                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                        David A. BRACEY, Private E-2
                            U.S. Army, Appellant

                                     No. 01-0408
                             Crim. App. No. 9900298

             United States Court of Appeals for the Armed Forces

                              Argued December 12, 2001

                                Decided April 2, 2002

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


                                        Counsel
For Appellant: Captain Christopher D. Carrier (argued); Colonel Adele H.
     Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major Mary M.
     McCord (on brief); Lieutenant Colonel David A. Mayfield and Captain
     Maanvi M. Patoir.

For Appellee: Captain Tami L. Dillahunt (argued); Colonel Steven T. Salata,
     Lieutenant Colonel Denise R. Lind, and Major Paul T. Cygnarowicz (on
     brief); Captain William J. Nelson.



Military Judge:   Donna M. Wright



         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Bracey, No. 01-0408/AR



   Judge EFFRON delivered the opinion of the Court.

   A special court-martial composed of a military judge sitting

alone convicted appellant, pursuant to his pleas, of

failure to go to his appointed place of duty, disrespect to a

superior commissioned officer (four specifications), failure to

obey a noncommissioned officer, and disrespect to a superior

noncommissioned officer (two specifications), in violation of

Articles 86, 89, and 91, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 886, 889, and 891, respectively.    Contrary to

his pleas, appellant was convicted of making a false official

statement and larceny of military property of a value of more

than $100, in violation of Articles 107 and 121, UCMJ, 10 USC

§§ 907 and 921, respectively.

     Appellant was sentenced to a bad-conduct discharge, six

months' confinement, forfeiture of $630.00 pay per month for six

months, and reduction to the lowest enlisted grade.    The

convening authority approved the sentence, and the Army Court of

Criminal Appeals affirmed in an unpublished decision.

     On appellant’s petition, we granted review of the following

issue:

          WHETHER FINDING APPELLANT GUILTY OF
          DISRESPECT TO A COMMISSIONED OFFICER FOR THE
          SAME CONDUCT FOR WHICH HE HAD RECEIVED AN
          ARTICLE 15 FOR DISOBEYING THAT OFFICER
          ENTITLES HIM TO SENTENCE CREDIT UNDER UNITED
          STATES V. PIERCE, 27 MJ 367 (CMA 1989).

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United States v. Bracey, No. 01-0408/AR



For the reasons discussed below, we hold that appellant was not

entitled to sentence credit for his prior nonjudicial punishment

(NJP) under the circumstances of this case.



                 I.   Credit for Nonjudicial Punishment

      The Uniform Code of Military Justice authorizes commanding

officers to impose designated "disciplinary punishments for

minor offenses without the intervention of a court-martial . . .

." Art. 15(b), UCMJ, 10 USC § 815(b).          If a servicemember has

received such NJP for a minor offense, and the offense is later

referred for trial by court-martial, the accused may move to

dismiss the charge on the grounds of former punishment for a

minor offense.     RCM 907(b)(2)(D)(iv), Manual for Courts-Martial,

United States (2000 ed.).∗

      If NJP has been imposed for a serious crime or offense,

Article 15(f) provides that such punishment is not a bar to

trial by court-martial.       The protections for military personnel

against double jeopardy under the Fifth Amendment of the

Constitution of the United States and Article 44, UCMJ, 10 USC

§ 844, apply only to judicial punishments, not to nonjudicial




∗
  All Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.


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United States v. Bracey, No. 01-0408/AR


punishments under Article 15.    See United States v. Fretwell, 11

USCMA 377, 29 CMR 193 (1960).

     Although an accused may be tried for a serious offense

after a prior NJP for the same offense, the UCMJ provides

protection against double punishment.    As we noted in United

States v. Gammons, 51 MJ 169, 180 (1999), "[t]he purpose of

Article 15(f) is to prevent the accused from being punished

twice for the same offense as a matter of statutory law even

though such successive punishment is otherwise permissible as a

matter of constitutional law."    In United States v. Pierce, 27

MJ 367 (CMA 1989), we provided a mechanism for appropriately

crediting prior NJP.    An accused who is convicted at court-

martial for the same offense for which NJP previously was

imposed may request credit "for any and all nonjudicial

punishment suffered:    day-for-day, dollar-for-dollar, stripe-for

stripe."   Id. at 369

     The credit is not automatic.     As we emphasized in Gammons,

the accused is "the gatekeeper on the question as to whether an

NJP for a serious offense will be brought to the attention of

the sentencing authority."    51 MJ at 180.   We observed that

           [t]he accused, as gatekeeper, may choose
           whether to introduce the record of a prior
           NJP for the same act or omission covered by
           a court-martial finding and may also choose
           the forum for making such a presentation.
           The accused may: (1) introduce the record
           of the prior NJP for consideration by the


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United States v. Bracey, No. 01-0408/AR


           court-martial during sentencing; (2)
           introduce the record of the prior NJP during
           an Article 39(a), UCMJ, 10 USC § 839(a),
           session for purposes of adjudicating credit
           to be applied against the adjudged sentence;
           (3) defer introduction of the record of the
           prior NJP during trial and present it to the
           convening authority prior to action on the
           sentence; or (4) choose not to bring the
           record of the prior NJP to the attention of
           any sentencing authority. In that regard,
           we note than an accused may have sound
           reasons for not presenting the record of the
           prior NJP to any sentencing authority.
           Absent a collateral issue, such as
           ineffective assistance of counsel, failure
           to raise the issue of mitigation based upon
           the record of a previous NJP for the same
           offense prior to action by the convening
           authority waives an allegation that the
           court-martial or convening authority erred
           by failing to consider the record of the
           prior NJP.

Id. at 183.


