                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                  Alphonso C. PALMER, Staff Sergeant
                       U.S. Air Force, Appellant

                               No. 03-0173

                         Crim. App. No. 34379


       United States Court of Appeals for the Armed Forces

                        Argued November 18, 2003

                         Decided April 1, 2004

     ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                                  Counsel

For Appellant: Captain Sandra K. Whittington (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea and Captain James M.
Winner (on brief); Major Maria A. Fried.

For Appellee: Captain Kevin P. Stiens (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief);
Lieutenant Colonel Lance B. Sigmon.

Military Judge:    Robert G. Gibson


  This opinion is subject to editorial correction before final publication.
United States v. Palmer, No. 03-0173/AF


     Judge ERDMANN delivered the opinion of the Court:

     Appellant, Staff Sergeant Alphonso C. Palmer, separately

conspired with two employees of the Naval Exchange to illegally

obtain automotive parts and tires from the Naval Exchange, which

Palmer would then use or sell in his private business

enterprises.    The items Palmer unlawfully obtained exceeded

$100,000.00 in value.      He was found guilty of two specifications

each of conspiracy and larceny, violations of Articles 81 and

121, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 881

and 921 (2000), respectively.

      He was sentenced to a bad-conduct discharge, confinement

for 30 months, total forfeitures, reduction to the lowest

enlisted grade, and a fine in the amount of $30,000.00.     The

sentence also provided that if the fine was not paid, Palmer

would be subject to an additional 12 months of confinement.

This fine and the provision for contingent confinement gave rise

to the two issues we granted for review:

                                     I.

      WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
      WHEN IT DEEMED APPELLANT'S FAILURE TO PAY HIS ADJUDGED
      DEBT AS WILLFUL AND APPROVED THE CONTINGENT
      CONFINEMENT FOR 95 DAYS DESPITE THE GOVERNMENT HAVING
      RECEIVED A $3,000.00 PARTIAL PAYMENT TOWARDS THE FINE.

                                     II.

      WHETHER THE INITIAL GOVERNMENT ACCEPTANCE OF
      APPELLANT'S $3,000.00 PARTIAL FINE PAYMENT ON MARCH 9,
      2001, WHICH OCCURRED AFTER THE CONVENING AUTHORITY'S
      REMISSION OF THE UNPAID BALANCE OF THE ADJUDGED FINE


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United States v. Palmer, No. 03-0173/AF


      AND APPROVAL OF AN ADDITIONAL 95 DAYS OF CONFINEMENT,
      EITHER (1) NEGATED THE CONVENING AUTHORITY'S ACTION
      REMITTING THE UNPAID BALANCE OF THE ADJUDGED FINE AND
      APPROVING ADDITIONAL CONFINEMENT, OR (2) SHOULD HAVE
      REDUCED THE ADDITIONAL CONFINEMENT TO 58 DAYS.


      We affirm the decision of the Air Force Court of Criminal

Appeals.   The Court of Criminal Appeals did not err in its

treatment of Palmer’s failure to pay his debt, his March 9, 2001

partial payment or the execution of the contingent confinement.

                                    FACTS

     On December 31, 2000, the convening authority approved the

sentence including the $30,000.00 fine and the contingent

confinement.    On that same day, the convening authority informed

Palmer by letter that he had 30 days to pay the fine to the

Hickham Air Force Base Finance and Accounting Office and that

after 30 days the amount due would be considered delinquent.

      On January 29, 2001, Palmer requested an additional 30 days

within which to pay the fine.        He was granted an extension until

February 9.    On the extended due date of February 9, Palmer made

a partial payment of $5,000.00.           On February 13 he made a second

payment in the amount of $17,175.00, leaving an unpaid balance

on the fine of $7,825.00.

     Because the fine had not been paid in full by the extended

February 9 due date, the convening authority ordered a hearing

pursuant to Rule for Courts-Martial 1113(d)(3) [R.C.M.] to

determine whether the conditional confinement should be


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United States v. Palmer, No. 03-0173/AF


executed.    A hearing officer conducted the hearing on February

14 and found: (1) at the time of the contingent confinement

hearing, Palmer was “delinquent in [the] payment of his fine[]

in the amount of $7,825.00”; (2) Palmer “failed to show by a

preponderance of the evidence that his failure to pay [was] due

to indigence or that he made a good faith effort to pay”; and

(3) there was evidence that Palmer had “an intent to hide assets

and deprive the Government of monies owed.”1    Despite these

findings, the hearing officer recommended that Palmer be given

until 8:00 a.m. on March 1 to pay the balance of the fine, and

that if the balance was not paid by that time then he should

serve an additional 95 days of confinement.2

     In a February 28 memorandum, the convening authority

informed Palmer that he had adopted the hearing officer’s

recommendations.     The memorandum specifically stated that Palmer

had until 8:00 a.m., March 1 to pay the remaining $7,825.00 and

if it was not paid, the convening authority would execute




1
 Palmer owned two vehicles with a cumulative loan value of
$14,175; he transferred ownership of two other vehicles to
relatives in Samoa for personal reasons; he was part owner of a
business called “Momo’s Tires” that had business inventory
available for liquidation; and Palmer’s wife sold their car
stereo business in July 2000 on contract for $150,000.00.
2
  In a statement dated February 13, 2001, attached to the
contingent confinement hearing record, Palmer stated that he
anticipated that he could pay the balance of the fine within the
next two weeks.

