UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        MULLIGAN, FEBBO, and SCHASBERGER
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                       Sergeant EDWARD J. MITCHELL, II
                          United States Army, Appellant

                                    ARMY 20170558

                       Headquarters, 1st Cavalry Division
           Douglas K. Watkins and Rebecca K. Connally, Military Judges
                   Colonel Emily Schiffer, Staff Judge Advocate


For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Patrick G.
Hoffman, JA; Captain Benjamin A. Accinelli, JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Wayne H. Williams, JA; Captain Joshua Banister, JA (on brief).


                                   14 November 2018
                               ----------------------------------
                                SUMMARY DISPOSITION
                               ----------------------------------

FEBBO, Judge:

        Procedurally, appellant’s court-martial case is unusual. Appellant’s case was
initiated with multiple charges in June 2015 and ended with a guilty plea over two years
later in October 2017. 1 During this time, the government filed two unsuccessful appeals
under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012) [hereinafter
UCMJ], the appellant spent 887 days in pre-trial confinement, reached his expiration-


1
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of one specification of stalking, five specifications of disobeying a
superior commissioned officer, and one specification of obstruction of justice, in
violation of Articles 92, 120a, and 134 of the UCMJ. The military judge sentenced
appellant to a bad-conduct discharge and confinement for 13 months. The convening
authority approved the adjudged sentence and credited appellant with 887 days for
his pre-trial confinement.
MITCHELL—ARMY 20170558

term of service (ETS) date, and did not receive pay and allowances for approximately
16 months.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assigned errors. 2 Appellant claims on appeal that the military judge
abused his discretion in denying appellant’s motion for confinement credit under
Article 13, UCMJ for non-payment of pay and allowances while in pre-trial
confinement. The military judge found stopping appellant’s pay was not
punishment, but the function of a Defense Finance and Accounting Service (DFAS)
policy and that agency’s interpretation of its statutory authority to pay an accused
whose term of service expired while in pre-trial confinement. We agree. See Howell
v. United States, 75 M.J. 386 (C.A.A.F. 2016).

                                  BACKGROUND

       Sergeant Mitchell was a M-1 Armor Crewman assigned to 1st Cavalry
Division. He deployed to combat zones four times for a total of 46 months. In
2013, appellant married JM and supported her two children. The family moved to
Fort Hood in April 2014. In November 2014, JM reported that appellant had
sexually assaulted her. They separated and appellant moved out of their home. His
company commander gave him a Military Protective Order (MPO) to have no contact
with JM without prior approval of his chain of command. This was the lull before
the storm.

      Instead of obeying the no contact order, appellant began stalking JM and
placed her in fear. Appellant began a month’s long campaign of communicating vile
and threatening text messages and phone calls to JM. He repeatedly drove by her
residence, followed her in his vehicle, and tried to enter JM’s residence. In
response, appellant was given two additional MPOs from his company commander


2
  Appellant also asserts on appeal that his bad-conduct discharge should not be
approved. Among the reasons in support of his argument, appellant points to the
fact that his 887 days of pre-trial confinement exceeded his 13 month adjudged
sentence. As he presented at sentencing, appellant also had a tragic experience in
combat when he witnessed his brother’s body being pulled from a tank in Iraq after
the tank hit an improvised explosive device (IED). While he was in pre-trial
confinement, he was not allowed to attend his mother’s funeral. Appellant’s
maximum sentence included the possibility of a dishonorable discharge and many
years of confinement. The military judge stated on the record that he fully
considered appellant’s extenuation and mitigation evidence before sentencing him to
a bad-conduct discharge. Our review of the entire record, to include the length of
pre-trial confinement as compared to the adjudged sentence, appellant’s record of
service and other matters presented by appellant in extenuation and mitigation (to
include Rule for Courts-Martial (R.C.M.) 1105 and 1106 matters), concludes that the
sentence to 13 months confinement and a punitive discharge was appropriate.
                                          2
MITCHELL—ARMY 20170558

and two MPOs from his Battalion Commander. Appellant violated all five of the no-
contact orders. Between November 2014 and May 2015, appellant contacted JM
around 4,000 times by phone or text. The military police responded over 55 times to
JM’s stalking complaints against appellant.

       In May 2015, after appellant’s repeated stalking of JM and violations of the
MPOs, appellant was placed in pre-trial confinement. While in pre-trial
confinement, appellant obstructed justice by contacting his father and asking him to
contact friends and family and instruct them not to cooperate with police or
investigators. Charges were preferred in June 2015 and additional charges were
preferred in July 2015.

       In October 2015, pursuant to pre-trial motions, the military judge suppressed
any evidence derived from appellant’s iPhone. The military judge found appellant
entering his iPhone personal identification number (PIN) violated appellant’s Fifth
Amendment rights against self-incrimination and to counsel.

       The government filed an Article 62 appeal with this court. Over the next
twenty-plus months, the ruling on the suppression motion was litigated at this court
twice, returned to the trial court once for clarification, and ended with our superior
court’s opinion in August 2017 affirming in part the trial judge’s and this court’s
suppression of the evidence from appellant’s iPhone. 3

      After these appeals, the case was returned to the trial court. The appellant
and the government negotiated a pre-trial agreement which capped confinement at
time-served. As part of the agreement, the government dismissed a number of
charges to include the sexual assault offenses, communicating threats, indecent
broadcasting of naked images of JM, and placing an online add soliciting men to go
to JM’s home to engage in sexual acts.

