                        UNITED STATES, Appellee

                                     V.

                  Russell T. SPAUSTAT, Staff Sergeant
                       U.S. Air Force, Appellant


                               No. 01-0656


                          Crim. App. No. 34036



       United States Court of Appeals for the Armed Forces

                        Argued December 11, 2001

                        Decided August 30, 2002

    GIERKE, J., delivered the opinion of the Court, in which
    EFFRON and BAKER, JJ., joined. SULLIVAN, S.J., filed an
    opinion concurring in part and in the result. CRAWFORD,
        C.J., filed an opinion concurring in the result.

                                  Counsel
For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
   Colonel Beverly B. Knott and Lieutenant Colonel Timothy W.
   Murphy (on brief).

For Appellee: Captain Adam Oler (argued); Colonel Anthony P.
   Dattilo and Major Lance B. Sigmon (on brief).

Military Judge:    Michael A. Kilroy


  This opinion is subject to editorial correction before final publication.
United States v. Spaustat, No. 01-0656/AF


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of a 47-day

unauthorized absence, three specifications of violating a lawful

general regulation by misusing his government credit card, and

two specifications of dishonorably failing to maintain sufficient

funds in his checking account, in violation of Articles 86, 92,

and 134, Uniform Code of Military Justice, 10 USC §§ 886, 892,

and 934, respectively.      The military judge sentenced appellant to

a bad-conduct discharge, reduction to the lowest enlisted grade,

and confinement for a duration that is disputed in this appeal.

The convening authority approved the sentence, and the Court of

Criminal Appeals affirmed in an unpublished decision.

      Before this Court, appellant claims that the military judge

illegally increased his sentence after announcing it, and

incorrectly computed appellant’s credit for illegal pretrial

punishment.    The issues arose from the military judge’s attempts

to compute how many days of post-trial confinement appellant

would actually serve after all credits and deductions were

applied to the adjudged sentence.           In the course of describing

his calculations, the military judge discussed the

interrelationship among several factors, including the adjudged

sentence, confinement credits, the potential maximum sentence

that could be approved, and the amount of time that might remain

to be served.     During this discussion, the military judge at

various times referred to confinement for 10 months, 305 days,

212 days, 202 days, 102 days, 100 days, 50 days, and 40 days.




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United States v. Spaustat, No. 01-0656/AF


        Appellant asserts that he served more confinement than was

adjudged and approved, and he asks that his bad-conduct discharge

be set aside because of illegal post-trial confinement.1 For the

reasons that follow, we affirm.

                            FACTUAL BACKGROUND

        At trial, appellant requested relief for illegal pretrial

punishment imposed in violation of Article 13, UCMJ, 10 USC §

813.     The military judge granted the motion, finding that

appellant was improperly denied his right to wear his staff

sergeant stripes while in pretrial confinement, and that “his

stripes were ripped off, literally in front of him.”       The

military judge announced that “a one-for-one credit was awarded

towards the adjudged sentence, which has been incorporated into

the sentence of this court.”        The military judge then announced

the sentence, which included confinement for 202 days.       The

military judge then commented:

             The accused has served 102 days of pretrial
             confinement. Using the directives in U.S. v. Allen,
             [17 MJ 126 (CMA 1994),] the accused will be awarded 102
             days of credit towards the approved sentence to
             confinement. As a practical matter, that leaves 100
             days to be served.



1
    The granted issues are:

        I. WHETHER THE MILITARY JUDGE ERRED IN THE MANNER IN WHICH
        HE CREDITED APPELLANT WITH ADDITIONAL TIME AGAINST
        CONFINEMENT BECAUSE OF ILLEGAL PRETRIAL PUNISHMENT IN
        VIOLATION OF ARTICLE 13, UCMJ.

        II. WHETHER THE MILITARY JUDGE ERRED IN INCREASING
        APPELLANT’S SENTENCE AFTER ANNOUNCEMENT.

        III. WHETHER THE ADJUDGED BAD-CONDUCT DISCHARGE SHOULD BE
        DISAPPROVED BECAUSE OF ILLEGAL POST-TRIAL CONFINEMENT.



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United States v. Spaustat, No. 01-0656/AF


      Because appellant had pleaded guilty in accordance with a

pretrial agreement, the military judge next examined the agreed

sentence limitation.      He explained the effect of the pretrial

agreement to appellant as follows:

           In that document it states that, in agreement for
      your plea of guilty in your case, that no more than
      eight months of confinement would be approved, if
      confinement is adjudged. In this case, the Court
      approved ten months and gave you credit – in one type
      of credit for 102 days and additional credit for 102
      days, but there was 10 months or 305 days of
      confinement. As I understand the Appendix, you could
      have no more than eight months. So, that’s an
      additional 60 days to be reduced from your sentence.
      So, the most that the convening authority could approve
      is about 40 days. And that’s rough, but somewhere in
      the ballpark of 42 or 43 days of additional
      confinement, beyond what you’ve already served.

