to the enactment of the UCMJ, various versions of the
Manual for Courts-Martial contained provisions specifically requiring the im-
position of consecutive sentences to confinement. Id. at 136; see also Edwards
v. Madigan, 281 F.2d 73, 75 (9th Cir. 1960). The promulgation of Article 57(b),
UCMJ, which provides that any period of confinement included in a sentence
of a court-martial begins to run from the date the sentence is adjudged unless
it is suspended or deferred, did not eliminate this historical preference.

       [T]here is no indication Congress intended to engraft concurrent
       sentences into military justice when it enacted the Code. Rather
       Article 57(b) seems to have been designed to insure that an ac-
       cused received credit against a sentence to confinement for time
       served from the date the court-martial adjudged sentence in-
       stead of some later date when punishment was approved by re-
       viewing authority.

Bryant, 30 C.M.R. at 138; see also Noyd v. Bond, 395 U.S. 683, 641 (1969)
(“[W]e do not believe that Congress intended that the general rule [regarding
the effective date of sentences] stated in Article 57(b) be inexorably applied in
all situations which do not fall within the ‘suspension of sentence’ exception.”).

    Likewise, the enactment of Article 57a, UCMJ, did not eliminate the mili-
tary’s historical preference for consecutive sentences. This statutory provision
simply gave the convening authority the option of running a military confine-
ment sentence concurrently or consecutively with a civilian sentence. Bramer,
45 M.J. at 297. However, after taking action on findings and sentence, the con-
vening authority’s deferment options under Article 57a were limited to sen-
tences of confinement imposed by a state or foreign jurisdiction. Article 57a(b),
UCMJ; see 141 CONG. REC. S5805 (daily ed. 27 Apr. 1995) (noting that Article
57a allows the convening authority to defer the running of a sentence to con-
finement when a state or foreign country has temporarily released the accused


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                     United States v. Mooney, No. ACM 38929


from its custody to allow the military to try the accused before a court-martial
and then return the accused to the sender state’s custody after the court-mar-
tial is completed).

    In the case sub judice, Appellant’s sentence to confinement by a federal
district court is not covered by the provisions of Article 57a. As such, we must
determine whether the absence of guidance restricted the convening author-
ity’s discretion in directing the running of Appellant’s military sentence to con-
finement. We hold, contrary to Appellant’s argument, that it did not.

    “Secretaries of [Military] Departments may promulgate rules and regula-
tions, and they are presumptively valid unless arbitrary and unreasonable or
contrary to or inconsistent with the Code.” Bramer, 45 M.J. at 298 (quoting
Bryant, 30 C.M.R. at 138). With regard to the imposition of consecutive or con-
current sentences within the military, the DoD has directed that “[a] sentence
to confinement adjudged by court-martial shall not be served concurrently with
any other sentence to confinement adjudged by a court-martial or a civil court.”
DoD 1325.7M, DoD Sentence Computation Manual, ¶ C2.7.1 (27 Jul. 2004).
The Secretaries of the Army and Air Force have promulgated similar joint
guidance for service confinement sentences. 1 Army Regulation 633-30/Air
Force Regulation 125-30, Military Sentences to Confinement, ¶ 4.b. (2 Dec.
2015).

    In Bramer, our superior court examined a Navy court-martial in which the
appellant was first sentenced by a Washington state court for robbery. While
serving his post-trial confinement in a state correctional facility, the appellant
was turned over to the United States Navy to face court-martial on additional
robbery offenses committed in Canada. Immediately upon the completion of
his court-martial in which he received three years of confinement, the appel-
lant was returned to state authorities to complete his term of incarceration.
Thereafter, he was returned to the military to serve his court-martial sentence.

  On appeal, the appellant claimed he was entitled to credit against his court-
martial sentence for the time spent in civilian confinement. Because Article


1 We find no support for any claim that confinement sentences imposed by a federal
district court are not considered a sentence adjudged by a “civil court.” See Peek v.
United States, 321 F.2d 934, 937 (9th Cir. 1963) (recognizing a federal court as a “civil
authority” for purposes of Article 14, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 814). Federal district courts are “civilian” courts that maintain jurisdiction
over a criminal justice system separate from the military justice system. United States
v. Duncan, 34 M.J. 1232, 1240 (A.C.M.R. 1992).




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                   United States v. Mooney, No. ACM 38929


57a was inapplicable to the appellant’s case as his offenses took place before
the enactment of the statute, the Navy-Marine Court of Criminal Appeals em-
ployed military common law to find the appellant’s sentence to confinement
ran consecutively with his state sentence. Bramer, 45 M.J. at 297.

    The Court of Appeals for the Armed Forces (CAAF) rejected the service
court’s reliance on common law. The court held that because Article 57(b) re-
quired the appellant’s military sentence to confinement begin to run when ad-
judged, the sentence ran concurrently with the state sentence to confinement
as the appellant’s military sentence was not properly deferred by the convening
authority. Id. at 299.

