                            UNITED STATES, Appellee

                                            v.


                      Bruce A. LUSTER, Staff Sergeant
                         U. S. Air Force, Appellant


                                     No. 00-0403


                             Crim. App. No. S29525

        United States Court of Appeals for the Armed Forces

                           Argued November 14, 2000

                              Decided June 7, 2001

   SULLIVAN, J., delivered the opinion of the Court, in which
GIERKE, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J., filed a
                       dissenting opinion.

                                        Counsel

For Appellant: Captain Shelly W. Schools (argued); Lieutenant Colonel Timothy
     W. Murphy, Lieutenant Colonel James R. Wise, and Captain Patience E.
     Schermer (on brief); Colonel Jeanne M. Rueth.



For Appellee: Lieutenant Colonel Michael E. Savage (USAFR) (argued); Colonel
     Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers (on brief);
     Lieutenant Colonel William B. Smith (USAFR) and Major Lance B. Sigmon.



Military Judge:   Mary M. Boone


            THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Luster, 00-0403/AF


      Judge SULLIVAN delivered the opinion of the Court.


      Appellant, a staff sergeant (E-5) in the Air Force, was tried

by a special court-martial composed of officer and enlisted

members at Cannon Air Force Base, New Mexico.      He pleaded guilty

to a single specification of wrongfully using marijuana, in

violation of Article 112a, Uniform Code of Military Justice, 10

USC § 912a.    On February 26, 1998, he was sentenced to a bad-

conduct discharge and reduction to the grade of Airman Basic (E-

1).    On March 30, 1998, the convening authority approved this

sentence.    The Court of Criminal Appeals affirmed.    (ACM S29523

(A.F. Ct. Crim. App., 4 Feb 2000)).



      On July 31, 2000, this Court granted review on the following

question of law:



            WHETHER THE MILITARY JUDGE ERRED WHEN SHE
            PROHIBITED APPELLANT FROM PRESENTING
            EVIDENCE OF THE EFFECTS A PUNITIVE
            DISCHARGE WOULD HAVE ON HIS RETIREMENT
            BENEFITS.


We hold that the military judge prejudicially erred when she

determined that defense sentencing evidence on appellant’s

expected retirement pay was irrelevant and too confusing for

admission at his court-martial.       See United States v. Becker, 46

MJ 141 (1997); see also United States v. Loya, 49 MJ 104 (1998).



      At the time of appellant’s trial he had served 18 years and 3

months in the Air Force.    The prosecution made a motion in limine


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United States v. Luster, 00-0403/AF


to prevent the defense from offering evidence of the financial

effects a bad-conduct discharge could have on his expected

retirement benefits.   The defense acknowledged that it intended

to introduce such evidence in this case.



    Defense Exhibit E for Identification was a “Memorandum for

ADC” dated 26 Feb 98, and signed by Technical Sergeant Donna E.

Maler, Superintendent, Relocations.       It addressed the subject of

“Retirement Pay Calculations” for appellant.        It estimated that

appellant would receive $901.00 pay per month if he retired as an

E-5, his current pay scale; $725.00 as an E-4; $622.00 as an E-3;

$525.00 as an E-2; and $468.00 as an E-1.         These estimates were

based on the 1998 pay scale and were before taxes.



    Assistant trial counsel preemptively argued that such

evidence should not be admitted.       He said:



          Your Honor, the Government objects to
          Defense Exhibit E on the basis of Military
          Rule of Evidence 403, holding that such
          evidence is so collateral as to be
          confusing to the members, and such
          confusion substantially outweighs whatever
          probative value it may have, if any, under
          Rule 402. Last June the Court of Appeals
          for the Armed Forces decided two cases;
          United States v. Greaves and United States
          v. Becker, which clarified the 1989 United
          States v. Henderson case, by holding that
          there is no per se irrelevance rule for
          this kind of evidence, if retirement
          benefits are not vested. Each case must
          be decided on its own facts and the
          decision rests within the discretion of
          the military judge. Greaves was
          distinguished from Henderson based on the
          fact that the accused was eligible for


