                         UNITED STATES, Appellee

                                         v.

           Daniel A. ZARBATANY Jr., Airman First Class
                    U.S. Air Force, Appellant

                                  No. 11-0165

                           Crim. App. No. 37448

       United States Court of Appeals for the Armed Forces

                          Argued April 21, 2011

                           Decided July 6, 2011

BAKER, J., delivered the opinion of the Court, in which EFFRON, C.J.,
and ERDMANN, J., joined. STUCKY, J., filed a separate dissenting
opinion, in which RYAN, J., joined.


                                     Counsel

For Appellant: Major Reggie D. Yager (argued); Lieutenant
Colonel Gail E. Crawford (on brief).

For Appellee: Captain Scott C. Jansen (argued); Captain Michael
T. Rakowski and Gerald R. Bruce, Esq. (on brief); Major Charles
G. Warren.

Military Judge:    Don M. Christensen


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Zarbatany, No. 11-0165/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant entered mixed pleas at a general court-martial

with members convened at Elmendorf Air Force Base, Alaska.    He

was convicted pursuant to his pleas of two specifications of

unauthorized absence, two specifications of wrongful use of

cocaine, and two specifications of wrongful use of marijuana, in

violation of Articles 86 and 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 886, 912a (2006).1   The adjudged

sentence consisted of a bad-conduct discharge, six months of

confinement, forfeiture of all pay and allowances, and reduction

to E-1.    The convening authority disapproved the forfeitures and

approved the remaining sentence.

     On review, the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence as approved.    United

States v. Zarbatany, No. ACM 37448, 2010 CCA LEXIS 354, at *6,

2010 WL 3981672, at *3 (A.F. Ct. Crim. App. Oct. 4, 2010) (per

curiam).

     We granted review of the following assigned issues:

     WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL
     CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13,
     UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE.

     WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL
     RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL
     PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED
     SENTENCE TO CONFINEMENT.

1
  The members returned a finding of not guilty to a distribution
offense charged under Article 112a, UCMJ.

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United States v. Zarbatany, No. 11-0165/AF


     For the reasons set forth below, we conclude that to the

extent its opinion is read to restrict the application of credit

for illegal pretrial confinement to the forms of punishment

listed in Rule for Courts-Martial (R.C.M.) 305(k), the Court of

Criminal Appeals erred.   Conversion of confinement credit to

forms of punishment other than those found in R.C.M. 305(k) is

generally inapt.    This is especially true in the case of

punitive discharges, where the qualitative differences between

punitive discharges and confinement are pronounced.   However,

Article 13, UCMJ, 10 U.S.C. § 813 (2006), does not preclude

forms of relief other than confinement credit.   Nor has this

Court’s case law interpreted R.C.M. 305(k) as exclusively

delimiting the form of relief lawfully available for violations

of Article 13, UCMJ.

     To reiterate prior case law interpreting the Constitution,

the UCMJ, and the R.C.M.:   Article 13, UCMJ, relief can range

from dismissal of the charges, to confinement credit or to the

setting aside of a punitive discharge.   Where relief is

available, meaningful relief must be given for violations of

Article 13, UCMJ.   However, relief is not warranted or required

where it would be disproportionate to the harm suffered or the

nature of the offense.

     In this case, the Court of Criminal Appeals applied an

erroneous view of the law in concluding that the only remedy


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United States v. Zarbatany, No. 11-0165/AF


available to address the Article 13, UCMJ, violations in

Appellant’s case was to apply Appellant’s Article 13, UCMJ,

confinement credit against the forms of punishment listed in

R.C.M. 305(k).    At the same time, the lower court used its

sentence appropriateness power to expressly determine that in

light of the record as a whole, including Appellant’s pretrial

confinement, Appellant’s sentence was not inappropriately

severe.   A judgment regarding sentence appropriateness should

necessarily encompass a judgment that any additional Article 13,

UCMJ, relief would be disproportionate in the context presented.

However, because the Court of Criminal Appeals did not appear to

determine whether such relief was disproportionate, we remand

this case for a new Article 66(c), UCMJ, 10 U.S.C. § 866(c)

(2006), review.

                           I.   BACKGROUND

     On August 8, 2008, while stationed at Elmendorf, Air Force

Base (Elmendorf), Appellant was ordered into pretrial

confinement by the commander of the 3rd Civil Engineer Squadron.

Because Elmendorf does not have its own pretrial confinement

facility, the 3rd Wing, pursuant to Dep’t of the Air Force,

Instr. 31-205, The Air Force Corrections System para. 1.2.2.2.

(Apr. 7, 2004) [hereinafter AFI 31-205], entered into an

agreement with the Anchorage Correction Complex (ACC), a

civilian confinement facility, to house both pretrial and post-


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United States v. Zarbatany, No. 11-0165/AF


trial confinees from Elmendorf.   The Memorandum of Agreement

(MOA) between ACC and Elmendorf outlined the responsibilities of

both parties.   Specifically, Elmendorf would bear the cost of

treatment at ACC, ensure monthly visits from the accused’s unit

commander or designated representative, help arrange visits from

the accused’s family, and monitor the accused’s health, morale,

and welfare through visits by a military confinement officer.

