            UNITED STATES NAVY-MARINE CORPS
               COURT OF CRIMINAL APPEALS
                    WASHINGTON, D.C.

                              Before
         J.R. MCFARLANE, K.J. BRUBAKER, M.C. HOLIFIELD
                     Appellate Military Judges

                    UNITED STATES OF AMERICA

                               v.

                     COLBURN C. ATKINSON
                PRIVATE (E-1), U.S. MARINE CORPS

                         NMCCA 201400284
                     SPECIAL COURT-MARTIAL

Sentence Adjudged: 5 May 2014.
Military Judge: LtCol C.M. Greer, USMC.
Convening Authority: Commanding Officer, Headquarters and
Support Battalion, Marine Corps Installations-East, Marine
Corps Base, Camp Lejeune, NC.
Staff Judge Advocate's Recommendation: LtCol M.D. Hale,
USMC.
For Appellant: CDR Boyce A Crocker, JAGC, USN.
For Appellee: Maj Tracey Holtshirley, USMC; Capt Cory A.
Carver, USMC.

                         26 March 2015

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               PUBLISHED OPINION OF THE COURT
    ---------------------------------------------------

HOLIFIELD, Judge:

     A military judge, sitting as a special court-martial,
convicted the appellant, consistent with his pleas, of one
specification each of unauthorized absence and larceny of
government property in excess of $500.00, in violation of
Articles 86 and 121, Uniform Code of Military Justice, 10 U.S.C.
§§ 886 and 921. The military judge sentenced the appellant to
six months’ confinement, a $501.00 fine, and a bad-conduct
discharge. The convening authority (CA) approved the adjudged
sentence and ordered it executed. 1

     The appellant raises one assignment of error, arguing that
the military judge erred in denying the appellant credit for
pretrial confinement in a civilian facility. We disagree.

     After careful consideration of the record of trial and the
parties’ pleadings, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
                                 Background
      The appellant was originally charged with violations of
Articles 81, 121 and 134, UCMJ, on 15 May 2012. These charges
related to a 2009 sham marriage by which the appellant obtained
housing allowances to which he was not entitled. He was not
placed in pretrial confinement. While these charges were
pending adjudication, the appellant absented himself without
authority from his unit on 2 July 2012. On 12 July 2012, the
previously preferred charges were withdrawn and dismissed
without prejudice. Shortly thereafter, on 15 August 2012, the
appellant was declared a deserter and a warrant was issued for
his arrest. The appellant remained absent until apprehended by
agents of the Naval Criminal Investigative Service and local law
enforcement, pursuant to the deserter warrant, on 27 May 2013.
He was immediately confined at the New Hanover Detention
Facility (NHDF), located approximately one hour from the
appellant’s unit on board Camp Lejeune, North Carolina. He
remained at the NHDF for 62 days, despite his unit knowing he
was there and available for pick up. No review of the
appellant’s confinement, as required by RULE FOR COURTS-MARTIAL 305,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), was ever
conducted.

     The appellant was released to his unit on 27 July 2013 and
was not restrained upon his return to Camp Lejeune. The
appellant subsequently accepted nonjudicial punishment (NJP) for
the nearly-eleven-month unauthorized absence (UA). On 13 August
2013, the appellant was awarded 60 days’ restriction and
forfeiture of half his pay for two months (with the forfeitures
suspended). When deciding to address the lengthy UA period via
NJP – rather than referring charges to a court-martial - the

1
  To the extent the CA’s action purports to execute the bad-conduct discharge,
it is a legal nullity. United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009).

                                      2
appellant’s commanding officer specifically considered the
appellant’s pretrial confinement at the NHDF. The appellant did
not appeal his NJP.

     Six months later, in February 2014, the appellant again
absented himself from his unit without authorization. This
month-long UA period was terminated by apprehension on 21 March
2014.

     The charges to which the appellant pleaded guilty, and that
are currently before this court, were preferred on 10 April 2014
and 15 April 2014. The charges, in part, reflect those
previously preferred, withdrawn, and dismissed; they do not
include the 2 July 2012 to 27 May 2013 UA period. The appellant
entered unconditional pleas of guilt to two of these charges.

     At trial, the defense sought additional confinement credit
based on the appellant’s confinement at the NHDF, offering four
bases: first, that the appellant was entitled to day-for-day
credit for pretrial confinement in the hands of civil
authorities, citing, generally, United States v. Allen, 17 M.J.
126 (C.M.A. 1984); second, that the failure to review his
confinement under R.C.M. 305 merited an additional 60 days’
credit; third, that the appellant’s confinement in immediate
association with foreign nationals violated Article 12, UCMJ,
and required two-for-one credit; and, fourth, that the
confinement constituted unlawful pretrial punishment, and its
unnecessarily rigorous nature warranted ten-for-one credit.

