             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                        ________________________

                            No. ACM 39092
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                         Jhoan M. CATANO
            Staff Sergeant (E-5), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                       Decided 3 January 2018
                        ________________________

Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 239 days,
reduction to E-1, forfeiture of all pay and allowances, and a reprimand.
Sentence adjudged 11 February 2016 by GCM convened at Davis-Mon-
than Air Force Base, Arizona.
For Appellant: Major Annie W. Morgan, USAF; Captain Patricia En-
carnción Miranda, USAF; Brian L. Mizer, Esquire.
For Appellee: Major Mary Ellen Payne, USAF; Major Meredith L. Steer,
USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                        ________________________
                   United States v. Catano, No. ACM 39092


HARDING, Senior Judge:
    In accordance with Appellant’s pleas pursuant to a pretrial agreement, a
military judge found Appellant guilty of one specification of absence without
authority in violation of Article 86, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 886; three specifications for the wrongful possession of a controlled
substance (methamphetamine, oxycodone, and heroin) and two specifications
for the wrongful use of a controlled substance (heroin and methamphetamine)
in violation of Article 112a, UCMJ, 10 U.S.C. § 912a; and one specification of
aggravated assault with a dangerous weapon in violation of Article 128, UCMJ,
10 U.S.C. § 928. Officer members sentenced Appellant to a bad-conduct dis-
charge, confinement for 239 days, reduction to E-1, forfeiture of all pay and
allowances, and a reprimand. The convening authority approved the sentence
as adjudged.
    Officer members effectively sentenced Appellant to “time served” with re-
gard to the confinement component of the sentence. Appellant spent 239 days
in pretrial confinement prior to the announcement of sentence and those days
were applied against the adjudged sentence to confinement. Appellant filed
pretrial motions alleging two distinct violations of Article 13, UCMJ, 10 U.S.C.
§ 813. Appellant claimed: (1) the conditions of his pretrial confinement were
unnecessarily severe, and (2) his pay was wrongfully terminated while he was
in pretrial confinement. Concluding that Appellant was arbitrarily held in
maximum custody and in unnecessary segregation during periods of his pre-
trial confinement, the military judge awarded Appellant with 277 days of ille-
gal pretrial confinement credit. The military judge, however, denied Appel-
lant’s motion for additional relief based on termination of pay while Appellant
was in pretrial confinement as illegal pretrial punishment. The military judge
also denied Appellant’s motion to apply the 277 days of illegal pretrial confine-
ment credit, which as a result of the “time served” sentence became excess con-
finement credit, to the adjudged bad-conduct discharge.
    Appellant now asserts the following issues on appeal: (1) whether Appel-
lant was punished illegally in violation of Article 13, UCMJ, when his pay was
terminated after being placed in pretrial confinement, and (2) whether 277
days of confinement credit awarded him by the military judge for illegal pre-
trial punishment in violation of Article 13 should have been applied toward the
punitive discharge to ensure meaningful relief for the violations. Appellant re-
quests this court provide relief for the Article 13 violations by setting aside the
bad-conduct discharge. After weighing the impact of the violations on Appel-
lant, we find that granting the requested relief would be disproportionate to
the aggravated nature of the offenses of which he was convicted and deny Ap-
pellant’s request.



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                      United States v. Catano, No. ACM 39092