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United States v. Palmer, No. 03-0173/AF


additional confinement proportional to the amount of the fine

remaining unpaid.

      On March 8, after no further payments on the fine had been

received, the convening authority remitted the unpaid $7,825.00

balance of the fine and executed an additional 95 days of

confinement in lieu of the fine.3         Perhaps unaware of either the

February 28 memorandum or the March 8 action, Palmer made a

partial payment on March 9 in the amount of $3,000.00 to the

Hickham AFB Finance and Accounting Office.

     On March 22 the convening authority rejected the $3,000.00

payment.    In a memorandum to Palmer, the convening authority

informed Palmer that the remission of the unpaid balance of the

fine and the execution of the additional days of confinement had

not changed and that the $3,000.00 payment from March 9 would be

returned.    Subsequently, Palmer received a $2,342.34 payment

from the Government, which represented the rejected $3,000.00

payment less an amount for other debts Palmer owed the United

States.




3
 The members adjudged contingent confinement for 12 months in
the event the fine was not paid. The 95 days of confinement
recommended by the contingent confinement hearing officer and
executed by the convening authority was proportional to the
amount of the fine remaining unpaid when the convening authority
acted.

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United States v. Palmer, No. 03-0173/AF


                                 DISCUSSION

     Pursuant to the authority Congress has given him to

establish punishments, Article 56, UCMJ, 10 U.S.C. § 856 (2000),

the President has provided that a court-martial “may adjudge a

fine in lieu of or in addition to forfeitures.”    R.C.M.

1003(b)(3).    The rule further provides that “[i]n order to

enforce collection, a fine may be accompanied by a provision in

the sentence that, in the event the fine is not paid, the person

fined shall, in addition to any period of confinement adjudged,

be further confined until a fixed period considered an

equivalent punishment to the fine has expired.”4   Id.

      Before contingent confinement can be executed, the

convening authority must afford the person fined notice and an




4
  The unpaid portion of Palmer’s fine was remitted pursuant to
Department of the Air Force Instruction 51-201, Administration
of Military Justice, §§ 9.9.2, 9.9.5.11 (Nov. 26, 2003) [AFI 51-
201], both of which indicate that the additional confinement is
a “substitute” for the fine. This opinion does not address
whether the convening authority may execute contingent
confinement without remitting any unpaid portion of an approved
fine or providing for remission of the unpaid portion of a fine
upon service of a contingent period of confinement.


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United States v. Palmer, No. 03-0173/AF


opportunity to be heard.5       R.C.M. 1113(d)(3).   At this contingent

confinement hearing, a convicted service member subject to a

fine has the burden of demonstrating that, despite good faith

efforts, he has been unable to pay the fine “because of

indigency.”    Id.   If the service member demonstrates that he

cannot pay the fine because of indigency, the contingent

“confinement may not be executed for failure to pay a fine . . .

unless the authority considering imposition of confinement

determines . . . that there is no other punishment adequate to

meet the Government’s interest in appropriate punishment.”        Id.

See United States v. Tuggle, 34 M.J. 89, 91 (C.M.A. 1992);

United States v. Soriano, 22 M.J. 453, 454 (C.M.A. 1986).

     There is no dispute that Palmer was afforded those due

process rights to which he was entitled.       Nonetheless, citing


5
  In this case, the Commander, 15th Air Base Wing, Hickham Air
Force Base, took all the actions relevant to the granted issue.
Although his authority to take these actions has not been
challenged in the course of this appeal, we note that those
actions were taken in three capacities. Initially, this
commander took action on the record of trial in his capacity as
the general court-martial convening authority over the court-
martial. See Article 60, UCMJ, 10 U.S.C. § 860 (2000); R.C.M.
1107. Thereafter, in taking actions relating to nonpayment of
the fine, specifically ordering the contingent confinement
hearing and executing the contingent confinement, the commander
acted as the “authority considering imposition of confinement”
under R.C.M. 1113(d)(3) pursuant to AFI 51-201, § 9.9.5.2 as the
commander exercising general court-martial authority over
Palmer. Finally, in remitting the unpaid balance of Palmer’s
fine, the commander was exercising the Article 74, UCMJ, 10
U.S.C. § 874 (2000), authority of the Secretary of the Air
Force, as delegated under AFI 51-201, § 11.17.


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United States v. Palmer, No. 03-0173/AF


Tuggle, 34 M.J. at 92-93, Palmer argues that even though he was

technically not indigent he was entitled to consideration of

something short of contingent confinement because he made good

faith efforts to pay the fine and those efforts required the

convening authority to consider what payment plan or resolution

would best satisfy the ends of justice.         Tuggle, 34 M.J. at 92.