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United States v. Luster, 00-0403/AF


          retirement in only 2 months at the time of
          the trial. And the court said that he
          was, “Perilously close to retirement.”
          Henderson was 3 years away at the time of
          his trial. Becker was also within weeks
          of becoming retirement eligible and the
          court also said, “Appellant was literally
          knocking at retirement’s door at the time
          of his court-martial.” Sergeant Luster,
          on the other hand, is around 2 years from
          retirement. I think the actual figure is
          21 months. He retires 9 November ‘99, is
          his retirement date. And furthermore,
          he’s much farther away than in Greaves and
          Becker, and furthermore, the offense he
          committed was last September and he wasn’t
          even inside of 2 years when the offense
          was committed. The government feels that
          he does not meet the standard of what is
          perilously close to retirement, or
          knocking at the door. And the Government
          believes the case is factually much closer
          to Henderson than to either Greaves or
          Becker and that’s the basis for our
          motion, your Honor.


    Defense counsel argued that such evidence should be admitted

in this case.   He said:



          Your Honor, the defense believes that it
          is incredibly relevant for the members to
          have an idea of what a punitive discharge
          would mean to Staff Sergeant Luster. As
          you know, as in United States v. Becker,
          it was ruled that the military judge, the
          trial judge, erred when he refused to
          admit defense mitigation evidence of the
          projected dollar amount of retirement
          income which the accused in that case
          might be denied if a punitive discharge
          had been adjudicated. There is really a
          two-prong test and as the prosecution has
          alluded to, a lot has to do with how close
          is the accused to retirement. In this
          particular case, Staff Sergeant Luster is
          a little under 21 months away from
          retirement. And it’s the military judge’s
          discretion as to how close to retirement
          is that really. It is a lot less than the
          3 years in the case that the prosecution


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United States v. Luster, 00-0403/AF


          talked about. And the second prong, of
          course, would be, does Staff Sergeant
          Luster have to reenlist to reach
          retirement. And that is something that is
          talked about in United States v. Becker,
          where Becker did not have to reenlist to
          retire. And in this particular case, if
          you take a look at the personal data
          sheet, Staff Sergeant Luster would be
          eligible for retirement on 9 November ‘99,
          when his current enlistment expires.
          Based on the case law, and when you take a
          closer look at that, the defense submits
          that Staff Sergeant Luster is situated a
          lot closer to Becker in that he will be
          allowed to retire at the end of his
          current enlistment and after over 18 years
          of service in the United States Air Force,
          just under 21 months away. The defense
          would argue that that is perilously close
          to retirement, where he is in his last
          enlistment. He doesn’t have to reenlist
          to retire and the members should have an
          idea of just how serious a punitive
          discharge would be in this case. As the
          Becker court stated, the sentencing
          authority should, in this particular case,
          should determine that the accused richly
          deserves a punitive discharge and also
          know what the loss of benefits of the
          substantial value over the remainder of
          his lifetime would mean. The sentencing
          authority shouldn’t have to make that
          decision, however, while merely
          speculating about the significant impact
          of a punitive discharge. If the members
          were not allowed access to this type of
          data that you have in front of you, that
          the Military Personnel Flight has
          provided, the members would merely be
          guessing as to what type of financial
          penalty a punitive discharge or reduction
          in rank would have in Staff Sergeant
          Luster’s case. And, therefore, we ask
          that you do allow that evidence to go
          forward. Thank you, your Honor.




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United States v. Luster, 00-0403/AF


The prosecution responded:



          Your Honor, I would, first of all, say
          that reenlistment is just a factor to be
          considered and if you think about it
          logically, a person who is 3 years out,
          like Henderson, may not have to reenlist
          anyway, you know, before they retire as
          well, because you can have a 4-year
          enlistment. So, the thing that is
          critical is the length of time until
          retirement. It’s 2 years away, you know;
          it’s far too long to be confusing the
          members about the effects of this
          retirement. And on that basis we think
          it’s just too confusing.

