                            UNITED STATES, Appellee

                                            v.

                    Lawrence E. JOSEY, Master Sergeant
                         U.S. Air Force, Appellant

                                     No. 02-0212
                              Crim. App. No. 33745

        United States Court of Appeals for the Armed Forces

                            Argued October 15, 2002

                          Decided February 19, 2003

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


                                        Counsel

For Appellant: Captain Jennifer K. Martwick (argued); Colonel Beverly B.
     Knott, Major Terry L. McElyea, Major Jeffrey A. Vires and Captain Shelly
     W. Schools (on brief).


For Appellee: Major Thomas Taylor (argued); Colonel Anthony P. Dattilo,
     Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon
     (on brief).


Military Judge:   H.P. Sweeney




         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Josey, No. 02-0212/AF



     Judge EFFRON delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of failure

to go to his appointed place of duty, violation of a lawful

general regulation that prohibited personal use of a government

credit card, two specifications of wrongfully using cocaine, and

making and uttering checks and then dishonorably failing to

maintain sufficient funds to cover them, in violation of

Articles 86, 92, 112a, and 134, Uniform Code of Military Justice

(hereinafter UCMJ), 10 U.S.C. §§ 886, 892, 912a, and 934,

(2002), respectively.   He was sentenced to confinement for 8

years, forfeiture of all pay and allowances, and reduction to E-

1.   The convening authority reduced Appellant's confinement to 6

years, and otherwise approved the sentence.

     The Court of Criminal Appeals set aside the specifications

involving the use of cocaine as incorrect in law, affirmed the

balance of the findings, and set aside the sentence.    The court

authorized a rehearing on the two cocaine specifications at the

discretion of the convening authority.   The court added that if

the convening authority determined that a rehearing on those

specifications would be impractical, the convening authority

could dismiss those specifications and either reassess the




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United States v. Josey, No. 02-0212/AF


sentence or order a sentence rehearing on the remaining findings

of guilty.

   The case was referred to a successor convening authority,

who determined that a rehearing would be impractical.    The

successor convening authority dismissed the specifications of

cocaine use, and he reassessed the sentence.    The sentence

approved by the convening authority consisted of forfeiture of

$600.00 pay per month for 4 months and reduction to E-6.    United

States v. Josey, 56 M.J. 720, 721 (A.F. Ct. Crim. App. 2002).

    Upon further review, the Court of Criminal Appeals affirmed

both the remaining findings and the sentence as approved by the

convening authority.   Id. at 722-723.   In addition, the court

directed that Appellant receive credit for confinement served

following the initial convening authority’s action.    The court

held that the credit would be applied against the forfeitures,

but not against the reduction.   Id. at 722, citing United States

v. Rosendahl, 53 M.J. 344, 347-48 (C.A.A.F. 2000).

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

issue:

          WHETHER APPELLANT IS ENTITLED TO CREDIT
          AGAINST HIS REDUCTION IN RANK FOR SERVING 30
          MONTHS AND 28 DAYS OF POST-TRIAL CONFINEMENT
          AS PART OF A SENTENCE WHICH WAS LATER SET
          ASIDE AND WHERE THE SUBSEQUENTLY APPROVED
          SENTENCE DID NOT INCLUDE CONFINEMENT.




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United States v. Josey, No. 02-0212/AF


     We conclude that Appellant is not entitled to credit under

Rosendahl, and we remand the case for further consideration for

the reasons set forth in Part II of this opinion.



                           I. BACKGROUND

     In Rosendahl, we noted that service members are protected

with respect to each of the three components of the

constitutional prohibition against double jeopardy.    “In the

military, as in civilian life, the following are prohibited: (1)

trial for the same offense after acquittal; (2) trial for the

same offense after conviction; and (3) multiple punishments for

the same offense.”   53 M.J. at 347.   See Articles 44, 63, and

75(a), UCMJ, 10 U.S.C. §§ 844, 863, 875(a)(2000); Rule for

Courts-Martial (hereinafter R.C.M.) 810(d)(1) and 1107(f)(5)(A),

Manual for Courts-Martial, United States (2002 ed.)(hereinafter

MCM).   See also North Carolina v. Pearce, 395 U.S. 711 (1969).

