UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             BURTON, SALADINO, and HAGLER
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                              Sergeant MARIO I. LOPEZ
                             United States Army, Appellant

                                       ARMY 20140973

                    Headquarters, III Corps and Fort Hood
       Wade N. Faulkner and Kenneth W. Shahan, Military Judges (trial)
  Douglas K. Watkins and G. Bret Batdorff, Military Judges (sentence rehearing)
              Colonel Ian G. Corey, Staff Judge Advocate (trial)
      Colonel Susan K. Arnold, Staff Judge Advocate (sentence rehearing)


For Appellant: Captain Augustus Turner, JA (argued); Lieutenant Colonel Tiffany
M. Chapman, JA; Major Todd W. Simpson, JA; Captain Augustus Turner, JA (on
brief and reply brief).

For Appellee: Captain Natanyah Ganz, JA (argued); Colonel Tania M. Martin, JA;
Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).


                                          22 June 2018

                         -----------------------------------------------------
                          MEMORANDUM OPINION ON REMAND
                         -----------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SALADINO, Judge:

       This case concerns how a soldier’s status may affect his entitlement to pay,
and at which rate. At issue in this appeal is whether the government illegally
punished appellant, in violation of Article 13, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 813 (2012), when it stopped his pay after the expiration of his
term of service (ETS), while he was in pretrial confinement pending a rehearing.
This case is complicated by a conflict of laws between two appellate courts and a
conflict between statute and regulation. However, these conflicts need not be
resolved in order to reach our conclusion that appellant was not illegally punished.
Furthermore, we do not find a sufficient basis to grant relief under Article 66(c),
UCMJ.
LOPEZ—ARMY 20140973

                                  BACKGROUND

       On 19 December 2014, a panel of officer members, sitting as a general court-
martial, convicted appellant contrary to his pleas of rape and indecent liberties with
a child, in violation of Article 120, UCMJ, and sentenced him to a dishonorable
discharge, confinement for five years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged, except the automatic and adjudged forfeiture of pay and allowances,
which were deferred until appellant’s ETS. After appellant’s ETS on 19 March
2015, the Defense Finance and Accounting Service (DFAS) stopped appellant’s pay
in accordance with Dep’t of Def. Reg. 7000.14-R, Financial Management Regulation
[hereinafter DOD Reg. 7000.14-R], vol. 7A, ch. 1, para. 010402G (June 2014). In
relevant parts, DOD Reg. 7000.14-R states:

             1. General. Pay and allowances accrue to a member upon
             return to a full-duty status. Full duty is attained when a
             member, not in confinement, is assigned useful and
             productive duties (as opposed to duties prescribed by
             regulations for confinement facilities) on a full-time basis
             which are not inconsistent with the grade, length of
             service, and military occupational specialty (MOS). . . .

             ....

             3. Enlistment Expires Before Trial. An enlisted member
             retained in the Military Service for the purpose of trial by
             court-martial is not entitled to pay for any period after the
             expiration of the enlistment unless acquitted or the
             charges are dismissed, or the member is retained in or
             restored to a full-duty status.

             4. Confined Awaiting Trial by Court-Martial. If a member
             is confined awaiting court-martial trial when the
             enlistment expires, then pay and allowances end on the
             date the enlistment expires. If the member is acquitted
             when tried, then pay and allowances accrue until
             discharge.

             5. Confined Serving Court-Martial Sentence. If a member
             is confined serving a court-martial sentence when the
             enlistment expires, then pay and allowances end on the
             date the enlistment expires unless the sentence is
             completely overturned or set aside as specified in chapter
             48, section 4809. Pay and allowances will not accrue
             again until the date the member is restored to a full-duty
             status.


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LOPEZ—ARMY 20140973

             ....

             10. Appellate Review of Court-Martial Sentence. A
             confined member who is pending appellate review of his
             or her court-martial sentence is not entitled to pay and
             allowances after the expiration of term of enlistment,
             unless the conviction is completely overturned or set
             aside.

DOD Reg. 7000.14-R, para. 010402G (emphasis added).