          ATC: I have here Becker, Greaves, and
          Henderson for you to review copies of, if
          you would like.

          MJ: That would be good. I need to review
          them again. I have looked at them before,
          but not recently.

(Emphasis added.)



    The military judge subsequently granted the prosecution’s

motion in limine.   She said:



          [T]he court’s decision is, I’m not going
          to allow those to be admitted. I will
          allow counsel to talk generally about
          someone with 18 years of service and to
          question them in terms of voir dire about
          some of that. And that they clearly
          understand that a bad-conduct discharge
          would mean that he couldn’t serve out the
          remaining 21 months of his enlistment and,
          therefore, be eligible. So, I will allow
          all of that and I can clarify either in
          the instruction to the members about
          punitive discharge. I could even add, if
          counsel would request, although, and I
          know members do have these questions, that
          that would include the inability -- or the
          -- that would preclude the accused from


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United States v. Luster, 00-0403/AF


          serving out the remainder of his
          enlistment and, therefore, becoming
          eligible for retirement benefits, I could
          clarify in instructions. I don’t have a
          problem with that, I think that makes it
          clear if there are any questions. And
          then if they come back with any questions,
          like I’ve had, about reductions and
          impacts on ability to retire, then we take
          those as they come. Part of it is because
          it’s almost 2 years, and in this
          particular type of offense, wrongful use
          of marijuana, and again, I know we don’t
          instruct members on this either, the AFI
          36-3208 clearly provides that, unless
          there is a waiver, and there could be, and
          I don’t know if the commander or whoever
          would support that. In fact, unless those
          criteria are met, and they could decide
          it’s experimental and it fits in that
          criteria, a discharge action has to be
          initiated. And it does talk about members
          in the 16 to 20 year getting lengthy
          service consideration, and it has to go to
          a specific headquarters, and it lists it
          in the regulation, which I don’t need to
          refer, which does tend to state that there
          is lengthy [service] consideration. But
          if I look at this case, unlike the other
          cases where we’re talking 2 or 3 months
          from retirement where the accused would,
          therefore, be eligible and nothing would
          preclude an accused from being retired, in
          this case, if the unit decided to initiate
          action and the accused didn’t get a bad-
          conduct discharge, there would be
          sufficient time for that to go through
          that process, if the accused went to a
          board and there was a decision to
          discharge him, to potentially lose his
          benefits in that route. Therefore, when I
          consider all of these in this particular
          case with that length of the 21 months, I
          do think it’s not, if you will,
          collateral, but it becomes more confusing
          as to what he be eligible for, at what
          time, and with that being that length of
          time, where a unit would still be able to
          potentially initiate action, he would be
          discharged anyway and not get them. And
          the purpose is for them to determine
          whether a bad-conduct discharge is
          warranted. I would be willing, however,
          to address, as I said, in my instruction


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United States v. Luster, 00-0403/AF


          to make it very clear to the members that
          when I talk about punitive discharge and
          bad-conduct to add that wording that I
          talked about so that it’s really clear and
          they understand that it would make him
          ineligible to serve the remainder of his
          enlistment and, therefore, become eligible
          in 21 months to potential retirement
          benefits. But to go into the specifics of
          what those are, I think, at this point,
          it's irrelevant because it's so far out.
          But again, if they would ask a question
          about high year tenure or anything like
          that, whether he had to be discharged,
          then I think we can address it and we have
          the document that provides us the
          information. So, that would be my ruling.
          I’m not going to allow those in, but if
          the defense requests, I will add that to
          my instruction to make it very clear.

          DC: At this time, the defense would
          request that type of instruction, your
          Honor.

          MJ: Okay.    Are we ready to proceed with
          voir dire?

(Emphasis added.)