     After hearing argument on the motions, the military judge
issued extensive findings of fact and conclusions of law. He
ultimately found no connection between the appellant’s
confinement at the NHDF and the current court-martial and,
therefore, denied the motion for additional confinement credit.
Despite this, the military judge expressed concern over the
Government’s lack of explanation why the appellant languished in
a civilian jail for two months, stating he would “consider the
circumstances of this confinement, along with the lackluster
forward progress of this case towards adjudication, along with
the other service history evidence in [his] sentencing
deliberation.” 2

     Additional facts necessary to address the assignment of
error are provided below.


2
    Appellate Exhibit X at 5.

                                3
                                   Discussion

     We defer to the military judge’s findings of fact unless
those findings are clearly erroneous. United States v. King, 61
M.J. 225, 227 (C.A.A.F. 2005). We review both the military
judge’s application of those facts to the law, id., and the
question whether the appellant was entitled to pretrial
confinement credit de novo, United States v. Smith, 56 M.J. 290,
293 (C.A.A.F. 2002).

1. Lawful pretrial confinement credit

     The appellant argues that Allen requires day-for-day credit
for his confinement at NHDF. 3 We disagree. In Allen, the Court
of Military Appeals (CMA) read Department of Defense Instruction
(DoDI) 1325.4 (October 7, 1968) “as voluntarily incorporating
the pre-sentence credit extended to other Justice Department
convicts” and, therefore, held that Federal sentence computation
procedures were applicable to courts-martial. Allen, 17 M.J. at
128. This reading of DoDI 1325.4 is the sole basis for what
trial practitioners for the past 30 years have called “Allen
credit.” 4

     The body of applicable directives and instructions has
evolved in the three decades since Allen. The current version
is DoDI 1325.07 (March 11, 2013), which removes the reference to
the Department of Justice procedures. In its place, the
instruction requires that “[s]entence computation shall be

3
  The appellant states “the military judge denied all requested relief for
pretrial credit.” Appellant’s Brief of 28 Oct 2014 at 8. Whether it is for
the military judge or the CA to order Allen credit is not an issue we need
address. For the sake of this analysis, we will consider the alleged error
here as a general denial of such credit, regardless of what authority denied
it.

4
    These Federal procedures, now found in 18 U.S.C. § 3585, require that

        [a] defendant shall be given credit toward the service of a term
        of imprisonment for any time he has spent in official detention
        prior to the date the sentence commences (1) as a result of the
        offense for which the sentence was imposed; or (2) as a result of
        any other charge for which the defendant was arrested after the
        commission of the offense for which the sentence was imposed;
        that has not been credited against another sentence.

If DoDI 1325.4 was still in effect, applying this requirement to the facts of
the present case would indicate the appellant was entitled to credit for the
time spent at NHDF.


                                        4
calculated [in accordance with] DoD 1325.7-M,” the DoD Sentence
Computation Manual (July 27, 2004). 5 DoD 1325.7-M requires that
prisoners receive “all sentence credit directed by the military
judge,” and that military judges “will direct credit for each
day spent in pretrial confinement . . . for crimes for which the
prisoner was later convicted.” 6 Additionally, DoDI 1325.07
specifically states under the heading “SENTENCE COMPUTATION”:

        Notwithstanding any other provision of this
        instruction or [the DoD Sentence Computation Manual],
        if a prisoner (accused) is confined in a non-military
        facility for a charge or offense for which the
        prisoner had been arrested after the commission of the
        offense for which the military sentence was imposed,
        the prisoner (accused) shall receive no credit for
        such time confined in the non-military facility when
        calculating his or her sentence adjudged at court-
        martial. 7

Accordingly, day-for-day credit is generally due in the military
justice system, but for a range of offenses narrower than that
applicable to Federal prisoners. The offenses of which the
appellant stands convicted at court-martial fall outside that
range. As the holding in Allen rested on its reading of DoDI
1325.4, and the version of that instruction in effect at the
time of the appellant’s trial does not require (or even allow)
credit for pretrial confinement at non-military facilities for
unrelated offenses, we find Allen inapplicable in this case.
Accordingly, we find the military judge did not err in denying
credit for lawful pretrial confinement.

2.     Administrative credit for illegal pretrial confinement

     R.C.M. 305(j) provides that a military judge may review the
propriety of pretrial confinement “[o]nce the charges for which
the accused has been confined are referred to trial.” (Emphasis
added.) The threshold question, then, is whether the
appellant’s confinement at the NHDF was related to the charges
subsequently referred to trial in this case.

