                          UNITED STATES, Appellee

                                          v.

                         Gregory A. BOYD, Captain
                        U.S. Air Force, Appellant

                                   No. 00-0446


                            Crim. App. No. 33483


       United States Court of Appeals for the Armed Forces

                         Argued November 14, 2000

                           Decided July 10, 2001

    GIERKE, J., delivered the opinion of the Court, in which
 CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.
            SULLIVAN, J., filed a concurring opinion.

                                      Counsel
For Appellant: Captain Patrick J. Dolan (argued); Lieutenant
   Colonel Timothy W. Murphy, Lieutenant Colonel James R. Wise,
   and Captain Bryan A. Bonner (on brief); Colonel Jeanne M.
   Rueth.

For Appellee: Lieutenant Colonel Michael E. Savage (argued);
   Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A.
   Rodgers, and Captain James C. Fraser (on brief); Lieutenant
   Colonel William B. Smith.

Military Judge:     Jack L. Anderson

          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Boyd, No. 00-0446/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer members

convicted appellant, pursuant to his pleas, of destroying

government property, wrongful use of controlled substances (2

specifications), larceny of military property (3 specifications),

and conduct unbecoming an officer by wrongfully injecting himself

with a controlled substance while on duty and in uniform, in

violation of Articles 108, 112a, 121, and 133, Uniform Code of

Military Justice, 10 USC §§ 908, 912a, 921, and 933,

respectively.     The adjudged and approved sentence provides for a

dismissal, confinement for 90 days, and forfeiture of $215.00 pay

per month for 3 months.       The Court of Criminal Appeals affirmed

the findings and sentence.       52 MJ 758.

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ERRED BY NOT INSTRUCTING THE
      MEMBERS ON THE LOSS OF RETIREMENT BENEFITS THAT COULD RESULT
      FROM A PUNITIVE DISCHARGE WHEN TRIAL DEFENSE COUNSEL
      REQUESTED SUCH AN INSTRUCTION.

For the reasons set out below, we affirm.

                            Factual Background
      The court below summarized the facts underlying appellant’s

conviction as follows:

            The appellant was a nurse in the Intensive Care Unit
            (ICU) at the Eglin Air Force Base Hospital. Between 1
            July 1997 and 3 August 1997, he took 111 tubexes
            (vials) of Meperidine, 73 vials of Morphine, and one
            vial of Versed, for his own use. All three of these
            drugs are controlled substances. He used the Morphine
            and Meperidine to alleviate withdrawal symptoms caused
            by his drug addiction. In addition, the appellant
            withdrew portions of the contents of 22 vials of
            Meperidine and 3 bottles of Morphine. He replaced the
            drugs with a sterile saline solution, thereby diluting
            the drugs, then returned the vials and bottles to the
            drug storage unit. On 3 August 1997, while at work in



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United States v. Boyd, No. 00-0446/AF


            the ICU and in uniform, the appellant injected himself
            with Versed.

Id. at 760-61.

      Prior to entry of pleas, the defense requested the military

judge to order a sanity board to determine whether appellant was

competent to stand trial.       During the hearing on the defense

request, the prosecution presented evidence that appellant had

been evaluated by a physical evaluation board, and the board had

recommended temporary retirement for disability, based on various

mental disorders.     The military judge ordered a sanity board,

which found that appellant was mentally competent to stand trial.

      During voir dire, trial counsel asked the members if they
“would automatically rule a dismissal out as part of a sentence

simply because of the impact it might have on the accused’s

ability to obtain benefits.”        All members responded in the

negative.    Defense counsel asked no questions about the impact of

a dismissal on appellant’s retirement benefits.        After

challenges, the panel consisted of two colonels, two lieutenant

colonels, two majors, and one captain.
      The prosecution case on sentencing focused on appellant’s

breach of trust, stealing drugs entrusted to him, and diluting

drugs that could have been administered to patients under his

care.   The parties agreed there was no evidence that any patient

had been administered a diluted drug.

      The defense sentencing case focused on appellant’s long and

honorable service, his many commendations, his efforts to

overcome his addiction and retain his nursing license, and the

economic impact of terminating his military service.        While



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United States v. Boyd, No. 00-0446/AF


questioning appellant’s wife, the defense made reference to

appellant’s 15½ years of service.           His service also was reflected

in documents presented by the prosecution.          However, neither

defense counsel nor trial counsel presented any evidence to the

members regarding the physical evaluation board’s recommendation

for temporary disability retirement.