       On appeal, this court summarily affirmed the findings of guilty and the
sentence as approved by the convening authority. United States v. Lopez, ARMY
20140973 (Army Ct. Crim. App. 5 Apr. 2016). On 20 March 2017, the United States
Court of Appeals for the Armed Forces (CAAF) set aside the finding of guilty for
indecent liberties with a child and the sentence, affirmed the remaining findings of
guilty for rape, and authorized a rehearing. United States v. Lopez, 76 M.J. 151, 156
(C.A.A.F. 2017). The government placed appellant in pretrial confinement pending
the rehearing. 1

       During an Article 39(a), UCMJ, session on 7 July 2017, appellant petitioned
for relief under Article 13, UCMJ, for receiving no pay while pending rehearing.
Appellant’s defense counsel argued the recent CAAF decision in United States v.
Howell, 75 M.J. 386 (C.A.A.F. 2016), bound the government to pay appellant at his
pretrial grade of E-5 while pending rehearing. Counsel further argued the
government deliberately disregarded Howell, which amounted to an intent to punish
appellant. In response, trial counsel argued the military judge could not award
Article 13, UCMJ, credit because DOD Reg 7000.14-R authorized the government to
stop paying appellant beyond his ETS when retained on active duty for trial
purposes. The trial counsel also presented a letter from DFAS counsel contending
that DFAS was bound only by decisions of the United States Court of Federal
Claims and the United States Court of Appeals for the Federal Circuit [hereinafter
Claims Courts], not the CAAF. DFAS counsel asserted the Claims Courts’
interpretation of Article 75(a), UCMJ, conflicted with Howell, so DFAS had no
authority to pay appellant. The military judge deferred ruling on the motion.

       At the conclusion of the sentence rehearing on 11 July 2017, a panel with
enlisted members, sitting as a general court-martial, sentenced appellant to a
dishonorable discharge, confinement for thirteen years, forfeiture of all pay and
allowances, and reduction to the grade of E-1. In an Article 39(a), UCMJ, session
after the panel announced the sentence, the military judge denied appellant’s motion
for Article 13, UCMJ, credit.

1
 The convening authority elected not to re-try appellant for the indecent liberties
offense.


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LOPEZ—ARMY 20140973

       Pursuant to the terms of a post-trial agreement, 2 the convening authority
approved only forty-eight months of confinement and the remainder of the sentence
as adjudged. The convening authority also credited appellant with 935 days of
pretrial confinement credit. 3

       This case is once again before our court under Article 66, UCMJ. Appellant
assigns two errors for our review. First, appellant claims the government’s refusal
to pay him past his ETS while pending a rehearing was illegal pretrial punishment.
Second, even if the termination of pay did not amount to illegal pretrial punishment,
appellant alleges the government’s otherwise illegal withholding of pay merits
sentencing relief under Article 66(c), UCMJ.

                             LAW AND DISCUSSION

                                A. Article 13, UCMJ

       Whether an appellant is entitled to credit for a violation of Article 13, UCMJ,
is a mixed question of fact and law. United States v. Crawford, 62 M.J. 411, 414
(C.A.A.F. 2006). “The question of intent to punish is ‘one significant factor in [the]
judicial calculus’ for determining whether there has been an Article 13 violation.”
United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (quoting United States v.
Huffman, 40 M.J. 225, 227 (1994)). “We will not overturn a military judge’s
findings of fact, including a finding of no intent to punish, unless they are clearly
erroneous.” Id. The ultimate question “[w]hether the facts amount to a violation of
Article 13, UCMJ, is a matter of law” that we review de novo. Crawford, 62 M.J.
at 414 (citing Mosby, 56 M.J. at 310).

       Article 13, UCMJ, prohibits, in relevant part, illegal pretrial punishment or
penalty. There is illegal pretrial punishment when, prior to announcement of a
sentence, the government imposes conditions with a purpose or intent to punish as
shown by either (1) the intent of the government officials or (2) the purposes served
by the restriction or condition, and whether such purposes are reasonably related to a
legitimate, non-punitive, governmental objective. Howell, 75 M.J. at 395.

      Following the announcement of the new sentence, the military judge denied
the Article 13, UCMJ, motion. Although he believed DFAS’s position was wrong,


2
  In a post-trial agreement, appellant agreed to waive his right to challenge proper
composition of the sentence rehearing panel based on facts discovered post-hearing
in exchange for a twelve-month sentence reduction.
3
 Appellant received 935 days of pretrial confinement credit for 846 days of
confinement served as a result of the first sentence that was set aside and 89 days of
confinement served while awaiting his sentence rehearing.