Responding to trial counsel’s concern about his computations, the

military judge further explained:

           Well, let me – without getting into the actual
      days, this court basically sentenced the accused to 10
      months confinement; gave 102 days of Allen credit; gave
      an additional 102 days of credit using the theory that
      there was a violation of Article 13. But when you back
      it up, there was a sentence to 10 months before the
      credits were applied. My understanding of the
      agreement that was entered to [sic], it would be no
      more than 8 months. It says that no more than 8 months
      will be approved, not served.
                                     *      *   *

           I’m sure that will leave the appellate folks with
      lots to talk about, but that’s the understanding of
      this Court. Do you understand what’s just taken place
      Sergeant Spaustat? I know that it sounds a little
      confusing. The Court sentenced you to 10 months, but
      gave you two different types of credit with the result
      that it would be about 102 days more or less that you
      would have remaining to be served. But because of your
      agreement with the convening authority, your sentence
      will be reduced further by an additional two months.

      Trial counsel then pointed out that appellant’s stripes were

not removed until he had been in pretrial confinement for ten



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United States v. Spaustat, No. 01-0656/AF


days, and that the military judge had given appellant too much

credit for pretrial punishment.           The military judge agreed,

saying:

      So, that 10 day period will be added back – I will restate
      my position. He will receive 92 days of credit, not 102
      days under the theory that there was a violation of Article
      13.

The military judge then “restated” the sentence, this time

including confinement for 212 days.           The court adjourned on

November 30, 1999, with no further discussion of the sentence.

      The military judge’s sentence continued to be a matter of

concern after the trial.       On December 2, 1999, the Chief of

Military Justice was asked “to explain the judge’s sentence with

regard to confinement to appropriately calculate SSgt Spaustat’s

release date.”     His explanation was as follows:

           The judge sentenced him to 212 days confinement,
        already taking into account his 92 days credit for
        illegal pretrial punishment. However, after
        reviewing the PTA [pretrial agreement], the judge
        stated that his original sentence prior to
        subtracting the 92 days for illegal pretrial
        punishment was 304 days (about 10 months)
        confinement. Therefore, SSgt Spaustat got an
        additional 60 days (2 months) off the top for the
        PTA, which capped the sentence to confinement at 8
        months, leaving 244 days. Then he got the 92 days
        credit for illegal pretrial punishment and the 102
        days credit for pretrial confinement, leaving him
        with 50 days remaining.

           You would still need to calculate his credit for
        “good time” served and subtract it from the 50
        days.   By my calculation he should get about 25
        days of good time (5 months x 5 days per month),
        leaving him with 25 days to serve from the date of
        his trial on 30 Nov 99. That means SSgt Spaustat
        will be released on 24 Dec 99. However, you would
        need to confirm that my “good days” calculation is
        correct.

      In a memorandum dated December 6, 1999, defense counsel

agreed with the Chief of Military Justice’s statement of the


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United States v. Spaustat, No. 01-0656/AF


adjudged sentence to confinement and the confinement credits for

illegal pretrial punishment and lawful pretrial confinement.

However, he disagreed with the calculation of the “good time”

credit.   Defense counsel argued that good time credit should be

calculated on the full term of adjudged confinement, which,

according to the defense counsel, was eight months, before any

credits were considered.       Defense counsel’s calculation would

have given appellant 40 days of good time credit, leaving only 10

days to be served.

      On December 7, 1999, defense counsel wrote the military

judge requesting clarification of appellant’s sentence so that

appellant’s minimum release date from confinement could be

determined.    The record of trial does not reflect a response from

the military judge.      This memorandum reflects that the Chief of

Military Justice and the defense counsel had agreed that

appellant was entitled to 40 days good time credit, and that

appellant would have had only 10 days confinement to serve after

trial.    This calculation would have required appellant’s release

from confinement on December 9, 1999.       The confinement facility,

however, had determined that appellant’s minimum release date was

February 12, 2000, based on the Report of Result of Trial, which

reflected an adjudged sentence imposing 212 days of confinement,

less 102 days of Allen credit.
      On December 10, 1999, defense counsel requested appellant’s

release from confinement.       The staff judge advocate (SJA)

disagreed with defense counsel’s calculations, taking the

position that the announced sentence was 212 days, that the

pretrial agreement had no effect, and that the 92 days credit


                                      6
United States v. Spaustat, No. 01-0656/AF


awarded by the military judge for pretrial punishment did not

need to be factored into the equation a second time.    The SJA’s

calculation was the same as the confinement facility’s, leaving

110 days to be served.

      On December 20, 1999, the convening authority denied the

defense request that appellant be released from confinement.      In

part, that denial document stated:

            The 92-day credit is applied against the adjudged
            sentence, not against the pretrial agreement (PTA).
            Since the adjudged sentence minus the credit comes
            below the PTA, the PTA is inapplicable to any
            calculations of confinement period.

On December 22, 1999, the convening authority ordered appellant

to be released from confinement on December 27, 1999, “to

partially compensate [Airman Basic] Spaustat for the credit the

judge gave him at his court-martial for the improper manner in

which the confinement facility removed his stripes.”

      As late as February 4, 2000, the sentence was still a

concern.    In a “Submission of Clemency Matters,” defense counsel

argued that appellant should have been released from confinement

on December 9, 1999, but was not ordered released until December

27, 1999.    In an addendum to the post-trial recommendation, dated

February 23, 2000, the SJA noted that his recommendation had

correctly set forth the sentence “as adjudged,” including 212

days confinement.