    The Court of Criminal Appeals held that the military judge’s

ruling concerning the loss of retirement benefits did not

prejudice appellant, stating



            Although the trial judge granted the
          government motion and refused to admit
          evidence of the appellant’s potential
          retirement benefits, she allowed counsel
          to voir dire the members about the
          appellant’s 18 years of service; allowed
          him to argue the appellant’s lengthy
          service during his sentencing argument;
          and the appellant mentioned the same
          during his unsworn statement. At the
          appellant’s request, the trial judge
          tailored an instruction on the effects of
          a punitive discharge on the appellant’s
          yet-as-earned retirement benefits to the


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United States v. Luster, 00-0403/AF


          facts and circumstances of his case. She
          instructed the members as follows: “This
          court may adjudge a bad-conduct discharge.
          Such a discharge deprives one of
          substantially all benefits administered by
          the Department of Veterans Affairs and the
          Air Force establishment and will deny the
          accused in this case the opportunity to
          serve the remainder of his 21-month
          enlistment and, therefore, preclude the
          eligibility for retirement benefits.”

Unpub. op. at 2 (emphasis added).



                             ___ ___ ___



    The first question before this Court is whether the military

judge erred in excluding evidence of appellant’s estimated

retirement pay at various ranks if he was not punitively

discharged at this court-martial.     In United States v. Becker, 46

MJ 141, we held such evidence was clearly admissible under RCM

1001(c)(1)(B), Manual for Courts-Martial, United States, 1984, 1/

where the accused is “literally knocking at retirement’s door at

the time of his court-martial” and he requests “an opportunity to

present” such evidence and he has “such evidence to present.”    We

rejected a per se rule precluding such defense evidence simply

because an accused was not actually retirement eligible at the

time of his court-martial.   Id. at 144 (quoting Court of Criminal

Appeals’ Judge Johnston’s separate opinion).    The clear import of

this and related decisions concerning expected retirement pay is

that it is a critical matter of which the members should be



1 “Matter in mitigation of an offense is introduced to lessen
the punishment to be adjudged by the court-martial . . . .”


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United States v. Luster, 00-0403/AF


informed in certain cases before they decide to impose a punitive

discharge.   See generally United States v. Sumrall, 45 MJ 207,

209 (1996); United States v. Griffin, 25 MJ 423, 424 (CMA 1988)

(loss of retirement benefits “often [is] the single most

important sentencing matter to that accused and the sentencing

authority”).



    Our decisions, however, do provide a military judge with a

certain amount of discretion in determining whether to allow

evidence regarding the loss of retirement benefits in a

particular case.   See United States v. Greaves, 46 MJ 133, 139

(1997).   The judge’s decision should not be based solely on the

number of months until an accused’s retirement where other facts

and circumstances indicate that the loss of these benefits is a

significant issue in the case.    See United States v. Becker,

supra at 144.   Here, appellant had 18 years and 3 months of

military service and he was serving an enlistment which would

normally result in his eligibility for retirement.   Cf. United

States v. Henderson, 29 MJ 221, 222 (CMA 1989).   Moreover, the

probability of retirement, but for a punitive discharge, was not

otherwise shown by the Government to be remote, and the expected

financial loss was substantial.    See United States v. Greaves,

supra at 139; United States v. Sumrall, supra at 209.



    The military judge, on her own initiative, rejected evidence

of these facts and instead focused on the regulatory possibility

that appellant would not be retired even if he was not punitively



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United States v. Luster, 00-0403/AF


discharged at this court-martial.     She noted appellant’s

potential for administrative separation for drug use under “AFI

36-3208” and the fact that the time remaining on his enlistment

was sufficient to conduct an administrative discharge board.      She

concluded that this circumstance rendered the whole matter of

loss of retirement benefits too “confusing” to present to members

and “irrelevant” because his retirement was not guaranteed.     See

United States v. Luster, supra (CCA opinion at 2).