                          II.   Background

     Appellant’s platoon leader ordered him to stand at the

position of “parade rest” in the course of counseling appellant

for assaulting a fellow soldier.       Appellant responded by

clenching his fists and turning his head away from the platoon

leader.   The platoon leader then issued a second command,

ordering appellant "to go to the position of attention."

Appellant responded by disobeying the order to stand at the

position of attention.   Following these events, appellant’s




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United States v. Bracey, No. 01-0408/AR


company commander imposed NJP upon appellant for the offense of

willful disobedience of the order to stand at attention.

     Subsequently, charges against appellant were referred to

trial for a variety of offenses, including offenses emanating

from the confrontation with his platoon leader.      Appellant was

convicted of a number of offenses, including the conviction at

issue in the present appeal -- behaving with disrespect toward

his platoon leader "by clenching his fists and turning his head

away from" his platoon leader.

     During sentencing proceedings, trial counsel introduced the

record of the earlier NJP for disobeying the platoon leader's

order to stand at attention as evidence in aggravation, and

referred to it in his closing argument.       Defense counsel did not

refer to the NJP, and made no motion for Pierce credit or for

consideration of the prior punishment as a matter in mitigation.

There is no indication in the record that appellant raised the

matter with the convening authority after trial.



                        III.     Discussion

     Appellant asserts that he is entitled to Pierce credit,

contending that his actions -- clenching his fists and looking

away from his platoon leader -- were the basis of both the

disobedience offense punished under Article 15 and the

disrespect offense punished at court-martial.      The record


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United States v. Bracey, No. 01-0408/AR


indicates that these were separate actions.    The providence

inquiry and the associated stipulation of fact indicate that the

disrespect offense at issue in the court-martial occurred in

response to the platoon leader’s order for appellant to stand at

parade rest.    The NJP record, however, indicates that earlier

NJP was imposed for violation of a different order -- the order

to stand at attention.    There is no indication in the record

that appellant ever was punished -- by NJP or by court-martial -

- for disobeying the order to stand at parade rest.    See United

States v. Virgilito, 22 USCMA 394, 47 CMR 331

(1973)(disobedience and disrespect stand as greater and lesser

only where the disobedience constitutes the disrespect).

     Neither the Constitution nor the UCMJ precludes a person

from being convicted for multiple offenses growing out of the

same transaction, so long as the offenses are not multiplicious.

See RCM 907(b)(3)(B).    Likewise, although Pierce precludes

double punishment for the same offense, it does not preclude

multiple punishments for multiple offenses growing out of the

same transaction when the offenses are not multiplicious.      If

appellant wanted to introduce facts and obtain a ruling that the

NJP and the court-martial conviction were for the same offense,

the time to do so was at trial, not on appeal. See Gammons,

supra at 183.




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United States v. Bracey, No. 01-0408/AR


                         IV.   Conclusion

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Bracey, 01-0408


     BAKER, Judge (concurring in the result):

     The majority concludes that “[i]f appellant wanted to

introduce facts and obtain a ruling that the NJP and the

court-martial conviction were for the same offense, the

time to do so was at trial, not on appeal.”     _ MJ at (7).

In other words, absent plain error, appellant waived his

opportunity to seek credit under United States v. Pierce,

27 MJ 367 (CMA 1989), because he did not pursue his claim

at trial, nor I would add, with the convening authority.       I

would not find plain error, because if there was error, it

was not obvious, given the textual differences between the

NJP summary and appellant’s court-martial charge.     See

United States v. Powell, 49 MJ 460 (1998).    Therefore, I

concur in the result.

     I hesitate to go further and conclude as the majority

does that

     [t]he record indicates that these were separate
     actions. The providence inquiry and the associated
     stipulation of fact indicate that the disrespect
     offense at issue in the court-martial occurred in
     response to the platoon leader’s order for appellant
     to stand at parade rest. The NJP record, however,
     indicates that the earlier NJP was imposed for
     violation of a different order – the order to stand at
     attention.

_ MJ at (6-7).

     I recognize that attention and parade rest are

distinct military positions predicated by separate


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United States v. Bracey, 01-0408


commands, and that the court-martial charges here were

drafted with care to distinguish between these positions.

However, I am skeptical, as a general matter, that NJP

summaries are universally drafted with the legal precision

of a prosecutor drafting a charge in preparation for trial.

NJP is intended to be field expedient and is, of course,

inherently not judicial in nature.            Article 15 of the Code

is designed to allow a commander to            administer NJP without

requiring him to seek advice and assistance from an

attorney.

        Applying an elements test, as one might do in a Teters∗

multiplicity context, to an NJP summary could yield

potentially unwanted effects.            An appellant might not

qualify for so-called Pierce credit, even where he in fact

receives punishment for the same act(s) for which NJP was

administered, because the NJP descriptions or summaries

have been written by a lay clerk in less formal and

descriptive terms than the legal form required in criminal

pleadings.      A decision like that taken today would seem to

require the NJP recipient to demand elements specificity as

to which of his specific actions are being addressed at

NJP, if he is to have hope of subsequently receiving Pierce



∗
    United States v. Teters, 37 MJ 370 (CMA 1993).


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United States v. Bracey, 01-0408


credit for his punishment.   This is not realistic.   NJP is

not elements based; it is event based.   NJP is not for

lawyers; it is for commanders.

     In short, I am skeptical that NJP will regularly be

broken down with the distinction of a tea ceremony, as the

Government argues was the case here, with individual

movements of insubordination being addressed separately in

Manual at Arms fashion.   Nor should that be the expectation

in the case of field expedient nonjudicial discipline.     So

long as military law recognizes Pierce credit, our case law

should recognize the differences between NJP summaries and

courts-martial charges and not encourage an analytic merger

of the two.




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