     The issue of multiple punishments presents a unique

situation in the military justice system because the court-

martial process serves disciplinary as well as criminal law

functions.   A critical element of the disciplinary process

involves the authority to include in the sentence certain

elements that affect military personnel administration, such as

forfeiture of pay, restriction to specified limits, reprimands,




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United States v. Josey, No. 02-0212/AF


reduction in grade, and punitive discharges.   See R.C.M.

1003(b).

     We considered in Rosendahl the issue of whether it was

appropriate to provide credit against prior punishment when the

sentence adjudged in the first proceeding involved a traditional

criminal law punishment (e.g., confinement) and the sentence

adjudged in the second proceeding involved a disciplinary

consequence affecting personnel administration (e.g., a punitive

discharge).   We concluded that the conversion formula set forth

in the Manual for Courts-Martial for crediting improper

confinement under R.C.M. 305(k) provided an appropriate measure

for crediting various types of punishment for purposes of former

jeopardy, including confinement, hard labor without confinement,

restriction, forfeitures, and fines.   53 M.J. at 347.

     We also took note of the Drafter’s Analysis of R.C.M.

305(k), which observed that the Rule did not provide a

conversion formula for reduction and punitive separations

“`because these penalties are so qualitatively different from

confinement that the fact that an accused has served confinement

which was technically illegal should not automatically affect

these forms of punishment´.   Manual, supra, at A21-20.”    Id.   We

concluded that similar considerations should apply to the

application of credit for former jeopardy, observing that “these

personnel-related punishments are not applicable in civilian


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United States v. Josey, No. 02-0212/AF


criminal trials . . . [and] we do not read Pearce as requiring

credit against punishments unique to military life where there

is no readily measurable equivalence between confinement and the

personnel related punishments of reduction and punitive

separation.”   Id. at 348.

     The accused in Rosendahl had served 120 days of confinement

as a result of the sentence in his original trial.   After the

results were set aside on appeal, a rehearing was held, and the

accused was sentenced to a bad-conduct discharge and reduction

in grade.   The sentence did not include confinement or

forfeitures.   On appeal, the accused contended that his punitive

discharge should be set aside as a means of crediting his prior

confinement.   He did not request credit in the form of modifying

his reduction in rank.   We concluded that his 120 days’

confinement was “so different from a punitive discharge that we

do not find them to be equivalent in this case.”   Id. (footnote

omitted).   We also noted: “Whether a different result might be

warranted in a case involving lengthy confinement is a matter we

need not address until such a case is presented to us.”    Id.



                             II. DISCUSSION

                                   A.

     In the present case, Appellant served 925 days of

confinement pursuant to the sentence the initial convening


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authority approved.   This sentence was set aside on appeal.     The

reassessed sentence, which did not include confinement,

consisted of a reduction in rank and forfeitures of pay.    The

Court of Criminal Appeals concluded that he was entitled to

credit for the time served in confinement, and provided him with

credit against his approved sentence to forfeitures, but did not

provide credit against his reduction in rank.   In his appeal to

this Court, Appellant notes that in Rosendahl we left open the

issue of whether such credit should be provided in a case

involving lengthy confinement, and that his confinement for 925

days constitutes such a case.


                                B.

     As a preliminary matter, we note that the issue before us

involves former-jeopardy credit, not compensation for

confinement served as part of a sentence subsequently set aside.

As a matter of federal law, compensation generally is not

provided to persons who serve time in confinement as a result of

an initial trial that is set aside, even if a subsequent

proceeding results in acquittal, a sentence to no confinement,

or a sentence to confinement for a period shorter than the

initial sentence.   Federal law provides only a very limited

opportunity for persons wrongly convicted in federal civilian

criminal trials to obtain damages or attorneys fees.    See 28



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U.S.C. § 2513 (2000); Act of Nov. 26, 1997, Pub. L. No. 105-119,

§ 617, 111 Stat. 2440, 2519.   Rigsbee v. United States, 204 F.2d

70 (D.C. Cir. 1953).   The issue before us is whether credit is

available for the confinement served as a result of the initial

proceedings.


                                C.