    We disagree with the reasoning of the military judge.     She

effectively established a guaranteed retirement standard (no

possible regulatory impediment to retirement) before this

evidence could be admitted.    Our case law has rejected per se

rules of this type.    See United States v. Becker, 46 MJ at 143

(this Court rejects rule requiring strict retirement eligibility

at time of trial).    Moreover, her conclusion concerning

appellant’s retirement was based on admitted speculation.     She

conceded that administrative separation on this ground was not

mandatory and the command could seek a waiver or meet certain

regulatory criteria.    In addition, she admitted that there was no

basis in the record for her to conclude that the command would or

would not seek a regulatory waiver.     Finally, the members were

fully capable of and responsible for determining this regulatory

possibility and its import after a full presentation of evidence

by both sides.   Cf. United States v. Perry, 48 MJ 197, 199

(1998).   In this light, we conclude that the military judge

relied on erroneous legal principles in deciding to exclude the



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United States v. Luster, 00-0403/AF


profferred defense evidence.   See United States v. Travers, 25 MJ

61, 63 (CMA 1987) (abuse of discretion occurs where judge relies

on erroneous legal principles).



    The second question before us is whether appellant was

materially prejudiced by the judge’s erroneous decision to

exclude this defense evidence.    Article 59(a), UCMJ, 10 USC §

859(a).   The exclusion of evidence of “the value of [an

accused’s] projected retirement” has been found to be prejudicial

error where the servicemember had 19 years and 8 1/2 months of

active service and had reliable evidence showing the projected

loss.   See United States v. Becker, supra at 142.   Here,

appellant had 18 years and 3 months of service and needed only to

successfully complete his current enlistment to be eligible to

retire.   He also had no record of prior convictions or non-

judicial punishments (although he was not a perfect airman) and

he had reliable evidence as to the projected loss of retirement

income as a result of a punitive discharge.    In these

circumstances, where the decision to award a punitive discharge

was such a close call (see also United States v. Eversole, 53 MJ

132, 134 (2000)), we are “left in grave doubt” about the

influence of the judge's error on the sentence.    See generally

Kotteakos v. United States, 328 U.S. 750, 765 (1946).



    The Court of Criminal Appeals nevertheless concluded that

appellant was not materially prejudiced because “the members were

not left ‘largely unguided in a critical sentencing area.’”    It



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United States v. Luster, 00-0403/AF


relied on our decision in United States v. Greaves, 46 MJ at 138,

for this standard for reversal and held:



           The trial judge’s ruling did not preclude
           the appellant from exercising his broad
           right to present mitigation evidence to
           the court-members during sentencing.
           Evidence in the record of trial could not
           be clearer that a punitive discharge would
           deny the appellant of [sic] his potential
           retirement benefits. Furthermore, we are
           confident that members chosen for court-
           martial duty under Article 25(d)(2), UCMJ,
           10 USC § [8]25(d)(2) criteria are
           generally aware of the monetary effect
           resulting from the loss of retirement
           benefits.


Unpub. op. at 3.   We disagree.



    Our decision in Greaves, dealt with an instruction that the

members were not to consider the effect of a punitive discharge

on expected retirement pay, given in light of questions by the

members.   It is clear that the members of this appellant’s court-

martial were instructed properly by the military judge on this

issue.   (A bad-conduct “discharge . . . will deny the accused in

this case the opportunity to serve the remainder of his 21-month

enlistment and, therefore, preclude the eligibility for

retirement benefits.”)   However, in Becker, decided the same day

as Greaves, we further held that an accused could also be

materially prejudiced if he was denied the right to present to

the members a detailed and comprehensive picture of his expected




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United States v. Luster, 00-0403/AF


financial loss to demonstrate the financial impact of a punitive

discharge.   Becker, not Greaves, controls. 2



    In this light, the critical question is not whether the

members generally understood that retirement benefits would be

forfeited by a punitive discharge.    Instead, we must ask whether

appellant was allowed to substantially present his particular

sentencing case to the members on the financial impact of a

punitive discharge.   See United States v. Loya, 49 MJ 104; see

also United States v. Scheffer, 523 U.S. 303, 317 (1998).     In our

view, appellant was   significantly disadvantaged when he was

required to present a more general sentencing case relying on

oblique references in voir-dire questions to the members and in

counsel’s argument.   See United States v. Becker and United

States v. Sumrall, both supra; United States v. Henderson, 29 MJ

at 223.   This disadvantage was exploited by trial counsel who in

his closing argument asserted “that a punitive discharge . . .

doesn’t take your money away.”   Accordingly, in view of all the

circumstances of appellant’s case, we find prejudicial error.

