                        UNITED STATES, Appellee

                                     v.

                  Ermen-Rene BARNETT, Senior Airman
                      U.S. Air Force, Appellant

                               No. 12-0251

                          Crim. App. No. 37578

       United States Court of Appeals for the Armed Forces

                           Argued May 15, 2012

                         Decided July 16, 2012

ERDMANN, J., delivered the opinion of the court, in which STUCKY
and RYAN, JJ., and COX, S.J., joined. ERDMANN, J., filed a
separate special concurring opinion. BAKER, C.J., filed a
separate opinion concurring in part and in the result.

                                  Counsel


For Appellant:    Major Michael S. Kerr (argued).

For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel Linell A. Letendre, and Gerald
R. Bruce, Esq. (on brief).

Military Judge:    Joseph S. Kiefer


  This opinion is subject to revision before final publication.
United States v. Barnett, No. 12-0251/AF

     Judge ERDMANN delivered the opinion of the court.

     Senior Airman Ermen-Rene Barnett was a United States Air

Force recruiter who engaged in misconduct involving several

female recruits.    He entered mixed pleas before a general court-

martial to eight specifications of violating Article 92

(recruiter misconduct and dereliction of duty), one

specification of using marijuana on divers occasions in

violation of Article 112a, and three specifications of witness

tampering in violation of Article 134.    Articles 92, 112a, and

134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892,

912a, 934 (2006).   Barnett was found guilty of the Article 92

and Article 112a offenses and not guilty of two of the three

Article 134 offenses (the other Article 134 offense was

withdrawn and dismissed after arraignment).   The convening

authority approved the panel’s adjudged sentence of reduction to

E-1, confinement for eight months, and a bad-conduct discharge.

The United States Air Force Court of Criminal Appeals (CCA)

affirmed the findings and the sentence.    United States v.

Barnett, No. ACM 37578, slip op. at 8 (A.F. Ct. Crim. App. Nov.

14, 2011).

     We granted review in this case to determine if the military

judge properly instructed the members concerning credit ordered

under the provisions of Article 13, UCMJ, 10 U.S.C. § 813




                                  2
United States v. Barnett, No. 12-0251/AF

(2006).1    “The military judge has an independent duty to

determine and deliver appropriate instructions.”     United States

v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008).      “We review issues

concerning non-mandatory instructions for an abuse of

discretion.”    United States v. Forbes, 61 M.J. 354, 358

(C.A.A.F. 2005) (citing United States v. Damatta-Olivera, 37

M.J. 474, 478 (C.M.A. 1993)).    Under the circumstances of this

case, we hold that the military judge did not abuse his

discretion when instructing the members on the Article 13

confinement credit.    We also hold that the military judge was

within his discretion to deny Barnett’s requested instruction

informing the members that they were not permitted to nullify

some or all of the credit by increasing the sentence.     Therefore

the decision by the CCA is affirmed.

                             Background

       The specific factual basis for the charges is not relevant

to the issue before the court.    At some point prior to trial

Barnett was removed from his recruiter duties and assigned to


1
    We granted review of the following issue:

       Whether the military judge abused his discretion when
       he informed the members of Appellant’s illegal
       pretrial punishment credit and then failed to instruct
       the members based on a submitted question that they
       were not allowed to nullify some or all of that credit
       by increasing the sentence.

United States v. Barnett, No. 12-0251/AF, 2012 CAAF LEXIS
176 (C.A.A.F. Feb. 12, 2012) (order granting review).

