       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
          Alan S. GUARDADO, Master Sergeant
               United States Army, Appellant
                          No. 19-0139
                    Crim. App. No. 20140014
      Argued October 23, 2019—Decided January 15, 2020
                Military Judge: Jacob D. Bashore
   For Appellant: Robert Feldmeier, Esq. (argued); Captain
   Rachele A. Adkins and Captain Joseph C. Borland (on brief);
   Major Todd W. Simpson.
   For Appellee: Captain Allison L. Rowley (argued); Colonel
   Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
   and Major Catharine M. Parnell (on brief).
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judges RYAN and
   MAGGS joined. Judge OHLSON filed a separate
   dissenting opinion.
                       _______________


   Judge SPARKS delivered the opinion of the Court.
    Appellant claims that the military judge erred in denying
his motion for confinement credit under Article 13, UCMJ, 10
U.S.C. § 813, for the Government’s failure to restore him to
his original pay status pending his rehearing results. The
military judge found paying Appellant as an E-1 was not
punishment, but rather the result of the Defense Finance and
Accounting Service (DFAS) following binding judicial
authority to pay an accused pending the results of the
rehearing. We agree.
                          Background
   In 2014, Appellant, then a master sergeant (E-8) in the
Army, was convicted in a general court-martial with enlisted
representation of one specification of aggravated sexual
contact with a child, three specifications of indecent liberties
with a child, three specifications of battery of a child, four
           United States v. Guardado, No. 19-0139/AR
                      Opinion of the Court

specifications of committing a general disorder, one
specification of indecent assault, one specification of indecent
acts, and one specification of using indecent language with a
child, in violation of Articles 120, 128, and 134, UCMJ, 10
U.S.C. §§ 920, 928, 934 (2000 & Supp. V 2006; 2006; 2006 &
Supp. I 2008). United States v. Guardado, 77 M.J. 90, 92
(C.A.A.F. 2017). The members sentenced Appellant to
confinement for eight years, forfeiture of all pay and
allowances, and reduction to pay grade E-1. Id. The convening
authority approved the sentence as adjudged. Id.
    In 2016, the lower court “partially affirmed the findings,
dismissing several specifications on grounds of multiplicity or
unreasonable multiplication of charges.” Id. Specifically, the
lower court “dismissed one specification of assault
consummated by a battery upon a child under the age of
sixteen and two specifications alleging general disorders
under Article 134.” Id. The lower court “also dismissed one
specification of assault consummated by a battery upon a
child under the age of sixteen and one specification of
indecent assault conditioned on the Specification of
Additional Charge I (assault on a child) and Specification 1 of
Additional Charge II (indecent act on a child) surviving final
judgment as to the legality of the proceedings.” Id. The lower
court “affirmed only so much of the sentence as provided for
confinement for seven years and eight months, forfeiture of
all pay and allowances, and reduction to pay grade E-1.” Id.
   In 2017, we affirmed several specifications but set aside
the finding of guilty to one specification of aggravated sexual
contact with a child and two specifications of committing a
general disorder. Id. at 94–96. We set aside the sentence, and
authorized a rehearing on the specification of aggravated
sexual contact with a child and the sentence. Id. at 96.
   In accordance with DFAS policy, Appellant was paid as an
E-1 when he was returned to duty pending his rehearing. In
response, Appellant filed an Article 13, UCMJ, motion
averring that Howell v. United States, 75 M.J. 386 (C.A.A.F.
2016), bound the Government to restore him to his original
E-8 pay status while he awaited rehearing.1 In support of his

   1 In Howell, 75 M.J. at 392, we stated “if an accused is released
from confinement awaiting rehearing, his pay status—at least
insofar as the Uniform Code of Military Justice is concerned—
should be the same as if he had never been tried in the first
instance.”