See United States v. Becker, supra at 144.



    The decision of the United States Air Force Court of Criminal

Appeals as to findings is affirmed and as to sentence is


2 We need not speculate whether the members of appellant’s
•




court-martial could infer the dollar amount of appellant’s
expected retirement loss from other evidence of appellant’s pay
at various pay grades presented at this court-martial for a
different purpose. It suffices to say that United States v.
Becker, 46 MJ 141 (1997), comprehends a full and fair



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United States v. Luster, 00-0403/AF


reversed.   The sentence is set aside.   The record of trial is

returned to the Judge Advocate General of the Air Force.    A

rehearing on sentence may be ordered.




presentation of this critical information to the sentencing body,
not after-the-fact speculation.


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United States v. Luster, No. 00-0403/AF


CRAWFORD, Chief Judge (dissenting):

     The sole issue in this case is whether the military judge

abused her considerable discretion in refusing to admit a

document that reflected sums appellant would receive at various

levels between pay grades E-5 and E-1 if permitted to retire

from the United States Air Force.   Prior to rejecting this

evidence (Defense Exhibit E for Identification), the military

judge announced on the record that the evidence was irrelevant

and posed a risk of confusing the members.   Both are sound

reasons for excluding evidence under the Military Rules of

Evidence and case law.   See Mil.R.Evid. 401, 402, and 403,

Manual for Courts-Martial, United States (2000 ed.); United

States v. Becker, 46 MJ 141 (1997).   The majority concludes that

the military judge “relied on erroneous legal principles” in

rejecting the evidence and thus she abused her discretion.     ___

MJ at (11).   I disagree.

     This Court’s standard of review on the admission or

exclusion of sentencing matters is highly deferential, reversing

only for a clear abuse of discretion.   See United States v.

Zakaria, 38 MJ 280, 283 (1993).   See also Becker, supra at 143;

United States v. Loving, 41 MJ 213, 273 (1994), aff’d on other

grounds, 517 U.S. 748 (1996).   The term “abuse of discretion”

has a variety of definitions.   See S. Childress & M. Davis,

Federal Standards of Review § 4.21 (3d ed. 1999).   Definitions
United States v. Luster, No. 00-0403/AF


of “abuse of discretion” from this Court have appropriately

fluctuated depending on the action being tested on review.

     In United States v. Travers, 25 MJ 61, 62-63 (1987), we set

out this basic definition:

               An “abuse of discretion” exists where
          “reasons or rulings of the” military judge are
          “clearly untenable and ... deprive a party of a
          substantial right such as to amount to a denial
          of justice”; it “does not imply an improper
          motive, willful purpose, or intentional wrong.”
          Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d
          87, 90 (1984), citing Pettegrew v. Pettegrew, 128
          Neb. 783, 260 N.W. 287 (1935).
               The “abuse of discretion” standard is a
          strict one and has been defined in United States
          v. Yoakum, 8 MJ 763 (ACMR 1980), aff’d on other
          grounds, 9 MJ 417 (CMA 1980), as follows:

               To reverse for “an abuse of discretion
               involves far more than a difference in ...
               opinion.... The challenged action must ...
               be found to be ‘arbitrary, fanciful, clearly
               unreasonable,’ or ‘clearly erroneous’ in
               order to be invalidated on appeal.”

          Quoting United States v. Glenn, 473 F.2d 191, 196
          (D.C. Cir. 1972).

