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

                           UNITED STATES, Appellee
                                        v.
                          Private E1 ROLLAN D. MEAD
                          United States Army, Appellant

                                   ARMY 20110717

                      Headquarters, III Corps and Fort Hood
                           James Varley, Military Judge
                   Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Robert A. Feldmeier, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Edward J. Whitford, JA (on brief).


                                   25 February 2013

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                               OPINION OF THE COURT
                              ----------------------------------

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of drunken operation of a vehicle, wrongful use of
amphetamine, and involuntary manslaughter by operating a motor vehicle in a
culpably negligent manner, in violation of Articles 111, 112a and 119, Uniform
Code of Military Justice, 10 U.S.C. §§ 911, 912a, 919 (2006) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
thirty-eight months, and forfeiture of all pay and allowances. Pursuant to a pretrial
agreement, the convening authority approved only so much of the sentence as
provides for a bad-conduct discharge, confinement for twenty-four months, and
forfeiture of all pay and allowances.

      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,
MEAD—ARMY 20110717

pursuant to United States v. Pierce, 27 M.J. 367 (C.M.A. 1989), was both illusory
and improperly calculated. This assignment of error merits discussion but no relief.

                                       FACTS

       At trial, on 7 June and 15 August 2011, appellant was charged with and
convicted of wrongful use of amphetamine, the same drug use for which he received
earlier non-judicial punishment under Article 15, UCMJ. Specifically, on 3
February 2010, pursuant to Article 15, UCMJ, then Specialist Mead’s battalion
commander imposed the following punishment: extra duty for 45 days; forfeiture of
$723.00, suspended, to be automatically remitted if not vacated before 2 August
2010; reduction to E-1; and an oral reprimand. 1

       This prior non-judicial punishment for appellant’s amphetamine use was not
only discussed in the stipulation of fact, the record of the Article 15, UCMJ,
proceeding, DA Form 2627, was admitted into evidence as Prosecution Exhibit 2.
Upon the government’s offer, the military judge stated, “[a]ll right, looking at
Prosecution Exhibit 2, this appears to be non-judicial punishment the accused
received in February of 2010, for the same conduct the accused was convicted of at
this court-martial, under Charge II, is that correct?” After both the government and
the defense agreed, the military judge and the parties thoroughly discussed and
agreed upon what forms of punishment had been imposed upon appellant pursuant to
the Article 15, UCMJ. The defense had no objection to the DA Form 2627 being
admitted into evidence.

      Finally, after announcing the adjudged sentence, the military judge stated:

             When arriving at the adjudged sentence in this case, I took
             into account the non-judicial punishment, or NJP, the
             accused has already received under Article 15 of the
             Uniform Code of Military Justice. As a result of the NJP
             that was imposed by his battalion commander, Lieutenant
             Colonel [BH], for the wrongful use of amphetamine that
             he was charged with and found guilty of in the
             Specification of Charge II. If the accused had not
             received prior NJP for the offense listed in the
             Specification of Charge II, I would have adjudged an
             additional 2 months of confinement, in addition to what I
             just announced.




1
  The record indicates the forfeiture was, in fact, remitted on 2 August 2010 and,
therefore, never executed.


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MEAD—ARMY 20110717

             In compliance with United States versus Pierce, 27 MJ
             367, Court of Military Appeals, 1989, and United States
             versus Flynn, 39 MJ 774, Army Court of Military Review,
             1984, I am going to state, on the record, the specific credit
             I gave the accused for his prior punishment in arriving at
             my adjudged sentence. In arriving at the adjudged
             sentence, I gave the accused credit for one 30-day month
             of confinement credit for the 45 days of extra duty he
             served, as a result of the NJP. In addition, I gave the
             accused one 30-day month of confinement credit for the
             reduction to E1 he served, as a result of the reduction at
             the NJP proceeding, from February 2010 to present. As
             the accused was already an E1 at the time of this court
             martial, I did not adjudge a reduction. However, if the
             accused had been an E4 today, I would have adjudged a
             reduction to E1.

             While case law would indicate that I have no duty to apply
             specific confinement credit against the adjudged sentence
             as a result of a prior reduction to E1 at an NJP proceeding,
             I believe it is within my discretion to do so, and I have
             chosen to do so in this case. Under the circumstances of
             this case, I have determined that it is appropriate to credit
             the accused with an additional 30-days of confinement
             against the confinement I ultimately adjudged, to account
             for the period he served as an E1, between February 2010
             and present. 2

Neither side had any question or objection to the military judge’s Pierce credit
calculation. Furthermore, when the military judge announced his understanding that
the pretrial agreement’s cap of twenty-four months confinement was such that the
convening authority could approve the adjudged sentence except for any
confinement in excess of twenty-four months, both sides echoed that same
interpretation.

