

   
   
   
   U.S. v. Shelton



UNITED STATES, Appellee
v.
Timothy S. SHELTON, Staff Sergeant
U.S. Army, Appellant
 
No. 99-0595
Crim. App. No. 9600456
 
United States Court of Appeals for the Armed
Forces
Argued May 4, 2000
Decided August 30, 2000
CRAWFORD, C.J., delivered the opinion of
the Court, in which EFFRON, J., and COX, S.J., joined. GIERKE, J., filed
an opinion concurring in part and in the result and dissenting in part.
SULLIVAN, J., filed an opinion concurring in the result.
Counsel
For Appellant: Captain Sean S. Park
(argued); Colonel
Adele H. Odegard, Major Jonathan
F. Potter, and Captain David S. Hurt (on brief).
For Appellee: Captain Katherine M. Kane
(argued); Colonel
Russell S. Estey, Lieutenant Colonel
Eugene R. Milhizer, and Captain Mary E. Braisted (on brief).
Military Judge: Richard J. Hough
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.



Chief Judge CRAWFORD delivered the
opinion of the Court.
On February 5, 1996, pursuant to his
pleas, appellant was convicted by military judge alone of wrongfully selling
military property (4 specifications), larceny of military property (4 specifications),
and false swearing (2 specifications), in violation of Articles 108, 121,
and 134, Uniform Code of Military Justice, 10 USC §§ 908, 921,
and 934, respectively. Appellant was sentenced to a dishonorable discharge,
9 years confinement, forfeiture of all pay, and reduction to the lowest
enlisted grade. The summary of the "charges, specifications, pleas, and
findings" in the first staff judge advocate recommendation was as follows:
ChargeArticleSpecSummary of the
Offense Plea Finding
I        
108    1  Military property,
                   
selling, of a value
                   
of more than $100.00
                   
(between February
                   
and June 1995)          
G     G
                
2  Military property,
                   
selling, of a value
                   
of more than $100.00
                   
(between February
                   
and June 1995)          
*     *
                
3  Military property,
                   
selling, of a value
                   
of more than $100.00
                   
(June 1995)             
*     *
                
4  Military property,
                   
selling, of a value
                   
of more than $100.00
                   
(between January and
                   
June 1995)              
*     *
II       
121    1  Larceny of military
                   
property, of a value
                   
of more than $100.00
                   
(between February and
                   
June 1995)              
G     G
                
2  Larceny of military
                   
property, of a value
                   
of more than $100.00
                   
(between February and
                   
June 1995)              
G     G
                
3  Larceny of military
                   
property, of a value
                   
of more than $100.00
                   
(between February and
                   
June 1995)              
G     G
                
4  Larceny of military
                   
property, of a value
                   
of more than $100.00
                   
(between February and
                   
June 1995)              
NG    *
                
5  Larceny of military
                   
property, of a value
                   
of $100.00 or less
                   
(between February and
                   
June 1995)              
G     G
III      
134    1  False Swearing,
                   
(30 June 1995)          
G     G
                
2  False Swearing,
                   
(6 July 1995)           
G     G
* Dismissed on a motion prior to findings.
On September 6, 1996, pursuant to an
erroneous staff judge advocate recommendation, the convening authority
approved the sentence but reduced the confinement to 48 months pursuant
to a pretrial agreement. On March 27, 1998, the Court of Criminal Appeals
set aside the convening authority's action because of misadvice given to
the convening authority by the staff judge advocate in his post-trial recommendation,
which omitted pleas and findings of guilty to three specifications of wrongfully
selling military property. The asterisks that appeared as to specifications
2, 3, and 4 of Charge I were erroneous. The recommendation should have
shown that pleas of guilty were entered and findings of guilty were made
to each specification.
On August 13, 1998, pursuant to a new
staff judge advocate recommendation, the convening authority again approved
only so much of the sentence as provided for a dishonorable discharge,
confinement for 4 months, forfeiture of all pay, and reduction to the grade
of Private E1. On January 8, 1999, the Court of Criminal Appeals affirmed
the findings and sentence.
We granted review of the following
issue:



WHETHER APPELLANT IS ENTITLED
TO RELIEF IN ACCORDANCE WITH UNIFORM CODE OF MILITARY JUSTICE ARTICLE 57(a)(1),
10 USC § 57(a)(1)(1988)FOR THE PERIOD OF TIME IN WHICH FORFEITURE
OF PAY WAS UNLAWFULLY TAKEN, SINCE THE ORIGINAL ACTION BY THE CONVENING
AUTHORITY WAS SET ASIDE AND RETURNED FOR A NEW ACTION AND RECOMMENDATION;
AND THE CONVENING AUTHORITY DID NOT TAKE NEW ACTION UNTIL AUGUST 13, 1998.