                                  3
United States v. Barnett, No. 12-0251/AF

perform duties with the “Thunder Pride” team at Luke Air Force

Base, Arizona.   The “Thunder Pride” team is a holding unit for

Airmen who are under investigation, facing potential

disciplinary action, or awaiting separation.   Based on his

assignment to the “Thunder Pride” team, Barnett moved for

sentence credit under Article 13, UCMJ, alleging illegal

pretrial punishment.   While the military judge did not find an

intent to punish, based on the sixteen-month duration of

Barnett’s duties with the “Thunder Pride” team (a base

regulation limits assignment to the “Thunder Pride” team to

sixty days unless the legal office is consulted) and the

circumstances of those duties, he ordered 100 days confinement

credit pursuant to Article 13.2

     At an Article 39(a) session the military judge informed

counsel that he had reviewed the sentencing instructions and

while it was clear that members should be instructed about

pretrial confinement credit, it was “a little more confusing

when you’re dealing with credit for pretrial punishment under

Article 13.”   Following a discussion of the issue with counsel,

Barnett’s attorney informed the military judge that they did not

want the members instructed about the Article 13 credit in any




2
  The appropriateness of the military judge’s award of 100 days
confinement credit has not been appealed by either party and
that issue is not before the court.

                                  4
United States v. Barnett, No. 12-0251/AF

manner.    The military judge concluded the session by asking the

parties to look for legal authority on this issue.

        After findings were announced, the defense offered several

sentencing exhibits that included information concerning the

circumstances and duties of individuals on the “Thunder Pride”

team.    The Government did not object to the exhibits referencing

“Thunder Pride,” but argued that if the exhibits were admitted

the court should instruct the members on the award of Article 13

confinement credit.    The military judge asked both counsel if

either of them had found any applicable law as to how to

instruct members of Article 13 credit and both counsel responded

in the negative.    The military judge indicated at that point

that he intended to give an instruction similar to the Pretrial

Confinement Credit instruction in the Military Judges’

Benchbook.3    He noted that he was not aware of anything that

would make that instruction applicable only to pretrial

confinement and not Article 13 credit.    Neither party objected

at that time and the defense exhibits, including those that

referenced the circumstances and duties of the “Thunder Pride”

team, were admitted into evidence and published to the members.

        The military judge then discussed his proposed instructions

with counsel.    After acknowledging the defense’s earlier



3
  Dep’t of the Army, Pam. 27-9, Legal Services, Military Judges’
Benchbook ch. 2, § V, para. 2-5-22 (2010).

                                   5
United States v. Barnett, No. 12-0251/AF

objection to any instruction on Article 13 credit, the military

judge informed counsel that he intended to give the following

instruction:

     In determining an appropriate sentence in this case,
     you should consider that the accused has been
     granted 100 days of confinement credit. If you
     adjudge confinement as part of your sentence, those
     days will be credited against any sentence to
     confinement you may adjudge. This credit will be
     given by the authorities at the correctional
     facility where the accused is sent to serve his
     confinement and will be given on a day-for-day
     basis.

There were no further objections to the instruction.   The

military judge subsequently provided that instruction to the

members and also instructed them:

          In selecting a sentence, you should consider
     all matters in extenuation and mitigation as well as
     those in aggravation, whether introduced before or
     after your findings. Thus, all of the evidence you
     have heard in this case is relevant on the subject
     of sentencing.

     During argument on sentence the Government noted that the

court had already taken the conditions of “Thunder Pride” into

account when it awarded Barnett 100 days of confinement credit

for the time he was in “Thunder Pride.”    Barnett’s counsel also

referenced “Thunder Pride” and argued that the Government asked

for twenty-four months of confinement “as if they didn’t punish

Airman Barnett already,” and “[t]he government got their ton of

flesh already and now they want it again.”




                                6
United States v. Barnett, No. 12-0251/AF

     Deliberation on sentencing was interrupted when the members

brought a question to the military judge.   The following

discussion took place between the military judge (MJ) and the

President of the panel (PRES):

     PRES: In your instructions that you gave us, you
     talked about a hundred days confinement credit. The
     question is, and we can expound if we need to, can
     we, as the members, differentiate between a hundred
     days of confinement for Thunder Pride versus a
     hundred days of confinement?

     MJ: Okay. I guess I’m not exactly clear on what
     your question is.

     PRES: The question is, understanding based on the
     defense exhibits that we were provided and knowing
     what Thunder Pride is and knowing that it’s not
     actual confinement, is it okay for us to
     differentiate from the hundred days or do we have to
     consider that as confinement?

     MJ: Okay. There had been a motion for some credit
     that I had to take up related to the circumstances
     of Thunder Pride.