      On March 21, 2000, the convening authority simply approved

the sentence.     Consistent with the Report of Result of Trial and

the SJA’s recommendation, the promulgating order reflects that

the adjudged sentence provided for 212 days of confinement.    The

convening authority stated, “The remaining period of confinement


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United States v. Spaustat, No. 01-0656/AF


having been served, no place of confinement is designated.”

There is no mention of any confinement credits in the convening

authority’s action.

                                 DISCUSSION

      The proper applications of credit for illegal pretrial

punishment and lawful pretrial confinement are questions of law,

reviewed de novo.     See United States v. Rock, 52 MJ 154, 156-57

(1999); Allen, 17 MJ at 126.        Interpretation of a pretrial

agreement also is a question of law, reviewed de novo.          United
States v. Acevedo, 50 MJ 169, 172 (1999).

                        1. The Adjudged Sentence

      We begin our analysis with the question whether the adjudged

sentence imposed confinement for 202 days, 212 days, 10 months,

or some other period.      Although the military judge mentioned

various periods of confinement, appellant has focused on 202 days

and 212 days.     Appellant asserts that the military judge

sentenced him to confinement for 202 days and then illegally

increased it to 212 days.       The Government asserts that appellant

was sentenced to confinement for 10 months, amounting to 304
days.   We hold that the adjudged sentence imposed confinement for

ten months.

      Before announcing the sentence, the military judge stated

that the credit for unlawful pretrial punishment “has been

incorporated into the sentence of this court.”          The military

judge’s first announcement of confinement for 202 days

incorporated his calculation of this credit.          See United States

v. Suzuki, 14 MJ 491 (CMA 1983) (additional credit for pretrial

confinement under harsh conditions).          The military judge then


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United States v. Spaustat, No. 01-0656/AF


deducted the Allen credit and told appellant that he had “100

days to be served.”

      Next, while explaining the pretrial agreement to appellant,

the military judge stated that “the Court approved ten months . .

. there was 10 months or 305 days of confinement,” with 102 days

of Allen credit and 102 days of Suzuki credit.           After examining

the pretrial agreement, he recomputed again and told appellant

“the most that the convening authority could approve is about 40

days.”

      After trial counsel questioned his calculations, the

military judge explained that he “basically sentenced the accused

to 10 months confinement,” but that after deducting Suzuki and
Allen credit, appellant would have “102 days more or less” to

serve, less the reduction required by the pretrial agreement.

The military judge also told appellant again, “The Court

sentenced you to 10 months.”

      Finally, after trial counsel pointed out that the Suzuki

credit was calculated incorrectly, the military judge agreed that

he had given appellant too much Suzuki credit, and he “restated”
the sentence to provide for confinement for 212 days.           This

computation included the corrected Suzuki credit but not the

Allen credit or the sentence reduction under the pretrial

agreement.

      Defense counsel did not raise any issue about the adjudged

sentence until after the trial.           In his post-trial memorandum,

defense counsel agreed with the Chief of Military Justice’s

statement that the “original sentence” provided for ten months of

confinement.


                                      9
United States v. Spaustat, No. 01-0656/AF


      The record clearly reflects that the military judge adjudged

a sentence including confinement for ten months.       There is no

ambiguity regarding the adjudged sentence.       The military judge’s

references to various days of confinement do not reflect the

adjudged sentence, but instead they reflect his attempts to

calculate how many days of confinement appellant would actually

serve after his court-martial.        Thus, we will review the military

judge’s application of confinement credits and the pretrial

agreement on the basis of an adjudged sentence imposing

confinement for ten months.

             2. Unlawful Reconsideration of the Sentence
      Appellant asserts that the military judge unlawfully

reconsidered his sentence and increased the adjudged confinement

from 202 days to 212 days.       The Government asserts that the

announced sentence included the military judge’s computation of

confinement credits against the adjudged sentence, and the change

from 202 days to 212 days reflected the military judge’s

recalculation of confinement credits and not a change in the

adjudged sentence.
      We hold that the military judge did not illegally reconsider

his sentence.     He merely corrected his calculation of Suzuki

credit.   After trial counsel pointed out that appellant’s stripes

were not removed until he had been in pretrial confinement for

ten days, the military judge recalculated the Suzuki credit and

announced the sentence again, incorporating the Suzuki credit but

adding ten days to the announced sentence to reflect the

corrected calculation.      The adjudged sentence remained unchanged

at ten months.


                                      10
United States v. Spaustat, No. 01-0656/AF


      In short, the military judge did not increase the sentence.

The only “increase” resulted from the military judge’s

calculation of the credits against the adjudged sentence, not the

sentence itself.     The military judge modified the credits when it

was brought to his attention that he had miscalculated them.            RCM

1007(b), Manual for Courts-Martial, United States (2000 ed.),2

provides: “If the announced sentence is not the one actually

determined by the court-martial, the error may be corrected by a

new announcement made before the record of trial is authenticated

and forwarded to the convening authority.”           RCM 1009(c) provides:

“A sentence may be clarified at any time prior to action of the

convening authority on the case.”           See also United States v.
Jones, 3 MJ 348, 351 (CMA 1977); United States v. Liberator, 14

USCMA 499, 505, 34 CMR 279, 285 (1964); United States v.