                                 2
           United States v. Guardado, No. 19-0139/AR
                      Opinion of the Court

motion, Appellant attached a memorandum from Jennifer
Riley, Assistant Counsel in the DFAS Office of General
Counsel, stating that the United States Court of Federal
Claims and the United States Court of Appeals for the
Federal Circuit interpretation of Article 75, UCMJ, 10 U.S.C.
§ 875, bound DFAS to pay Appellant as an E-1 pending his
rehearing results.2 Specifically, DFAS was bound to follow
those courts’ pay entitlement decisions, as opposed to this
Court’s holding in Howell, because those courts had
jurisdiction over military pay disputes. The military judge
denied Appellant’s motion, finding DFAS’s policy was not
intended to punish Appellant and the policy served a
legitimate, nonpunitive governmental objective of providing
Appellant with the proper pay pending rehearing.
    On March 15, 2018, a military judge sitting as a general
court-martial acquitted Appellant of aggravated sexual
contact with a child. Following the sentence rehearing for the
affirmed specifications, the military judge sentenced
Appellant to confinement for fifty-five months, forfeiture of all
pay and allowances, and reduction to pay grade E-1. The
convening authority approved the adjudged sentence and
credited Appellant with 1,465 days of previously served
confinement. The lower court affirmed the sentence. United
States v. Guardado, No. ARMY 20140014, 2018 CCA LEXIS



   2 In Dock v. United States, 46 F.3d 1083, 1087 (Fed. Cir. 1995),
the United States Court of Appeals for the Federal Circuit
concluded that Article 75(a), UCMJ:
       [P]lainly requires that, with two exceptions, if a
       member’s court-martial sentence is set aside or
       disapproved, all rights, privileges, and property are
       to be restored to the member. The first exception is
       that a set-aside or disapproved sentence does not
       undo an already executed dismissal or discharge.
       The second exception, controlling here, is that if a
       rehearing is ordered, and the member is
       resentenced, then only that part of the executed first
       sentence that is not included in the second sentence
       shall be restored to the member.
Relying upon Dock, the United States Court of Federal Claims held
in Combs v. United States, 50 Fed. Cl. 592, 600 (Fed. Cl. 2001), that
when a new trial is conducted, entitlement to restoration of pay is
dependent upon the outcome of the new trial.



                                 3
           United States v. Guardado, No. 19-0139/AR
                      Opinion of the Court

595, at *4, 2018 WL 6264370, at *3 (A. Ct. Crim. App. Nov 23,
2018) (unpublished).
                               Law
    Article 13, UCMJ, provides in part, “[n]o person, while
being held for trial, may be subjected to punishment or
penalty other than arrest or confinement upon the charges
pending against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the
circumstances required to insure his presence.”
   In Howell, we restated the necessary inquiry for
evaluating whether government action amounts to illegal
pretrial punishment:
       [T]he question of whether particular conditions
       amount to punishment before trial is a matter of
       intent, which is determined by examining the
       purposes served by the restriction or condition, and
       whether such purposes are “reasonably related to a
       legitimate governmental objective.”
       [I]n the absence of a showing of intent to punish, a
       court must look to see if a particular restriction or
       condition, which may on its face appear to be
       punishment, is instead but an incident of a
       legitimate nonpunitive governmental objective.
75 M.J. at 393 (alterations in original) (quoting United States
v. Palmiter, 20 M.J. 90, 95 (C.M.A. 1985)).
    The question of whether Appellant is entitled to credit for
an Article 13, UCMJ, violation is reviewed de novo. United
States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002). It is a
mixed question of law and fact, and the military judge’s
findings of fact will not be overturned unless they are clearly
erroneous. Id. Appellant bears the burden of proof to establish
a violation of Article 13, UCMJ. Id.
    Article 75(a), UCMJ, provides that “all rights, privileges,
and property affected by an executed part of a court-martial
sentence which has been set aside or disapproved … 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.”
                              Analysis
   Appellant contends that he is entitled to Article 13,
UCMJ, relief because DFAS’s decision to pay him as an E-1,
as opposed to his E-8 pretrial grade, while he awaited


