                           UNITED STATES, Appellee

                                          v.

                    David E. FISCHER, Lance Corporal
                      U.S. Marine Corps, Appellant

                                    No. 04-0756
                          Crim. App. No. 200200303

       United States Court of Appeals for the Armed Forces

                              Argued May 3, 2005

                         Decided September 2, 2005

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


                                       Counsel


For Appellant:     Lieutenant Brian L. Mizer, JAGC, USNR (argued).



For Appellee: Captain Glen R. Hines, USMC (argued); Colonel
William K. Lietzau, USMC (on brief).


Military Judges:      T.A. Daly and M. H. Sitler


            THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Fischer, No. 04-0756/MC


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to his pleas,

of two specifications of indecent acts with a child under the

age of sixteen, in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2000).   He was

sentenced to a bad-conduct discharge, confinement for twelve

months, and reduction to pay grade E-1.    Pursuant to a pretrial

agreement, the convening authority suspended all confinement in

excess of 270 days.   The United States Navy-Marine Corps Court

of Criminal Appeals, sitting en banc, affirmed the findings and

sentence.   United States v. Fischer, 60 M.J. 650 (N-M. Ct. Crim.

App. 2004).

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

issue:

            WHETHER APPELLANT WAS SUBJECTED TO ILLEGAL
            PRETRIAL PUNISHMENT AND DENIED DUE PROCESS
            OF LAW WHEN HIS PAY WAS STOPPED WHILE HE WAS
            IN PRETRIAL CONFINEMENT AFTER THE END OF HIS
            OBLIGATED SERVICE.

For the reasons set forth below, we affirm the decision of the

Navy-Marine Corps Court of Criminal Appeals.




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United States v. Fischer, No. 04-0756/MC


                           I. BACKGROUND

                 A. PRETRIAL AND TRIAL PROCEEDINGS

     Under Appellant’s enlistment contract, his period of

obligated service ended on June 29, 2001.   Eight weeks earlier,

on May 4, Appellant was placed in pretrial confinement for

various sexual offenses with minor females.   In recommending

pretrial confinement, Appellant’s commander explained that he

considered Appellant a flight risk because of his upcoming end

of obligated service (EAS) date, June 29.

     Appellant was still in pretrial confinement on June 29.

Under applicable military pay regulations, discussed infra, the

Government terminated his entitlement to military pay and

allowances.   On July 11, defense counsel notified the Depot

Consolidated Administrative Center that Appellant’s pay had been

stopped.   Initially, defense counsel was informed that

Appellant’s pay would be reinstated.   Later, the Government

advised defense counsel that Department of Defense (DoD)

regulations prohibited reinstatement of Appellant’s pay because

he had reached his EAS date and was in pretrial confinement.

     Appellant was convicted and sentenced on August 9, 2001.

Appellant was paid for the period of pretrial confinement before

his EAS, but he was not paid for the forty-one days of pretrial

confinement that he served after his EAS.   On appeal, Appellant

argues that the termination of his pay amounted to illegal


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United States v. Fischer, No. 04-0756/MC


pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C.

§ 813 (2000).


                            B. PAY REGULATIONS

      By statute, servicemembers who are on active duty are

entitled to the basic pay of the pay grade to which they are

assigned.    37 U.S.C. § 204(a)(1); see Bell v. United States, 366

U.S. 393, 401 (1961) (a soldier’s entitlement to pay is

statutory, not contractual).       The Department of Defense

Financial Management Regulations (DoD FMR) provide implementing

rules concerning the obligation to pay servicemembers.             See

Paalan v. United States, 51 Fed. Cl. 738, 745 (2002).             In the

course of determining that Appellant’s pay could not be

reinstated, the Depot Consolidated Administrative Center relied

upon DoD FMR, vol. 7A, ch. 1, subpara. 010302.G.4 (2005),1 which

provides: “If a member is confined awaiting court-martial trial

when the enlistment expires, pay and allowances end on the date

the enlistment expires.      If the member is acquitted when tried,

pay and allowances accrue until discharge.”




1
  The Depot Consolidated Administrative Center cited DoD FMR, vol. 7A, ch. 3,
subpara. 030207.D. This provision is identical to DoD subpara. 010302.G.4,
the only difference being that subpara. 030207 appears in Chapter 3, which is
entitled “Special Pays -- Officers Only” as opposed to Chapter 1, which is
entitled “Basic Pay.” Though subpara. 030207 was cited by the Depot
Consolidated Administrative Center, Appellant’s brief refers to subpara.
010302, and the Government’s brief refers to subpara. 030207. For
consistency, our discussion will cite to subpara. 010302, but the analysis
would be no different for subpara. 030207.