The ACC would provide the means for Air Force inmates to comply

with dress and appearance standards.

     By the terms of the agreement, both parties were also

required to comply with the Department of Defense (DOD)

confinement standards set forth in AFI 31-205.   See AFI 31-205,

para. 1.2.2.    These standards include housing pretrial inmates

in separate cells or sleeping areas from post-trial inmates,

though they may share common areas, id. at para. 5.8.1.2;

prohibiting demeaning, degrading, or humiliating treatment, as

well as hazing and “laying hands upon inmates” except for the

minimum use of force necessary for the protection of persons or

property, id. at para. 1.3.13.4; providing physical contact

visits in the absence of substantiated risk, id. at para. 6.4.4;

providing the same medical and dental care as active duty

persons, id. at para. 6.5.2; and providing barber and beautician

services, id. at para. 6.5.7.




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United States v. Zarbatany, No. 11-0165/AF


     The military judge found, and both parties agree, that

Appellant’s pretrial confinement conditions did not comply with

the MOA or AFI 31-205.    The military judge’s undisputed findings

of fact are as follows:

     •   Appellant was in pretrial confinement at ACC for 119

         days in “virtual lockdown status.”

     •   He was confined to his cell “for an average of 23 hours

         a day except when he was brought on the base.”

     •   He was only allowed out of his cell “to take a shower, .

         . . [to] visit[] with his wife by television,” or for

         recreation.

     •   Any recreation Appellant was granted consisted of

         walking around an empty outdoor courtyard “not much

         bigger than [his] cell.”

     •   With few exceptions, he was not allowed to converse with

         other inmates.

     •   He twice shared his cell with civilian post-trial

         inmates for a total of six days, one of whom was a

         convicted sex offender.

     •   In most instances, he was shackled or handcuffed when

         taken from his cell or receiving visits from his wife,

         attorney, or a member of his unit.   None of the visits

         with his wife were contact visits, even though other



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United States v. Zarbatany, No. 11-0165/AF


         convicted inmates were allowed contact visits with their

         families.

     •   For no apparent reason, he was locked in the shower

         between four and eight times, each time for thirty

         minutes to an hour.    On one such occasion, this was

         brought to the attention of Correction Officer (CO)

         Zimmerman, who responded, “Airman Zarbatany can wait, or

         he can piss in the shower.”

     •   On one occasion he was inadvertently hit with pepper

         spray directed at another inmate, and he did not receive

         the medical attention required within twenty-four hours

         of a chemical spray.

     •   He was improperly grabbed by a corrections officer and

         taken to be weighed after his complaints about his

         conditions were shown to members of ACC.

     •   He was denied appropriate hygienic services, including

         hair cuts and clean underwear, and required to wear an

         “insufficient” shoe for two weeks.

     •   Neither the commander nor a designee visited Appellant

         or his wife during the 119-day pretrial confinement.

         When the commander was present at ACC and invited to

         speak to Appellant, he declined because he “had nothing

         to say to him productively.”   When discussing




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United States v. Zarbatany, No. 11-0165/AF


         Appellant’s twenty-three-hour daily confinement, the

         commander responded, “It is appropriate because of what

         he has done.”

     •   He was not given access to a common area.

     •   He was denied mental health counseling despite repeated

         requests to his commander and officials at both

         Elmendorf and ACC, notifying them not only of his

         confinement conditions but also of his ongoing

         relationship with a mental health care provider prior to

         his confinement.   The military judge found this

         “particularly shocking” in light of the suicide of the

         3rd Wing commander in July 2008.

     •   Appellant had access to other medical care, but he was

         required to bear the cost.

     •   Appellant was a “model prisoner with no disciplinary

         infractions” who presented no security risks.

     Despite these deficiencies, the military judge found that

neither the commander nor confinement officials at either

Elmendorf or ACC intended to punish Appellant.   However, the

military judge found that “when given specific complaints that

should have put the commander on notice that Airman Zarbatany

was being illegally punished, he didn’t care because he thought

the punishment was appropriate for the crimes he had done -–

overcoming Airman Zarbatany’s presumption of innocence.”


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United States v. Zarbatany, No. 11-0165/AF


     The military judge concluded his findings of fact by

stating:

     [T]he court is specifically ordering four-for-one
     credit for the entire time [Appellant] has been in
     confinement. This is due to the continuing nature of
     the issues at ACC, including housing post-trial and
     serious offenders of a civilian nature with the
     accused and, very importantly, ignoring his claims and
     his requests for mental health care.

     The court specifically finds the conduct of his unit
     appalling, that his commander has abdicated his role
     as a commander in ensuring his troop is taken care of
     and that troop’s family is taken care of.

     The court is very tempted to provide ten-for-one
     credit solely on the mental health issue considering
     this installation’s notice of the seriousness of
     mental health issues.