        Appellant pleaded guilty to the remaining offenses. The military judge stated
on the record he was disgusted by the fact that appellant was held in pre-trial
confinement for so long and not paid after he reached his ETS date. However, the
military judge found that the government did not intend to punish appellant and was
following DFAS policy when appellant’s pay was stopped while he was in
confinement after his ETS date. The military judge denied the motion for Article 13
credit.

                              LAW AND DISCUSSION

       Providing sentence credit for violations of Article 13, UCMJ, serves to


3
  United States v. Mitchell, 2016 CCA LEXIS 179 (A. Ct. Crim. App. 18 Mar
2016)(unpub.); United States v. Mitchell, 2016 CCA LEXIS 762 (A. Ct. Crim. App.
28 Aug. 2016)(unpub.); United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017)
                                           3
MITCHELL—ARMY 20170558

    ensure that an accused is not doubly punished for an offense. “[I]f the accused has
    already been punished pretrial, that pretrial punishment must be credited against
    the sentence.” United States v. Alston, 75 M.J. 875, 887 (Army Ct. Crim. App.
    2016) (citing United States v. Ruppel, 49 M.J. 247, 254 (C.A.A.F. 1998)).

       Normally, in reviewing claims for Article 13, UCMJ, credit where the military
judge makes no finding of an intent to punish, we must review the claim de novo.
United States v. Smith, 53 M.J. 168, 170 (C.A.A.F. 2000) (“In the absence of a
factual finding relating to intent to punish, this Court will address the issue of illegal
pretrial punishment de novo. . . .”).

           The United States Court of Appeals for the Armed Forces (CAAF) explicitly
    stated that in order to find a violation of Article 13, UCMJ, “[t]he record must
    disclose an intent to punish on the part of the Government.” Howell v. United
    States, 75 M.J. 386, 394 (C.A.A.F. 2016) (emphasis added). “[A] finding of
    [punitive] intent is a threshold requirement for finding a violation of Article 13,
    UCMJ.” Alston, 75 M.J. at 885. Our superior court has rejected the view that a
    “punitive effect” without finding a punitive intent is sufficient to support a
    violation of Article 13, UCMJ. Howell, 75 M.J. at 393-94.

           Application of the DFAS regulations furthered a legitimate government
    intent of ensuring pay and allowances were expended in accordance with law and
    DFAS regulations. 4 The DFAS laws and regulations were not applied to appellant
    in a punitive or improper manner. At the Article 13 motions hearing, a DFAS
    representative testified about appellant’s pay status while in confinement.
    Appellant reached his ETS date on 18 June 2016. Since he was in pre-trial
    confinement at the time his enlistment contract expired, there was no affirmative
    authority for DFAS to continue to pay appellant after his ETS date. 5 This
    interpretation of the DFAS rules on entitlement of pay after an ETS date is a well-
    settled. United States v. Fischer, 61 M.J. 415, 418 (C.A.A.F 2005) (citing Simoy
    v. United States, 64 Fed. Appx. 745, 746 (Fed. Cir. 2003).




4
   Appellant argues that Title 38 of the United States Code that regulates military
pay does not include prohibitions against paying service-members who are in pre-
trial confinement after their ETS date. However, when dealing with expenditure of
funds, government agencies require specific Congressional authority for the
expenditure.
5
  The DFAS witness explained that appellant was erroneously paid around $59,000
after his ETS date. Appellant argues that he was also punished by DFAS’s
attempts to recoup this money.



                                              4
MITCHELL—ARMY 20170558

           There are two exceptions to protect soldiers. First, a soldier can receive
    retroactive pay if the soldier is either acquitted or the charges are dismissed.
    Second, a soldier’s pay can be re-started if the soldier is released from pre-trial
    agreement and is returned to full duty status while awaiting trial. Neither of these
    exceptions applied to the appellant.

       This court’s review of the record finds no improper intent to punish
appellant. 6 It is unfortunate that the combination of being in pre-trial confinement,
reaching his ETS date, and multiple lengthy appeals resulted in him not being paid
for approximately 16 months. However, appellant was placed in pre-trial
confinement based solely on his serious and threatening misconduct towards his
spouse and failure to obey no-contact orders from his commanders. Appellant’s
term of enlistment and ETS date were established prior to any misconduct leading to
his charges. The Article 62 appeals were lengthy and complicated, but ultimately led
to favorable results for appellant, a favorable pre-trial agreement, and dismissal of
multiple charges.

       Further proof of no intent to punish appellant is evident by his unit’s repeated
attempts to extend his ETS date to get him paid. However, since appellant was in
pre-trial confinement, DFAS regulations did not allow for appellant’s ETS date to be
adjusted or allow DFAS to pay appellant.

      The court finds that the government was following established regulatory
guidance and did not intend to punish appellant. Therefore, he was not improperly
denied Article 13 credit.

                                      CONCLUSION

      Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.

         Senior Judge MULLIGAN and Judge SCHASBERGER concur.

                                           FOR THE COURT:
                                           FOR THE COURT:



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



6
  At trial, appellant did not claim Article 13 credit for his physical conditions of
confinement nor the unit’s actions or inaction to provide logistic support to
appellant.
                                              5
