UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              AYRES, COOK, and GALLAGHER
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                             Sergeant BRIAN S. MULLINS
                             United States Army, Appellant

                                     ARMY 20110133

                            Headquarters, Fort Carson
                         Mark A. Bridges, Military Judge
             Lieutenant Colonel Steven P. Haight, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Sasha N. Rutizer, JA (on brief).

                                     28 February 2013

                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

GALLAGHER, Judge:

       A military judge sitting as a special court-martial convicted appellant,
contrary to his pleas, of two specifications of violating a lawful order from a
superior commissioned officer and one specification of violating a lawful order from
a superior non-commissioned officer, in violation of Articles 90 and 91, Uniform
Code of Military Justice, 10 U.S.C. §§ 890, 891 (2006) [hereinafter UCMJ]. In
accordance with his pleas, the military judge convicted appellant of one
specification of violating a lawful order from a superior non-commissioned officer,
one specification of violating a lawful general regulation, one specification of false
official statement, and one specification of adultery, in violation of Articles 91, 92,
107, and 134, UCMJ. The military judge sentenced appellant to a bad-conduct
discharge, confinement for ninety days, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence and credited appellant with
eighty-three days of confinement against his sentence to confinement.
MULLINS—ARMY 20110133

       This case is before our court for review under Article 66, UCMJ. In his sole
assignment of error appellant alleges the credit awarded by the military judge,
pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), was not complete
because the military judge failed to award appellant adequate credit for his reduction
in rank from E-6 to E-5. This assignment of error merits discussion and relief.
                                   BACKGROUND

       Pursuant to his pleas, the military judge found appellant guilty of violating a
lawful order from a non-commissioned officer (NCO), violating a lawful general
regulation, providing a false official statement, and adultery. Appellant had
previously received non-judicial punishment under Article 15, UCMJ, for this same
conduct. Pursuant to Article 15, UCMJ, appellant’s battalion commander imposed
the following punishment: extra duty for 45 days; restriction for 45 days; forfeiture
of $1,453.00 per month for two months; and reduction from E-6 to E-5.

       As part of the defense sentencing case, appellant’s defense counsel introduced
the record of appellant’s previous Article 15, UCMJ, proceeding and requested the
military judge award appropriate credit pursuant to Pierce. Trial defense counsel
then subsequently argued, in his sentencing argument, the military judge should
consider Pierce and the fact that appellant had already been punished for a majority
of the charged offenses when determining an appropriate sentence for appellant.

      When announcing his sentence, the military judge stated:

             Now, [c]ounsel, with respect to the Pierce credit for the
             Article 15, I’ll tell you exactly how I’ve calculated that.
             For the 45 days of extra duty that accused received, I’m
             giving 30 days confinement credit because I find that to be
             equivalent to 1½ days extra duty for every day of
             confinement. For the 45 days restriction, I’m giving 22½
             days of credit against confinement because I find that the
             restriction—every 2 days of restriction is worth 1 day of
             confinement. And for the $2,906 in forfeitures under that
             Article 15, I’m giving 30 days credit against the sentence
             to confinement, and that’s because I find each day of
             forfeiture to be worth a day of confinement.

The military judge then directed the convening authority (CA) to credit appellant
with:

             83 days against the accused’s term of confinement and
             credit the accused with already being reduced to E-5, from
             E-6 to E-5 in the Article 15. And, so, effectively what
             that means is the convening authority is going to have to


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MULLINS—ARMY 20110133

             give 83 days of confinement credit in this case. There is
             no way for him, really, to give credit for the one grade of
             reduction against the sentence. It would be inappropriate
             to apply that against the bad conduct discharge, and, so,
             the convening authority can approve the reduction all the
             way to the grade of E-1.

The result of trial, the staff judge advocate’s recommendation (SJAR), and the
addendum all fail to inform the CA to credit the accused with already being reduced
from E-6 to E-5. The CA’s action does not reflect a credit for the reduction.

                               LAW AND DISCUSSION

       The purpose of sentencing credit pursuant to Pierce, 27 M.J. 367, is to ensure
appellant is not punished twice for the same offense. Pierce mandates complete
credit be given for any and all nonjudicial punishment (NJP) suffered. See Id. at 369
(holding an accused must be given credit for any and all nonjudicial punishment
suffered: “day-for-day, dollar-for-dollar, stripe-for-stripe.”). Lawful NJP
punishment is not voided by subsequent charging of the same offense at a court-
martial. United States v. Gammons, 51 M.J. 169, 182 (C.A.A.F. 1999).

       The military judge directed specific credit the convening authority was to
apply to the approved sentence. However, what is unclear is whether the military
judge took the one grade reduction into consideration in determining the entirety of
the adjudged sentence and credit to be applied by the convening authority or whether
the military judge meant to leave consideration of the reduction entirely up to the
convening authority. We recognize that a reduction in rank is not necessarily
amenable to formulaic calculations and that may have been all the military judge
was attempting to articulate. See Pierce, 27 M.J. at 369 (“Because the types of
punishments administered non-judicially and those adjudged by courts-martial are
not always identical, there may be some difficulties in reconciliation.”). See also
United States v. Mead, __ M.J. ___ (Army Ct. Crim. App. 25 Feb. 2013) (while pay
lost as a result of a prior reduction is not beyond the scope of either judicial or
convening authority discretion, there is no legal obligation to provide credit for such
a consequence).

        It is also unclear whether the CA considered and credited the reduction in the
sentence he approved. This is because the result of trial, SJAR, and addendum all
fail to capture the military judge’s direction that the convening authority was “to
credit the accused with already being reduced to E-5, from E-6 to E-5 in the Article
15.” Under the facts of this case, the inclusion of the military judge’s award of
credit generally in the record of trial is not sufficient to satisfy us that the convening
authority considered Pierce credit beyond the 83 days of confinement credit of
which he was explicitly informed.



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MULLINS—ARMY 20110133

       Accordingly, while there are indications that the military judge appropriately
credited appellant, we cannot confidently discern whether the military judge or the
CA credited appellant’s NJP reduction in the sentencing process. As such, it is
appropriate to “adjust appellant’s sentence to assure he was not twice punished.”
Gammons, 51 M.J. at 184. In order to ensure appellant has received appropriate
consideration for the one grade reduction pursuant to NJP, we will reassess the
sentence and return a stripe to appellant. We are confident this affords complete
sentence credit, in conjunction with the confinement credit directed by the military
judge and applied by the convening authority.

                                   CONCLUSION

       On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), the findings of guilty are affirmed. Reassessing the
sentence on the basis of the error noted and the entire record, and applying the
criteria of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), only so much of the
sentence as provides for a bad-conduct discharge, confinement for ninety days, and
reduction to E-2 is approved. Appellant will be credited with 83 days of
confinement credit against his sentence to confinement. All rights, privileges, and
property, of which appellant was deprived by virtue of that portion of his sentence
being set aside by this decision, are hereby ordered restored. See UCMJ arts. 58(b)
and 75(a).

      Chief Judge AYRES and Senior Judge COOK concur.
                                        FOR THE COURT: 
                                       FOR   THE COURT:



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




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