 This opinion is subject to administrative correction before final disposition.




                                Before
                   HUTCHISON, TANG, and LAWRENCE,
                       Appellate Military Judges

                           _________________________

                             UNITED STATES
                                 Appellee

                                        v.

                         Gabriel C. PARKER
               Private First Class (E-2), U.S. Marine Corps
                                Appellant

                               No. 201800066

                             Decided: 27 June 2019.

   Appeal from the United States Navy-Marine Corps Trial Judiciary.
   Military Judge: Lieutenant Colonel Emily A. Jackson-Hall, USMC.
   Sentence adjudged 29 December 2017 by a special court-martial con-
   vened at Marine Corps Base Camp Lejeune, North Carolina, consist-
   ing of a military judge sitting alone. Sentence approved by convening
   authority: reduction to E-1, a fine of $4,805.00, confinement for 185
   days, 1 and a bad-conduct discharge.

   For Appellant: Lieutenant Commander Derek Hampton, JAGC, USN.

   For Appellee: Lieutenant Jonathan Todd, JAGC, USN; Lieutenant
   Kimberly Rios, JAGC, USN.




   1 The Convening Authority suspended confinement in excess of time already
served as of the date of trial pursuant to a pretrial agreement, which was 183 days.
                   United States v. Parker, No. 201800066


                         _________________________

         This opinion does not serve as binding precedent but
              may be cited as persuasive authority under
               NMCCA Rule of Appellate Procedure 30.2.

                         _________________________

PER CURIAM:
    The appellant was found guilty, pursuant to his pleas, of one specification
of willfully disobeying a superior commissioned officer, two specifications of
wrongful use of a controlled substance, one specification of wrongful posses-
sion of a controlled substance, and one specification of assault upon a non-
commissioned officer, in violation of Articles 90, 112a, and 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 890, 912a, and 928 (2012).
    The appellant asserts two assignments of error (AOEs): (1) the trial coun-
sel improperly argued that the military judge should award a fine in the ex-
act amount of the pay he received during a period of pretrial confinement and
(2) the sentence of a $4805.00 fine is inappropriately severe. We find merit in
the second AOE, and we take corrective action in our decretal paragraph
which renders the first AOE moot.

                              I. BACKGROUND

    The appellant was subjected to pretrial confinement from 26 May 2017
until 30 August 2017. He was released because he reached an agreement
with the convening authority to be administratively separated from the Ma-
rine Corps with an Under Other Than Honorable Conditions characterization
of service in lieu of a court-martial. However, following his release from pre-
trial confinement, there was significant delay in executing his administrative
discharge. He committed additional misconduct by wrongfully using mariju-
ana and assaulting a noncommissioned officer. As a result, his pending ad-
ministrative discharge was cancelled, and the appellant was returned to pre-
trial confinement on 29 September 2017, where he remained for 82 days until
his trial on 20 December 2017. By the date of trial, the parties agreed that
the appellant was entitled to 183 days of pretrial confinement credit pursu-
ant to United States v. Allen, 17 M.J. 126 (C.M.A. 1984).
   During the sentencing argument, the trial counsel argued:
       However, given that a reduction in rank from a prior [nonjudi-
       cial punishment] and the first 90-plus days of [pretrial] con-
       finement failed to correct the [appellant’s] behavior, the gov-


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                       United States v. Parker, No. 201800066


         ernment asks for the inclusion of a fine of $4,805.54. That
         amount is approximately what he was paid during the 82 days
         of his second stint in the brig, which, again, occurred after his
         separation from the Marine Corps had been approved. 2
   The military judge awarded a sentence that included a fine of $4,805.00.

                                  II. DISCUSSION

    Under Article 66(c), UCMJ, we may only affirm “the sentence or such part
or amount of the sentence,” that we determine, “on the basis of the entire rec-
ord, should be approved.” 10 U.S.C. § 866(d)(1) (2012) (emphasis added). In
determining whether a particular sentence should be approved, our analysis
requires an “individualized consideration of the particular accused on the ba-
sis of the nature and seriousness of the offense and the character of the of-
fender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (internal
quotations and citation omitted). Although we have significant discretion in
reviewing the appropriateness and severity of the adjudged sentence, we may
not engage in acts of clemency. United States v. Nerad, 69 M.J. 138, 146
(C.A.A.F. 2010). “Clemency involves bestowing mercy—treating an accused
with less rigor than he deserves,” while reviewing an appellant’s sentence for
“[s]entence appropriateness involves the judicial function of assuring that
justice is done and that the accused gets the punishment he deserves.” United
States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
    It is well-established that service members in pretrial confinement are
generally entitled to pay. 3 Had the appellant served the entirety of his en-
listment contract, the appellant’s end of active service date would have been
12 December 2020.
   Article 13, UCMJ, prohibits unlawful pretrial punishments. The Court of
Appeals for the Armed Forces (CAAF) has “interpreted Article 13 to prohibit
two types of activities,” and the one pertinent to this case is the prohibition
against “the intentional imposition of punishment on an accused prior to tri-



   2   Record at 53.
   3 Department of Defense Financial Management Regulation, Department of De-
fense Directive 7000.14-R, Volume 7A, Chapter 1 at 010402.F (April 2017) (indicating
that military pay is due to military confinees except those held for civil authorities,
those subject to forfeitures adjudged at court-martial, and those whose term of en-
listment has expired).