Palmer further asserts that when the Government accepted the

$3,000.00 on March 9 there was a constructive waiver of the

March 1 deadline and a constructive retraction of the convening

authority’s March 8 order.       We disagree.

     In regard to Palmer’s argument that he acted in good faith,

the hearing officer found that Palmer had “failed to show by a

preponderance of the evidence that . . . he made a good faith

effort to pay.”     We are not persuaded that the hearing officer’s

finding was clearly erroneous.        There is a substantial basis in

the hearing record to conclude that, rather than making good

faith efforts to timely pay the fine, Palmer engaged in conduct

designed to remove assets from his control and did not take

reasonable steps to liquidate assets to make timely payment.

      Further, Palmer’s history of payment on the fine does not

support his contention that he made payments in good faith.        He

made no payments until the last day of his first extension, at

which time he paid only one-sixth ($5,000.00) of the amount due.

Palmer’s second payment, which was after the extended due date



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United States v. Palmer, No. 03-0173/AF


of February 9, was again only a partial payment and left a

substantial portion of the fine unpaid.    Even the final

$3,000.00 was less than the amount due and tendered at a time

when, as far as Palmer knew, he was already a month beyond the

extended due date.     The R.C.M. 1113(d)(3) hearing record and

payment history do not support Palmer’s contention that he was

acting in a good faith effort to fulfill his obligation to pay

the fine.

     Palmer’s reliance on Tuggle is misplaced.     After a hearing

officer had determined Tuggle was not indigent and had not made

good faith efforts to pay the fine, Tuggle approached the

convening authority requesting a monthly payment plan in lieu of

serving the contingent period of confinement.    The convening

authority, however, executed the contingent confinement.

      This Court held that the convening authority erred as a

matter of law when he did not “consider whether the installment

payment plan would satisfy the ends of justice in [that] case.”

Id. at 92.    Two factors served as a predicate to that holding.

First, this Court noted that “Tuggle’s financial limitations

clearly could have placed him at some level of indigence.”    Id.

Second, the Court found that the Government had alternatives

available to meet its penal interests.    Id.

     In this case we find nothing in the record to cause us to

question the finding that Palmer was not indigent.    This



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United States v. Palmer, No. 03-0173/AF


conclusion is bolstered by the fact that at no point during this

appeal did Palmer claim that he was in fact indigent and his

appellate defense counsel’s concession during argument that he

was “technically” not indigent.           Additionally, at the time the

fine was approved Palmer did not approach the convening

authority and request a payment plan or schedule to accommodate

his financial situation.       Instead, Palmer requested a reduction

in the fine in his post-trial submissions and later an extension

of the due date.     Even though he received several extensions, he

made only one timely payment and each of his payments was in an

amount substantially less than the full amount due.

      Under these circumstances, the convening authority was not

obligated to withdraw or amend his action of March 8 when Palmer

made his final untimely payment of $3,000.00.          This belated

payment did nothing to alter or excuse the fact that Palmer did

not comply with the payment terms established by the convening

authority and the “acceptance” of this payment did not vest

Palmer with any new substantive rights.          After the convening

authority remitted the unpaid balance of the fine and executed

the contingent confinement on March 8, Palmer’s fine-related

debt to the United States was extinguished.          The finance

office’s administrative “acceptance” of the $3,000.00 on March 9

did not resurrect the fine or alter the convening authority’s




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United States v. Palmer, No. 03-0173/AF


March 8 action.     On March 9 there was simply no fine against

which to apply the untimely $3,000.00 payment.6

      In his memorandum of March 22 the convening authority set

forth the background facts relating to Palmer’s fine, his

payment history, and the contingent confinement hearing.

Following this summary, the convening authority stated, “My

action [remitting the fine and executing the confinement]

stands[.]”7    In our view this reflects that the convening

authority gave due consideration to whether the ends of justice

would be served by revoking his action of March 8 and

substituting some other appropriate action.    Given the facts of

this case we do not believe that the convening authority abused

his discretion by adhering to his original decision and

returning the proffered $3,000.00, less deductions for debts to

the United States.     See generally 5 U.S.C. § 5514(a)(1) (2000).

      Absent indigence, Palmer’s untimely, unilateral efforts to

make partial payment on his fine did not create any obligation



6
  As we hold that the convening authority did not abuse his
discretion by refusing the March 9 $3,000.00 payment, we need
not address Palmer’s argument that the contingent confinement
should have been reduced to 58 days to reflect the receipt of
the $3,000.00.
7
  We note that the Manual for Courts-Martial, United States (2002
ed.) lacks specific guidance regarding the procedures applicable
to a delinquent, but not indigent accused. In light of the more
substantial civilian experience in this area, the President
might well consider further amplification in lieu of case-by-
case appellate review of such matters.


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United States v. Palmer, No. 03-0173/AF


on the part of the convening authority to accept that payment or

amend his prior action remitting the fine and executing the

contingent confinement.      A contrary ruling would permit Palmer

to repeatedly interrupt the effective administration of justice

without fulfilling the obligations imposed upon him pursuant to

a lawful sentence and process.

                                  DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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