      Appellant’s wife testified that appellant was addicted to

morphine, and he was remorseful, ashamed, and embarrassed.          She

testified that her earning potential was limited, and the family

would be financially devastated if appellant left the Air Force.

She testified that they had sold the family car and their boat,

and they would be unable to keep up the payments on the family

home if appellant’s military career was terminated.

      Appellant made both oral and written unsworn statements.         He

described his drug addiction and withdrawal symptoms.          He

described his participation in the Florida Intervention Project

for Nurses, which offers licensed nurses an opportunity for

recovery from drug addiction, as well as an opportunity to retain

their nursing licenses.       He expressed remorse and asked for an

opportunity to repay his family and friends for their support and

to be “a good father, husband, son, and a member of the

community.”

      During the hearing on sentencing instructions, defense

counsel requested “an instruction on retirement benefits.”

Defense counsel used the phrase “perilously close to retirement,”

quoting from this Court’s decision in United States v. Greaves,
46 MJ 133, 139 (1997), and argued that “with 15½ years, if he’s

not dismissed and he can stay in service, he would likely reach


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United States v. Boyd, No. 00-0446/AF


retirement.”    The military judge opined that Greaves was

authority for not giving the requested instruction, and he

declined to give it.      The references to Greaves indicate that

both defense counsel and the military judge were talking about

retirement for length of service, not disability retirement.

Defense counsel did not request the military judge to instruct

the members on the impact of a dismissal on appellant’s

opportunity to be placed on the temporary disabled retired list.

      During sentencing arguments, defense counsel argued that

“society will forgive someone who uses drugs,” but will not

forgive a punitive discharge.           He argued that “a punitive

discharge carries with it an ineradicable stigma . . . that is

widely recognized by society.”           Defense counsel argued that a

dismissal would cause appellant to “be branded on his forehead

for life.”    Finally, defense counsel argued that a combination of

punitive separation and confinement would leave appellant without

“a leg to stand on,” and no chance for a future.           Defense counsel

asked the court members:

            [I]f you are so inclined to send him -- to give him a
            dismissal, then please -- please don’t pull him out of
            his recovery program, and from his wife, and from his
            family, too. Please do not send him to confinement,
            not just because of what it will do to him, but for a
            whole host of reasons . . . .

      The military judge instructed the members as follows

regarding the impact of a dismissal:

            A dismissal is a punitive discharge. Our society
            commonly recognizes the ineradicable stigma of a
            punitive discharge, and a punitive discharge affects
            the accused’s future with regard to legal rights,
            economic opportunities, and social acceptability and
            will deny the accused other advantages which are
            enjoyed by one whose discharge indicates that he has
            served honorably. The issue before you is not whether


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United States v. Boyd, No. 00-0446/AF


            the accused should remain a member of the Air Force,
            but whether he should be punitively separated from the
            service.

            A sentence to a dismissal of an officer is the general
            equivalent of a dishonorable discharge for an airman.
            A dismissal should be reserved for those who, in the
            opinion of the court, should be separated under
            conditions of dishonor after conviction of serious
            offenses of a civil or military nature warranting such
            severe punishment. A person dismissed from the armed
            forces is denied substantially all veteran’s benefits.
            You are not required to adjudge a discharge, but if you
            do, you may only adjudge a dismissal.

After the military judge completed his instructions, the

President of the court-martial asked:

            If a dismissal is the only discharge option that is
            afforded us, and a punitive--you’ve already explained
            the effects of a punitive dismissal. If we were to
            determine that was not appropriate, what would be the
            impact on Captain Boyd’s continued service? Would he
            continue to serve in the Air Force, I guess, is the
            question?

The military judge conferred with appellant and counsel for both

sides, out of the presence of the members, to determine how to

answer the question.      With the express agreement of both sides,

the military judge gave the following additional instruction:

            You have a duty to determine an appropriate punishment
            for the accused in this case. That may include a
            decision on whether to sentence the accused to be
            discharged punitively from the service. If you
            determine a punitive discharge is warranted in this
            case, then the only punitive discharge this court may
            adjudge is a dismissal. You are advised, however, that
            a decision not to include a dismissal in your sentence
            does not mean the accused would necessarily be retained
            in the service. Such a decision would only reflect
            your judgment that he does not deserve a punitive
            discharge and the stigma that goes with it. Your
            decision regarding a punitive discharge is but one part
            of the process of determining an appropriate
            punishment, and it must not be viewed merely as a
            decision to retain or separate the accused from the
            service.