Robinson, 4 USCMA 12, 15, 15 CMR 12, 15 (1954).           In this case,

the military judge corrected his calculation of confinement

credits and clarified their impact on the confinement remaining

to be served.

                    3. Application of Suzuki Credit
      The decision in Suzuki, supra, involved pretrial confinement

under harsh conditions.       That decision is “explicitly recognized”

in RCM 305(k), which, among other things, empowers a military

judge to “order additional credit for each day of pretrial

confinement that involves an abuse of discretion or unusually

harsh circumstances.”      See Rock, 52 MJ at 156.       RCM 305(k), which



2
 All provisions of the Manual are the same as those in effect at
the time of trial.


                                      11
United States v. Spaustat, No. 01-0656/AF


covers violations of administrative procedures for imposing and

reviewing pretrial confinement as well as Suzuki credit,

specifically provides for credit to be applied against the

adjudged sentence.

      Rock involved a military judge’s award of confinement credit

for pretrial punishment in violation of Article 13, supra, where

the accused was not in pretrial confinement nor held for trial in

conditions tantamount to confinement.       This Court held that,

because the pretrial punishment “did not involve confinement, nor

was it tantamount to confinement,” the military judge did not err

by awarding confinement credit against the adjudged sentence

instead of the lesser sentence required by the pretrial

agreement.    We stated further, however, that when there is a

pretrial agreement, credit for lawful pretrial confinement (Allen
credit), as well as additional credit for illegal pretrial

confinement (Suzuki credit), must be applied against the lesser

of the adjudged sentence and the maximum sentence provided for in

the pretrial agreement, unless the pretrial agreement provides

otherwise.    52 MJ at 157.
      The two separate opinions in this case correctly point to

the statement in Rock that “credit against confinement awarded by

a military judge always applies against the sentence adjudged--

unless the pretrial agreement itself dictates otherwise.”       Id. at

156-57.   However, they omit the remainder of the Rock opinion’s

discussion, which addresses the circumstance where the pretrial

agreement provides for a sentence less than the adjudged

sentence.    Rock explains:




                                      12
United States v. Spaustat, No. 01-0656/AF


            Where there is a pretrial agreement that sets out a
            lesser limitation than that adjudged by the court-
            martial, however, a different result obtains. Where
            the agreement establishes a maximum confinement, for
            example, that is less than that adjudged by the court-
            martial, that lesser limit becomes the maximum total
            confinement that the accused lawfully can be made to
            serve. Where portions of that confinement have already
            been served, actually or constructively, the credit
            applies against the agreement, otherwise the accused’s
            sentence will exceed the maximum lawful limit.

Id. at 157 (emphasis added).

      Rock arguably gives more relief than RCM 305(k).      However,

it is not inconsistent with RCM 305(k), because RCM 305(k)

specifically authorizes more than day-for-day credit for Suzuki
violations, and it does not address the impact of a pretrial

agreement on the application of confinement credits.

      In this case, the military judge awarded additional credit

for pretrial punishment unlawfully imposed on appellant while he

was in pretrial confinement.        The military judge initially stated

that he would apply the credit against the adjudged sentence, but

when he announced his calculations, he actually applied it

against the lesser sentence provided for by the pretrial

agreement.    The Government asserts that appellant received a
windfall because the military judge erroneously applied Suzuki

credit against the lesser sentence provided for in the pretrial

agreement instead of the adjudged sentence of confinement for ten

months.

      We do not agree with the Government’s assertion that the

military judge gave appellant a windfall.       Because appellant was

stripped of his status as a noncommissioned officer as an

incident of his pretrial confinement, making the conditions of

confinement more onerous, we hold that the military judge’s


                                      13
United States v. Spaustat, No. 01-0656/AF


decision to apply Suzuki credit against the lesser sentence

provided for in the pretrial agreement was consistent with Rock.

                     4. Application of Allen Credit

      The parties agree that appellant was entitled to day-for-day

credit (Allen credit) for 102 days of pretrial confinement.       See

Allen, 17 MJ at 128.      Under the Rock guidance, such credit must

be applied against the lesser of the adjudged sentence or the

sentence limitation in the pretrial agreement.        Appellant asserts

that the Allen credit must be applied against the 202 days of
confinement that was announced.        The Government asserts that the

military judge correctly applied the Allen credit against the

eight-month sentence limitation, which is less than the ten-month

sentence that was adjudged.       In light of our holding that the

adjudged sentence provided for ten months of confinement, we hold

that the military judge’s decision to apply the Allen credit

against the eight-month limitation in the pretrial agreement was

consistent with Rock.

                 5. Computation of “Good Time” Credit

      The parties agree that appellant was entitled to 5 days of
“good time” credit for each month of confinement, but they

disagree on the question whether it should be computed on the

basis of the sentence limitation in the pretrial agreement (8

months) or the sentence announced by the military judge and

purportedly approved by the convening authority (212 days).

