                         UNITED STATES, Appellee

                                         v.

                    Timothy J. PENA, Senior Airman
                       U.S. Air Force, Appellant

                                  No. 06-0091
                           Crim. App. No. 35397

       United States Court of Appeals for the Armed Forces

                         Argued October 16, 2006

                        Decided January 16, 2007

EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined.

STUCKY and RYAN, JJ., did not participate.

                                     Counsel


For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major Sandra K. Whittington (on
brief).

For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gary F. Spencer and Lieutenant Colonel Robert V. Combs (on
brief).



Military Judge:    Patrick M. Rosenow



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Pena, No. 06-0091/AF


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone convicted Appellant, pursuant to his pleas, of attempted

indecent assault, indecent assault, indecent exposure, indecent

language, and adultery, in violation of Articles 80 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§     880, 934

(2000), respectively.   The sentence adjudged by the court-

martial and approved by the convening authority included a

dishonorable discharge, confinement for one year, and reduction

to the lowest enlisted grade.   The convening authority deferred

mandatory forfeitures until the date of the action, and waived

automatic forfeitures for a period of six months, directing

payment of the mandatory forfeitures to Appellant’s spouse for

the benefit of his children.    The United States Air Force Court

of Criminal Appeals affirmed.   United States v. Pena, 61 M.J.

776 (A.F. Ct. Crim. App. 2005).

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

issues:

          I.    WHETHER THE APPELLANT WAS IMPROPERLY
                PLACED ON EXCESS APPELLATE LEAVE AND
                DENIED PAY AND ALLOWANCES IN VIOLATION
                OF ARTICLE 76a, UCMJ, WHEN HIS SENTENCE
                TO CONFINEMENT WAS NOT COMPLETED OR
                REMITTED AND HE WAS FORCED TO FULFILL
                CONDITIONS OF MANDATORY SUPERVISION
                UPON HIS RELEASE FROM CONFINEMENT.

          II.   WHETHER THE AIR FORCE CLEMENCY AND
                PAROLE BOARD INCREASED THE SEVERITY OF


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United States v. Pena, No. 06-0091/AF


                APPELLANT’S SENTENCE IN VIOLATION OF
                ARTICLE 55, UCMJ, AND THE EIGHTH
                AMENDMENT WHEN IT FORCED APPELLANT TO
                FULFILL CONDITIONS OF MANDATORY
                SUPERVISION THAT ARE NOT AUTHORIZED BY
                THE UCMJ.

          III. WHETHER THE IMPOSITION OF CONDITIONS OF
               MANDATORY SUPERVISION ON APPELLANT
               VIOLATES THE DUE PROCESS CLAUSE BECAUSE
               THE MILITARY JUDGE DID NOT ANNOUNCE A
               PERIOD OF MANDATORY SUPERVISED RELEASE
               OR ANY OF ITS CONDITIONS AS PART OF THE
               SENTENCE.

          IV.   WHETHER APPELLANT’S PLEAS OF GUILTY ARE
                IMPROVIDENT BECAUSE THE MILITARY JUDGE
                DID NOT INFORM APPELLANT PRIOR TO
                ACCEPTING HIS PLEAS THAT HE COULD BE
                ADDITIONALLY PUNISHED IN UNSPECIFIED
                WAYS.


     Appellant, who was sentenced to confinement for one year,

served all but seventy-two days of that period in confinement at

the Naval Consolidated Brig Miramar, in San Diego, California.

During the remaining seventy-two days, the Government placed

Appellant in the Department of Defense (DoD) Mandatory

Supervised Release program against his wishes.

     The granted issues concern Appellant’s early release from

his sentence to confinement.   Part I of this opinion summarizes

the relationship between the DoD Mandatory Supervised Release

program and other confinement and release programs in the

military justice system.   Part II describes the sentencing

proceedings at Appellant’s trial and the terms and conditions



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United States v. Pena, No. 06-0091/AF


applied to Appellant through the Mandatory Supervised Release

program.    Part III considers whether those terms or conditions

provide a basis for relief under applicable standards of review.

For the reasons set forth below, we affirm.