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United States v. Boyd, No. 00-0446/AF


The members had no further questions.            After deliberating for

slightly over 2 hours, the members imposed a sentence that

included a dismissal.

                                 Discussion

      Appellant now asserts that the military judge should have

instructed the members on the impact of a dismissal on his future

retirement benefits, including both retirement for length of

service and temporary disability retirement.            The Government

argues that an instruction on retirement for length of service

was not required because appellant was not “perilously close” to

retirement.    The Government also argues that appellant waived any

issue regarding an instruction on disability retirement because

he did not request such an instruction.

      We review a military judge’s decision whether to instruct on

a specific collateral consequence of a sentence for abuse of

discretion.    United States v. Perry, 48 MJ 197, 199 (1998).
                   Retirement for Length of Service

      When an accused is eligible for retirement, “[t]he potential

loss of retirement benefits [is] a proper matter for
consideration by factfinders[.]”            United States v. Sumrall, 45 MJ

207, 209 (1996); see also United States v. Griffin, 25 MJ 423,

424-25 (CMA 1988) (no error for the military judge to instruct,

pursuant to the request of an accused who was eligible for and

had applied for retirement, on the impact of a sentence on the

accused’s retirement benefits).             In United States v. Becker, 46

MJ 141, 144 (1997), we held that it was error for the military

judge to exclude evidence of the impact of a punitive discharge

on retirement benefits, because the accused was “literally


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United States v. Boyd, No. 00-0446/AF


knocking at retirement’s door at the time of his court-martial,”

having served for 19 years and 8½ months.       See also Greaves,

supra (military judge erred by not answering a court member’s

question about the impact of a punitive discharge on retirement

benefits, where accused was “perilously close to retirement,”

with 19 years and 10 months of service).

      On the other hand, in United States v. Henderson, 29 MJ 221,

233 (CMA 1989), this Court held that a military judge did not

abuse his discretion by refusing to instruct on the impact of a

punitive discharge on retirement benefits, where the accused was

3 years from retirement and would have been required to reenlist

to be retirement eligible.       Our Court took cognizance of

Henderson in Greaves and Becker, and we distinguished it in both
cases but did not expressly overrule it.       46 MJ at 138, 143.   The

question whether Greaves and Becker overruled or modified

Henderson is still open.

      Most recently, in United States v. Luster, 55 MJ 67 (2001),

we held that a military judge erred when she excluded evidence of

the estimated retired pay of an accused with 18 years and 3
months of service.      We noted that the probability of retirement

was not remote, and the expected financial loss was substantial.

We also noted that, when the defense puts retirement benefits in

issue, the prosecution may present evidence to rebut the

likelihood that the accused will reach retirement eligibility.

Id. at 71.

      Consistent with our holdings in Sumrall, Greaves, Becker,

and Luster, we will require military judges in all cases tried

after the date of this opinion to instruct on the impact of a


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United States v. Boyd, No. 00-0446/AF


punitive discharge on retirement benefits, if there is an

evidentiary predicate for the instruction and a party requests

it.•   We expect that military judges will be liberal in granting

requests for such an instruction.           They may deny a request for

such an instruction only in cases where there is no evidentiary

predicate for it or the possibility of retirement is so remote as

to make it irrelevant to determining an appropriate sentence.

The instruction should be appropriately tailored to the facts of

the case with the assistance of counsel, and it should include

language substantially as follows:

            In addition, a punitive discharge terminates the
            accused’s military status and the benefits that flow
            from that status, including the possibility of becoming
            a military retiree and receiving retired pay and
            benefits.

Military Judges’ Benchbook at 97 (Department of the Army Pamphlet

27-9 (April 1, 2001)).

       We need not decide, however, whether this appellant’s 15½

years of service was a sufficient evidentiary predicate to

entitle him to an instruction on retirement benefits, because we
are satisfied that even if there was error in denying the request

for such an instruction, it was harmless.           The evidentiary

predicate for an instruction on retirement benefits was minimal.