                             LAW AND DISCUSSION

      It is unquestioned that in cases where one is prosecuted for the same conduct
for which non-judicial punishment has been previously imposed, “an accused must

2
  We interpret the military judge’s explanation to indicate the military judge
credited appellant with a single thirty-day period of confinement for the prior
reduction in rank. Regardless, it was clear that any credit awarded by the military
judge was to be applied against the adjudged sentence.


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MEAD—ARMY 20110717

be given complete credit for any and all non-judicial punishment suffered: day-for-
day, dollar-for-dollar, stripe for stripe.” Pierce, 27 M.J. at 369.

             Credit Applied Against the Adjudged or Approved Sentence

       Appellant argues any Pierce credit to which he was entitled should have been
applied against his approved sentence instead of his adjudged sentence. To do
otherwise, according to appellant, confers nothing but an illusory benefit upon him.
See United States v. Ridgeway, 48 M.J. 905 (Army Ct. Crim. App. 1998).
Appellant’s assertion that Ridgeway’s mandate for meaningful Pierce credit requires
that credit always count against the approved sentence when the pretrial agreement’s
sentence cap is less than the adjudged sentence paints the state of the law with too
broad a brush. Ridgeway, by its own language, is limited to its facts, where the
defense “elected not to raise the issue of credit for the prior punishment during the
court-martial.” Id. at 906. Also, Ridgeway requires that when applying monetary
Pierce credit, the effect of automatic forfeitures must be considered. (emphasis
added). Ridgeway, 48 M.J. at 906.

       Just as it is well-settled that credit for prior non-judicial punishment must be
given, it is similarly well-settled that the accused is the gatekeeper regarding if,
when, and how prior non-judicial punishment for the same offense will be presented,
considered, and credited. See United States v. Gammons, 51 M.J. 169, 183
(C.A.A.F. 1999). More specifically, in that role as gatekeeper, the accused governs
whether Pierce credit will be calculated and applied by the panel, the military judge,
or the convening authority. Id.

      In this case, it is clear appellant and his counsel decided to have the military
judge apply any Pierce credit at trial instead of requesting its application by the
convening authority. The military judge summarized an early RCM 802 conference:

             We, also, went over issues of whether there’d been any
             pretrial confinement or pretrial punishment of the accused,
             as well as discussed the fact that the accused has,
             apparently, been punished for what has been charged as a
             specification of Charge II, that is the wrongful use of
             Amphetamines at a prior non-judicial punishment
             proceeding, which would appear to require that the
             accused receive Pierce Credit toward any sentence
             adjudged by this court. (emphasis added).

Importantly, when asked, neither side desired to contradict or add anything to the
military judge’s understanding. Appellant stipulated to the prior Article 15, UCMJ,
proceeding and the specific punishments imposed. Although the government offered
the record of the prior non-judicial punishment into evidence, the defense not only



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MEAD—ARMY 20110717

had no objection but referred to that prior punishment for purposes of extenuation
and mitigation in its sentencing argument.

      This court has previously held that “in circumstances where a military judge
awards credit for non-judicial punishment on the adjudged sentence and the
punishments still exceeds [sic] the limitation of punishments in a pretrial
agreement,” the military judge has already satisfied Pierce and there is no duty for
the convening authority to again award credit. United States v. Flynn, 39 M.J. 774,
775 (A.C.M.R. 1994); see also United States v. Edwards, 42 M.J. 381 (C.A.A.F.
1995). We hold so again.

                  Pierce Credit for Reduced Pay vs. Forfeited Pay

       Turning from where and when Pierce credit should be applied to the amount
of that credit, appellant argues “stripe-for-stripe” credit mandates an accounting and
restitution for any pay lost as a result of a rank reduction imposed at a prior Article
15, UCMJ, proceeding for same offenses. This assertion is based upon the
unpublished opinion of this court, United States v. Santizo, ARMY 20100146, 2011
WL 4036106 (Army Ct. Crim. App. 31 Aug. 2011) (mem. op.), which did calculate
and award credit for “forfeiture of pay that resulted from his reduction in rank.” In
Santizo, this court relied upon another unpublished opinion, United States v.
Piompino, ARMY 20010126, 2002 WL 34571730 (Army Ct. Crim. App. 29 Mar.
2002) (mem. op.), which calculated lost pay in order to “fashion [their] own remedy”
in the absence of any other suggestion of how to calculate credit for a prior
reduction.

       While we certainly do not hold that consideration of pay lost as a result of a
prior reduction is beyond the scope of either judicial or convening authority
discretion, there is no legal obligation to provide credit for such a consequence.
Accordingly, we decline to do so in this case.