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LOPEZ—ARMY 20140973

he stated why he found no violation of Article 13, UCMJ, in this case:

             The defense asked the court to find a violation of
             Article 13 due to the fact that the accused has not received
             military pay since his sentence was vacated by the
             [CAAF]. That motion is denied. I find that the [CAAF’s]
             decision in the case of Howell . . . to be controlling.
             While I, like the judge--the original trial judge in Howell
             disagreed with DFAS’s interpretations and their policy
             and their practice on this issue, Howell v. United States is
             controlling law. I found nothing to give me the authority
             to go against the ruling issued by [the CAAF] in Howell v.
             United States. I find for the exact same reasons outlined
             in that opinion that the defense failed to meet its burden to
             prove a violation of Article 13. There was no intent to
             punish shown to this court. While reasonable minds, even
             reasonable legal minds may disagree regarding the
             interpretation of [DOD Reg. 7000.14-R] and other
             financial regulations and Article 75 of the UCMJ, it was
             not done with an intent to punish the accused and there
             was a reasonable government objective when the
             authorities with the finance system made the decision that
             they did.

        We agree with trial judge’s ruling and analysis. Although Howell constitutes
the final word from our higher court on this issue, it is neither dispositive of the
issues in the instant case, nor does it serve as a basis to grant Article 13, UCMJ,
relief to appellant.

                     B. Howell’s Application and DOD Reg. 7000.14-R

       Similar to the disagreement between the CAAF and the Claims Courts
discussed in Howell, a federal statute appears to be at odds with a regulation. By
statute, members of a uniformed service on active duty “are entitled to the basic pay
of the pay grade to which [they are] assigned. . . .” 37 U.S.C. § 204(a). The statute
does not contemplate whether soldiers who are administratively extended for
purposes of courts-martial are on “active duty.” However, the Claims Courts have
stated that it is a settled rule of law “that an enlistee may be held in service without
pay pending court-martial after his enlistment expires, unless he is subsequently
acquitted.” Simoy v. United States, 64 F. Appx. 745, 746 (Fed. Cir. 2003) (citing
Moses v. United States, 137 Ct. Cl. 374, 380 (1957)). This rationale is codified in
DOD Reg. 7000.14-R, para. 010402G.4 (“If a member is confined awaiting court-
martial trial when the [member’s] enlistment expires, then pay and allowances end
on the date the enlistment expires.”). The regulation further states that if an enlisted
soldier reaches his or her ETS while pending court-martial, that soldier is not


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LOPEZ—ARMY 20140973

entitled to pay unless restored to a full-duty status. Id., para. 010402G.3. An
enlisted soldier can only be on “full duty” if the soldier is “not in confinement . . . .”
Id., para. 010402G.l.

       Appellant relies on Bell v. United States, 366 U.S. 393 (1961), for the
proposition that he is entitled pay due to his involuntary administrative extension on
active duty. In Bell, the United States Supreme Court addressed whether soldiers
pending trial on aiding the enemy charges were entitled to back pay. The
government argued “the petitioners violated their obligation of faithful service” and
breached their enlistment contracts. However, the Court held the common-law
principles regarding private contracts did not apply to military pay because soldiers
have a statutory right to their pay. Id. at 401. Since the government’s action in this
case does not rely on a breach of contract theory, our decision does not rely on Bell.
Rather, we review the propriety of the government’s reliance on DOD Reg. 7000.14-
R as a basis for withholding appellant’s pay.

       While recognizing the conflict of laws discussed above, we do not find it
necessary to reconcile any tension between 37 U.S.C. § 204 and DOD Reg. 7000.14-
R to determine whether Article 13, UCMJ, credit is warranted. In particular, we
note that regulations such as DOD Reg. 7000.14-R serve a legitimate government
objective in governing when, how, and if a soldier is to be paid. See Paalan v.
United States, 51 Fed. Cl. 738, 744-45 (Fed. Cl. 2002) (citing Dock v. United States,
46 F.3d 1083, 1091-92 (Fed. Cir. 1995)). Here, DOD Reg. 7000.14-R defines,
within the context of the statute, what constitutes an active duty soldier and when a
soldier is entitled to pay. In deciding a similar issue, the United States Navy-Marine
Corps Court of Criminal Appeals stated:

             Whether the statute “trumps” the regulation, or the
             regulation is an authorized implementation of statutory
             authority, is a question outside the proper purview of this
             court. The appellant may seek relief on this basis, if he
             chooses, from the Board for Correction of Naval Records
             under 10 U.S.C. § 1552, and, if he deems necessary, from
             the United States Court of Federal Claims under the
             Tucker Act, 28 U.S.C. § 1491, or a United States District
             Court under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).