                                  I. BACKGROUND
    This was Appellant’s second court-martial within a year. In his first court-
martial, convened on 21 April 2015, Appellant faced a charge with three spec-
ifications alleging the wrongful use of marijuana, heroin, and lorazepam (a
Schedule IV controlled substance) in violation of Article 112a, UCMJ. Conclud-
ing that Appellant was entitled to the limited protections of Air Force Instruc-
tion (AFI) 44-121, Alcohol and Drug Abuse Prevention and Treatment (ADAPT)
Program (8 Jul. 2014), for certain disclosures made by Airmen who self-identify
drug abuse, 1 the military judge at the first court-martial suppressed multiple
admissions made by Appellant and the results of a urinalysis obtained by
search authorization that relied on those admissions for probable cause. The
Government filed an interlocutory appeal challenging the military judge’s rul-
ing. 2
    While Appellant’s first court-martial was stayed pending the Government’s
appeal, his chain of command decided, in the interests of mission accomplish-
ment, unit morale and cohesion, and Appellant’s welfare, to reassign Appellant
from the plumbing section to the heavy equipment section of the civil engineer
squadron and then to the base chapel. On 4 June 2015, a chaplain found a glass
pipe in the restroom of the chapel. The chaplain did a quick internet search on
drug paraphernalia and determined the pipe he discovered was consistent with
one used for smoking methamphetamine. When confronted about the pipe, Ap-
pellant pleaded with the chaplains not to turn him in. Appellant then entered
his vehicle and started to drive, even though he saw the wing chaplain on the
hood of his vehicle attempting to keep Appellant from leaving. The chaplain
was able to slide off the vehicle without injury as Appellant drove away and
began a 13-day period of absence without leave (AWOL).
    Upon learning that Appellant was AWOL, AH, the spouse of one of Appel-
lant’s deployed co-workers in the plumbing section and a friend of Appellant,
became concerned for Appellant’s welfare and safety. She communicated with
Appellant through text messaging, offered him food, water, and money, and
convinced Appellant to meet her in person on the condition that she would not
turn him in to the authorities. Appellant told AH to meet him in the parking
lot of a restaurant located a half-mile from one of the gates of Davis-Monthan
Air Force Base. AH arrived at the designated location at approximately 2300
hours on 7 June 2015. Appellant climbed into AH’s vehicle and removed a
metal bar and a knife from his shorts so he could sit down. The metal bar was

1   Appellant participated in the ADAPT program for his drug abuse.
2In a published opinion addressing the first court-martial, the court concluded the
military judge did not abuse her discretion and denied the Government’s appeal.
United States v. Catano, 75 M.J. 513 (A.F. Ct. Crim. App. 2015).


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                   United States v. Catano, No. ACM 39092


about 12 inches long with a diameter approximately the size of a nickel. Ap-
pellant rested his right arm on the passenger side door and held the knife side-
ways in his right hand. He held the metal bar in his left hand and laid it across
his lap. As AH drove, Appellant correctly deduced that AH was going to turn
and drive on to the base. AH described Appellant’s reaction as follows:
       [H]e got, you know, raised his voice and he took out a---like a
       bar---and a knife and just---a knife and he just kept saying and
       looked at me and “[AH], don’t make me do this, don’t make me
       hurt you. Please don’t make me do this. We’re not going to base,
       don’t make me do this,” just over-and-over again. So, I would---
       that was---that was enough; that scared me.
    Fearing that Appellant might harm her with the metal bar and knife, AH
complied with Appellant’s command and drove away from the installation. She
then bought Appellant food and cigarettes and dropped him off at an intersec-
tion. As a result of the incident, AH suffered significant emotional and mental
distress. The distress was so great that she began locking herself in her bed-
room; barricading the door to her bedroom with chairs and other furniture; and
placing a loaded handgun on her nightstand. Eventually, AH left her off-base
home to move on to base.
    Two days after Appellant assaulted her with the knife and metal bar, AH
searched her vehicle and found two cellular phones and a sunglasses case left
by Appellant. The sunglasses case contained a needle, spoon, syringe, and some
amount of what was later identified as methamphetamine, oxycodone, and her-
oin.
    Appellant turned himself in on 17 June 2015. On that same day, Appellant
was ordered into pretrial confinement by his commander. Although Appellant
was initially held in medium custody, Appellant was placed in maximum cus-
tody on 15 September 2015 due to a change in Air Force policy requiring all
pretrial confinees to be held in maximum custody regardless of their individual
circumstances. On 4 November 2015, the Defense Finance and Accounting Ser-
vice (DFAS), concluded that Appellant’s term of enlistment had expired on 3
November 2015 and terminated Appellant’s pay in accordance with the De-
partment of Defense Financial Management Regulation (DoD FMR).

                                II. DISCUSSION
A. Termination of Pay as Illegal Pretrial Punishment
   Appellant disputes the determination by DFAS that his enlistment expired
on 3 November 2015 and the resultant termination of his pay and allowances
while he was in pretrial confinement. Appellant asserts that DFAS committed