The military judge then clarified that the four-for-one credit

was in addition to one-for-one credit for the pretrial

confinement.   Thus, the military judge awarded Appellant 119

days credit for pretrial confinement plus an additional 476 days

of credit (4 x 119) for the violation of Article 13, UCMJ,

totaling 595 days of confinement credit.

     The military judge later noted two prior cases involving

illegal pretrial confinement conditions at ACC, and stated:

     [T]his installation [Elmendorf] has been aware of the
     deficiencies of using local confinement since at least 8
     December 2005, at the time Airman Junior was court-
     martialed. Three years.

     So my guidance to this installation, the NAF, and MAJCOM is
     that they fix this.




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United States v. Zarbatany, No. 11-0165/AF

     At the conclusion of trial, the military judge made a

clemency recommendation to the convening authority on the record

that he disapprove the forfeitures, stating:

     I’ll make a clemency [recommendation] that the
     forfeitures not be adjudged in this case. That would
     punish no one except Mrs. Zarbatany, who has done
     nothing wrong. In fact, unlike many cases that this
     court has dealt with where a spouse is sometimes
     complicit or hostile to the government, . . . Mrs.
     Zarbatany is the exact opposite of that and should not
     suffer as a result of this.

Trial counsel concurred with the military judge’s assessment of

Mrs. Zarbatany.

     The confinement credits were applied against the adjudged

confinement of six months (180 days), and Appellant was released

from confinement at the conclusion of trial with 415 days of

excess confinement credit.2

     Following trial, the defense counsel requested that the

convening authority defer the forfeitures of all pay and

allowances and reduction portions of the sentence until the


2
  Appellant argues that his excess confinement credits totaled
445 days based on the assumption that thirty days good conduct
time would also have applied. We decline to apply this
assumption here, as Appellant did not serve his adjudged
sentence, making good conduct time mere speculation. Nor would
the difference affect our analysis. The excess credit is
calculated as follows:
     119 days credit for pretrial confinement
+    476 days credit for violations of Article 13, UCMJ
     595 days credit total
-    180 days adjudged confinement
     415 days excess confinement credit



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United States v. Zarbatany, No. 11-0165/AF

convening authority’s action in order to allow Appellant to

continue to provide for his wife, who according to the written

request:

     initially contacted [Appellant]’s chain of command
     [sic] to notify them that her husband had a drug
     problem. . . . gave AFOSI [Air Force Office of Special
     Investigations] the evidence that was later used to
     convict her husband at trial. . . . consented to a
     search of their home in order to aid the investigation
     against her husband. . . . [and] contacted AFOSI a
     second time to again report that her husband was
     engaged in possible drug use.

The convening authority denied the request regarding reduction

in grade, but granted the request regarding forfeitures.     In his

later clemency petition, Appellant also requested disapproval of

his bad-conduct discharge in light of the actions taken by

Appellant’s wife, the “onerous” nature of his pretrial

confinement, and the military judge’s recommendation to

disapprove forfeitures.   The staff judge advocate recommended

disapproval of forfeiture of all pay and allowances and approval

of the bad-conduct discharge.   The convening authority approved

this recommendation in his action.   Although the clemency

petition mentioned Appellant’s pretrial confinement conditions

and that the members were not made aware of such conditions in

sentencing, neither the staff judge advocate’s recommendation

nor the convening authority’s action reference them.

     On appeal to the court below, Appellant “assert[ed] . . .

that his sentence [was] inappropriately severe, particularly


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United States v. Zarbatany, No. 11-0165/AF

arguing that the punitive discharge should be disapproved to

provide meaningful relief because the pretrial confinement

credit exceeded the adjudged confinement to which the credit

applied.”   Zarbatany, 2010 CCA LEXIS 354, at *2, 2010 WL

3981672, at *1.   In a per curiam decision, the lower court,

relying on R.C.M. 305(k), held that “the convening authority

credited the appellant with the days awarded by the military

judge and disapproved the adjudged forfeitures, leaving no other

form of punishment to which the credit could properly apply,”

and that “the military judge properly awarded additional

administrative credit for unduly harsh conditions of pretrial

confinement and the convening authority properly applied the

credit to the adjudged sentence.”    Id. at *2-*4, 2010 WL

3981672, at *1-*2.   “Turning to the appellant’s more general

argument concerning sentence appropriateness,” the Court of

Criminal Appeals concluded that “Having given individualized

consideration to this particular appellant, the nature of the

offenses, and all other matters in the record of trial to

include the appellant’s pretrial confinement, we hold that the

approved sentence is not inappropriately severe.”   Id. at *6,

2010 WL 3981672, at *2.




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United States v. Zarbatany, No. 11-0165/AF

                           II.   DISCUSSION

     “The proper application[] of credit for illegal pretrial

punishment . . . [is a] question[] of law, reviewed de novo.”

United States v. Spaustat, 57 M.J. 256, 260 (C.A.A.F. 2002).

