                        UNITED STATES, Appellee

                                     v.

              Gerald R. PFLUEGER III, Lance Corporal
                   U.S. Marine Corps, Appellant

                               No. 05-0139
                       Crim. App. No. 200400213

       United States Court of Appeals for the Armed Forces

                           Argued May 1, 2007

                         Decided June 21, 2007

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


                                  Counsel


For Appellant: Lieutenant Richard H. McWilliams, JAGC, USNR
(argued); Captain Jeffrey S. Stephens, USMC (on brief).


For Appellee: Lieutenant David H. Lee, JAGC, USN (argued);
Commander Paul C. LeBlanc, JAGC, USN, and Captain Roger E.
Mattioli, USMC (on brief).


Military Judge:    Kenneth B. Martin



        THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pflueger, No. 05-0139/MC


     Chief Judge EFFRON delivered the opinion of the Court.

    A special court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of making a

false official statement, larceny from another Marine (four

specifications), and obstructing justice, in violation of

Articles 107, 121, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 907, 921, 934 (2000).   The sentence

adjudged by the court-martial included a bad-conduct discharge,

confinement for four months, and reduction to the lowest

enlisted grade.

    The convening authority approved the findings and sentence.

In addition, the convening authority suspended two parts of the

sentence for a period of twelve months:   (1) all confinement in

excess of ninety days and (2) the bad-conduct discharge.    With

respect to the two suspended parts of the sentence, the

convening authority directed that “the suspended portion of the

sentence will be remitted without further action” at the end of

the twelve-month suspension period “unless sooner vacated.”

    The suspended portions of the sentence, including the bad-

conduct discharge, were remitted at the end of the twelve-month

period.   United States v. Pflueger, No. NMCCA 200400213, 2006

CCA LEXIS 328, at 5, 2006 WL 4571401, at *1 (N-M. Ct. Crim. App.

Dec. 5, 2006).    Subsequently, the Navy-Marine Corps Court of

Criminal Appeals reviewed the case.   The court noted that nearly


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United States v. Pflueger, No. 05-0139/MC


a year passed between the adjudication of the sentence and the

convening authority’s action, and that “[i]t then took over

three years to forward the case” for appellate review.   United

States v. Pflueger, No. NMCCA 200400213, slip op. at 2 (N-M. Ct.

Crim. App. Jul 30, 2004).   The court described this

“unexplained” delay as “both unreasonable and unconscionable”

and determined that sentencing relief was appropriate.   Id.

(citing United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)).

The court concluded:   “Accordingly, we affirm the findings and

that portion of the sentence that extends to confinement for 4

months and reduction to pay grade E-1.”   Id.   As a result, the

court approved the sentence adjudged by the court-martial except

for the bad-conduct discharge.   Id.

    On Appellant’s petition to our Court, we granted review of

the following issue:

    WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
    APPEALS AWARDED MEANINGFUL SENTENCE RELIEF (NOT
    AFFIRMING AN AUTOMATICALLY REMITTED BAD-CONDUCT
    DISCHARGE) AFTER IT FOUND SENTENCING RELIEF TO BE
    APPROPRIATE UNDER UNITED STATES v. TARDIF, 57 M.J.
    219 (C.A.A.F. 2002) FOR UNREASONABLE POST-TRIAL
    DELAY.

60 M.J. 464 (C.A.A.F. 2005).

    After receiving the briefs of the parties and conducting

oral argument, we remanded the case to the court below for

further consideration of issues related to the question of

meaningful relief.   61 M.J. 272 (C.A.A.F. 2005).   The court


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United States v. Pflueger, No. 05-0139/MC


below affirmed its prior decision.      Pflueger, 2006 CCA LEXIS

328, at *9, 2006 WL 4571404, at *3.      We granted review of

Appellant’s petition regarding the adequacy of the remedy

provided by the Court of Criminal Appeals.      64 M.J. 437

(C.A.A.F. 2007).