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                   United States v. Catano, No. ACM 39092


a violation of Article 13, UCMJ, in that they “arbitrarily chose to ignore Appel-
lant’s enlistment [extension] contract and thereby deprive[d] him of pay and
allowances;” that their action “d[id] not serve a legitimate government objec-
tive;” and that their action “reflect[ed] an intent to punish [Appellant].” We
disagree.
    The question of whether Appellant is entitled to credit for an Article 13
violation is reviewed de novo. United States v. Fischer, 61 M.J. 415, 418
(C.A.A.F. 2005) (citing United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F.
2002)). It is a mixed question of law and fact, and the military judge’s findings
of fact will not be overturned unless they are clearly erroneous. Id. Appellant
bears the burden of proof to establish a violation of Article 13. Id.
    The military judge concluded that Appellant did not meet his burden of
proof. The military judge stated on the record that “the evidence before the
court is that finance officials determined [Appellant]’s enlistment expired and
in accordance with regulations, [Appellant]’s pay and allowances stopped on
that date. Similarly to the situation in U.S. v. Fischer, there is a legitimate
non-punitive reason to stop the [Appellant]’s pay and allowances which was
not implicitly punitive or punitive in effect.” We agree that Appellant has not
met his burden of proof.
    Article 13 provides, “[n]o person, while being held for trial, may be sub-
jected to punishment or penalty other than arrest or confinement upon the
charges pending against him.” Article 13 prohibits two types of actions: (1) the
intentional imposition of punishment on an accused prior to trial, i.e., illegal
pretrial punishment; and (2) pretrial confinement conditions that are more rig-
orous than necessary to ensure the accused's presence at trial, i.e., illegal pre-
trial confinement. See United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003);
United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).
    In Fischer, the United States Court of Appeals for the Armed Forces
(CAAF) concluded that termination of pay for a servicemember in pretrial con-
finement at the expiration of an enlistment contract did not amount to illegal
pretrial punishment under Article 13. Fischer, 61 M.J. at 420–21. CAAF spe-
cifically concluded that the policy to terminate pay was non-punitive in both
its purpose and effect. “The fact that pay is terminated only when pretrial con-
finement is combined with a neutral criterion, the expiration of the term of
service, underscores the non-punitive nature of the policy.” Id. at 420. The
“date is a rational, objective point for termination of pay, and it is reasonably
related to the legitimate government objective of not paying people who are not
performing duties.” Id. Appellant attempts to distinguish his case from Fischer
by focusing on a six-month extension to his enlistment that, if in effect, would
have set his expiration of term of service (ETS) at 3 May 2016.



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                   United States v. Catano, No. ACM 39092


    Appellant’s six-year enlistment began on 4 November 2008 and was set to
expire on 3 November 2014. Appellant requested two extensions of his enlist-
ment. The first extension was for 12 months and covered the period from 4
November 2014 until 3 November 2015. Appellant’s second extension was for
six months and would have been for the period from 4 November 2015 until 3
May 2016. Appellant requested this extension on 17 October 2014 and his com-
mander recommended approval on 20 October 2014. The request was approved
on 3 November 2014. The second extension was memorialized on an Air Force
Form 1411, Extension or Cancellation of Extensions of Enlistments in the Reg-
ular Air Force.
    Three matters on the form merit particular attention for our review of
whether the DFAS determination reflected punitive intent. First, there is a
block labeled “reenlistment eligibility code.” Second, there is a block related to
the first and acknowledged by Appellant that states the following:
       I understand if the reason for this extension is cancelled because
       I am rendered ineligible to reenlist, the Air Force may cancel my
       extension. Cancelation may occur as long as I have not entered
       the extension.
Finally, there is a block where Appellant acknowledges his understanding that
his ETS will not change until he enters the extension. Reviewing whether
DFAS had punitive intent with regard to the termination of Appellant’s pay
while he was in confinement, we considered whether there was a good-faith
basis for DFAS to conclude: (1) Appellant was ineligible to reenlist as of 4 No-
vember 2015; (2) the ineligibility voided the extension that Appellant had not
yet entered; and (3) therefore, his ETS of 3 November 2015 never changed and
termination of pay on that date was required under the DoD FMR.
    The terms and provisions on the form are further illuminated by reference
to the Air Force policy in effect at the time—AFI 36-2606, Reenlistment in the
United States Air Force (9 May 2011). Reenlistment eligibility codes determine
whether one may reenlist or enlist in a military service at a later time. These
codes are also used to determine eligibility for extensions of an enlistment and
cancellation of a previously approved extension. AFI 36-2606, Table 5.2., Con-
ditions Barring Immediate Reenlistment (9 May 2011), contains a general pro-
hibition listing circumstances under which an applicant is not authorized to
extend an enlistment. Among these circumstances are:
   1. “Participating in or failed the Alcohol and Drug Abuse Prevention and
Treatment (ADAPT) program for drugs, or has failed to complete the ADAPT
program. (This code remains valid until the Airman completes the program or
the commander removes the ineligibility condition for an Airman in the after-
care program)”;