United States v. Fischer, 60 M.J. 650, 652 (N.M. Ct. Crim. App. 2004) (citing Keys
v. Cole, 31 M.J. 228, 234 (C.M.A. 1990), and United States v. Webb, 53 M.J. 702,
704 (Army Ct. Crim. App. 2000)).

      The memorandum from DFAS counsel presented to the military judge
contained an analysis of the law and a non-punitive application of the rules
governing pay for soldiers in confinement. According to Army regulations, a soldier
may be involuntarily retained on active duty well beyond his or her ETS if in a


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LOPEZ—ARMY 20140973

situation that may result in a court-martial. Soldiers remain on active duty through
the pendency of a court-martial, regardless of the soldier’s ETS. Army Reg. 635-
200, Personnel Separations: Active Duty Enlisted Administrative Separations,
para. 1-22 (Rapid Action Revision, 6 Sept. 2011).

       Appellant relies heavily on Howell, claiming it is dispositive on this matter
and serves as the basis for both Article 13 relief and payment for appellant. Yet
Howell is easily distinguishable on the facts. After all of Staff Sergeant
(SSgt) Howell’s convictions were set aside, he returned to full duty with the U.S.
Marine Corps, performing duties commensurate with his rank. In this case,
appellant was held in pretrial confinement after only one conviction and the sentence
were set aside, and he remained convicted of rape. In addition, SSgt Howell’s term
of enlistment had not expired, while appellant exceeded his ETS well before the
CAAF set aside his sentence.

        Here, the record does not indicate that the government acted arbitrarily or in
disregard of appellant’s rights. In fact, the government made efforts on behalf of
appellant to ascertain whether DFAS would pay him and was told that he was not
entitled to pay. As such, we concur with the military judge’s factual findings that
the government lacked the intent to punish. Furthermore, we find that DFAS’s
reliance on its own regulation (DOD Reg. 7000.14-R) and its legal determination
that it was bound by the Claims Courts’ interpretation of Article 75, UCMJ, furthers
a legitimate government objective. Thus, we find no Article 13, UCMJ, violation in
this case.

                                 C. Article 66, UCMJ

       Appellant asks this court to use its Article 66(c), UCMJ, powers to right an
“intentional injustice suffered at the hands of the government . . . .” However, we
are not a court of equity and cannot grant relief on these grounds. This court “may
affirm only such findings of guilty and the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the entire
record, should be approved.” UCMJ art. 66(c). “While [this court] clearly has the
authority to disapprove part or all of the sentence and findings, nothing suggests that
Congress intended to provide [this court] with unfettered discretion to do so for any
reason, for no reason, or on equitable grounds . . . .” United States v. Nerad, 69
M.J. 138, 145 (C.A.A.F. 2010).

       Here, appellant does not expressly state, nor do we find, that his sentence was
too severe. Instead, appellant only contends that he is entitled to some relief that
would lessen his sentence. Any grant of discretion to determine whether a sentence
“should be approved” is based in law, not equity, and this court may only find a
sentence to be inappropriate pursuant to principles of law. Id. at 146-47.




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LOPEZ—ARMY 20140973

                                  CONCLUSION

      As our superior court previously affirmed the only findings of guilty
remaining in this case, our review is limited to the sentence as approved by the
convening authority. Lopez, 76 M.J. at 156. On consideration of the entire record,
including those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), the sentence is AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.

                                          FOR THE
                                              THECOURT:
                                                  COURT:




                                          MALCOLM H.
                                          MALCOLM       H.SQUIRES,
                                                           SQUIRES,JR.JR.
                                          Clerk of
                                          Clerk  ofCourt
                                                    Court




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