                             I.   BACKGROUND

         A.   REMEDIAL ACTION FOR UNREASONABLE POST-TRIAL DELAY

        In the course of conducting sentence appropriateness review

under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000), the Courts

of Criminal Appeals have “broad discretion to grant or deny

relief for unreasonable or unexplained [post-trial] delay . . .

.”   United States v. Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004).

In the present case, the lower court concluded that sentence

relief was warranted as a result of “unreasonable and

unconscionable” post-trial delay.       Pflueger, No. NMCCA

200400213, slip op. at 2.     Appellant contends that the lower

court’s disapproval of the adjudged bad-conduct discharge did

not constitute meaningful relief under the circumstances of this

case.    Whether the action taken by the lower court provided

meaningful relief is a question of law that we consider under a

de novo standard of review.

        The issue of relief from an adjudged bad-conduct discharge

implicates the procedures for automatic forfeitures and the


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United States v. Pflueger, No. 05-0139/MC


procedures for review and execution of a punitive discharge.

The following sections summarize the applicable procedures.


               B. AUTOMATIC FORFEITURES IN CASES
                 INVOLVING A PUNITIVE SEPARATION

     A court-martial sentence that includes specified

punishments, including a bad-conduct discharge, triggers

automatic forfeitures of pay and allowances under Article 58b,

UCMJ, 10 U.S.C. § 858b (2000).   See United States v. Emminizer,

56 M.J. 441, 443 (C.A.A.F. 2002) (discussing the legislative

background of Article 58b).

     Just as automatic forfeitures are triggered by specific

types of court-martial sentences, there is a comparable

provision for return of automatic forfeitures to the

servicemember under specified circumstances.   Amounts that were

subject to automatic forfeitures “shall be paid” to the

servicemember if the sentence is:    (1) “set aside”; (2)

“disapproved”; or (3) “as finally approved, does not provide

for” one of the punishments that triggers automatic forfeitures

-- death, confinement for more than six months, or confinement

for six months or less and a punitive separation.   Article

58b(c), UCMJ; see Article 58b(a)(2).    The statute does not

expressly identify the stage of the court-martial review process

at which a sentence is “finally approved,” or no longer




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United States v. Pflueger, No. 05-0139/MC


“provide[s] for a punishment” that triggers mandatory

forfeitures.


                 C.    REVIEW AND EXECUTION OF SENTENCES
                      INVOLVING A PUNITIVE SEPARATION

      The procedure for review and execution of sentences

involving a punitive separation provides the foundation for

considering when automatic forfeitures are returned to a

servicemember.    The following summarizes the review process for

a case involving a punitive separation in which the

servicemember has not waived appellate review.      See Articles 61,

and 66, UCMJ, 10 U.S.C. §§ 861, 866 (2000).

1.   Review of Sentences Involving a Punitive Separation

      The initial responsibility for reviewing a court-martial

sentence rests with the convening authority, who has the

authority to modify the sentence so long as the severity of the

punishment is not increased.      Article 60(c)(1), UCMJ, 10 U.S.C.

§ 860(c)(1) (2000); Rule for Courts-Martial (R.C.M.) 1107(d).

In acting on a sentence, the convening authority “may approve,

disapprove, commute, or suspend the sentence in whole or in

part.”   Article 60(c)(2), UCMJ.     The convening authority also

may remit all or part of any unexecuted part of a sentence,

except for death.      Article 74, UCMJ, 10 U.S.C. § 874 (2000).

When the convening authority suspends execution of all or part

of the sentence, successful completion of a period of suspension


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United States v. Pflueger, No. 05-0139/MC


results in automatic remission of the suspended portion of the

sentence.   R.C.M. 1108.