           I.   THE DoD MANDATORY SUPERVISED RELEASE PROGRAM

     Persons sentenced to confinement by a court-martial serve

their period of imprisonment in facilities administered by the

DoD, subject to exceptions not pertinent to the present appeal.

Dep’t of Defense Dir. 1325.4, Confinement of Military Prisoners

and Administration of Military Correctional Programs and

Facilities (Aug. 17, 2001) [hereinafter DoD Dir. 1325.4].       The

DoD traditionally has administered a variety of early release

procedures for persons in confinement, such as good time and

earned credits, return to duty programs, and parole.     See Dep’t

of Defense, Instr. 1325.7, Administration of Military

Correctional Facilities and Clemency and Parole Authority,

enclosure 26, para. E26.1-E26.5. (July 17, 2001, incorporating

Change 1, June 10, 2003) [hereinafter DoD Instr. 1325.7].

     Parole is a form of conditional release from confinement

under the guidance and supervision of a United States probation

officer.    Id. at enclosure 2, para. E2.1.11.   In addition,

parole is a voluntary program, in which the inmate applies to

participate during the balance of his or her period of approved


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United States v. Pena, No. 06-0091/AF


confinement.   Id. at para. 6.17; Dep’t of Defense, Sentence

Computation Manual 1325.7-M, at AP1.1.12 (July 27, 2004,

Administrative Reissuance, incorporating Change 1, Aug. 30,

2006) [hereinafter DoD Manual 1325.7-M].    The decision as to

whether parole should be granted is vested in the Clemency and

Parole Boards of the military departments.    The decision is

highly discretionary.   See DoD Instr. 1325.7, at para. 6.16.

Prior to release on parole, the inmate must have an approved

parole supervision plan, and agree in writing to abide by the

plan and conditions of supervision.    Id. at para. 6.17.9.1.

Violation of the terms and conditions may result in revocation

of parole.   Id. at para. 6.17.10.    In general, the supervision

of persons on parole is designed to enhance the person’s

reintegration into civilian society.    See id. at para. 6.17.9.2.

     In 2001, the DoD introduced an additional early release

mechanism, the Mandatory Supervised Release program.    Mandatory

Supervised Release covers specified classes of prisoners who

have served sufficient time in confinement to be considered for

parole, but who are not granted parole.    Id. at para. 6.20.1.

As with parole, Mandatory Supervised Release applies from the

time of release from prison until the end of the prisoner’s

approved sentence, and it may be revoked for violation of the

terms and conditions of the program.    Id. at paras. 6.17.9.4,

6.17.9.6, 6.20.6.; DoD Manual 1325.7-M, at AP1.1.12.


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United States v. Pena, No. 06-0091/AF


     In contrast to parole, which is a voluntary program, a

prisoner may be placed involuntarily on Mandatory Supervised

Release.   See generally Policy Letter, Clemency and Parole

Boards Mandatory Supervised Release Policy (May 23, 2003) (in

Brief of Appellant at app. E).   In addition to the conditions

that may be imposed during parole, the Clemency and Parole Board

may use the Mandatory Supervised Release program to impose “any

additional reasonable supervision conditions . . . that would .

. . further an orderly and successful transition to civilian

life for released prisoners, and which would better protect the

communities into which prisoners are released.”    DoD Instr.

1325.7, at para. 6.20.2.   A prisoner who refuses to accept

Mandatory Supervised Release or the conditions imposed by the

Clemency and Parole Board is subject to discipline, including

trial by court-martial.    Clemency and Parole Boards Mandatory

Supervised Release Policy Letter (May 23, 2003).   See Policy

Letter at ¶ E.5.

     Mandatory Supervised Release differs in significant

respects from the authority of the federal civilian courts to

include in a sentence “a term of supervised release after

imprisonment.”   18 U.S.C. § 3583(a) (2000).   Unlike the federal

civilian program, which is based on express statutory authority

and involves terms that are adjudged as part of the sentence,

the military’s Mandatory Supervised Release program is based on


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United States v. Pena, No. 06-0091/AF


executive authority, and involves terms that are imposed by

executive branch officials well after completion of trial.

