                        UNITED STATES, Appellee

                                     v.

    Dominic P. ALTIER, Gas Turbine System Mechanical Technician
                             First Class
                        U.S. Navy, Appellant

                               No. 12-0496

                        Crim. App. No. 201000361

        United States Court of Appeals for the Armed Forces

                        Argued November 13, 2012

                       Decided December 19, 2012

                                PER CURIAM1

                                  Counsel


For Appellant: Lieutenant David C. Dziengowski, JAGC, USN,
(argued); Lieutenant Toren G. Mushovic, JAGC, USN (on brief);
Lieutenant Commander Michael R. Torrisi, JAGC, USN.

For Appellee: Colonel Stephen C. Newman, USMC (argued); Brian
K. Keller, Esq. (on brief); Colonel Kurt J. Brubaker, USMC,
Captain Sam C. Moore, USMC, and Lieutenant Ian McClean, JAGC,
USN.


Military Judge:    Ross Leuning




        This opinion is subject to revision before final publication.


1
  See United States v. Altier, __ M.J. ___ (Daily Journal, Oct.
12, 2012).
United States v. Altier, No. 12-0496/NA


     PER CURIAM:

     At Appellant’s first trial, a special court-martial

composed of officer and enlisted members convicted Appellant,

contrary to his pleas, of fraternization (one specification) and

creating a hostile work environment (one specification), in

violation of Article 92, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 892 (2006).   The sentence, as adjudged by

the court-martial and approved by the convening authority,

consisted of a bad-conduct discharge.    On appeal, the Navy-

Marine Corps Court of Criminal Appeals affirmed the findings and

returned the case to the Judge Advocate General for a possible

rehearing on the sentence.   United States v. Altier, No. NMCCA

201000361, 2011 CCA LEXIS 102, at *19-*20, 2011 WL 2044807, at

*6 (N-M. Ct. Crim. App. May 26, 2011).

     At a rehearing on the sentence before a special court-

martial composed of a military judge sitting alone, defense

counsel urged the military judge to impose “no further

punishment.”   Defense counsel added that if the military judge

determined that a “message” was necessary, then he should impose

a sentence no greater than the punishment “that could be imposed

at NJP.”2   The military judge sentenced Appellant to thirty days

of confinement, forty-five days of restriction with hard labor,


2
  The term “NJP” refers to nonjudicial punishment under Article
15, UCMJ, 10 U.S.C. § 815 (2006).

                                  2
United States v. Altier, No. 12-0496/NA


reduction to the pay-grade of E-5, and forfeitures of $1,500.00

per month for three months.      The convening authority approved

the sentence, but stayed its execution, and the Court of

Criminal Appeals affirmed, also staying the execution of the

sentence.    United States v. Altier, No. NMCCA 201000361, 2012

CCA LEXIS 156, at * 9, 2012 WL 1514767, at *2 (N-M. Ct. Crim.

App. Apr. 30, 2012).

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

issue:

       WHETHER APPELLANT’S SENTENCE VIOLATES ARTICLE 63,
       UCMJ, AND R.C.M. 810(d) BECAUSE IT IS IN EXCESS OF AND
       MORE SEVERE THAN HIS ORIGINAL APPROVED COURT-MARTIAL
       SENTENCE.

       For the reasons set forth below, we affirm.

                                   I.

       Article 63 of the UCMJ, 10 U.S.C. § 863 (2006), states:

            Upon a rehearing the accused may not be
            tried for any offense of which he was found
            not guilty by the first-court-martial, and
            no sentence in excess of or more severe than
            the original sentence may be approved,
            unless the sentence is based upon a finding
            of guilty of an offense not considered upon
            the merits in the original proceedings, or
            unless the sentence prescribed for the
            offense is mandatory.3

3
    Article 63 further states:

       If the sentence approved after the first court-martial
       was in accordance with a pretrial agreement and the
       accused at the rehearing changes his plea with respect
       to the charges or specifications upon which the
       pretrial agreement was based, or otherwise does not

                                    3
United States v. Altier, No. 12-0496/NA


Under Rule for Courts-Martial (R.C.M.) 810(d), the limitation in

Article 63 applies only when the convening authority acts upon

the result of the rehearing, and does not apply during the

adjudication of the sentence at the rehearing.    See id.