     MJ: And after reviewing the evidence and the issues
     involved in that, I determined that the accused was
     to be granted 100 days of credit toward any
     confinement that the court may adjudge. So as I
     instructed earlier, if the court adjudges
     confinement, then the 100 days credit that I granted
     already will be applied toward that to be applied by
     the correctional facility wherever the accused would
     go for any period of confinement.

     PRES: So legally, is it okay for us to consider
     that hundred days of credit less than what we would
     consider actual confinement? That’s the question
     that’s come up in our discussions. And maybe for
     ease of understanding and, please, this is just for
     the example, if we consider 300 days as appropriate
     confinement but we know the hundred days credit is
     there but we think that the 300 days confinement
     should be actual confinement so we bump it up to 400


                                 7
United States v. Barnett, No. 12-0251/AF

     days because we know we’re going to subtract a
     hundred days; is that legal for us to do that?

     MJ: What I can instruct you in this regard is that
     you should determine a sentence that you believe is
     appropriate for this accused for the offenses that
     he’s been found guilty of, considering all of the
     evidence that you’ve been presented in the case.
     You’ve been provided the fact or circumstance that,
     if you adjudge confinement, then he will have 100
     days of credit toward any period of confinement that
     is adjudged by the court.

     Following this exchange the military judge held an Article

39(a) session where the defense specifically requested that the

military judge instruct the members that it was their duty to

adjudge an appropriate sentence “without any consideration about

how many days of pretrial confinement [sic] credit he received”

and that the members were not allowed to increase the amount of

confinement to essentially offset the confinement credit.   The

Government opposed the specific instruction requested and

ultimately the military judge provided the following additional

instruction to the members:

          Your duty is to adjudge an appropriate sentence
     for this accused that you regard as fair and just when
     it is imposed and not one whose fairness depends upon
     actions that others may or may not take in this case.
     These instructions must not be interpreted as
     indicating an opinion as to the sentence which should
     be adjudged for you alone are responsible for
     determining an appropriate sentence in this case. In
     arriving at your determination, you should select the
     sentence which will best serve the ends of good order
     and discipline, the needs of the accused, and the
     welfare of society.




                                8
United States v. Barnett, No. 12-0251/AF

        On appeal to the CCA, that court analogized Article 13

confinement credit with Pierce4 credit (credit for punishment

imposed pursuant to Article 15, UCMJ, for the same act or

omission for which an accused faces court-martial) and held

that:

        Where the appellant chose to introduce evidence of the
        16 months he spent assigned to the “Thunder Pride”
        team as evidence in mitigation, we find the military
        judge had a duty to instruct the members on the
        administrative credit awarded so they may consider
        that information during their deliberation on
        sentence.

Barnett, No. ACM 37578, slip op. at 7.     The CCA went on to hold

that “[a]s in Balboa, the instruction given did not expressly or

by inference invite the members to award extra confinement to

compensate for the administrative confinement credit awarded . .

. .” and found no error in the sentencing instructions given.

Id.

                              Discussion

        Before this court Barnett argues that the military judge

abused his discretion when he failed to properly tailor his

instructions to inform the members that they could not negate or

nullify the Article 13 credit that Barnett had been awarded.

Barnett goes on to argue that once the military judge had




4
    United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).

                                   9
United States v. Barnett, No. 12-0251/AF

instructed the members as to the Article 13 credit, he was

required to answer their question as to how they should treat

that credit in their determination of an appropriate sentence.

The Government responds that the military judge did not abuse

his discretion in declining to provide the defense requested

instruction and that he properly instructed the members on how

they should treat the Article 13 credit.   Even if the military

judge did not properly instruct the members, the Government

argues that Barnett did not suffer material prejudice to a

substantial right.

     Whether the Military Judge Abused His Discretion in
     Initially Instructing the Members on the Award of
     Article 13 Credit.

     After the defense evidence of pretrial punishment was

admitted, the military judge gave the members an instruction

informing them that Barnett had already received confinement

credit for pretrial punishment.    Rule for Courts-Martial

(R.C.M.) 1005 addresses required instructions on sentencing.