Appellant asserts that he was entitled to 40 days of credit, 5

days for each of the 8 months of confinement provided for in the

pretrial agreement.      The Government asserts that appellant was

entitled to five days of credit per month of the approved


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United States v. Spaustat, No. 01-0656/AF


sentence.     Since the convening authority purported to approve a

sentence that included confinement for 212 days, the Government

asserts that appellant was entitled to, at most, 21.5 days of

good time.3    The Court of Criminal Appeals concluded that

appellant had 50 days of post-trial confinement to serve after

sentence was imposed, less good time of 21.5 days.4        The court

below concluded that appellant was released from confinement one

day early.


3
    The Government’s calculation is as follows:

        Appellant entered pretrial confinement on 19 August 1999,
        Keesler time, 20 August 1999 Osan time. By virtue of
        crossing the international dateline, Appellant lost a day.
        That is, he spent 24 fewer hours in confinement because one
        calendar day was removed from his calendar. He left
        confinement on 27 December 1999. Therefore, he served four
        months and seven days in confinement. Someone sentenced to
        less than 1 year in confinement is entitled to five days per
        month good time. Therefore, for the four full months he
        served, Appellant was entitled to 20 days. (4 x 5 = 20).
        The residual seven days, according to the table found on
        page 9 of [Air Force Regulation 125-30] provide Appellant
        with one additional day. The Air Force Court granted
        another half day without explanation. However, given
        Appellant’s crossing of the international dateline,
        provision of the half day was arguably equitable.

Final Brief at 12 n.3.
4
    The Court of Criminal Appeals’s calculation was as follows:

             304   days   of confinement determined by the Judge
             -92   days   for RCM 305(k) credit
             212   days   of confinement
            -102   days   for Allen credit
             110   days
             -60   days
                      (Difference between the judge’s basis for
                       confinement and the limitation on confinement
                       in the Pretrial Agreement)
              50 days of confinement
             -21.5 days credit for good time served
              28.5 days of confinement to be served

Unpub. op. at A7.



                                      15
United States v. Spaustat, No. 01-0656/AF


      We need not resolve the disagreements about the computation

of good time.     The UCMJ and the Manual for Courts-Martial make no

provision for good time credit.        The responsibility for

determining how much good time credit, if any, will be awarded is

an administrative responsibility, vested in the commander of the

confinement facility.      See Air Force Joint Instruction 31-215,

Military Sentences to Confinement (November 1964); see also Air

Force Instruction 31-205, The Air Force Corrections System (April

9, 2001).    Military penal practice parallels federal civilian

practice, which vests responsibility for decisions regarding good

time credit in the prison warden.           See 18 USC § 4161; 28 CFR Part
523 (2001).5    Before a civilian prisoner may obtain judicial

review of a decision regarding good time credit, the prisoner

must exhaust all available administrative remedies.           Judicial

review of disputes about good time credit occurs only upon

application for an extraordinary writ, not on direct review of

the sentence.     See generally United States v. Wilson, 503 U.S.

329, 337 (1992) (review of pretrial confinement credit); Preiser

v. Rodriguez,
411 U.S. 475, 500 (1973) (review of good time determination).

      Because appellant has been released from confinement, the

only issue is whether he is entitled to sentence relief to

compensate him for illegal post-trial confinement from

December 10 to December 27, 1999.           We hold that, even if


5
 The statutory basis for good time credit in federal civilian
facilities was repealed for offenses committed on or after
November 1, 1987. Pub.L.No. 98-473, Title II, § 218(a)(4), 98
Stat. 2027 (1984).



                                      16
United States v. Spaustat, No. 01-0656/AF


appellant should have been released from confinement on December

10 instead of December 27, the additional days of confinement do

not warrant granting his request to set aside his bad-conduct

discharge.    See RCM 305(k) (limiting remedies for unlawful

pretrial confinement to credits against confinement, hard labor

without confinement, restriction, fine, and forfeiture of pay);

United States v. Rosendahl, 53 MJ 344, 348 (2000) (appellant not

entitled to have punitive discharge set aside as credit for

“relatively short” period of pretrial confinement where no post-

trial confinement was adjudged; punitive discharge is

“qualitatively different” from confinement); see also United
States v. Smith, 56 MJ 290 (2002) (no constitutional, statutory,

or regulatory right to have punitive discharge set aside as

credit for pretrial confinement where no post-trial confinement

was adjudged).