We specified the following issue:



WHETHER THE DECISION OF THE COURT
OF CRIMINAL APPEALS TO "SET ASIDE" THE ORIGINAL ACTION OF
THE CONVENING AUTHORITY NULLIFIED
THE REDUCTION IN GRADE AND FORFEITURE OF PAY EXECUTED AS A RESULT OF THE
ORIGINAL ACTION BY THE CONVENING AUTHORITY; AND, IF SO, WHETHER ANY SENTENCE
TO REDUCTION IN GRADE AND FORFEITURE OF PAY DID NOT BECOME EFFECTIVE UNTIL
THE DATE OF THE SECOND CONVENING AUTHORITY'S ACTION.



The Government asserts that because the
second convening authority action also approved total forfeiture of pay,
appellant is not entitled to pay beyond September 6, 1996, the date of
the first convening authority action. The Government claims that neither
Congress nor the President intended for restoration to occur because, in
his second action, the convening authority approved the same sentence.
The defense argues that when the Court
of Criminal Appeals set aside the first convening authority action, the
action was nullified. Thus, Staff Sergeant Shelton was entitled to relief
from September 6, 1966, the date of the first convening authority action,
to December 8, 1997, the date of the expiration of appellants term of
service (ETS).1
The defense also argues that the Government's reliance on Article 75, UCMJ,
10 USC § 875, in denying him this relief is misplaced because that
provision "deals with sentences which have been set aside, and not with
actions that have been set aside."

Discussion
Whether appellant is legally entitled to back
pay between the date of the first action, September 6, 1996, and his ETS
date, December 8, 1997, is a question of law that is reviewed denovo.
United
States v. Garcia, 44 MJ 496, 497 (1996).
This case requires us to examine Articles 57(a)
and 75(a). Article 57(a)(1)(B) provides that forfeitures shall begin upon
approval by the convening authority. The clear language of Article 57(a)(1)(B),
as applied to appellants case, is such that forfeitures would begin on
September 6, 1996, the date of the convening authoritys first action.
As to the restoration of pay, Article 75(a)
provides as follows:



Under such regulations as the President may
prescribe, all rights, privileges, and property affected by an executed
part of a court-martial sentence which has been set aside or disapproved,
except an executed dismissal or discharge, shall be restored unless a new
trial or rehearing is ordered and such executed part is included in a sentence
imposed upon the new trial or rehearing.



By its terms, Article 75(a) applies to situations
where the sentence was set aside or disapproved. Under Article 75(a), when
that portion of a court-martial sentence that includes forfeitures has
been executed, and the executed sentence subsequently is set aside or disapproved,
the amount so forfeited must be restored, except when that amount is included
in a sentence imposed upon a new trial or rehearing. The Article applies
to the "executed part of a court-martial sentence," precludes restoration
when "such executed part is included in a sentence imposed upon the new
trial or rehearing," and makes no distinction between executed sentences
that are disapproved as a result of trial error and executed sentences
disapproved as a result of convening authority error.2
As to the legislative history of Article 75,
questions at the hearings focused on what would happen when there had been
a dismissal or the charges could not be sustained. Hearings on S. 857 and
H.R. 4080 Before a Subcomm. of the Senate Armed Services Comm., 81st
Cong., 1st Sess. (1218-22) (1949). The answers disclose that
at the end of a new trial or rehearing when there is an acquittal or a
lesser sentence, the accused is entitled to be made whole or at least whole
as to the difference between the original sentence and the second sentence.
Certainly, a more severe sentence could not be approved. Art. 63, UCMJ,
10 USC § 863. That was not and is not true in the federal system.
Cf.
Alabama
v. Smith, 490 U.S. 794 (1989).
Amplifying on Article 75, as part of the Presidents
rule-making authority, the 1951 Manual provided:

If, in his action on the record of a rehearing,
the convening authority disapproves the findings of guilty of all charges
and specifications which were tried at the former hearing and that part
of the sentence which was based on such findings, he will, unless a further
rehearing is ordered, provide in his action that all rights, privileges,
and property affected by any executed portion of the sentence adjudged
at the former hearing shall be restored. If the court, at a rehearing,
acquits the accused of all charges and specifications which were tried
at the former hearing, the promulgating order will provide for the restoration
of all rights, privileges, and property affected by an executed portion
of the sentence adjudged at the former hearing.