Subparagraph (a) of the rule provides that “[t]he military judge

shall give the members appropriate instructions on sentence.”

See also Ober, 66 M.J. at 405 (“[t]he military judge has an

independent duty to determine and deliver appropriate

instructions”).   Although an instruction on Article 13 credit is

not specifically listed among the required instructions within




                                  10
United States v. Barnett, No. 12-0251/AF

R.C.M. 1005(e), the rule does provide that instructions on

sentence shall include:

       (4) A statement informing the members that they are
       solely responsible for selecting an appropriate
       sentence and may not rely on the possibility of any
       mitigating action by the convening or higher
       authority; and

       (5) A statement that the members should consider all
       matters in extenuation, mitigation, and aggravation,
       whether introduced before or after findings . . . .

The Discussion to R.C.M. 1005(a) goes on to provide that the

“[i]nstructions should be tailored to the facts and

circumstances of the individual case.”    See also United States

v. Wheeler, 17 C.M.A. 274, 277, 38 C.M.R. 72, 75 (1967).

       Once evidence of pretrial punishment was introduced during

sentencing by Barnett, “in the interests of reliable and

truthful sentencing,”5 it was within the military judge’s

discretion to initially instruct the members of the Article 13

credit and how it would be credited.

       Whether the Military Judge Failed to Answer the
       Members’ Question Concerning Treatment of the
       Confinement Credit.

       Barnett does not assert that the instruction provided by

the military judge in response to the members’ question was

incorrect, but he does argue that the instruction provided did

not answer the question.    In United States v. Greaves, 46 M.J.

133, 134 (C.A.A.F. 1997), this court held that the military


5
    United States v. Balboa, 33 M.J. 304, 306 (C.M.A. 1991).

                                 11
United States v. Barnett, No. 12-0251/AF

judged erred by “failing to correctly answer two relevant and

proper questions asked by the members concerning the impact of a

bad-conduct discharge on appellant’s impending eligibility to

retire.”

     Neither side is arguing that the question posed by the

members was not relevant.   The members’ question specifically

asked whether the panel could increase the sentence to offset

the 100 days of credit Barnett received.   The second instruction

provided to the members did, in fact, address this question,

although not as specifically as Barnett would have wished:

          Your duty is to adjudge an appropriate sentence
     for this accused that you regard as fair and just when
     it is imposed and not one whose fairness depends upon
     actions that others may or may not take in this case.

Emphasis added.

     Under the circumstances of this case, we hold that the

instruction correctly responded to the members’ question.

Further, nothing in the instruction invited the members, either

expressly or by inference, to either impose extra confinement to

offset the Article 13 credit or impose less confinement in

consideration for the pretrial punishment.   See Balboa, 33 M.J.

at 307.

     Whether the Military Judge Abused His Discretion When He
     Declined to Give the Defense Requested Instruction.

     Barnett requested that the military judge specifically

instruct the members that they could not increase the amount of



                                12
United States v. Barnett, No. 12-0251/AF

confinement to offset the confinement credit.   This court has

said that “[w]hile counsel may request specific instructions,

the military judge has substantial discretion in deciding on the

instructions to give and whether the requested instruction is

appropriate.   This discretion must be exercised in light of

correct principles of law as applied to the facts and

circumstances of the case.”   United States v. Miller, 58 M.J.

266, 270 (C.A.A.F. 2003).

     Denial of a requested instruction is error if: (1) the
     requested instruction is correct; (2) “it is not
     substantially covered in the main charge”; and (3) “it
     is on such a vital point in the case that the failure
     to give it deprived [the] defendant of a defense or
     seriously impaired its effective presentation.”

Id. (alteration in original) (citation omitted).   For the

military judge’s refusal to instruct the members as requested to

be error, all three prongs of the test in Miller must be

satisfied.

     We believe that the issue as to how the members should

consider the Article 13 credit was substantially covered in the

instructions provided and therefore the military judge did not

abuse his discretion in declining to give the requested

instruction.   We also note, however, the difficulty inherent in

the requested instruction and its potential for confusing the

members.   If the military judge had instructed the members that

they could not consider the Article 13 confinement credit in

determining an appropriate sentence, that instruction would have


                                13
United States v. Barnett, No. 12-0251/AF

been in conflict with the standard instruction properly

informing the members that they should consider all matters in

extenuation and mitigation as well as those in aggravation in

determining an appropriate sentence.