              II.   THE ADJUDICATION AND ADMINISTRATION
                        OF APPELLANT’S SENTENCE

                     A.   THE PROCEEDINGS AT TRIAL

       After Appellant entered a plea of guilty to various charged

offenses, the military judge conducted an inquiry into the

providency of the plea.     See Rule for Courts-Martial (R.C.M.)

910.   As part of the inquiry, the military judge explained the

maximum punishment Appellant faced, based solely on the offenses

to which he pled guilty.     Appellant agreed with the military

judge that he faced a dishonorable discharge from the service,

forfeiture of all pay and allowances, forty-nine years of

confinement, reduction to the grade of E-1, and a fine.     The

military judge asked Appellant if he had any questions about the

specific punishments he faced, and Appellant responded in the

negative.   In addition, the military judge asked defense counsel

whether he and Appellant had discussed the administrative

ramifications of the punishments.      Defense counsel responded in

the affirmative.    Neither the military judge nor defense counsel

mentioned any specific administrative consequence.

       Subsequently, during the sentencing proceeding the military

judge reminded Appellant that he was facing a lengthy amount of

confinement and asked him whether he had any additional



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United States v. Pena, No. 06-0091/AF


questions.   Appellant responded in the negative.   The military

judge sentenced Appellant to a dishonorable discharge, one year

of confinement, and reduction to the grade of E-1.

                 B. PLACEMENT OF APPELLANT IN THE
               MANDATORY SUPERVISED RELEASE PROGRAM

     The Air Force assigned Appellant to serve his period of

confinement at the Naval Consolidated Brig Miramar.    During that

period, the Air Force Clemency and Parole Board determined that

he would not be granted parole.   The Board ordered him to

participate in the Mandatory Supervised Release program for a

seventy-two day period, terminating on his maximum release date

at the end of the adjudged period of confinement.

     The Certificate of Mandatory Supervised Release

(certificate) issued to Appellant by the Board set forth sixteen

conditions generally applicable to persons in the program, along

with an attachment containing nine additional conditions

tailored to Appellant’s circumstances.    The additional

conditions required Appellant to:     (1) participate in a

community-based sex offender treatment program with a duration

of at least twenty-four months, at his own expense; (2) have no

contact with the victims without the prior approval of his

probation officer; (3) abstain from the use and possession of

pornography or sexually stimulating materials; (4) consent to

periodic examinations of his computer, to include retrieval and



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United States v. Pena, No. 06-0091/AF


copying of all data from his computer and/or removal of his

computer equipment for the purpose of conducting a more thorough

inspection; and consent to having installed on his computer, at

his expense, any hardware or software monitoring systems; (5)

abstain from adult book stores, sex shops, topless bars, or

other locations that act as a sexual stimulus; (6) register as a

sex offender in accordance with state law; (7) attend and

participate in three meetings weekly concerning alcohol and

narcotics abstention; (8) waive confidentiality in his relations

with the sponsor of the treatment program so that his probation

officer may monitor his progress in the program; and (9) abstain

from consuming alcohol.   The certificate provided that the term

of mandatory supervision would expire on Appellant’s maximum

release date.   The confinement officials at Miramar advised

Appellant that he was required to accept the conditions in the

certificate.    If Appellant refused to do so, he could be

prosecuted in a court-martial for failure to obey an order or

dereliction of duty, and he could be sent before a disciplinary

board with the potential of losing good time credits and

confinement privileges.

     A month prior to his proposed release under the Mandatory

Supervised Release program, Appellant submitted a letter to the

Commander of the confinement facility at Miramar requesting

permission to decline participation in the program without


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United States v. Pena, No. 06-0091/AF

losing his good time credits.   Appellant stated that he could

adhere to all of the conditions in the attachment except for

participation in the sex offender treatment program.    He noted

that while the state of Illinois would pay for his participation

in a treatment program in Chicago, he would have to make a six-

hour round trip from his expected place of residence.    He added

that he had not yet obtained a job, his wife was unable to work

due to the imminent birth of a child, and his family would have

no income.   He also noted that his mother would provide his

family with room, board, and incidentals, but that the burden

would stretch “her financial situation beyond its limits.”     He

stated that “the bottom line is we cannot pay for transportation

[to the treatment program] until I have secured a job and

financially reestablished [my] family.”