     Appellant argues that the court below erred in holding that

R.C.M. 305(k) precludes the application of excess confinement

credit against a punitive discharge in the context of an Article

13, UCMJ, violation and that its holding deprived Appellant of

meaningful relief.   The Government responds that the lower court

properly followed the plain language of R.C.M. 305(k), which

expressly limits the application of confinement credits to

punishments enumerated in that subsection.    Thus, the parties,

like the court below, frame this case as a credit-conversion

issue under R.C.M. 305(k).   However, we believe the parties and

the lower court too narrowly defined the questions presented by

Appellant’s case.    There are at least two threshold questions

before one gets to the application of R.C.M. 305(k):   (1) What

relief is available as a matter of law for violations of Article

13, UCMJ, as occurred here; and (2) is meaningful relief legally

required to be awarded, and if so, in what circumstances?

     A.   Relief Under Article 13, UCMJ

     Article 13, UCMJ, provides:

     No 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


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United States v. Zarbatany, No. 11-0165/AF

     confinement imposed upon him be any more rigorous than the
     circumstances required to insure his presence, but he may
     be subjected to minor punishment during that period for
     infractions of discipline.

In United States v. King, we addressed the contours of Article

13, UCMJ, stating:

          Article 13, UCMJ, prohibits two things: (1) the
     imposition of punishment prior to trial, and (2) conditions
     of arrest or pretrial confinement that are more rigorous
     than necessary to ensure the accused’s presence for trial.
     The first prohibition of Article 13 involves a purpose or
     intent to punish, determined by examining the intent of
     detention officials or by examining the purposes served by
     the restriction or condition, and whether such purposes are
     “reasonably related to a legitimate governmental
     objective.” Bell [v. Wolfish], 441 U.S. [520,] 539
     [(1979)]; [United States v.] McCarthy, 47 M.J. [162,] 165,
     167 [(C.A.A.F. 1997)].

          The second prohibition of Article 13 prevents imposing
     unduly rigorous circumstances during pretrial detention.
     Conditions that are sufficiently egregious may give rise to
     a permissive inference that an accused is being punished,
     or the conditions may be so excessive as to constitute
     punishment. McCarthy, 47 M.J. at 165; United States v.
     James, 28 M.J. 214, 216 (C.M.A. 1989) (conditions that are
     “arbitrary or purposeless” can be considered to raise an
     inference of punishment).

61 M.J. 225, 227 (C.A.A.F. 2005); see also United States v.

Harris, 66 M.J. 166, 167-68 (C.A.A.F. 2008).   In King, we held

that although merely classifying a pretrial inmate as “maximum”

custody or comingling an inmate with post-trial inmates are not

per se violations of Article 13, UCMJ, arbitrarily segregating a

pretrial inmate for two weeks in a “six-by-six, windowless cell”

did violate Article 13, UCMJ, and merited relief in the form of

confinement credit under R.C.M. 305(k).   61 M.J. at 228-29.


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United States v. Zarbatany, No. 11-0165/AF

     As in King, the primary mechanism for addressing violations

of Article 13, UCMJ, has been confinement credit.   This Court

initially awarded such credit in United States v. Larner, 1 M.J.

371 (C.M.A. 1976), and United States v. Suzuki, 14 M.J. 491, 493

(C.M.A. 1983), to provide an effective remedy for illegal

pretrial confinement.   The drafters of the R.C.M. subsequently

“explicitly recognized” this practice with the adoption of

R.C.M. 305(k) in the 1984 Manual for Courts-Martial, United

States (MCM).   See MCM, Analysis of the Rules for Courts-Martial

app. 21 at A21-20 (2008 ed.) [hereinafter Drafters’ Analysis];

Spaustat, 57 M.J. at 261.

     R.C.M. 305(k) provides in relevant part:

     The military judge may order additional credit for
     each day of pretrial confinement that involves an
     abuse of discretion or unusually harsh circumstances.
     This credit is to be applied in addition to any other
     credit the accused may be entitled as a result of
     pretrial confinement served. This credit shall be
     applied first against any confinement adjudged. If no
     confinement is adjudged, or if the confinement
     adjudged is insufficient to offset all the credit to
     which the accused is entitled, the credit shall be
     applied against hard labor without confinement,
     restriction, fine, and forfeiture of pay, in that
     order . . . . The credit shall not be applied against
     any other form of punishment.

     As discussed by the court below, the plain language of

R.C.M. 305(k) requires that after the convening authority has

applied confinement credit to the adjudged confinement, the

convening authority may then apply any excess confinement credit



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United States v. Zarbatany, No. 11-0165/AF

against (1) hard labor without confinement, (2) restriction, (3)

fine, and (4) forfeiture, in that order, and credit “shall not

be applied against any other form of punishment.”   Therefore,

the lower court was correct in stating that R.C.M. 305(k)’s

plain language excludes a punitive discharge from permissible

applications of illegal confinement credit under the rule.    See

also United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003);

United States v. Rosendahl, 53 M.J. 344, 347 (C.A.A.F. 2000).