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                     United States v. Catano, No. ACM 39092


    2. “Absent without leave (AWOL)”;
   3. “Under investigation by military or civilian authority, the outcome of
which may result in discharge or court-martial action”; and
   4. “Civil court charges pending for an offense for which the MCM authorizes
confinement for the same or most closely related offense, or court-martial
charges have been preferred, or court-martial action is under appellate re-
view.”
    There were four distinct bases to conclude that Appellant was ineligible to
enter an extension of an enlistment as of 4 November 2015. Appellant com-
plains that the “government effectively voided” his extension a year after its
approval. We agree that Appellant’s extension was voided but conclude that it
was done consistent with conditions of ineligibility he had acknowledged on
the form. Because those conditions existed in Appellant’s case, DFAS could
reasonably consider Appellant’s enlistment extension void, determine that his
ETS expired on 3 November 2015, and terminate his pay in accordance with
the DoD FMR. These actions could all be done in good faith based on Appel-
lant’s plain and obvious ineligibility for reenlistment and extension. The record
does not demonstrate precisely how the extension was cancelled or whether
the cancellation complied with the relevant instruction. However, the absence
of demonstrated compliance with the instruction does not establish the pres-
ence of punitive intent or effect. Appellant fails to meet his burden of proof for
a violation of Article 13. 3
B. Meaningful Relief for Violation of Article 13
    Near the conclusion of trial, the military judge discussed the impact of the
pretrial agreement in light of the adjudged sentence and asked the parties
whether there was any other matter to address before he adjourned the court-
martial. Appellant’s trial defense counsel requested the military judge apply
the 277 days of illegal pretrial confinement credit, which as a result of the “time
served” sentence became excess confinement credit, to the adjudged bad-con-
duct discharge. After weighing the nature of the Article 13 violation and the
aggravated nature of Appellant’s offenses, the military judge concluded that
“under the facts and circumstances of this case, disapproval of the bad-conduct
discharge is not warranted” and would be disproportionate in this case. We
agree.


3 “Under an Article 13 claim, we look to whether there was intent to punish or a puni-
tive effect. If Appellant takes issue with the propriety of the underlying decisions as a
matter of fiscal law, he must pursue that issue before the United States Court of Fed-
eral Claims.” Fischer, 61 M.J. at 421.




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                   United States v. Catano, No. ACM 39092


    “The proper application of credit for illegal pretrial punishment . . . [is a]
question[ ] of law, reviewed de novo.” United States v. Spaustat, 57 M.J. 256,
260 (C.A.A.F. 2002) (citations omitted). “Article 13 relief can range from dis-
missal of the charges, to confinement credit, to the setting aside of a punitive
discharge.” United States v. Zarbatany, 70 M.J. 169, 170 (C.A.A.F. 2011).
“Where relief is available, meaningful relief must be given for violations of Ar-
ticle 13. However, relief is not warranted or required where it would be dispro-
portionate to the harm suffered or the nature of the offense.” Id.
    We have reviewed the military judge’s finding of facts on the matter of ex-
cess confinement credit and adopt them as our own. We also agree with the
judge’s conclusions that, while the conditions of Appellant’s pretrial confine-
ment were unnecessarily severe, he was not subject to cruel and unusual pun-
ishment and there was not an intent to punish him. As we consider the ad-
judged sentence and, in particular, the bad-conduct discharge, we find it wholly
appropriate for the offenses committed by Appellant. His multiple drug of-
fenses and AWOL offense justify the sentence adjudged. The addition of the
aggravated assault separates Appellant from a drug addict on a downward spi-
ral. Appellant’s purposeful and unlawful demonstration of violence toward AH,
a friend seeking to help Appellant in his time of need, dwarfs any harm expe-
rienced by Appellant in maximum-custody pretrial confinement. While we do
not condone the arbitrary imposition of a regulation dictating maximum cus-
tody for an Airman already being securely held in medium custody, relief in
the form of setting aside the punitive discharge would be disproportionate to
the harm suffered by Appellant and the nature of Appellant’s offenses.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT


                 KATHLEEN M. POTTER
                 Acting Clerk of the Court




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