     Appellant did not receive a response.     When he reached his

minimum release date with seventy-two days left in his period of

confinement, he was released into the Mandatory Supervised

Release program on June 22, 2003.    The post-trial record

contains a declaration signed by Appellant on July 10, 2003, in

which he noted a number of problems created by his participation

in the Mandatory Supervised Release program.    The declaration

notes that he was unable to stop in Colorado to ship his

household goods to Illinois, that he incurred a ten dollar per

week expenditure for transportation to the sex offender


                                10
United States v. Pena, No. 06-0091/AF

treatment program, that he was required to attend Alcoholics

Anonymous classes three times a week at night and sex offender

treatment classes once a week during the day, that he had

various other appointments and a requirement to give a urine

sample on short notice every two weeks, and that the conditions

of mandatory supervision left him unable to find work to support

his family.    The declaration was submitted when Appellant had

completed eighteen out of the seventy-two days of his period of

mandatory supervised release.     Although the declaration noted

that he was not employed, it did not describe his living

circumstances, sources of support, or overall financial

condition.    The record contains no further information

documenting the impact of the Mandatory Supervised Release

program on Appellant during the remaining fifty-four days that

he was in the program.    In addition, the record contains no

indication that he was subjected to any of the conditions of the

Mandatory Supervised Release program after the end of the

seventy-two day period.



                           III.   DISCUSSION

                      A. THE TERMS AND CONDITIONS
              OF APPELLANT’S MANDATORY SUPERVISED RELEASE
                        (ISSUES II, III, AND IV)

     At the outset, we note that Appellant has challenged the

authority of the DoD to establish the Mandatory Supervised


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United States v. Pena, No. 06-0091/AF

Release program in the absence of express statutory authority.

Appellant asks us to invalidate a program under which the DoD

releases individuals from prison prior to the completion of

their adjudged sentence to confinement.   On direct appeal, the

scope of our review does not extend to supervision of all

aspects of the confinement and release process.   United States

v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. App. 2000), aff’d, 55

M.J. 361 (C.A.A.F. 2001).    Our review of post-trial confinement

and release conditions on direct appeal is limited to the impact

of such conditions on the findings and the sentence.   See

Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2000); United States v.

Spaustat, 57 M.J. 256, 263 (C.A.A.F. 2002) (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).    Accordingly, our review in the

present appeal focuses on whether the post-trial conditions at

issue:   (1) constituted cruel or unusual punishment or otherwise

violated an express prohibition in the UCMJ; (2) unlawfully

increased Appellant’s punishment; or (3) rendered his guilty

plea improvident.   To the extent that the issues raised by

Appellant otherwise challenge the administration of the

Mandatory Supervised Release program, those matters -- including

questions regarding the underlying legal authority for the

program -- are not before us on direct review.


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United States v. Pena, No. 06-0091/AF



1.   Cruel or Unusual Punishment

      The Eighth Amendment prohibits “cruel and unusual

punishments.”   U.S. Const. amend. VIII.   Similarly, Article 55,

UCMJ, 10 U.S.C. § 855 (2000), prohibits “cruel or unusual

punishment.”    Article 55, UCMJ, also prohibits specified

punishments, such as use of irons except for the purpose of safe

custody, which are not at issue in the present appeal.     See also

Article 12, UCMJ, 10 U.S.C. § 812 (2000) (prohibition on

confinement in immediate association with enemy prisoners).

      We review allegations of cruel or unusual punishment under

a de novo standard.   United States v. White, 54 M.J. 469, 471

(C.A.A.F. 2001).   In our evaluation of both constitutional and

statutory allegations of cruel or unusual punishment, we apply

the Supreme Court’s Eighth Amendment jurisprudence “in the

absence of legislative intent to create greater protections in

the UCMJ.”   United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F.

2006).