              6. Application of Credits in Future Cases

      This case illustrates that, even after Rock, there is some

confusion about the application of confinement credits when a

pretrial agreement is involved.        Furthermore, we recognize that
applying confinement credit against the adjudged sentence in

cases where there is a pretrial agreement can produce anomalous

results, and it can deprive an appellant of meaningful relief for

egregious violations of Article 13 or RCM 305.       If credits for

such violations are applied against the adjudged sentence instead

of the lesser sentence required by the pretrial agreement, then

in some situations, an accused may not receive meaningful relief

if the sentence reduction under the pretrial agreement is greater

than the credit awarded for the violation.       See Rock, 52 MJ at


                                      17
United States v. Spaustat, No. 01-0656/AF


157-58 (Effron, J., concurring in part and in the result).      This

Court’s Suzuki decision contemplates effective, meaningful

relief.   14 MJ at 493.     Accordingly, in order to avoid further

confusion and to ensure meaningful relief in all future cases

after the date of this decision, this Court will require the

convening authority to direct application of all confinement

credits for violations of Article 13 or RCM 305 and all Allen

credit against the approved sentence, i.e., the lesser of the

adjudged sentence or the sentence that may be approved under the

pretrial agreement, as further reduced by any clemency granted by

the convening authority, unless the pretrial agreement provides

otherwise.6
                                  DECISION

      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




6
 With respect to the possibility that an accused might seek to
obtain double credit -- once when negotiating a pretrial
agreement and again when asking for credit at trial, we note that
a convening authority may insist that the pretrial agreement
preclude a double credit. For example, when a pretrial agreement
includes a confinement cap that includes a defense-requested
credit, the convening authority may require that the agreement
provide that any similar credit ordered by the military judge
will be applied against the adjudged sentence, not the sentence
cap in the pretrial agreement.


                                      18
United States v. Spaustat, No. 01-0656/AF

     SULLIVAN, Senior Judge (concurring in part and in the
result):


      The first granted issue asks whether the military judge

erred in considering appellant’s unlawful pretrial punishment as

a mitigating factor in determining his adjudged sentence.              See

RCM 1002 and 1001(c)(1)(B), Manual for Courts-Martial, United

States (1998 ed.).1 Such a sentencing approach was permissible

prior to the decision of this Court in United States v. Rock, 52

MJ 154, 157 (1999).      See Michael G. Seidel, Giving Service

Members the Credit They Deserve:        A Review of Sentencing and Its

Application, The Army Lawyer 1, 2-3, 12-13 (Dept. of the Army

Pamphlet 27-50-321      Aug. 1999).

      The opinion of this Court in United States v. Rock, supra,

however, arguably precluded such action by a military judge.              It

specifically held that, absent a pretrial agreement to the

contrary, unlawful pretrial punishment unrelated to confinement

was to be treated as a sentence credit against the adjudged

sentence.    See, e.g., United States v. Larner, 1 MJ 371, 374-75

(CMA 1976).    In dicta, it suggested that, absent an agreement to

the contrary, unlawful pretrial punishment related to

confinement was to be treated as a credit against the maximum




1
  The current version of each Manual provision cited is identical to the one
in effect at the time of appellant’s court-martial.
United States v. Spaustat, No. 01-0656/AF

sentence provided in the pretrial agreement.           United States v.

Rock, supra.2



       Here, appellant’s unlawful pretrial punishment was related

to his pretrial confinement.        However, contrary to appellant’s

assertion, the military judge did not consider it as a

mitigating factor in arriving at an adjudged sentence.             Here,

the military judge considered it as a sentence credit against

the adjudged sentence, in addition to a sentence deduction from

the adjudged sentence which he allowed for a favorable sentence

limitation in the pretrial agreement.         Accordingly, I agree with

the majority that the first granted issue is without merit, and

United States v. Rock, supra, was effectively complied with in

this case.



      The second granted issue is “whether the military judge

erred in increasing appellant’s sentence after [its]

announcement” at his court-martial from 202 days to 212 days.              I

agree with the majority and the Court of Criminal Appeals that

the record in this case shows that appellant was sentenced by




2
  Unlawful pretrial punishment might also be considered by the convening
authority in arriving at a maximum sentence to be approved in a pretrial
agreement or exercising clemency in his approval action under Article 60
(c)(1), Uniform Code of Military Justice, 10 USC § 860(c)(1); see RCM
1107(b), Manual, supra. Dicta in United States v. Rock, supra, arguably
precludes or discourages such action by a convening authority.


                                      2
United States v. Spaustat, No. 01-0656/AF

the military judge to 10 months’ confinement, not 202 or 212

days as argued by appellant.   Moreover, the trial judge’s

comments concerning a sentence of 212 days vis à vis 202 days

were clearly directed to the computation of the sentence

appellant would actually serve.   See Article 57(b), Uniform Code

of Military Justice, 10 USC § 857(b); cf. Article 53, UCMJ, 10

USC § 853.   In my view, the second granted issue is without

merit, although the convening authority action and the

promulgating order in this case should be corrected.



     The third granted issue asks “whether the adjudged bad-

conduct discharge should be disapproved because of illegal post-

trial confinement.”   Here, appellant avers that he was

unlawfully confined after his court-martial sentence had been

served, from December 10, 1999, to December 27, 1999, a total of

18 days.   I agree that this claim may be rejected on the basis

of United States v. Rosendahl, 53 MJ 344 (2000).   In Rosendahl,

we held that 120 days of illegal pretrial confinement, which

could not otherwise be applied against an accused’s sentence,

did not require the setting aside of his bad-conduct discharge.