                                4
           United States v. Guardado, No. 19-0139/AR
                      Opinion of the Court

rehearing was contrary to Howell and therefore unreasonable
and not in furtherance of a legitimate nonpunitive
governmental objective.
    In Howell, 75 M.J. at 392–93 & n.5, we contradicted
precedent from the United States Court of Appeals for the
Federal Circuit and the United States Court of Federal
Claims and held that after rehearing is ordered and the
accused is no longer confined, the accused should then receive
full restoration of rank and pay. We adhere to this
interpretation of Article 75(a), UCMJ, which we continue to
believe is correct. However, we never claimed our
interpretation of Article 75(a), UCMJ, was binding upon
DFAS when resolving military pay disputes. Proper pay
determination is not within our statutory jurisdiction, as
Congress has specified that the United States Court of
Appeals for the Federal Circuit and the United States Court
of Federal Claims have jurisdiction over such disputes. See 28
U.S.C. §§ 1491(a), 1295(a)(3) (2012). Instead, we recognized
our interpretation of Article 75(a), UCMJ, was at odds with
those courts, and urged Congress and the President to
establish rules that clarified this aspect of Article 75(a),
UCMJ. Howell, 75 M.J. at 392 n.5. In the 2017 National
Defense Authorization Act, Congress did just that when it
amended Article 75, UCMJ, to allow the President to
determine by regulation the pay of servicemembers after the
executed portion of their court-martial is set aside. National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No.
114-328, § 5337, 130 Stat. 2000, 2937 (2016). On March 1,
2018, the President amended Rule for Courts-Martial
(R.C.M.) 1208(b) to require pay at the pretrial grade while an
accused awaits a rehearing. Exec. Order No. 13,825, 83 Fed.
Reg. 9889, 10,062 (Mar. 8, 2018) (effective Jan. 1, 2019). The
President could have made this change effective immediately,
but he instead chose not to make it effective until January 1,
2019—after Appellant’s rehearing.3 Id. at 9890.
   The ultimate question in this case is whether DFAS’s
payment of Appellant at the E-1 rate, contrary to this Court’s
interpretation of Article 75(a), UCMJ, but in accordance with
the United States Court of Appeals for the Federal Circuit
and United States Court of Federal Claims’s interpretation of

   3 Jennifer Riley’s memorandum states that once the legislative
change is effective and R.C.M. 1208(b) has been revised, DFAS’s
practice will change to comply with these authorities.



                               5
          United States v. Guardado, No. 19-0139/AR
                     Opinion of the Court

Article 75(a), UCMJ, was “punishment” within the meaning
of Article 13, UCMJ. The answer to this question depends on
whether DFAS’s action was “an incident of a legitimate
nonpunitive governmental objective” and occurred “in the
absence of a showing of intent to punish.” Howell, 75 M.J. at
393 (internal quotation marks omitted) (citation omitted). We
hold that DFAS’s reliance on legal precedent from the United
States Court of Appeals for the Federal Circuit and the
United States Court of Federal Claims interpreting Article
75(a), UCMJ, serves a legitimate nonpunitive governmental
objective in light of the jurisdiction of those courts to
adjudicate military pay disputes. Although it is within this
Court’s statutory authority to interpret Article 75(a), UCMJ,
to determine whether an Article 13, UCMJ, violation
occurred, as we did in Howell, we do not have jurisdiction to
adjudicate military pay disputes. Thus, our interpretation of
Article 75(a), UCMJ, in Howell was not binding on DFAS in
this instance. Accordingly, DFAS’s pay determination was not
intended to punish Appellant and the policy serves a
legitimate, nonpunitive governmental objective to provide
proper pay pending rehearing. The military judge’s findings
of fact are supported by the record and are not clearly
erroneous. His conclusions of law are correct. We, therefore,
conclude Appellant is not entitled to relief under Article 13,
UCMJ.
                         Judgment
  The decision of the United States Army Court of Criminal
Appeals is affirmed.