     The Eighth Amendment prohibits punishments that are

“‘incompatible with the evolving standards of decency that mark

the progress of a maturing society, or which involve the

unnecessary and wanton infliction of pain.’”   Id. at 214

(quoting Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)).

Although the conditions at issue in the present appeal implicate



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United States v. Pena, No. 06-0091/AF

other legal issues, as discussed below, none of these conditions

constitute cruel or unusual punishment within the Eighth

Amendment standards articulated by the Supreme Court.   E.g., 18

U.S.C. § 3583 (2000) (describing the conditions of mandatory

release that may be imposed in criminal trials in the federal

district courts).


2.   Impact on the adjudged sentence

      Appellant contends that his punishment was increased

without providing the requisite constitutional, statutory, and

regulatory components of notice and an opportunity to respond.

We review such claims de novo.   United States v. Rollins, 61

M.J. 338, 343 (C.A.A.F. 2005).

      The military sentencing process provides notice of the

punishments at issue, an adversarial proceeding, and formal

announcement of the sentence.    See U.S. Const. amend. V;

Articles 53, 56, and 60, UCMJ, 10 U.S.C. §§ 853, 856, 860

(2000); R.C.M. 1001-1007.   A servicemember “cannot be subjected

to a sentence greater than that adjudged” by the court-martial.

United States v. Stewart, 62 M.J. 291, 294 (C.A.A.F. 2006)

(citing Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990)).      Cf.

White, 54 M.J. at 472 (noting our Court’s “authority to ensure

that the severity of the adjudged and approved sentence has not

been unlawfully increased by prison officials”).   Although



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United States v. Pena, No. 06-0091/AF

reviewing authorities have the power to commute a sentence to a

different form of punishment, see Article 60(c)(2), UCMJ;

Article 71, UCMJ, 10 U.S.C. §§ 871 (2000), this authority may

not be exercised in a manner that increases the severity of the

punishment.   United States v. Carter, 45 M.J. 168, 170 (C.A.A.F.

1996); Waller, 30 M.J. at 143; see R.C.M. 1107(d)(1),

1107(f)(2).   The question of whether a change in the form of

punishment increases the severity of the punishment is

contextual, requiring consideration of “all the circumstances in

a particular case.”   Carter, 45 M.J. at 170.

     The foregoing considerations apply only to matters that

constitute “punishment” within the meaning of the criminal law.

As a general matter, the collateral administrative consequences

of a sentence, such as early release programs, do not constitute

punishment for purposes of the criminal law.    See, e.g., United

States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988) (impact of

conviction on retirement benefits is a collateral administrative

consequence, inappropriate for consideration at sentencing);

United States v. Murphy, 26 M.J. 454, 457 (C.M.A. 1988)

(classifying eligibility for a particular squadron as a

collateral administrative consequence not to be considered in

sentencing); United States v. Hannan, 17 M.J. 115, 123 (C.M.A.

1984) (recognizing parole eligibility as a collateral

administrative consequence of sentence).   Whether a particular


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United States v. Pena, No. 06-0091/AF

aspect of an early release program is administered in a manner

that constitutes punishment requires a case-specific inquiry.

Compare California Dep’t of Corrections v. Morales, 514 U.S. 499

(1995), with Lynce v. Mathis, 519 U.S. 433 (1997).   Cf. United

States v. Fischer, 61 M.J. 415, 420 (C.A.A.F. 2005) (setting

forth factors to be considered in determining whether

governmental actions are regulatory or punitive in nature)

(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963))).

     The terms and conditions of Appellant’s Mandatory

Supervised Release, as initially conveyed to him, potentially

raised serious questions as to whether Appellant’s sentence had

been increased.   On its face, the attachment accompanying the

Certificate of Mandatory Release suggested that Appellant was

required to subject himself involuntarily to a sex offender

treatment program for twenty-four months, a period extending

well beyond his maximum release date.   In addition, the

attachment suggested that Appellant was required to expend a

substantial amount of his own funds to pay for the treatment

program and computer software.   As the record indicates,

however, and as defense counsel confirmed during oral argument,

none of the conditions were imposed upon Appellant after his

maximum release date, and he was not required to pay for his

treatment program or any computer software.