     Some further comment is warranted as a result of the

questions raised in this case concerning the computation of the

sentence that a military prisoner will actually serve.    See



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United States v. Spaustat, No. 01-0656/AF

Article 57(b), UCMJ.      I agree with the Court of Criminal

Appeals’ general approach3 in this case of computing the sentence

which had to be actually served by appellant.           See __ MJ at (16

n.4).   That Court applied various sentence credits to which

appellant

was entitled, including a 60-day deduction resulting from a

favorable sentence limit in his pretrial agreement, against the

adjudged sentence.      In my view, this approach is not only

correct, but it is consistent with well-established military and

civilian sentence computation practice.          See United States v.

Allen, 17 MJ 126, 129 (CMA 1984)(Everett, C.J.,

concurring)(lawful pretrial confinement credit); RCM 305(k)(RCM

305 violations); United States v. Rock, 52 MJ at 157 (Article

13, UCMJ, 10 USC § 813, violations unrelated to pretrial

punishment); see also United States v. Larner, 1 MJ at 374-75;

United States v. Kramer, 12 F.3d 130 (8th Cir. 1993).




      The majority takes a different approach to computing the

sentence a military prisoner will actually serve.            It relies on

dicta in United States v. Rock, supra, concerning the

application of sentence credits related to pretrial confinement

when a pretrial agreement is involved.          It holds that all

3
  I do not agree with the service appellate court’s specific conclusion that
appellant was entitled to 21.5 days of good time credit, in light of his


                                      4
United States v. Spaustat, No. 01-0656/AF

sentence credits should be applied against the approved sentence

to determine the actual sentence to be served.           I did not agree

with the majority opinion in United States v. Rock, supra, nor

its dicta, and I affirmed on different grounds.4           52 MJ at 158

(Sullivan, J., concurring in the result).          I do not join the

majority today in the transformation of that dicta into a broad

new rule for all confinement credits.



      In my view, the majority’s new rule for computing courts-

martial sentences to be served by military prisoners in future

cases conflicts with language in our past cases and the Manual

for Courts-Martial.      Clearly, it violates the precise holding of

the majority in United States v. Rock, supra.           (In fact, if it

were applied to Rock, he would have received 25 months of

additional sentence credit.)        In any event, I would prefer that

our sentence computation rule be stated in terms traditionally

understood in military and civilian law.          All effective sentence

credits, including credit resulting from a favorable sentence

limitation in a pretrial agreement, should be successively

applied against the adjudged sentence, unless the parties have

provided for a different rule in the pretrial agreement.




adjudged sentence of 10 months and the agreed rate of 5 days per month.
4
  My view was that the military judge clearly did not intend to afford the
appellant effective sentence credit for what he considered a technical




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United States v. Spaustat, No. 01-0656/AF

     In sum, it is my view that all sentence credits required by

law should be initially applied against the adjudged sentence.

In that group, I would include sentence credits for lawful and

unlawful pretrial confinement, unlawful pretrial punishment, and

RCM 305 violations.     In addition, discretionary sentence credits

or deductions should then be applied against what is left of the

adjudged sentence after the legal credits have been applied.               In

this group, I would include deductions from a sentence resulting

from sentence limitations in a pretrial agreement between the

convening authority and an accused and deductions granted as an

act of clemency by the convening authority.          In my view, this

approach to the question of sentence computation, which was

followed by the Air Force Court, is more faithful to existing

military practice.     See United States v. Larner, supra;

Department of Defense Instruction 1325.7, Administration of

Military Correctional Facilities and Clemency and Parole

Authority at Enclosure 7 (July 17, 2001)(Appendix A to the

opinion); cf.    Seidel, supra at 2 n.21 (suggesting that

“adjudged sentence” for purpose of sentence credit in Larner and

RCM 305(k) really means “approved sentence”).




violation of Article 13, UCMJ. See United States v. Rock, 52 MJ 154, 158
(1999)(Sullivan, J., concurring in the result).


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Unites States v. Spaustat,       No. 01-0656/AF


      CRAWFORD, Chief Judge (concurring in the result):

      I agree with the majority that the record of trial reflects

an adjudged sentence that included confinement for ten months;

that there was no unlawful reconsideration of the sentence; that

RCM 305(k), Manual for Courts-Martial, United States (2000 ed.),

and the rationale of United States v. Rock, 52 MJ 154, 157

(1999), specifically provide for various credits to be applied

against the adjudged sentence, including the day-for-day credit

under United States v. Allen, 17 MJ 126 (CMA 1984), where

appropriate; and that computation of “good time” credit is an

administrative responsibility best left in the hands of a

confinement facility commander.        However, rather than

recognizing the ambiguity in the dicta in Rock, the Court,

contrary to RCM 305(k), establishes a new rule which overlooks

the authority of the President.1

      RCM 305(k) clearly states that the remedy for a failure to:

(1) provide a prisoner with counsel (RCM 305(f)); (2) provide

that prisoner with notification and action by the commander

regarding his or her confinement (RCM 305(h)); (3) review that

pretrial confinement pursuant to RCM 305(i); or (4) provide a

review by a military judge (RCM 305(j)), is a specific credit

against the sentence adjudged.        See United States v. Southwick,


1
  See United v. Key, No. 01-0646, ___ MJ ___ n.* (2002)(Crawford, C.J.,
concurring in the result).
Unites States v. Spaustat,       No. 01-0656/AF


53 MJ 412, 418 (2000)(Crawford, C.J., “concurring ... as to

Issue II”).