       In Pierce, immediately after requiring day-for-day, dollar-for-dollar, stripe-
for-stripe credit, our superior court acknowledged, “[b]ecause the types of
punishments administered non-judicially and those adjudged by courts-martial are
not always identical, there may be some difficulties in reconciliation.” Pierce, 27
M.J. at 369. This reconciliation has proven even more troublesome in light of
statutory provisions requiring automatic reductions and monetary forfeitures.

       While converting a reduction in rank or grade to confinement credit is not
prohibited, the conversion process involves potential flaws. First, Pierce stands for
the proposition that one should not be punished twice for the same offense. It does
not follow that one may not be affected in multiple fashions as a result of a singular
offense. Calculation of any pay lost as a result of a previously imposed reduction in
rank involves, at its core, consideration not of the actual punishment but of one of



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MEAD—ARMY 20110717

its various consequences. Simply stated, forfeiture of pay is an authorized
punishment as is reduction in rank. However, less pay due to rank reduction is but a
collateral consequence.

        Second, the sole focus on the financial aspect of rank reduction can result in
an imperfect and unwieldy double conversion. Instead of a simple one-step
conversion, appellant would have us first convert the grade reduction into a dollar
amount, then equate that number to forfeiture of pay, and ultimately convert that
figure into days of confinement. This equation can lead to an outcome that bears
little resemblance to the starting point. For example, in this case, based upon a
reduction from E-4 to E-1 for drug use, imposed via Article 15, UCMJ, eighteen
months before trial, appellant now asks for 168 days of confinement credit against
twenty-four months of confinement approved in a case where appellant also stands
convicted of involuntary manslaughter. We decline to approve such a result. After
all, the maximum punishment authorized by Article 15, UCMJ, can only deprive
one’s liberty for up to sixty days. Surely, a fraction should not subsume the whole.

       Third, calculating the precise amount of pay lost as a direct result of a non-
judicially imposed reduction is fraught with speculation. Questions abound: What
did the soldier do or not do in order to mitigate the financial impact and regain rank
through accelerated or, at least, timely promotion? How do administrative flags,
suspensions of favorable personnel actions such as promotion, play into the
equation? What about other consequences of reduction such as loss of allowances,
loss of security clearances, or loss of schooling and training opportunities? When is
the end point for calculation of lost pay? Which consequences had financial impact
that are worthy of credit and which did not and thus should be considered monetarily
insignificant? These are but a few of the virtually countless issues that arise when
attempting to identify and then calculate collateral consequences resulting from a
reduction in rank.

       Finally, and most significantly, a cold numerical conversion of a rank
reduction ignores the qualitative difference between certain punishments. Some
punishments defy precise equivalencies. For example, in this case, appellant was
administered an oral reprimand at his Article 15, UCMJ, proceeding, yet requests no
credit for this prior punishment. Are we to assume that reprimands are indeed
meaningless and of no value? Our superior court, when wrestling with the specific
issue of how to provide former jeopardy credit by equating reductions and other
forms of punishment, has persuasively noted:

             Upon further consideration of this issue, we conclude that
             reprimands, reductions in rank, and punitive separations
             are so qualitatively different from other punishments that
             conversion is not required as a matter of law . . . .




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MEAD—ARMY 20110717

             . . . Although a change in rank has a clear monetary
             consequence with respect to basic pay, an individual’s
             rank in the military involves far more than money. The
             primary attribute of rank is one’s relative status with
             respect to his or her fellow members of the armed forces.
             Many of the central features of military life - such as
             assignments, privileges, responsibilities, and
             accountability - are directly tied to rank. Because the
             factors applicable to imposing a reduction in rank reflect
             highly individualized judgments about military status, it is
             not appropriate to impose a generally applicable monetary
             formula for crediting periods of confinement or other
             punishments against a sentence to reduction.

United States v. Josey, 58 MJ 105, 108 (C.A.A.F. 2003); see also United States v.
Rosendahl, 53 MJ 344 (C.A.A.F. 2000).

       The above analysis echoes the last sentence of RCM 305(k) which declares
that pretrial confinement credit shall not be applied against any form of punishment
other than confinement, hard labor, restriction, fine, and forfeiture. While this is a
case of applying credit for a reduction as opposed to credit against a reduction, it is
clear that the conversion in either direction is problematic.

       Accordingly, we find no error. The military judge, in his discretion, awarded
thirty days of confinement for the prior reduction. There was no objection, and we
do not find any requirement to convert the reduction into lost pay and then into
confinement in order to satisfy Pierce.

                                   CONCLUSION

       On consideration of the entire record, the submissions of the parties, we hold
the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge GALLAGHER concur.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




                                         MALCOLMH.
                                        MALCOLM       H.SQUIRES,
                                                         SQUIRES,JR.
                                                                  JR.
                                         ClerkofofCourt
                                        Clerk      Court




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