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United States v. Pena, No. 06-0091/AF

     Although the defense brief sets forth a facial challenge to

the Mandatory Supervised Release program and the conditions

communicated to Appellant prior to his release, the defense has

provided few details as to any actual impact on Appellant.    On

May 17, 2003, prior to his release, Appellant submitted a

request for exemption from one of the conditions, participation

in a treatment program, based upon concern as to what might

occur upon release.   That statement provides no information as

to what actually happened to Appellant after he was released.

On July 10, 2003, eighteen days after he was released under the

Mandatory Supervised Release program, Appellant signed a

declaration describing various difficulties that he had

encountered in moving his household goods and obtaining

employment as result of the requirements imposed by the

Mandatory Supervised Release program.   He also noted that he was

required to expend ten dollars a week for transportation to a

treatment program.    The declaration, however, does not indicate

what impact, if any, the Mandatory Supervised Release program

had on Appellant’s sentence during the remaining fifty-four days

prior to his maximum release date.

     In the context of an issue that requires a showing of

increased punishment, it is not sufficient to show that the

conditions of mandatory release imposed some burdens on a

released prisoner.    All conditions of release impose burdens to


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United States v. Pena, No. 06-0091/AF

some degree.   Those burdens, however, must be assessed in the

context of release from a sentence to confinement.    The question

in each case is whether the burdens are such that they result in

an increase in the punishment of confinement adjudged by the

court-martial.   Carter, 45 M.J. at 170.   Such an assessment

requires a case-specific analysis.   See id.

     We do not take lightly the impact of the Mandatory

Supervised Release program on Appellant during the initial

eighteen day period or during the subsequent fifty-four days.

Likewise, we do not disregard the possibility that the Mandatory

Supervised Release program could be imposed in a manner that

increases the punishment above the punishment adjudged by a

court-martial.   The burden, however, is on the party challenging

the conditions to demonstrate that there has been an increase

above the punishment of confinement imposed at trial.

     When an appellant asks us to review the post-trial

administration of a sentence, we are typically confronted by

issues in which the pertinent facts are not in the record of

trial.   In such a case, it is particularly important that the

appellant provide us with a “clear record” of the facts and

circumstances relevant to the claim of legal error.   See United

States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997).     The

information about the personal, psychological, economic, and

family impact of such measures is primarily in the control of


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United States v. Pena, No. 06-0091/AF

the party appealing the sentence, and that party bears the

responsibility of submitting detailed documentation.   The

generalized statements in Appellant’s July 10, 2003,

declaration, which cover only a portion of the time Appellant

was in the Mandatory Supervised Release program, do not provide

the clear record upon which we could evaluate whether the

conditions of mandatory supervised release in this case produced

an increase in Appellant’s sentence.    Accordingly, Appellant has

not demonstrated that his participation in the Mandatory

Supervised Release program produced an impermissible increase in

the punishment adjudged by the court-martial.


3.   Effect on the providency of the guilty plea

      We review claims as to the providency of a plea under a de

novo standard.   United States v. Harris, 61 M.J. 391, 398

(C.A.A.F. 2005).   An appellant who challenges the providency of

a guilty plea must demonstrate “a substantial basis in law and

fact for questioning the guilty plea.”   United States v. Prater,

32 M.J. 433, 436 (C.M.A. 1991) (quotation marks omitted).    As a

general matter, the military judge does not have an affirmative

obligation to initiate an inquiry into early release programs as

part of the plea inquiry.   See Hannan, 17 M.J. at 123.    When the

challenge concerns an appellant’s claimed misunderstanding of




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United States v. Pena, No. 06-0091/AF

the collateral consequences of a court-martial, such as an early

release program, an appellant must demonstrate that:

          the collateral consequences are major and
          the appellant’s misunderstanding of the
          consequences (a) results foreseeably and
          almost inexorably from the language of a
          pretrial agreement; (b) is induced by the
          trial judge’s comments during the providence
          inquiry; or (c) is made readily apparent to
          the judge, who nonetheless fails to correct
          that misunderstanding. In short, chief
          reliance must be placed on defense counsel
          to inform an accused about the collateral
          consequences of a court-martial conviction
          and to ascertain his willingness to accept
          those consequences.