      In addition to the aforementioned administrative credits,

there is credit pursuant to Allen, supra, for each day of lawful

pretrial confinement; credit pursuant to United States v.

Suzuki, 14 MJ 491 (CMA 1983), for illegal pretrial confinement;

credit for pretrial confinement that involves an abuse of

discretion or unusually harsh circumstances; and credit pursuant

to United States v. Mason, 19 MJ 274 (CMA 1985), for pretrial

restriction equivalent to confinement.          The latter would not

necessarily be known by the convening authority and would have

to be litigated at trial.       Cf. United States v. King, 57 MJ 106

(2002)(granting review on question whether Mason credit was

applicable).

      Furthermore, sentencing procedures in a court-martial2 often

result in the awarding of additional credit, such as for prior

nonjudicial punishment.       See RCM 1001(c)(1)(B); United States v.

Pierce, 27 MJ 367 (CMA 1989); United States v. Gammons, 51 MJ

169 (1999).    We do need a rule that clearly defines how credits

are to be applied in future cases.         However, unlike the

majority, I believe that any rule, including the Allen rule,

involving credits must be bottomed on the fundamental principle


2
  See Chapter X, Rules for Courts-Martial, Manual for Courts-Martial, United
States (2000 ed.).


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Unites States v. Spaustat,   No. 01-0656/AF


that the accused is the gatekeeper of the evidence and director

of the sentencing drama.   See United States v. Chapa, 57 MJ 140

(2002)(burden on accused to raise issues of RCM 305

(non)compliance and focus the trial court on any violations).

The majority’s holding, coupled with prior decisions from our

Court, e.g., Southwick and Rock, both supra, guarantee increased

litigation and imaginative pretrial agreements for the

foreseeable future.

     In Rock, the appellant contended that “the military judge

erred in applying the credit to the adjudged sentence, rather

than to the limitation established by the pretrial agreement.”

52 MJ at 155.   Rock had pleaded guilty in accordance with a

pretrial agreement that limited his confinement to three years.

The military judge credited Rock with eight months of

confinement against the adjudged sentence as a result of

pretrial conditions on appellant’s liberty.   He then announced a

sentence that included 53 months of confinement, which he

“explained included 8 months of credit.”   Id. at n.2.   Pursuant

to the pretrial agreement, the convening authority approved

confinement for three years.

     We held “that neither the military judge nor the convening

authority erred....”   Id. at 155.   We further held that “credit

against confinement awarded by a military judge always applies

against the sentence adjudged – unless the pretrial agreement


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Unites States v. Spaustat,    No. 01-0656/AF


itself dictates otherwise.”    Id. at 156-57.   Rock was a case

where the defense was “successful in convincing the military

judge to reduce the adjudged sentence due to the restraint [on

liberty].”   Id. at 157.   “Had the adjudged sentence been lesser

than the agreement, the pretrial restraint would have been

effective in substantially reducing appellant’s sentence.” Id.

We noted that pretrial restraint is a “useful bargaining tool,”

and “[f]or all we know, trial defense counsel engaged in exactly

such negotiations in this case.”       Id.

     Rock neither holds nor stands for the proposition that

“successful” credit given pursuant to Allen, Mason, or Suzuki

must be applied against the lesser of the adjudged sentence or

the maximum sentence provided for in the pretrial agreement.      As

both the majority and concurring opinions point out, Rock was

unique as to its facts, as well as the remedy which the military

judge awarded in order to provide effective relief.

     The rule announced by the majority today allows an accused

servicemember to negotiate a deal with his or her convening

authority, and obtain a cap on the sentence, by arguing that he

or she is entitled to the various credits discussed above.    Cf.

___ MJ at (18) n.6.   Having secured a pretrial agreement, the

accused can and should then make the same presentation to the

military judge or court members during the sentence proceedings.

Now, having had two opportunities to argue for credits, the


                                   4
Unites States v. Spaustat,   No. 01-0656/AF


accused will be entitled to the various credits, as the judge

determines, and then have these credits subtracted from the

lesser of the two sentences (adjudged or pretrial agreement).

     The end result of the majority’s holding will be the

fashioning of new pretrial agreements with imaginative clauses

by prosecutors and staff judge advocates -- and justifiably so,

for a pretrial agreement is for the benefit of both parties.     We

will shortly see records of trial with pretrial agreements that

are indexed to the amount of credit awarded in much the same way

as economists index prices to inflation.

     Military sentencing procedures place a duty on the

Government to present evidence which may result in either a

lessening of punishment or credit to an accused.   See, e.g., RCM

1001(b).   The burden should be on the defense to set out all of

its evidence of unfair treatment or other treatment warranting

credit in front of a sentencing authority.    Then the sentencing

authority can make an informed decision directing that credit be

applied to the adjudged sentence where credit is due.   Such a

procedure will in no way hamper an accused’s ability to further

litigate an adjudged sentence’s fairness before the convening

authority (RCM 1106), or to argue sentence appropriateness to

the Court of Criminal Appeals.




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