               “An abuse of discretion arises in cases in
          which the judge was controlled by some error of
          law or where the order, based upon factual, as
          distinguished from legal, conclusions, is without
          evidentiary support.” Renney v. Dobbs House, Inc.,
          275 S.C. 562, 274 S.E.2d 290, 291 (1981), citing
          Stewart v. Floyd, 274 S.C. 437, 265 S.E.2d 254 (1980).


     Since Travers, this Court has taken the potpourri

of “abuse of discretion” definitions found therein and applied




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United States v. Luster, No. 00-0403/AF


them in different contexts.    In United States v. Miller, 47 MJ

352, 358 (1997), we tested denial of a continuance for

       “reasons or rulings [which] ... are clearly untenable and
       ... deprive a party of a substantial right such as to
       amount to a denial of justice”; [this] “does not imply an
       improper motive, willful purpose, or intentional wrong.”

Yet, later in the same opinion we tested the denial of a defense

request to produce a witness based on "whether ‘on the whole,’

denial of the defense witness was improper.’”    47 MJ at 359,

quoting United States v. Ruth, 46 MJ 1, 3 (1997).    In Ruth, we

said that “[t]he reviewing court should not set aside a judicial

action ‘unless it has a definite and firm conviction that the

court below committed a clear error of judgment in the

conclusion it reached upon a weighing of the relevant factors.’”

(Citations omitted.)

       In United States v. Peterson, 48 MJ 81 (1998), we tested

action on a motion to suppress by the standard that “[t]o

reverse for an abuse of discretion involves far more than a

difference in ... opinion.... The challenged action must ... be

found to be arbitrary, fanciful, clearly unreasonable, or

clearly erroneous in order to be invalidated on appeal.”    Id. at

83 (internal quotation marks omitted)(citing Travers, 25 MJ at

62).    Accord United States v. Johnson, 49 MJ 467, 473 (1998) and

United States v. Miller, 46 MJ 63, 65 (1997) (evaluating a

military judge’s discretion to admit evidence under Mil.R.Evid.


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United States v. Luster, No. 00-0403/AF


403); United States v. Barron, 52 MJ 1 (1999) (testing exercise

of discretion in not disqualifying a previously qualified expert

witness for improper action).   On some occasions, the Court has

reversed a judicial ruling without articulating an abuse-of-

discretion standard under the facts of that case.   See, e.g.,

United States v. Grill, 48 MJ 131 (1998)(two dissenters found no

abuse of discretion).

     While the term “abuse of discretion” might be vexingly

expansive, its definition cannot be exacting without

unnecessarily curtailing “the broad powers” of the military

judge at trial.   See United States v. Rosser, 6 MJ 267, 271 (CMA

1979).   I can find nothing in this military judge’s ruling that

convinces me that it was arbitrary, fanciful, clearly

unreasonable, or untenable.   Neither does the majority.

     A military judge also abuses her discretion if she

improperly applies legal principles when rejecting a piece of

evidence.   See Becker, 46 MJ at 143; United States v. Campbell,

41 MJ 177, 185 (CMA 1994); United States v. Williams, 37 MJ 352,

356 (CMA 1993).   The majority’s reliance on this abuse-of-

discretion application falls of its own weight.   See ___ MJ at

(6) (quoting military judge’s explanation for her ruling).

     Before making her ruling, the military judge reviewed two

recent cases from this Court -- Becker, and United States v.

Greaves, 46 MJ 133 (1997).    In Becker, a unanimous decision, we

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United States v. Luster, No. 00-0403/AF


held that “relevance of evidence of potential loss of retirement

benefits depends upon the facts and circumstances of the

individual accused’s case.”       Id. at 143.     The error in Becker

was the military judge’s misreading of United States v.

Henderson, 29 MJ 221 (CMA 1989), and “per se exclud[ing] defense

evidence of the estimated value of appellant’s expected military

retirement.”    46 MJ at 144.

      Greaves, also an unanimous opinion from this Court, found

that the judge erred by instructing the members not to consider

the impact of a punitive discharge on appellant’s impending

retirement eligibility, in light of two questions posed by court

members.