United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982).    In

the present case, Appellant has not demonstrated that the

collateral consequences actually imposed increased his

punishment.   See supra Part III.A.2.   Moreover, neither the text

of the plea agreement nor the record of the military judge’s

plea inquiry contains any language that would have placed an

obligation on the military judge to address the Mandatory

Supervised Release program at that time.    See United States v.

Miller, 63 M.J. 452, 457 (C.A.A.F. 2006).    We also note that

Appellant has not claimed that his counsel was ineffective with

respect to explaining collateral consequences, so we need not

address whether counsel was under any obligation to do so.   See

id. at 458.   Under the circumstances of this case, Appellant has

not demonstrated that his plea was improvident.



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United States v. Pena, No. 06-0091/AF

                  B.     APPELLATE LEAVE (ISSUE I)

     During Appellant’s period of confinement, he forfeited his

entitlement to pay and allowances following a six-month period

in which the forfeitures were waived by the convening authority.

See Article 58b(a), UCMJ, 10 U.S.C. § 858b(a) (2000) (providing

for mandatory forfeiture of pay and allowances “during any

period of confinement or parole” when the approved sentence of a

general court-martial includes a punitive discharge).   Following

his release from confinement under the Mandatory Supervised

Release program, Appellant was placed on appellate leave under

Article 76a, UCMJ, § 10 U.S.C. 876a (2000) (providing

discretion, under military department regulations, to place a

servicemember on involuntary appellate leave after the convening

authority’s action pending completion of appellate review when

the sentence includes an unsuspended punitive discharge).    The

pertinent Air Force regulation provides:    “An accused awaiting

appellate review of an unsuspended punitive separation, who . .

. already completed the period of confinement, may be

involuntarily placed on excess leave . . . .”    Dep’t of the Air

Force, Instr. 51-201, Administration of Military Justice para.

9.12.1 (Nov. 2, 1999).    Although a person on involuntary

appellate leave remains subject to military jurisdiction and

possible recall, the individual returns to civilian life

throughout the period of leave.    See 10 U.S.C. § 701(e) (2000)


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United States v. Pena, No. 06-0091/AF

(providing that any leave prior to discharge is still considered

military service); 10 U.S.C. § 706(c) (2000) (acknowledging that

a person on excess leave may obtain civilian employment).    While

on involuntary appellate leave, the individual is not entitled

to pay and allowances.   See Dep’t of Defense, Dir. 7000.14-R,

Department of Defense Financial Management Regulation, volume

7A, ch. 35, § 350101, para. B (Nov. 2005) (requiring pay only

for the portion of appellate leave that a servicemember chooses

to take as accrued leave); Dep’t of the Air Force, Instr. 36-

3003, Military Leave Program para. 6.8 (Oct. 20, 2005)

(providing excess leave for a servicemember that has exhausted

accrued leave, and noting that “[e]xcess leave is a no-pay

status”).

     Appellant contends that he should not have been placed on

involuntary appellate leave for two reasons.   First, he contends

that as a practical matter he remained on active duty because

the conditions imposed upon him by the Mandatory Supervised

Release program constituted military duties for which he should

have been paid.   We need not decide whether such a claim is

within the scope of our review under Article 67, UCMJ, because

Appellant has not demonstrated that the conditions of his

supervised release were so restrictive in nature or duration

that they had the claimed effect of retaining him on active duty

without pay.   See supra Part III.A.2.   Second, he contends that


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United States v. Pena, No. 06-0091/AF

he did not “complete” his period of confinement under the Air

Force Regulation because he was under a continuing threat of

return to prison if he violated the terms of his release.   The

relationship between completion of confinement and commencement

of leave is a matter governed by administrative regulations and

service practices.   Appellant has not demonstrated that the

applicable regulations, either on their face or as applied,

violated Article 76a, UCMJ, or any other provision of the UCMJ.

Under these circumstances, Appellant has not demonstrated that

this claim falls within the scope of our review under Article

67, UCMJ.



                           IV.   DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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