        The military judge found, inter alia, that:

5
    DoDI 1325.07 at ¶ 3a.
6
    DoD 1325.7-M at ¶ C2.4.2 (emphasis added).
7
    DoDI 1325.07 at ¶ 3c.


                                        5
           - “No pretrial restraint was imposed in connection with
             [the 15 May 2012] charges.” 8

           - “The [appellant] absented himself from his unit . . .
             prior to adjudication of the 15 may [sic] 2012 charges.” 9

           - “On 12 July 2012 the 15 May 2012 charges were withdrawn
             and dismissed without prejudice . . . .” 10

           - The appellant “was placed in the [NHDF] pursuant to the
             military deserter warrant” and the “booking documents
             list no other pending military charges.” 11

           - “There is no evidence the [appellant] made any complaint
             through administrative means . . . about the NHDF
             confinement.” 12

           - “No restraint was imposed on the [appellant] after he was
             returned to Camp Lejeune on 27 July 2013.” 13

           - The unit commander “considered the circumstances of the
             NHDF confinement in making his decision to adjudicate the
             lengthy UA period . . . at the [Battalion] NJP level.” 14

           - “On 10 April 2014 the current charges were preferred” and
             “[o]n 15 April 2014, additional charges . . . were
             preferred.” 15




8
     AE X at 1.
9
     Id.
10
     Id.
11
     Id. at 2.
12
     Id. at 3
13
     Id.
14
     Id.
15
     Id.


                                      6
     Based on these facts, the military judge concluded that the
charges related to the NHDF confinement were “not related or
connected to this court-martial” and the adjudication of the UA
at NJP “extinguished any further basis for relief or pretrial
confinement credit from this Court.” 16 Therefore, the military
judge continued, the underlying claims offered to support
additional relief were moot.

     We find each of the military judge’s findings of fact to be
supported by the record and not clearly erroneous. Likewise, we
find no error in the military judge’s application of the facts
to the language of R.C.M. 305(j). Accordingly, we find that the
2 July 2012 to 27 May 2013 UA period was independent of both the
10 April 2014 charges and the 15 April 2014 additional charges. 17
The misconduct that resulted in the appellant’s stay at the NHDF
was adjudicated during a period in which no other charges were
pending, and was in no way related to the charges before the
court-martial. Charges concerning the 2 July 2012 to 27 May
2013 UA – for which the appellant was confined at the NHDF -
were not referred to trial.   Thus, the court-martial lacked
jurisdiction to address the appellant’s request for
administrative credit based on R.C.M. 305(j)(2) and (k).

     While we share the military judge’s concerns regarding the
Government’s lack of action when informed the appellant was
being held at the NHDF, the military judge had no authority to
address issues not directly relating to the case before him.
The Supreme Court has stated that “military judges do not have
any ‘inherent judicial authority separate from a court-martial
to which they have been detailed. When they act, they do so as a
court-martial, not as a military judge. Until detailed to a
specific court-martial, they have no more authority than any
other military officer of the same grade and rank.’" Weiss v.
United States, 510 U.S. 163, 175 (1994) (quoting United States
v. Weiss, 36 M.J. 224, 228 (C.M.A. 1992)). No matter how
egregious the Government’s mishandling of the appellant’s
confinement at the NHDF, its lack of connection to the court-
martial to which the military judge was detailed left the
military judge with no authority to grant a remedy.



16
     Id. at 4.
17
  Although the appellant absented himself while the 15 May 2012 charges were
pending, we conclude this does not establish a connection to the “re-
preferred” charges ultimately referred to trial.


                                      7
     The appellant did, however, have numerous remedial avenues
available to him during and after his incarceration at the NHDF
(e.g., petitioning for relief through his chain of command, 18
requesting a Congressional inquiry, complaining to the Inspector
General, appealing his NJP); yet he apparently chose not to
avail himself of them. 19 His failure to do so, and resulting
belief that he has not been adequately compensated for any
mistreatment, does not create judicial review authority where it
does not otherwise exist.

     Finally, aside from the jurisdictional question, we note
that the appellant has received consideration for his period of
civilian confinement in at least three ways. First, his
commanding officer weighed the confinement in deciding to
resolve a nearly year-long UA terminated by apprehension through
the imposition of NJP. Second, the punishment the appellant
received for that serious offense was significantly lower than
the maximum he could have received. And, third, the military
judge considered the NHDF confinement in fashioning a sentence
that is arguably lenient in light of the appellant’s extensive,
continuing misconduct and multi-year theft from the United
States. Even assuming the military judge had the authority to
grant further credit, the fact the appellant has received
consideration for his civilian confinement on three occasions
leaves us little reason to believe he merits a fourth.

                                      Conclusion

     The findings and the sentence, as approved by the CA, are
affirmed.

        Senior Judge MCFARLANE and Senior Judge BRUBAKER concur.

                                           For the Court




                                           R.H. TROIDL
                                           Clerk of Court




18
     Pursuant to Article 138, UCMJ.
19
     AE X at 3.

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