Para. 89c(7), Manual for Courts-Martial,
United States (1951).
Article 75 was based in part on Article of
War (AW)
50 1/2. AW 50 1/2 provided:

When ... any reviewing or confirming authority
disapproves or vacates a sentence the execution of which has not therefore
been duly ordered, he may authorize or direct a rehearing.... Upon such
rehearing the accused shall not be tried for any offense of which he was
found not guilty by the first court, and no sentence in excess of or more
severe than the original sentence shall be enforced unless the sentence
be based upon a finding of guilty of an offense not considered upon the
merits in the original proceeding.... After any such rehearing had on the
order of the President, the record of trial shall, after examination by
the board of review, be transmitted by the Judge Advocate General, with
the boards opinion and his recommendations, directly to the Secretary
of War for the action of the President.

Articles of War-Act of June 4, 1920, reprintedin
1921 Manual at 513-14.
Article 75(a) provides for "restor[ation]"
of "all rights, privileges, and property" "unless a new trial or rehearing"
"include[s]" the same sentence. Taken together, Article 75(a) and the Manual
contemplate that if a reviewing authority does not disapprove the findings
or the sentence, there are no rights or privileges to be restored.
Additionally, paragraph 70509 of the Department
of Defense Pay Manual provides:
Sentences Disapproved or Set Aside

a. When New Trial or Rehearing Is Not
Ordered When a court-martial sentence is set aside or disapproved and
a new trial or rehearing is not ordered, all rights, privileges, and property
affected by the executed part of the sentence are restored to the member.
Such restoration includes any executed forfeiture and any pay and allowances
lost as a result of an executed reduction in grade.
b. New Trial or Rehearing Ordered
(1) When an executed court-martial sentence
which includes a forfeiture is set aside or disapproved, and a new trial
or rehearing is ordered which results in an approved sentence to forfeiture,
credit the member with the amount of any forfeiture effected under the
first sentence. When an unexecuted court-martial sentence which includes
a forfeiture is set aside or disapproved and a rehearing is ordered, the
member is entitled to full pay and allowances (subject to other proper
deductions) for the period from the convening authoritys action on the
original sentence until the convening authoritys action on the subsequent
sentence. Entitlement to pay and allowances thereafter depends on the terms
of the new sentence.
(2) When a previously executed dishonorable
or bad conduct discharge is not imposed by a new trial, the member is entitled
to the pay and allowances which the member would have received had the
dishonorable or bad conduct discharge not been executed. When a previously
executed dismissal of an officer is not imposed by a new trial, an administrative
discharge is substituted. The President may reappoint the officer to the
grade and rank the officer would have attained if the officer had not been
dismissed. The total time between the dismissal and reappointment is considered
as actual service for all purposes, including pay and allowances.

Para. 70509, Department of Defense Financial Management
Regulation, Vol. 7A, Military Pay Policy and Procedures, Active Duty and
Reserve Pay (December 1994).
The purpose of Article 75(a) was to provide
for restoration only after an acquittal or the setting aside of charges
and sentence. It was not intended to provide restoration in situations
where a procedural error was corrected and the same or greater sentence
was reimposed.
We conclude that restoration under the facts
of appellants case would run counter to both congressional intent and
to this Courts efforts to encourage corrective action of erroneous statements
in the staff judge advocates recommendations. See, e.g.,
United
States v. Wheelus, 49 MJ 283 (1998). Certainly, allowing appellant
to receive back pay would be a windfall and would discourage corrective
action. However, in United States v. Foecking, 22 USCMA 46, 50,
46 CMR 46, 50 (1972), this Court held that when the convening authoritys
first action is not "lawful," the forfeitures are not effective until there
is a legally correct action by the convening authority approving the sentence.
Accordingly, we hold that Foecking construed Article 57(a) in a
manner inconsistent with the legislative purpose expressed in Article 75(a),
which is to avoid giving an accused a windfall when he or she is resentenced.
To the extent that Foecking is inconsistent with this opinion, it
is overruled.
Notwithstanding our decision to overrule Foecking,
it was the law when appellant was sentenced, and he was entitled to its
benefit. Thus, our decision with respect to Foecking is prospective
and not applicable to appellants case.
Nevertheless, we decline to order any relief.
Although appellant has asserted that he is entitled to pay for the period
between September 6, 1996, and August 13, 1998, he has provided no documentation
to support his claim.
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1 Appellant does not
request, and we do not find him to be entitled to, relief beyond his ETS
date.
2
We note that at the time of appellants trial, forfeitures could be executed
under Article 57(a) only upon approval of the convening authority. Under
amendments enacted in the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, Title XI, § 1121, 110 Stat. 462 (1996),
forfeitures now take effect 14 days after trial, unless sooner imposed
by the convening authority. Art. 57(a)(1)(A). Convening authority actions,
however, typically take place more than 14 days after trial. Therefore,
as a practical matter, forfeitures will be executed by operation of law
as a result of the court-martial sentence, rather than as a result of the
convening authoritys action, in most cases. As a result, it is unlikely
that the issue presented in this case, involving the relationship between
Article 75(a) and action by a convening authority on forfeitures, will
recur in the future.