      Contrary to the views of the majority today, a military

judge does not abuse her discretion so long as she does not

adopt an iron clad, per se rule regarding evidence of retirement

benefits (or loss thereof), or improperly answers questions

related to retirement.      To use Professor Rosenberg’s analogy,1

this Court has fenced off only a portion of the pasture land.

So long as the military judge provided appropriate instructions

and answers to retirement issues, and didn’t restrict the

retirement-benefit evidence of an accused “knocking on

retirement’s door,” 46 MJ at 144 (19 years, 10 months in Greaves



1
  See M. Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above,
22 Syracuse L. Rev. 635, 650 (1971).

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United States v. Luster, No. 00-0403/AF


-- 46 MJ at 134; 19 years, 8½ months in Becker -- id. at 142),2

she was free to apply her discretion to any proffered evidence.

As we have held, judges are “presumed to know and apply the law

correctly.”    See, e.g., United States v. Raya, 45 MJ 251, 253

(1996).   Here the judge was faced with the ticklish decision of

admitting evidence that could mislead the members into thinking

that appellant’s retirement was a “sure thing,” when she knew

that Air Force regulations required a commander to initiate

administrative action if there had been no discharge by a court-

martial for drug use.      The court members are presumed to have

knowledge of this Air Force regulation as well.            See United

States v. Tolkach, 14 MJ 239 (CMA 1982).          I am also confident

that when these court members (a major, two captains, a senior

master sergeant, two master sergeants, and a technical sergeant)

deliberated on sentence, they were fully cognizant of one fact

known to every servicemember of their rank -- retired pay for 20

years of active duty service (which is all appellant expected)

is 50 percent of base pay.3



2
  To the contrary, trial defense counsel acknowledged that appellant was “not
knocking on the door to retirement.” R. 92.
3
  The military judge’s instructions (which were given to the members both
verbally and in writing) included accurate assessments of appellant’s base
pay at the various grades from E-5 to E-1. See Appendix. The difference
between the monthly figures appellant was denied the opportunity to present
and the figures easily ascertained by the members was de minimus.
Accordingly, trial defense counsel’s rejected exhibit added nothing to the
member’s basis of knowledge concerning retirement benefits or the loss
thereof. Thus, the instruction did not cover the last column in the
Appendix.

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United States v. Luster, No. 00-0403/AF


       Either including or excluding the proffered defense exhibit

without placing that evidence in context would both confuse the

members and undermine the criminal justice system.    Faced with

this dilemma, the military judge prevented confusion by

excluding the speculative retirement pay chart.    This ruling

thus precluded any rebuttal evidence concerning virtually

mandatory (absent waiver) administrative separation for drug

use.

       However, the military judge did not preclude counsel from

focusing on appellant’s retirement.    She ruled that counsel

could comment on retirement eligibility during both voir dire

and sentencing argument.    The centerpiece of trial defense

counsel’s argument was a plea to punish appellate in some way

other than by awarding a bad-conduct discharge and depriving him

of an opportunity to become retirement eligible in 21 months.

Additionally, at appellant’s request the military judge

instructed the members that a bad-conduct discharge deprives one

of substantially all benefits administered by the Department of

Veterans Affairs as well as all retirement benefits.

       Since I conclude that this military judge did not go beyond

the legal principles set forth by this Court in Becker and

Greaves, and did not establish any per se rule for admission of

retirement-eligibility evidence, there has been no clear abuse



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United States v. Luster, No. 00-0403/AF


of her discretion, either through misapplication of the law or

otherwise.

     Accordingly, I would affirm the Court of Criminal Appeals’

decision.




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United States v. Luster, No. 00-0403/AF




                            APPENDIX


                             Maximum      Defense
   Grade         Pay       Forfeiture     Figures   50 Percent

    E-5          1779         1186         901        (889)

    E-4          1433          955         725        (716)

    E-3          1230          820         622        (615)

    E-2          1038          692         525        (519)

    E-1          926           617         468        (463)




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