                            Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                14
United States v. Barnett, No. 12-0251/AF


     ERDMANN, Judge (special concurrence):

     I write separately solely to note an issue that was not

raised in this case but which may have an impact on this area of

the law absent legislative or administrative clarification.

This court has held that “[t]he proper applications of credit

for illegal pretrial punishment and lawful pretrial confinement

are questions of law, reviewed de novo.”     United States v.

Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002).    As a question of

law, therefore, whether an accused has been subject to illegal

pretrial punishment and, if so, the appropriate credit for such

illegal pretrial punishment, could be viewed as issues solely

for the military judge.

     On the other hand, this court has recognized that an

accused seeking relief from alleging pretrial punishment has a

tactical decision to make -- presenting the evidence of illegal

pretrial punishment to the members or asking the military judge

for specific relief under Article 13.   United States v.

Southwick, 53 M.J. 412, 416 (C.A.A.F 2000); United States v.

Tanksley, 54 M.J. 169, 177 (C.A.A.F. 2000).1    In Inong, we

addressed a situation where the appellant did not seek Article

13 relief from the military judge but raised the issue of

1
  To the extent that Southwick and Tanksley established a
“tantamount to affirmative waiver” rule for asserted violations
of Article 13 raised for the first time on appeal, they were
overruled by United States v. Inong, 58 M.J. 460, 464 (C.A.A.F.
2003).
United States v. Barnett, No. 12-0251/AF


illegal pretrial punishment to the members during his sentencing

case.    58 M.J. at 462-63.   The appellant then requested Article

13 sentencing credit from the CCA on appeal.    In holding that

Inong was not entitled to Article 13 relief we noted:

        [A]n appellant is not entitled to sentence credit on
        appeal for what is alleged to have been illegal
        pretrial punishment or confinement if such relief was
        not sought at trial, but instead, a tactical decision
        was made to use the complained of condition as a means
        of obtaining a lesser adjudged sentence. Southwick,
        53 M.J. at 416; Tanskley, 54 M.J. at 177.

Id. at 463.

        The “tactical decision” discussed in these cases appears to

be whether to request specific Article 13 relief from the

military judge or to present the underlying facts of the illegal

pretrial punishment to the members for consideration in

determining an appropriate sentence.    If, however, an accused

were free to pursue both forums, there would be no tactical

decision to make.    While not specifically discussed in these

cases, the underlying rationale for such a rule may be that if

an accused opts to pursue an Article 13 motion before the

military judge, the matter has been properly litigated.    If the

accused is then permitted to present the same evidence in his

sentencing case he is re-litigating the legal issue already

decided by the military judge and creating the potential for

being credited twice for the same government conduct.




                                   2
United States v. Barnett, No. 12-0251/AF


     I take no position on this matter as it is unnecessary for

resolution of the case before us, but in the absence of

legislative or administrative clarification, I merely note the

issue until it is properly presented to the court.




                                3
United States v. Barnett, No. 12-0251/AF


     BAKER, Chief Judge (concurring in part and in the result):

     I agree with the Court’s conclusion that the military judge

did not abuse his discretion when he initially instructed the

members regarding the Article 13, UCMJ, 10 U.S.C. § 813 (2006),

credit.   However, I believe that there was instructional error

in this case, given the unusual questions from the members and

the military judge’s failure to provide a tailored instruction

in response.

                            DISCUSSION

     Where, as in this case, the military judge has awarded

credit for government conduct that has already occurred and the

accused chooses to argue pretrial punishment during sentencing,

the military judge should instruct the members that the accused

will already be credited for the Article 13, UCMJ, violation,

thus negating any concern of a double benefit to the accused.

The military judge should then instruct the members that their

duty is to assess a sentence appropriately based on the

accused’s conduct and all other relevant matters independent of

any credit the accused might be entitled to under Article 13,

UCMJ, based on the government’s conduct.   The military judge

properly instructed on both matters in this case.