     As noted by the Court of Criminal Appeals, the Drafters’

Analysis, and this Court’s prior decisions, the reason for

excluding a punitive discharge from the application of

confinement credit is that a punitive discharge is “so

qualitatively different” from the other punishments to which

R.C.M. 305(k) credit can apply “that the fact that an accused

has served confinement which was technically illegal should not

automatically affect” a punitive discharge.   Drafters’ Analysis

app. 21 at A21-21; Josey, 58 M.J. at 108 (“Although a punitive

separation potentially involves monetary consequences,

particularly with respect to veterans’ benefits, the primary

impact involves severance of military status”); Rosendahl, 53

M.J. at 348 (describing punitive discharges as “personnel-

related punishments”).

     Our inquiry does not end there, however.   As previously

noted, R.C.M. 305(k) does not limit the availability of other


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United States v. Zarbatany, No. 11-0165/AF

remedies under Article 13, UCMJ.       It is axiomatic, for example,

that a court with appropriate jurisdiction may remedy an ongoing

Article 13, UCMJ, violation through the writ of habeas corpus.

No doubt, additional credit under R.C.M. 305(k) is a remedy for

violations of Article 13, UCMJ.    See, e.g., Harris, 66 M.J. at

167; United States v. Adcock, 65 M.J. 18, 21 (C.A.A.F. 2007);

United States v. Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006);

King, 61 M.J. at 227.   Indeed, it is a normative remedy and one

that has been expressly endorsed in the rules.      But this Court

has never held that R.C.M. 305(k) is the exclusive remedy for

Article 13, UCMJ, violations.    To the contrary, our case law

explicitly recognizes that certain circumstances may warrant

other relief.   In Crawford, for example, we said that “[w]here

we find that maximum custody was arbitrary and unnecessary to

ensure an accused’s presence for trial, or unrelated to the

security needs of the institution, we will consider appropriate

credit or other relief to remedy this type of violation of

Article 13, UCMJ.”   62 M.J. at 416 (emphasis added).     Prior case

law has recognized that “other relief” for Article 13, UCMJ,

violations may range from disapproval of a bad-conduct

discharge, see United States v. Nelson, 18 C.M.A. 177, 181, 39

C.M.R. 177, 181 (1969), to complete dismissal of the charges,

depending on the circumstances.    See United States v. Fulton, 55

M.J. 88, 89 (C.A.A.F. 2001).    It follows that if a court can


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United States v. Zarbatany, No. 11-0165/AF

dismiss a charge in response to violations of Article 13, UCMJ,

as in Nelson, a court can do something less by setting aside a

discharge.

     Therefore, we reiterate this Court’s prior holdings, that

although R.C.M. 305(k) is the principal remedy for Article 13,

UCMJ, violations, courts must consider other relief for

violations of Article 13, UCMJ, where the context warrants.

     B.    Meaningful Relief As A Legal Requirement

     Having determined that R.C.M. 305(k) is not the sole remedy

for Article 13, UCMJ, violations, we now consider the second

threshold question presented:   Is meaningful relief required in

response to every Article 13, UCMJ, violation?   In specific

terms, if Appellant’s Article 13, UCMJ, violations warranted 595

days of relief, and he only received 180 days of actual relief,

was there an additional form of relief available to make him

whole?    Thus, the immediate question is not whether the court

below erred in not applying excess confinement credit to a

punitive discharge, but rather whether it erred by excluding the

possibility that additional forms of relief might be available

in response to Appellant’s Article 13, UCMJ, violations and

whether such relief was required in this context?

     Appellant argues that meaningful relief is required in

response to a violation of Article 13, UCMJ, and since he did

not receive the full benefit of the military judge’s confinement


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United States v. Zarbatany, No. 11-0165/AF

credit, the law requires additional relief addressed to

alternative portions of the sentence.   The Government

essentially argues that the issue of meaningful relief is

subsumed within the lower court’s exercise of its

appropriateness power.   The court below having determined that

Appellant’s sentence is appropriate in light of the confinement

he received, it follows that Appellant has received all the

credit that is appropriate under the circumstances for the

violations of Article 13, UCMJ, that occurred.

     This Court first addressed the question of whether

meaningful relief is required for violations of Article 13,

UCMJ, in Nelson, 18 C.M.A. at 181, 39 C.M.R. at 181.     In Nelson,

the appellant pled guilty to various violations of the UCMJ,

including unauthorized absence, violating a lawful general

order, possession of marijuana, and breach of restriction, and

was sentenced to a bad-conduct discharge, forfeiture of all pay

and allowances, confinement at hard labor for six months, and

reduction to E-1.   Id. at 178, 39 C.M.R. at 178.   The appellant

was placed in pretrial confinement under circumstances

indistinguishable from those of adjudged and sentenced inmates

including identical indoctrination, dress, living, eating, and

labor requirements.   Id. at 178-79, 39 C.M.R. at 178-79.    This

Court reversed the board of review, holding that the appellant’s

pretrial confinement conditions constituted pretrial punishment


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United States v. Zarbatany, No. 11-0165/AF

in violation of Article 13, UCMJ, and due process.    Id. at 181,

39 C.M.R. at 181 (“‘Congress has decreed that, until convicted,

one charged with a crime shall not be subjected to punishment,

and we must enforce that edict.’” (quoting United States v.