    Appellant cites this holding as justification for the imposition of a concur-
rent sentence in his case. In doing so, however, Appellant ignores additional
discussion by the Bramer court regarding the impact of service regulations in
determining whether a sentence runs consecutively or concurrently. Citing its
own opinion in Bryant, and this court’s opinion in United States v. Ellenson, 19
M.J. 605 (A.F.C.M.R. 1984), the CAAF distinguished the factual situation in
Bramer from other cases where service regulations filled the void resulting
from the absence of statutory authority under Articles 57 and 57a, UCMJ.

       Based on these circumstances, the best we can say is that absent
       the amendment to Article 57, the clearest rule of law was that a
       Secretary of a Department could promulgate a regulation which
       determined when sentences would run concurrently or consecu-
       tively and that, at a minimum, misconduct which occurred after
       the first sentence to confinement began could result in a consec-
       utive sentence.

       There was no clear rule of law which applied to appellant’s case.
       Article 14 made it clear that if a sentenced military member was
       turned over to civilian authorities, his sentence was interrupted
       during his subsequent confinement by the civilian authority. It
       did not speak to the situation at bar.

       The amendment to Article 57 makes it clear that it is a conven-
       ing authority’s decision whether to defer the running of the sen-
       tence. Thus, in the absence of a convening authority’s decision to
       defer, the military member’s sentence would continue to run
       from the date of adjudication; it would not be automatically con-
       secutive.

       ....



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                    United States v. Mooney, No. ACM 38929


       Because all parties here agree that the convening authority re-
       lied on Article 57[a(b)] of the Uniform Code to defer appellant’s
       sentence, it is clear that he acted ultra vires. Unlike the services
       in Bryant and Ellenson, the Navy had no regulations in place
       which contemplated deferment of sentence in this situation. . . .
       Accordingly, we hold that appellant’s sentence to confinement
       began running on the date it was adjudged and was not tolled by
       his state confinement.

Bramer, 45 M.J. at 299.

    In the case sub judice, Appellant acknowledges his situation is not covered
by Article 57a, UCMJ, as his initial confinement was not imposed by a state or
foreign jurisdiction. Thus, absent controlling statutory authority, we find, as
our sister service court did in United States v. Willenbring, 56 M.J. 671, 682–
83 (A. Ct. Crim. App. 2001), that Bramer allows us to look at regulatory guid-
ance in determining whether the convening authority could direct consecutive
sentences to confinement. See Bramer, 45 M.J. at 298 (recognizing there are
several exceptions to the rule that court-martial sentences run from the date
adjudged stemming from common sense, Supreme Court Habeas Corpus writs,
and Air Force regulations). Here, although the convening authority did not use
the term “deferment” in disposing of Appellant’s case, it is clear from the lan-
guage of the action that Appellant’s military sentence to confinement was or-
dered to be deferred, postponed, or otherwise interrupted until completion of
his federal sentence to confinement. 2 Given the support for this disposition in
DoD and Air Force regulatory guidance and the absence of conflicting author-
ities within the UCMJ, we find the convening authority’s action was sufficient


2 It is a better course of practice for the convening authority to use the words “defer”
or “deferred” based on the terms of art employed in both the UCMJ and the Manual
for Courts-Martial. As an example for this case, the convening authority’s action di-
recting consecutive sentences to confinement could have read, in part: “The service of
the sentence to confinement is deferred from [the date sentence is adjudged or the date
the member is returned to civilian confinement authorities], and will not begin to run
until completion of the member’s previously adjudged federal sentence to confinement,
unless rescinded by competent authority. Upon completion of the federal sentence to
confinement, the member will be remanded to the Air Force Security Forces Center
Confinement and Corrections Directorate for the completion of the approved military
confinement sentence which will be served consecutively.” Similar language could also
be used for sentences imposed by state or foreign governments in accordance with
Article 57a(b)(2), UCMJ, as well as multiple court-martial sentences ordered to run
consecutively.




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                    United States v. Mooney, No. ACM 38929


to toll the effective date of confinement under Article 57(b), UCMJ, and thereby
require Appellant’s military sentence to confinement be served consecutively
with his federal sentence. 3