      Our cases regarding Article 63 reflect both the obligation

to give meaning and effect to the statutory limitation against a

sentence that is “in excess of or more severe” than the original

sentence, and an understanding that the application of the

Article 63 limitation in any case cannot be reduced to a

specific formula.    See, e.g., United States v. Kelley, 5 C.M.A.

259, 262-63, 17 C.M.R. 259, 262-63 (1954); United States v.

Darusin, 20 C.M.A. 354, 356, 43 C.M.R. 194, 196 (1971); United

States v. Mitchell, 58 M.J. 446, 448-49 (C.A.A.F. 2003).        We

have further determined that our opinions interpreting the

relationship between discharges and other forms of punishment

with respect to other areas of law, such as sentencing credits,

are instructive but not conclusive in the application of Article

63.   See Mitchell, 58 M.J. at 448.

                                  II.

      A punitive discharge adds to the stigma of a federal

conviction and severely limits the opportunity of a former



      comply with   the pretrial agreement, the approved
      sentence as   to those charges or specifications may
      include any   punishment not in excess of that lawfully
      adjudged at   the first court-martial.

                                   4
United States v. Altier, No. 12-0496/NA


servicemember to receive important federal benefits, such as

those administered by the Department of Veterans Affairs.      See

United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003).    In

Mitchell, we stated that “for the purposes of Article 63, a

dishonorable discharge is more severe than a bad-conduct

discharge.”   58 M.J. at 449.   We held in Mitchell that the

increase in severity of the discharge at the rehearing, from a

bad-conduct discharge to a dishonorable discharge, could not be

offset by a decrease in severity of the confinement and

forfeitures at the rehearing.   Id.   In contrast to the sentence

at issue in Mitchell, Appellant in the present case did not

receive a punitive discharge at the rehearing.   Instead,

Appellant received a sentence containing terms similar in

effect, although not identical to, the types of punishment that

could be imposed in a non-judicial setting under Article 15,

UCMJ.   Under the specific circumstances of this case, we

conclude that the Court of Criminal Appeals did not err under

Article 63 in affirming a sentence adjudged by the court-martial

and approved by the convening authority.4


4
  The present case highlights the somewhat unusual situation
under current court-martial practice in which the court-martial
has the responsibility of adjudicating a sentence upon
rehearing, but must do so without transparent knowledge of the
lawful maximum punishment. The Discussion accompanying R.C.M.
810(d) states that the members “should not be advised of the
sentence limitation under this rule.” The Analysis accompanying
the Discussion emphasizes that the suggested restriction on

                                  5
United States v. Altier, No. 12-0496/NA


                         III.   DECISION

     The decision of the Navy-Marine Corps Court of Criminal

Appeals is affirmed.5




advising the members of the sentence limitation was placed in
the non-binding Discussion, and is not phrased in mandatory
terms, in order to leave the matter open for further
development. Manual for Courts-Martial, United States, Analysis
of the Rules for Courts-Martial app. 21 at A21-51 (2012 ed.).
Under current procedures, courts-martial are placed in the
position of adjudicating sentences without knowledge of the
lawful maximum punishments with regard to cases subject to the
limitations in Article 63. The President, acting under the
rulemaking authority of Article 36, UCMJ, 10 U.S.C. § 836
(2006), may wish to consider whether transparency in the
sentencing process could be improved by providing a process in
the Rules for the military judge to determine the maximum
permissible punishment in light of Article 63 after receiving
input from the parties.
5
  The stay in execution of the sentence that was ordered in the
grant of review is lifted.



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