Bayhand, 6 C.M.A. 762, 773, 21 C.M.R. 84, 95 (1956))).     The

appellant having already served his sentence, the only

unexecuted portion of the sentence was the punitive discharge.

Id.     The appellant requested relief in the form of dismissal of

the charges and specifications.    Id.   Although the court

recognized that the board of review was the proper authority for

reassessing the appropriateness of the sentence, the Court

nonetheless concluded that “modification of the sentence is in

order.”    Id.   Specifically, the Court held:

        Under these circumstances, were we simply to return
        the case to the board of review for reassessment of
        the sentence, we would thereby imply that the bad-
        conduct discharge may be affirmed. Such a course
        would deprive the accused of all meaningful relief,
        and would rightly suggest that this Court is prepared
        to wink at such grossly illegal treatment of men in
        pretrial confinement. The disastrous effects of such
        a situation upon the system of military justice itself
        are so manifest as to require us to eliminate that
        possibility.

Id. at 181-82, 39 C.M.R. at 181-82.

        Since Nelson, this Court has sought to “ensure meaningful

relief in all future cases” involving violations of Article 13,

UCMJ.    See Spaustat, 57 M.J. at 263-64; Suzuki, 14 M.J. at 493.

However, as in the context of appellate due process delay, the


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United States v. Zarbatany, No. 11-0165/AF

question of what relief is due to remedy a violation, if any,

requires a contextual judgment, rather than the pro forma

application of formulaic rules.    Whether meaningful relief has

been granted and should be granted will depend on factors such

as the nature of the Article 13, UCMJ, violations, the harm

suffered by the appellant, and whether the relief sought is

disproportionate to the harm suffered or in light of the

offenses for which the appellant was convicted.   See Harris, 66

M.J. at 169 (declining to set aside the punitive discharge “[i]n

light of the offenses of which Appellant was convicted,” because

“such relief would be disproportionate to any harm he may have

suffered”).

     In light of these cases, we conclude that meaningful relief

for violations of Article 13, UCMJ, is required, provided such

relief is not disproportionate in the context of the case,

including the harm an appellant may have suffered and the

seriousness of the offenses of which he was convicted.   We

further conclude that the issue of meaningful relief must be

reviewed independent of the lower court’s appropriateness

review.

     C.   Meaningful Relief In This Case

     Given this understanding of meaningful relief, we proceed

to review whether the Court of Criminal Appeals denied Appellant

meaningful relief in this case.    “Whether the action taken by


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United States v. Zarbatany, No. 11-0165/AF

the lower court provided meaningful relief is a question of law

that we consider under a de novo standard of review.”     United

States v. Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007).

     In this case, Appellant was convicted of unauthorized

absence, two specifications of wrongful use of cocaine, and two

specifications of wrongful use of marijuana.   Appellant’s

sentence included a bad-conduct discharge, six months of

confinement, forfeiture of all pay and allowances, and reduction

to E-1.   As in Nelson, and unlike Harris, the pretrial

confinement conditions in this case violated Article 13, UCMJ,

and constituted pretrial punishment.   We view the repeated

denials of mental treatment by both Elmendorf and ACC as

particularly egregious.   In response, the military judge awarded

four-to-one additional confinement credit.   As noted above, this

credit of 595 days more than satisfied the adjudged confinement

of 180 days, leaving 415 days of excess confinement credit.    The

convening authority disapproved the forfeiture of all pay and

allowances.   As a result, only the bad-conduct discharge and the

reduction to E-1 remained as sentencing elements against which

meaningful relief might apply after the convening authority’s

action.   At this point, the only meaningful relief that could be

provided to Appellant would have to be addressed to his punitive

discharge.




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United States v. Zarbatany, No. 11-0165/AF

     Appellant argues that this Court should follow Nelson and

set aside his bad-conduct discharge.   However, unlike Nelson,

this case is complicated by the fact that it is not clear

whether the lower court operated under a correct view of the law

in reviewing Appellant’s sentence and in exercising its

appropriateness power.   In particular, we do not know if the

court below considered such relief unwarranted, unavailable, or

available but disproportionate.    Neither is it clear whether the

court operated on the belief that meaningful relief was required

where proportionate under the circumstances.   Instead, the court

appears to have subsumed the issue of meaningful relief into a

question of credit conversion under R.C.M. 305(k) alone, and

then as a question of sentence-appropriateness review under

Article 66(c), UCMJ, where it operates at its broadest

discretion.   Therefore, we remand this case to the Court of

Criminal Appeals for a new Article 66(c), UCMJ, review to

determine whether the circumstances of Appellant’s case warrant

additional relief as a matter of law, or whether such relief

would be disproportionate.

                         III.   CONCLUSION

     For the foregoing reasons, the decision of the United

States Air Force Court of Criminal Appeals is set aside, and the

record of trial is returned to the Judge Advocate General of the

Air Force for remand to that court for a new Article 66(c),


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United States v. Zarbatany, No. 11-0165/AF

UCMJ, 10 U.S.C. § 866(c) (2006), review consistent with this

opinion.