     However, the problem arose in this case when the members

asked multiple questions suggesting the possibility that they
United States v. Barnett, No. 12-0251/AF


might nullify the military judge’s previous award of credit.

The president of the panel asked:

     In your instructions that you gave us, you talked to
     us about a hundred days confinement credit. The
     question is, and we can expound if we need to, can we,
     as the members, differentiate between a hundred days
     of confinement credit for Thunder Pride versus a
     hundred days of confinement?

The military judge asked for clarification, and the member

clarified:

     The question is, understanding based on the defense
     exhibits that we were provided and knowing what
     Thunder Pride is and knowing that it’s not actual
     confinement, is it okay for us to differentiate from
     the hundred days or do we have to consider that as
     confinement?

The military judge reiterated part of his previous instruction,

prompting the member to again clarify the question:

     So legally, is it okay for us to consider that hundred
     days of credit less than what we would consider actual
     confinement? That’s the question that’s come up in
     our discussions. And maybe for ease of understand
     and, please, this is just for the example, if we
     consider 300 days as the appropriate confinement but
     we know the hundred days credit is there but we think
     that the 300 days confinement should be actual
     confinement so we bump it up to 400 days because we
     know we’re going to subtract a hundred days; is that
     legal for us to do that?

     These questions required a tailored response rather than a

repeat of the standard instruction.   First, the questions

suggested, without confirming, that a member or members might be

inclined to nullify or negate the military judge’s award of

Article 13, UCMJ, credit.   However, the question of whether an


                                 2
United States v. Barnett, No. 12-0251/AF


accused was subject to pretrial punishment and entitled to

credit is a question of law for the military judge to decide.

“The proper applications of credit for illegal pretrial

punishment and lawful pretrial confinement are questions of law,

reviewed de novo.”   United States v. Spaustat, 57 M.J. 256, 260

(C.A.A.F. 2002).

     Second, Article 13, UCMJ, credit is provided for conduct in

which the government has already engaged.   In other words, it is

relief for the government’s conduct, not a sentencing factor

related to the accused’s offenses.   In this sense, pretrial

punishment is different than pretrial confinement, which is

offset against adjudged confinement and thus is appropriately

part of the members’ calculus of confinement earned by an

accused based on his rather than the government’s conduct.

     Finally, even if the members were permitted to consider

whether to nullify an accused’s Article 13, UCMJ, credit because

they did not agree with the amount of credit or the military

judge’s determination that credit was due, they could not do so

without additional appropriate instructions on what legally

qualifies as pretrial punishment under Article 13, UCMJ.

     Thus, although the military judge was not obliged to give

the specific defense requested instruction, in my view the

military judge erred by not providing a more tailored

instruction in response to the members’ questions suggesting the


                                 3
United States v. Barnett, No. 12-0251/AF


possibility of credit nullification.   Nevertheless, I would

affirm this case on the ground that Appellant has not shown

prejudice.   For sure, it is difficult to show prejudice given

United States v. Balboa, 33 M.J. 304 (C.M.A. 1991), where the

members appeared to have added an additional sixty-eight days of

confinement -- the exact amount of automatic administrative

credit for the accused’s pretrial confinement.   Nonetheless,

Balboa received no relief on appeal.

     However, even if one treats the members’ deliberations as

immutable, much like a convening authority’s discretionary

judgment on clemency, and applies a “colorable showing of

possible prejudice” as the standard, Appellant falls short.     See

United States v. Rodriguez-Rivera, 63 M.J. 372, 384 (C.A.A.F.

2006) (citation and quotation marks omitted).    Appellant only

received eight months when he could have received fifteen and a

half years of confinement.   Manual for Courts-Martial, United

States pt. IV, paras. 16.e.(1),(3)(B); 37.e.(1)(b) (2006).

Thus, Appellant’s sentence was only a fraction of what it could

have been.   Moreover, there is nothing about the sentence in

this case that suggests the members in fact negated the credit

awarded by the military judge.




                                 4