      When a punitive separation is approved by the convening

authority, the case is reviewed by the appropriate Court of

Criminal Appeals under Article 66.     Thereafter, a case may be

reviewed by our Court under Article 67, UCMJ, 10 U.S.C. § 867

(2000).   The Supreme Court may grant review upon petition of

either party.   Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

Otherwise, after this Court has acted on a case, it is returned

either to the Court of Criminal Appeals or the convening

authority (unless there is to be action by the President or

Service Secretary) to act in accordance with this Court’s

decision.   Article 67(e), UCMJ.   Suspension or remission of all

or a part of a sentence does not affect appellate jurisdiction.

Steele v. Van Riper, 50 M.J. 89, 92 (C.A.A.F. 1999).

2.   Execution of a Sentence to a Punitive Separation

      Direct judicial review provides the “final judgment as to

the legality of the proceedings” in a case involving a punitive

separation.   Article 71(c)(1), UCMJ, 10 U.S.C. § 871(c)(1)

(2000).   The determination that a proceeding was lawful,

however, does not constitute the final action on the sentence in

a case involving a punitive separation.    After legal review is

completed, a punitive separation is further reviewed as a matter

of executive discretion under Article 71.    That portion of a


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United States v. Pflueger, No. 05-0139/MC


sentence providing for dismissal of an officer may not be

executed until “approved by the Secretary concerned.”       Article

71(b), UCMJ; see R.C.M. 1113(c)(2).        With respect to enlisted

personnel, a dishonorable or bad-conduct discharge may be

ordered executed only by “the officer then exercising general

court-martial jurisdiction over the accused” except as otherwise

prescribed by the Secretary concerned.       R.C.M. 1113(c)(1); see

Article 71(c)(1), UCMJ.    That officer has the power to remit or

suspend any unexecuted portion of the sentence.       Article 74,

UCMJ.



                            II.   DISCUSSION

        The granted issue asks whether the lower court provided

Appellant with meaningful sentence relief under Tardif.        We

examine this question by comparing Appellant’s case to the

situation he would have faced had the lower court found no

Tardif error.     In both cases, the executed sentence would not

include a bad-conduct discharge.        According to the lower court,

this result flows from its decision to not affirm the bad-

conduct discharge.    2006 CCA LEXIS 328, at *8-9, 2006 WL

4571401, at *3.    If the lower court had found no Tardif error,

however, the same result would occur because the convening

authority had remitted the bad-conduct discharge.       Thus, with




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United States v. Pflueger, No. 05-0139/MC


respect to the bad-conduct discharge itself, the decision of the

lower court did not provide Appellant with meaningful relief.

     Because the adjudged bad-conduct discharge triggered

automatic forfeitures under Article 58b(a), we also consider

whether the lower court’s action affected those forfeitures in a

manner that provided Appellant with meaningful relief under the

circumstances of the present case.   The lower court noted that

the adjudged sentence included a bad-conduct discharge, and that

the convening authority’s decision to remit the discharge did

not have the effect of removing the discharge from the sentence

reviewed by the lower court.   2006 CCA LEXIS 328, at *5, 2006 WL

4571401, at *20.   The court observed that the bad-conduct

discharge, having been remitted by the convening authority,

could not be executed, but found that to be of no import because

the discharge remained in the adjudged sentence.   Id.    On that

basis, the lower court concluded that its decision to not affirm

the bad-conduct discharge provided meaningful relief because the

court’s action served as the basis for return of automatic

forfeitures, citing the Dep’t of Defense, DoD 7000.14-R,

Financial Management Regulation, Volume 7A:   Military Pay Policy

and Procedures – Active Duty and Reserve Pay, ch. 48, para.

480306.D.   (Feb. 1999, incorporating changes through Dec. 2006).

2006 CCA LEXIS 328, at *7-*8, 2006 WL 4571401 at *3.     The

Government contends that this action provided meaningful relief


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United States v. Pflueger, No. 05-0139/MC

because the bad-conduct discharge would have remained in the

sentence approved by the appellate courts absent the lower

court’s decision to not include the discharge in the approved

sentence.