Appellant tendered no evidence pertaining to the projected value

of his retirement for service.          Appellant did not mention his

hopes for retirement in his two unsworn statements.             Neither

appellant nor his defense counsel asked the court members to save


•
  Of course, an instruction on potential retirement benefits may also entitle
the prosecution to an instruction on the legal and factual obstacles to
retirement faced by a particular accused.


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United States v. Boyd, No. 00-0446/AF


appellant’s retirement.       The court members asked no questions

about retirement benefits.       Defense counsel made no mention of

retirement benefits until the sentencing hearing was completed

and the parties were reviewing the military judge’s proposed

instructions.

      The focus of the defense sentencing case was on preserving

appellant’s ability to continue with his drug rehabilitation

program, retaining his ability to practice his profession, and

restoring his ability to be a worthy member of the community.

The focus was not on preserving the possibility of military

retirement in 5 years.      The defense emphasized the present, not

the future.    Accordingly, we conclude that any failure to

instruct the members about the impact of a dismissal on future

retirement benefits did not have a substantial influence on the

sentence.    Kotteakos v. United States, 328 U.S. 750, 765 (1946).
                    Temporary Disability Retirement

      In United States v. Stevenson, 53 MJ 257, 258-59 (2000),

this Court explained the nature of temporary disability

retirement as follows:
                 If a servicemember while on active duty becomes
            disabled, the Service Secretary may retire the member
            with pay, subject to detailed statutory and regulatory
            procedures. These procedures provide two basic types
            of disability retirement--permanent and temporary.
            When there is a determination that a disability is
            “permanent . . . and stable,” the Service Secretary may
            retire the member with pay. 10 USC § 1201.
            If, however, the disability “may be of a permanent
            nature,” but the circumstances do not permit a final
            determination that the condition is, in fact,
            “permanent . . . and stable,” the Secretary is required
            to place the member on the “temporary disability
            retired list [TDRL], with retired pay.” 10 USC § 1202.

                 While on the TDRL, a member is required to submit
            to periodic physical examinations to “determine whether


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United States v. Boyd, No. 00-0446/AF


            there has been a change in the disability for which he
            was temporarily retired.” Failure to submit to such a
            periodic examination may lead to termination of retired
            pay. 10 USC § 1210(a).

                 When a periodic examination leads to a
            determination that the member is “physically fit” to
            perform his or her duties, there are a number of
            options. The member may be returned to active duty
            with his or her consent, retired if otherwise eligible
            for retirement, discharged, or transferred to the
            inactive reserves. If the member does not consent to a
            proposed return to active duty, “his status on the
            temporary disability retired list and his disability
            retired pay shall be terminated as soon as practicable
            and the member shall be discharged.” 10 USC § 1211(c).

                 If a member remains on the TDRL for 5 years, the
            Secretary is required to make a final determination.
            If there is a determination that the disability “still
            exists,” it is considered at that point to be
            ”permanent . . . and stable,” and the member is
            retired. 10 USC § 1210. If the member is determined
            to be fit for duty, the service has the same options as
            when such a determination is the result of a periodic
            examination; return to active duty with consent,
            retirement if otherwise eligible, discharge, or
            transfer to the inactive reserves.


      Because the defense did not request an instruction on the

impact of a punitive discharge on temporary disability

retirement, we will grant relief only if the military judge’s

failure to instruct sua sponte was plain error.    See United
States v. Grier, 53 MJ 30, 34 (2000), citing United States v.

Cooper, 51 MJ 247, 252 (1999), and United States v. Powell, 49 MJ

460, 463 (1998).

      In this case, there was no factual predicate for an

instruction on temporary disability retirement.   For reasons not

disclosed on the record, the defense did not present any evidence

to the members reflecting appellant’s eligibility for disability

retirement.    The only evidence in the record was presented by the

prosecution during a hearing before the military judge on the


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United States v. Boyd, No. 00-0446/AF


question whether appellant was competent to stand trial.     That

evidence was not presented to the members by either side.     We

hold that there was no error at all, much less plain error.

                                  Decision

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Boyd, 00-0446/AF


    SULLIVAN, Judge (concurring):


    I agree.   In my view, this opinion accurately reflects the

present state of the law as stated in United States v. Luster,

55 MJ 67 (2001).   The 5-year march from United States v. Sumrall,

45 MJ 207 (1996), to United States v. Luster, supra, has been a

steady and proper advancement of the law to insure fair treatment

of the servicemember in the sentencing process.