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United States v. Zarbatany, No. 11-0165/AF


     STUCKY, Judge, with whom RYAN, Judge, joins (dissenting):

     The majority remands this case to the United States Air

Force Court of Criminal Appeals (CCA) to determine whether

Appellant received meaningful relief for a violation of Article

13, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813

(2006).    Whether Appellant has received meaningful relief is a

question of law, which this Court is as well suited to decide as

the CCA.   By simply addressing the crucial issue in this case of

whether Appellant received meaningful relief, this Court need

not reach other issues, namely, whether Rule for Courts-Martial

(R.C.M.) 305(k) limits the remedies available for an Article 13

violation.   For these reasons, I respectfully dissent.

                                 I.

     An Article 13 violation does not directly impugn the

results of a trial by court-martial, which is why the error has

been traditionally cured by providing the accused with sentence

relief.    See R.C.M. 305(k) (recognizing several sentence relief

options as the remedies for a variety of errors that result in

confinement credit).   For Article 13 violations, sentence relief

is calculated in terms of confinement credit, which is then

applied against an appellant’s sentence.   See United States v.

Rock, 52 M.J. 154, 156-57 (C.A.A.F. 1999).

     Of course, every error does not demand the same degree of

relief.    Rather, our precedents indicate that this Court
United States v. Zarbatany, No. 11-0165/AF


balances the error complained of, the harm suffered, and the

surrounding circumstances to determine whether the accused

received meaningful relief.    See United States v. Harris, 66

M.J. 166, 169 (C.A.A.F. 2008) (holding that “granting Appellant

[the requested] relief would [have been] disproportionate to any

harm he may have suffered”).   The balancing of these factors is

a question of law that we review de novo.    See United States v.

Pflueger, 65 M.J. 127, 128 (C.A.A.F. 2007) (“Whether the action

taken by the lower court provided meaningful relief is a

question of law that we consider under a de novo standard of

review.”).

     Review for meaningful relief may be contrasted with

reviewing for sentence appropriateness.   The latter focuses on

whether the sentence resulted in disparate treatment between

individuals or was otherwise inappropriately severe under the

facts of the case.   See United States v. Baier, 60 M.J. 382,

384-85 (C.A.A.F. 2005).   Although the review for meaningful

relief and sentence appropriateness is not the same, substantial

overlap exists between them.   A lower court, in reviewing the

sentence for appropriateness, may resolve the issue of whether

the accused received meaningful relief by taking into account

errors that would require sentence relief.   See United States v.

Suzuki, 20 M.J. 248, 249 (C.M.A. 1985) (“Indeed, had we believed

that this credit already had been taken into account in the


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United States v. Zarbatany, No. 11-0165/AF


reduction of sentence originally ordered by the Court of

Military Review, there would have been no occasion for further

action by that court.”).

     In this case, the CCA stated that, “[h]aving given

individualized consideration to this particular appellant, the

nature of the offenses, and all other matters in the record of

trial to include the appellant’s pretrial confinement, we hold

that the approved sentence is not inappropriately severe.”

United States v. Zarbatany, No. 37448, 2010 CCA LEXIS 354, at

*6, 2010 WL 3981672, at *2 (A.F. Ct. Crim. App. Oct. 4, 2010)

(unpublished) (emphasis added).   The CCA’s discussion indicates

that it determined the extent of sentence relief necessary in

determining the appropriateness of the sentence.   Under these

circumstances, the CCA exercised its broad power over sentences,

and its decision should be reviewed for an abuse of discretion

or a miscarriage of justice.   See United States v. Lacy, 50 M.J.

286, 288 (C.A.A.F. 1999).   The sentence the CCA affirmed clearly

passes muster under this deferential standard of review.

     But even if the majority is correct that the CCA did not

properly understand the effect of R.C.M. 305(k), United States

v. Zarbatany, __ M.J. __ (22-23) (C.A.A.F. 2011), we should not

remand the case for further review, but conduct a de novo review

of whether Appellant received meaningful relief.




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United States v. Zarbatany, No. 11-0165/AF


                                 II.

       Both this Court and the Drafters’ Analysis recognize that

confinement credit and punitive discharges are qualitatively

different.   See United States v. Rosendahl, 53 M.J. 344, 348

(C.A.A.F. 2000); see also United States v. Spaustat, 57 M.J.

256, 263 (C.A.A.F. 2002).   Under R.C.M. 305(k), confinement

credit applies to more traditional punishments, such as hard

labor without confinement, restriction, fine, and forfeiture of

pay.   United States v. Josey, 58 M.J. 105, 107-08 (C.A.A.F.