GIERKE, Judge (concurring in part and in the
result and dissenting in part):
In my view, the majority errs by deciding this
case under Article 75(a), UCMJ, 10 USC § 875. This case is controlled
by Article 57(a), not Article 75(a). By its terms, Article 75(a) applies
to situations where the "executed part of a court-martial sentence" was
set aside or disapproved. Article 75(a) is silent regarding cases where
only the convening authoritys action, but not the sentence, was set aside
or disapproved. While it is true that setting aside a sentence always has
the effect of setting aside the convening authoritys action, setting aside
the convening authoritys action does not set aside the sentence. In appellants
case, the Court of Criminal Appeals did not set aside the sentence; it
set aside the convening authoritys action. Unpub. op. at 2. Thus, in my
opinion, Article 75(a) is inapplicable to appellants case.
The granted issue is whether, under the version
of Article 57(a) in effect at the time, the forfeitures should have been
applied to appellants pay beginning on the date of the first convening
authoritys action on September 6, 1996, or on the date of the second convening
authoritys action on August 13, 1998. In United States v. Foecking,
22 USCMA 46, 46 CMR 46 (1972), this Court held that when the convening
authoritys first action is not "lawful," the forfeitures are not effective
until there is a legally correct action by the convening authority approving
the sentence. However, in Keys v. Cole, 31 MJ 228, 231 (CMA 1990),
this Court held that forfeitures were effective on the date of the convening
authoritys action, even if the findings and sentence were set aside on
appellate review because of a trial error, because "the forfeitures, when
effected, were proper under color of law." See also Dock v. United
States, 46 F.3d 1083, 1087-88 (Fed. Cir. 1995).
Keys and Foecking are not inconsistent,
but they are factually different. Keys involved a reversal for a
trial error -- improper denial of a continuance. Foecking addresses
the situation where -- as in this case -- the convening authority's action
itself was defective. In such a situation, the Foecking rationale
would compel the conclusion that the sentence was not lawfully ordered
executed until the second convening authoritys action on August 13, 1998.
The question remains whether the Foecking
interpretation of Article 57(a) is inconsistent with the intent of Congress.
I agree with the majority that Foecking construed Article 57(a)
in a manner inconsistent with the legislative purpose expressed in Article
75(a), and I join in the decision to overrule Foecking. I also agree
that our decision to overrule Foecking is prospective and not applicable
to appellants case. See United States v. Allbery, 44 MJ
226 (1996).
Finally, I join the majoritys conclusion that,
while appellant is entitled to the benefit of Foecking, he is not
entitled to any relief from this Court. Even if appellant had provided
documentation to support his claim for back pay, this court lacks fact-finding
authority. Jurisdiction to compute and order restoration of any back pay
owed appellant rests with the United States Court of Federal Claims, not
this Court. See United States v. Allen, 33 MJ 209, 215-16
(CMA 1991); Keys, 31 MJ at 234.


SULLIVAN, Judge (concurring in the result):
I agree with the majority opinion that this
Court should deny appellant relief. However, I disagree with the rationale
which the majority opinion uses to reach this conclusion.
The majority opinion resolves Issue I by means
of the following pronouncement: "Certainly, allowing appellant to receive
back pay would be a windfall and would discourage corrective action." ___
MJ (11) (no legal authority cited). I would resolve this case based
on law, not equity.
Regarding specified Issue II, as a matter of
law, there was no "conviction" until the time of the second convening authority
action on August 13, 1998. See United States v. Foecking,
22 USCMA 46, 50, 46 CMR 46, 50 (1972).
Nevertheless, I doubt that Article 57(a)(1),
Uniform Code of Military Justice, is dispositive. See Dock v.
United States, 46 F.3d 1083 (Fed. Cir. 1995). Our case law concerning
Article 75, UCMJ, suggests the opposite. See Keys v. Cole,
31 MJ 228 (CMA 1990). In any event, appellants claim to restored pay should
be brought before the United States Court of Federal Claims. Id.;
see
United States v. Allen, 33 MJ 209, 215 (CMA 1991), cert. denied,
503 U.S. 936 (1992).


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