     Upon further consideration of this issue, we conclude that

reprimands, reductions in rank, and punitive separations are so

qualitatively different from other punishments that conversion

is not required as a matter of law.   Although a punitive

separation potentially involves monetary consequences,

particularly with respect to veterans’ benefits, the primary

impact involves severance of military status.   The issue of

whether a member of the armed forces should or should not

receive a punitive discharge reflects a highly individualized

judgment as to the nature of the offense as well as the person’s

past record and future potential, and does not lend itself to a

standard conversion formula.

     Similar considerations apply with respect to reprimands,

which have no direct monetary consequences, and reductions in

rank.   Although a change in rank has a clear monetary

consequence with respect to basic pay, an individual’s rank in

the military involves far more than money.   The primary



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attribute of rank is one’s relative status with respect to his

or her fellow members of the armed forces.   Many of the central

features of military life -- such as assignments, privileges,

responsibilities, and accountability -- are directly tied to

rank.   Because the factors applicable to imposing a reduction in

rank reflect highly individualized judgments about military

status, it is not appropriate to impose a generally applicable

monetary formula for crediting periods of confinement or other

punishments against a sentence to reduction.


                                D.

     The absence of reprimands, reductions, and separations from

the conversion formula in the MCM under R.C.M. 305(k) reflects

the traditional exclusion of such punishments from standard

conversion tables in prior editions of the Manual.   For example,

both the 1951 and 1969 editions of the Manual, which permitted

the court-martial to substitute various punishments for the

punishments listed in the then-existing Table of Maximum

Punishments, did not include reprimands, reductions, and

discharges in the conversion authority.   Para. 127c(2), Manual

for Courts-Martial, United States (1969 Rev.); para. 127c(2),

Manual for Courts-Martial, United States (1951).

     We also have considered whether to mandate use of the

commutation power to provide former-jeopardy credit.   Although a



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United States v. Josey, No. 02-0212/AF


convening authority may commute a punishment such as a punitive

discharge into another form of punishment under Article 60(c),

UCMJ, 10 U.S.C. § 860(c)(2000), such action is a matter of

command prerogative.    Commutation involves a reduction in

penalty rather than a substitution, and it is highly case-

specific.     See Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990).

There is no formula guiding such action that could provide a

standard formula for former-jeopardy credit.       The litigation

concerning use of the commutation power –- even when requested

by an accused -- underscores the difficulty of converting

reprimands, reductions, and discharges into other forms of

punishment.    See, e.g., United States v. Carter, 45 M.J. 168,

170-71 (C.A.A.F. 1996); Waller, 30 M.J. at 143-45.


                                  E.

     A convening authority has broad authority to commute a

sentence into a different form so long as it involves a

reduction in penalty.    Waller, 30 M.J. at 143.     Although a

convening authority reviewing a case upon remand is not required

as a matter of law to convert a reprimand, reduction in grade,

or punitive separation to another form of punishment for

purposes of providing former-jeopardy credit, the convening

authority is empowered to do so as a matter of command

prerogative under Article 60(c).       In the present case, the



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substitute convening authority reassessed the sentence to a

reduction to the grade of E-6 and forfeiture of $600.00 pay per

month for 4 months, and he further stated in his action that

appellant “will be credited with any portion of the punishment

served from 5 November 1998 to 30 May 2001 under the [prior]

sentence . . . .”

     In the context of this case, the action of the convening

authority is ambiguous.   It is not clear whether the convening

authority intended for the credit to be applied as a matter of

law against the forfeitures, or whether he also intended to

provide credit against the reduction as a matter of command

prerogative.   It is also not clear whether the convening

authority fully considered the sentence reassessment

requirements of United States v. Sales, 22 M.J. 305 (C.M.A.

1986) and United States v. Reed, 33 M.J. 98 (C.M.A. 1991).

     Accordingly, the record should be remanded to the convening

authority for clarification, both with respect to credit and

compliance with Sales and Reed.    If the convening authority

intended to provide a credit against the reduction as a matter

of command prerogative, he shall set forth the specific credit.

Upon further review under Article 66(c), UCMJ, the Court of

Criminal Appeals shall ensure that the action of the convening

authority is in accord with this opinion and the sentence

reassessment requirements of Sales and Reed.


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United States v. Josey, No. 02-0212/AF




                          III. CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals and the action of the convening authority are

set aside.   The record is returned to the Judge Advocate General

of the Air Force for a remand to the convening authority for a

new post-trial action consistent with this opinion.




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