2003).   Punitive discharges and reductions in rank, although

punitive, are different in that they are decisions based on the

perceived ability of a particular person to continue to function

in the military at a particular position of respect and

responsibility.   Id.   The extent of this Court’s power to set

aside a punitive discharge on the basis of unapplied confinement

credit awarded for Article 13 violations has been a legitimate

question since the promulgation of R.C.M. 305(k).   The general

policy against doing so, however, is a sound one, which is

evidenced by the fact that cases like United States v. Nelson,

18 C.M.A. 177, 39 C.M.R. 177 (1969), a case in which this

Court’s predecessor set aside the punitive discharge, are

exceedingly rare in our jurisprudence.   Appellant argues that

this case is like Nelson.    The reliance of both the majority

and Appellant on Nelson is undermined by the fact that the


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United States v. Zarbatany, No. 11-0165/AF


decision in Nelson preceded the enactment of R.C.M. 305(k),

which is contrary to the holding in Nelson.       Even aside from the

timing issue, this case is not like Nelson.

     In that case, we concluded that Nelson’s treatment in

pretrial confinement violated Article 13 because he had been

treated as though he had already been convicted of a crime.

Nelson, 18 C.M.A. at 178, 39 C.M.R. at 178.       Importantly, the

Court of Military Appeals (CMA) concluded that the accused was

subjected to punishment in violation of Article 13.      Id. at 181,

39 C.M.R. at 181.   Because the rest of Nelson’s sentence had

already been executed, the CMA determined that the punitive

discharge had to be set aside to avoid the potentially serious

effects of not taking action, even though Nelson only had forty-

two days of unapplied pretrial confinement credit.      Id. at 181-

82, 39 C.M.R. at 181-82.

     By contrast, in this case, the military and prison

officials violated a number of service regulations that, when

aggregated, violated Article 13.       The military judge, however,

found that the military and prison officials never intended to

punish Appellant.   Moreover, Appellant’s pretrial confinement

credit was actually applied to reduce his sentence, such that he

served no post-trial confinement.      In addition, the convening

authority deferred forfeitures until action and, ultimately, did

not approve any forfeitures.   For these reasons, the facts of


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United States v. Zarbatany, No. 11-0165/AF


this case stand in stark contrast to those of Nelson, in which

Nelson was actually punished and had no other potential remedies

remaining except to set aside his punitive discharge.   See id.

     Under the circumstances of this case, Appellant received

meaningful relief in that he served no post-trial confinement

and his forfeitures were set aside.    Setting aside the punitive

discharge would be disproportionate to the harm Appellant

suffered and inconsistent with the Court’s treatments of such

relief.   Unlike the majority, I need not and would not decide

whether R.C.M. 305(k) limits the remedies available to a court

to cure a violation of Article 13, because I am able to

determine that Appellant received meaningful relief without

resolving that issue.   Considering the majority’s discussion of

the issue, I would be remiss, however, if I said nothing about

the current status of R.C.M. 305(k).

                                III.

     Before R.C.M. 305(k), this Court’s predecessor recognized

that it could adjust the entirety of the sentence, including

punitive discharges, as necessary to provide meaningful relief

for violations of Article 13.   See Nelson, 18 C.M.A. at 181, 39

C.M.R. at 181; cf. United States v. Heard, 3 M.J. 14, 23 (C.M.A.

1977) (noting that it was inappropriate to modify other aspects

of the sentence, including setting aside the punitive discharge,

as requested by the appellant, given the circumstances of the


                                 6
United States v. Zarbatany, No. 11-0165/AF


case).   R.C.M. 305(k) changed the legal landscape by stating

that pretrial confinement:

     shall be applied first against any confinement
     adjudged. If no confinement is adjudged, or if the
     confinement adjudged is insufficient to offset all the
     credit to which the accused is entitled, the credit
     shall be applied against hard labor without
     confinement, restriction, fine, and forfeiture of pay,
     in that order . . . .

R.C.M. 305(k).   Significantly, the final sentence of R.C.M.

305(k) states that “[t]he credit shall not be applied against

any other form of punishment.”   Id.

     In enacting Article 13, Congress was entirely silent on

what remedies are available for violations of that article.     But

by promulgating R.C.M. 305(k), the President clearly attempted

to limit the remedies available for a violation of Article 13.

In particular, the President attempted to prohibit the

application of confinement credit to a punitive discharge.     This

Court has never determined whether the President has such power,

but our precedent has generally followed the guidance provided

by R.C.M. 305(k).   The majority fails to clearly explain why we

should or can avoid our precedent and the rule’s plain

direction.

     Indeed, we have used R.C.M. 305(k) and its underlying

reasoning, as reflected in the Drafters’ Analysis, as a guide in

determining what constitutes meaningful relief.   See Rosendahl,

53 M.J. at 348 (accepting the Drafters’ Analysis for why this


                                 7
United States v. Zarbatany, No. 11-0165/AF


Court should not automatically apply confinement credit to a

punitive discharge).   I see no reason to depart from that

precedent in this case and decide an issue that is unnecessary

to the outcome in this case.   Under our precedents, it is clear

that Appellant received meaningful relief.   Disapproval of his

punitive discharge would grant him a windfall.   Whether R.C.M.

305(k) controls sentence relief for violations of Article 13 is

a question that can be left for another day.

                                IV.

     For the above reasons, I would affirm the judgment of the

United States Air Force Court of Criminal Appeals.




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