B. Post-Trial Confinement Conditions
    Based on his belief he is serving his military sentence to confinement con-
currently with his federal sentence, Appellant argues he is entitled to post-trial
confinement relief under Article 12, UCMJ. Specifically, Appellant claims he
has been commingled with foreign nationals in the two federal detention cen-
ters where he has been confined since his initial arrest for receiving child por-
nography. Appellant argues he is at great risk for physical harm because of his
confinement as certain “radicalized” inmates may hurt him if they learn of his
military status. Appellant concedes he has not sought administrative relief
from confinement officials for this alleged violation, primarily due to his fear
of reprisal if his military affiliation is disclosed. Appellant also provides no di-
rect evidence he has actually been housed with foreign nationals, but instead
cites to various prison population studies and asks this court to presume he
has established his factual predicate for relief.
    We review de novo the question of whether an appellant’s post-trial con-
finement violates Article 12, UCMJ. United States v. Wise, 64 M.J. 468, 473–
74 (C.A.A.F. 2007). Article 12, UCMJ, states: “No member of the armed forces
may be placed in confinement in immediate association with enemy prisoners
or other foreign nationals not members of the armed forces.” The “immediate
association” language means that military members can be confined in the
same jail or brig as a foreign national, but they have to be segregated into dif-
ferent cells. Wise, 64 M.J. at 475.
   A prisoner must seek administrative relief prior to invoking judicial inter-
vention for an Article 12, UCMJ, violation. United States v. McPherson, 73 M.J.
393, 397 (C.A.A.F. 2014); see also United States v. Miller, 46 M.J. 248, 250


3 We recognize this court has previously disposed of a similar fact pattern to Appel-
lant’s case by also employing the provisions of Article 14(b), UCMJ. See United States
v. Ellenson, 19 M.J. 605, 607 (A.F.C.M.R. 1984); see also United States v. Willenbring,
56 M.J. 671, 682–83 (A. Ct. Crim. App. 2001). Article 14(b), UCMJ, provides that when
a confined military member is delivered to a civil court for trial and is subsequently
confined after a conviction, the member’s military confinement is interrupted or tolled
until the member is returned to military custody for the completion of his sentence.
Our superior court in Bramer appeared to question the application of Article 14(b),
UCMJ, in cases where the civil confinement was imposed prior to a court-martial sen-
tence. United States v. Bramer, 45 M.J. 296, 299 (C.A.A.F. 1996). Based on our dispo-
sition of this issue above, we need not address the continued validity of our holding in
Ellenson at this time.


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                   United States v. Mooney, No. ACM 38929


(C.A.A.F. 1997). The purpose of this requirement is to promote the “resolution
of grievances at the lowest possible level and [to ensure] that an adequate rec-
ord has been developed to aid appellate review.” Wise, 64 M.J. at 471 (quoting
Miller, 46 M.J. at 250) (brackets omitted). To meet this requirement, an appel-
lant “must show that absent some unusual or egregious circumstance he has
exhausted the prisoner-grievance system in his [confinement] facility and that
he has petitioned for relief under Article 138[, UCMJ, 10 U.S.C. § 938].” Id.
(quoting United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001) (internal quo-
tation marks and alterations omitted).
    The Government argues that Appellant’s PTA, which contained a “waive
all waivable motions” provision, establishes that he has waived judicial review
of this issue. Conversely, Appellant cites the court to the various references
about his confinement circumstances in both his unsworn statement and clem-
ency submissions as support for the position he has not waived this issue. Alt-
hough Appellant was already confined at a federal detention center at the time
of his court-martial and, therefore, was fully aware of a potential violation, we
still decline to apply waiver in this particular case given the lack of direct dis-
cussion of this issue on the record. See e.g., United States v. McFadyen, 51 M.J.
289 (C.A.A.F. 1999) (waiver in an Article 13, UCMJ, context will be operative
only after judicial inquiry surrounding the conditions of confinement and the
accused’s understanding of the potential remedy available).
    In any event, we find Appellant is not entitled to relief. The protections of
Articles 12, UCMJ, are only applicable: (1) to persons subject to the Code;
(2) who are placed into confinement by or on behalf of persons subject to the
Code; and (3) for pending court-martial charges or as a result of a court-martial
conviction. United States v. Escobar, 73 M.J. 871, 874 (A.F. Ct. Crim. App.
2014). Here, Appellant has been confined in a federal detention center because
of his arrest and prosecution by the Department of Justice for offenses different
than those subject to trial by court-martial. Appellant’s presence at his court-
martial was obtained through a writ of habeas corpus ad prosequendum, which
then required Appellant to be returned to the federal detention center upon
completion of his court-martial. The fact Appellant could also be serving his
military sentence to confinement concurrently with his federal sentence does
not change the fact that his detention is not at the behest of military authori-
ties. Id. at 877.
   Moreover, Appellant acknowledges he has failed to exhaust administrative
remedies available to him to resolve his concerns. He requests, however, we
overlook this failure due to his belief that he must protect against the disclo-
sure of his military identity to avoid potential injury from other inmates. On
the evidence before us, we find no “unusual or egregious circumstance[s]” to



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                  United States v. Mooney, No. ACM 38929


excuse Appellant’s failure to pursue available administrative remedies. See
Wise, 64 M.J. at 471. We decline to grant relief for these reasons.

                              III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and the sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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