     The statutory requirement for return of forfeitures in

Article 58b, however, is not limited to actions by judicial

authorities or a determination that a punishment has been

“disapproved.”   The statute also provides for return of

forfeitures when the sentence “as finally approved, does not

provide for” the punishment that triggered the automatic

forfeitures -- in this case, the bad-conduct discharge.

     As noted in Section I.C.2, supra, judicial review

constitutes final review of the legality of the proceedings, not

final approval of a punitive separation.    In the case of an

officer, a punitive separation must be expressly approved by the

Service Secretary, and, in the case of an enlisted person, a

punitive separation cannot be executed until so ordered by the

officer then exercising general court-martial convening

authority over the servicemember at the time that legal review

has been completed.   Article 71(b), (c), UCMJ.

     The lower court recognized that Appellant’s bad-conduct

discharge could not be executed even if the lower court did not

find Tardif error because it had been remitted by the convening

authority.   2006 CCA LEXIS 328, at *5, 2006 WL 4571401, at *2.


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United States v. Pflueger, No. 05-0139/MC

The lower court concluded, however, that determinations with

respect to execution of the sentence would have no impact on the

return of forfeitures under Article 58b(c).   2006 CCA LEXIS 328,

at *8-9, 2006 WL 4571404, at *3.    The lower court’s

interpretation of Article 58b(c), however, did not address the

requirement for action on a bad-conduct discharge by executive

branch officials under Article 71.   Article 58b(c), on its face,

does not limit the final approval language to actions taken by

judicial authorities prior to review under Article 71.

Likewise, the DoD Financial Management Regulation cited by the

lower court and by the Government do not contain such a

limitation with respect to return of automatic forfeitures.

Moreover, those regulations do not carve out an exception with

respect to return of automatic forfeitures for cases in which a

convening authority has ordered remission and the sentence, as

executed, does not include a punitive separation.   Accord R.C.M.

1108(a) (“Remission cancels the unexecuted part of a sentence to

which it applies.”).

     Although not addressed by the lower court or the parties,

we observe that Article 71(b) requires that the punitive

separation of an officer be “approved” by the Service Secretary

before execution, while Article 71(c) and R.C.M. 1113(c) require

the convening authority to order execution of the punitive

separation of an enlisted member.    We have considered whether


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United States v. Pflueger, No. 05-0139/MC

these differences in Article 71 have an import with respect to

the meaning of the phrase “as finally approved” in Article

58b(c).   Although the word “approved” does not appear in the

enlisted separation language of Article 71(c), a convening

authority acting under that section must take affirmative action

to order a punitive separation, and has discretion to not do so.

See R.C.M. 1113(c); Article 74, UCMJ.   Moreover, if we were to

find significance in the use of the word “approved” in Article

71(b) regarding officers for purposes of interpreting Article

58b(c), such an interpretation would mean that officers would

receive a return of forfeitures upon favorable executive branch

action under Article 71, but enlisted persons would not receive

the benefit of such action.   Although there are important

elements of military life in which Congress has provided for

distinctions between enlisted personnel and officers, there is

nothing in the purpose or structure of Article 58b(c) indicating

that Congress used the words “finally approved” to deny enlisted

personnel the return of forfeitures in situations where such a

return would occur for officers.

     In summary, we hold that actions taken by executive branch

authorities in the course of acting on a punitive separation

under Article 71 are pertinent to the nature of a sentence

finally approved for purposes of Article 58b(c).   When a

punitive separation has been remitted, and consequently cannot


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United States v. Pflueger, No. 05-0139/MC

be executed under Article 71, the servicemember is entitled to

relief under Article 58b(c).    In that context, the decision by

the lower court to disapprove Appellant’s bad-conduct discharge

did not provide him with meaningful relief under Tardif.



                         III.    DECISION

     The December 5, 2006 decision of the Navy-Marine Corps

Court of Criminal Appeals is reversed.      The record of trial is

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals to determine and award meaningful

sentence relief to Appellant pursuant to its powers under

Article 66(c) and the principles set forth in United States v.

Tardif, 57 M.J. 219 (C.A.A.F. 2002).




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