                              6
           United States v. Guardado, No. 19-0139/AR


   Judge OHLSON, dissenting.
    In 2014, a general court-martial convicted Appellant, a
master sergeant (E-8), of a number of offenses. Part of his sen-
tence was a reduction to the pay grade of E-1. In December
2017, this Court affirmed certain findings but set aside oth-
ers, set aside the sentence, and authorized a rehearing for one
offense and the sentence. Appellant was then released from
confinement in January 2018 and he returned to duty.
   Between the date that Appellant’s sentence was set aside
and the date of his rehearing in March 2018, Appellant indis-
putably was an E-8. And yet, the Defense Finance and Ac-
counting Service (DFAS) intentionally chose to continue pay-
ing Appellant as an E-1. This decision by DFAS resulted in a
dramatic reduction in pay to Appellant during the relevant
time period, and it was untethered to any military justice pur-
pose or action—other than the prior punitive court-martial
sentence that was overturned on appeal and set aside.
   Pursuant to Article 13, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 813 (2012), Appellant sought confine-
ment credit for the Government’s act of paying him at the E-1
pay grade while he was pending a rehearing. However, the
military judge ruled that there was no basis to provide Appel-
lant with Article 13, UCMJ, relief and the United States
Army Court of Criminal Appeals (CCA) affirmed. The issue is
now before us.
    Even if this Court does not have the authority to compel
DFAS to pay our servicemembers commensurate with their
rank, I believe that courts in the military justice system do
have the authority to grant Article 13, UCMJ, credit to ser-
vicemembers caught in the type of pay web created by DFAS
in the instant case.1 Therefore, I respectfully dissent.
    Our recent decision in Howell v. United States, 75 M.J.
386 (C.A.A.F. 2016), stated: (a) the UCMJ “does not provide
for the withholding of pay during the interim period after [an



   1 Thankfully, as noted by the majority, the policy has now been
changed and DFAS is henceforth required to pay servicemembers
based on their restored rank after a sentence has been set aside.
           United States v. Guardado, No. 19-0139/AR
                  Judge OHLSON, dissenting

accused’s] findings and sentence are set aside, and the ac-
cused is returned to full duty status and his previous rank,”
id. at 391; (b) an accused who is paid at a reduced rate after
his sentence has been set aside and is pending a rehearing
“may suffer an unnecessary hardship, particularly if the ac-
cused was previously a senior noncommissioned officer,” id.
at 392; and therefore (c) “if an accused is released from con-
finement awaiting rehearing, his pay status—at least insofar
as the Uniform Code of Military Justice is concerned—should
be the same as if he had never been tried in the first instance.”
Id. In light of Howell, it is clear that Appellant was entitled
to be paid at the E-8 rate pending his rehearing.
    The sole question that remains, therefore, is whether the
DFAS action in this instance serves as a proper basis to pro-
vide Appellant with sentence relief because it constituted pre-
trial punishment imposed in violation of Article 13, UCMJ. I
believe that it does. In United States v. Fischer, 61 M.J. 415,
421 (C.A.A.F. 2005), we stated that in determining whether
there was illegal pretrial punishment under Article 13,
UCMJ, we look not only at whether there was an “intent to
punish” the accused, but also at whether the actions of the
government had a “punitive effect.” Here, the punitive effect
was obvious—a drastic reduction in pay from E-8 to E-1 that
served no legitimate governmental objective and that was
likely to lead to “unnecessary hardship.” Howell, 75 M.J. at
392. Moreover, a persuasive argument can be made that the
action by DFAS also rose to the level of punitive intent be-
cause DFAS chose to keep in effect the punishment imposed
at the initial court-martial—despite the fact that the sentence
was set aside.
   Under either prong of the Fischer test, it is evident that
the action by the Government constituted a violation of Arti-
cle 13, UCMJ. Accordingly, in regard to answering the
granted issue, I conclude that the military judge in this case
abused his discretion because he was laboring under a misap-
prehension of the law when he ruled that the action by DFAS
did not constitute a basis upon which Appellant could be pro-
vided with Article 13, UCMJ, confinement credit. I further
conclude that we should remand this case to the CCA for ap-
propriate action consistent with this analysis. Therefore, I re-
spectfully dissent.




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