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                       United States v. Parker, No. 201800066


al.” United States v. Fischer, 61 M.J. 415, 418 (2005). A reviewing court looks
to whether the official action “entails a purpose or intent to punish an ac-
cused before guilt or innocence has been adjudicated,” and it evaluates
whether the government action is “reasonably related to a legitimate gov-
ernmental objective.” Id. (citations omitted).
    Had the government deliberately stopped the appellant’s pay prior to tri-
al, with the intent to punish him, such action would constitute a clear case of
illegal pretrial punishment.
    In this case, a fine could certainly be an appropriate punishment. “Any
court-martial may adjudge a fine” subject to certain limitations. RULE FOR
COURTS-MARTIAL 1003(b)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2016) (emphasis added). Although the discussion to R.C.M. 1003(b)(3) indi-
cates that “[a] fine normally should not be adjudged . . . unless the [appellant]
was unjustly enriched as a result of the offense of which convicted,” the dis-
cussion is non-binding. The CAAF has approved the imposition of fines in
cases in which the appellant was not unjustly enriched. See United States v.
Stebbins, 61 M.J. 366, 370 (C.A.A.F. 2005). The appellant implicitly conceded
the propriety of a fine as punishment by signing a pretrial agreement with
the convening authority that permitted the convening authority to approve a
fine, if adjudged. 4 See United States v. Czeck, 28 M.J. 563, 565 (N.M.C.M.R.
1989).
    However, although a fine could be an appropriate punishment, on the
facts of this case we conclude that it was not. The trial counsel specifically
asked the military judge to impose the approximate amount of pay the appel-
lant received during his past 82 days of pretrial confinement, down to the last
54 cents. The military judge, presumably realizing it was improper to impose
fines in partial dollar amounts, truncated the fine to $4,805.00.
    By following the trial counsel’s suggestion to impose a fine in the exact
amount of the appellant’s pay during pretrial confinement, the military judge
effectively accomplished what would have constituted illegal pretrial pun-
ishment if done before trial. This action served to undercut the mandate in
the Financial Management Regulation that service members are entitled to
pay during military pretrial confinement. To be clear, a $4,805.00 fine is not
inherently unreasonable given the notorious and ongoing nature of the appel-
lant’s misconduct. However, because the trial counsel’s argument—and the
military judge’s apparent assent to that argument—demonstrates that the


   4   Appellate Exhibit III.




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                       United States v. Parker, No. 201800066


fine was imposed to claw back nearly every cent the appellant was paid dur-
ing pretrial confinement, we find the sentence was inappropriately severe,
having been imposed for an improper purpose.
    Our conclusion is reinforced by the trial counsel’s argument that the ap-
pellant’s first term of pretrial confinement “failed to correct” the appellant’s
behavior. 5 This argument suggests that the appellant’s pretrial confinement
was a form of punishment meant to correct his behavior rather than a means
to ensure his presence at trial or to prevent him from engaging in serious
criminal conduct. See R.C.M. 305(h)(2)(B). In short, the trial counsel argued
that the appellant did not deserve to receive the pay he was legally entitled to
during pretrial confinement, and the military judge apparently agreed.
    We find unpersuasive the government’s citation to United States v. Moly,
No. 201200316, 2012 CCA LEXIS 930 (N-M. Ct. Crim. App. 20 Dec 2012)
(unpub. op.). In Moly, we affirmed a sentence that included a $1,000.00 fine.
Id. at *5. The appellant challenged the fine as roughly equivalent to the pay
he received in pretrial confinement. We held it was not improper to impose
such a fine because there was substantial evidence that Moly deliberately
went into an unauthorized absence status in order to prolong his time on ac-
tive duty before being placed on appellate leave, following a previous court-
martial conviction. He confided to his parents during recorded calls from the
brig that he had financial trouble, knew he would receive pay in the brig, and
deliberately took actions to prolong his time on active duty in order to make
additional money. Moly is distinguishable from this case; there is no evidence
that the appellant purposely committed additional misconduct while he was
awaiting discharge in order to prolong his time on active duty so that he
could continue to receive pay.
    Thus, given the unique circumstances of this case, we determine that the
fine should be disapproved and take corrective action in our decretal para-
graph.

                                III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings are correct in law and fact.
We affirm only so much of the sentence that includes a reduction to E-1, con-
finement for 185 days, and a bad-conduct discharge. The adjudged fine of



   5   Record at 53.




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                  United States v. Parker, No. 201800066


$4805.00 is disapproved. Following this action, we find no error materially
prejudicial to the appellant’s substantial rights remains. Arts. 59 and 66,
UCMJ. Accordingly, the findings and sentence as modified by this court are
AFFIRMED.

                              FOR THE COURT:




                              RODGER A. DREW, JR.
                              Clerk of Court




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