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United States v. Fischer, No. 04-0756/MC


      The regulation is consistent with decisions of the

Comptroller General of the United States,2 the United States

Court of Federal Claims, and the United States Court of Appeals

for the Federal Circuit.       Well before the enactment of the UCMJ,

the Comptroller General determined that a soldier who reached

EAS while in pretrial confinement, and who was later convicted,

was not entitled to be paid subsequent to the EAS while in

pretrial confinement.      E.g., Comptroller General McCarl to Maj.

E. C. Morton, United States Army, 11 Comp. Gen. 342 (1932).              In

a 1937 decision, the Comptroller General stated:

            An enlisted man of the Navy held for trial
            or for sentence by court martial after
            expiration of enlistment is being held to
            await the completion of criminal proceedings
            against him under authority of the Articles
            for the Government of the Navy. He is no
            more entitled to pay when so held after
            expiration of his enlistment than is a
            civilian who is being held for trial on a
            criminal offense by the civil authorities,
            and the fact that the issuance of his
            discharge is delayed pending the conclusion
            of the proceedings gives him no right to pay
            beyond the period for which he contracted to
            serve. The period of retention for criminal
            proceedings is no part of the enlistment

2
  The Comptroller General is the head of the Government Accountability Office
(GAO), formerly known as the General Accounting Office. See GAO Human
Capital Reform Act of 2004, Pub. L. No. 108-271, 118 Stat. 811 (2004). The
GAO is an independent, nonpartisan agency in the legislative branch that
reports to Congress on the activities of executive branch agencies.
Frederick M. Kaiser, General Accounting Office and Comptroller General: A
Brief Overview, in Major Studies and Issue Briefs of the Congressional
Research Service (2000); Frederick C. Mosher, The GAO: The Quest for
Accountability in American Government 2-3 (1979). A primary duty of the
Comptroller General involves issuance of opinions on behalf of the
legislative branch interpreting legislation and determining the legality of
financial transactions. See Mosher, supra at 205-06.


                                      5
United States v. Fischer, No. 04-0756/MC


            contract and the obligation of the
            Government . . . is to pay him for the
            period for which he contracted to serve, not
            to pay him for any period he may be held on
            criminal charges after expiration of
            enlistment, any more than it would be
            obligated to pay him after his enlistment
            had expired if he were convicted and
            sentenced to imprisonment.

Acting Comptroller General Elliot to the Secretary of the Navy,

17 Comp. Gen. 103 (1937), U.S. Comp. Gen. LEXIS 271, at *6-*7

(1937).

      In 1951, shortly before the UCMJ took effect, the

Comptroller General ruled that the pre-UCMJ prohibition against

pretrial punishment3 did not require payment of pretrial

confinees held beyond their EAS date:

            [T]he said provisions do not require any
            change in the rule that the pay and
            allowances of an enlisted person whose term
            of enlistment expires while he is in
            confinement, awaiting trial by court
            martial, terminate on the date of the
            expiration of his term of enlistment unless
            he is acquitted, in which event pay and
            allowances accrue until he is discharged.

Assistant Comptroller General Yates to the Secretary of the

Army, 30 Comp. Gen. 449 (1951), U.S. Comp. Gen. LEXIS 86, at *6

(1951) [hereinafter Yates].

3
  “[N]or shall any defendant awaiting trial be made subject to punishment or
penalties other than confinement prior to sentence on charges against him.”
Article of War 16, Manual for Courts-Martial, U.S. Army (MCM) (1949 ed.),
App. 1. “[N]or shall any accused who is confined while awaiting trial be
made subject to punishments or penalties other than confinement for any
offense with which he stands charged prior to execution of an approved
sentence on charges against him . . . and they will not forfeit pay or



                                      6
United States v. Fischer, No. 04-0756/MC


        In suits brought by pretrial confinees who reached their

EAS while in pretrial confinement against the Government for pay

and allowances for the time in pretrial confinement past their

EAS, the United States Court of Federal Claims and its

predecessor court have followed the reasoning of the Comptroller

General’s decisions, holding that “[w]hen an enlisted person is

in confinement awaiting trial at the time his term of enlistment

expires, his pay and allowances terminate on the date his

enlistment expires unless he is subsequently acquitted.”             Moses

v. United States, 137 Ct. Cl. 374, 380 (1957); see also

Singleton v. United States, 54 Fed. Cl. 689, 692 (2002).             But

cf. Rhoades v. United States, 229 Ct. Cl. 282 (1982); Dickenson

v. United States, 163 Ct. Cl. 512 (1963) (distinguishing the

facts and holding that the Comptroller General’s rule did not

apply under the circumstances of the cases).

        According to the United States Court of Appeals for the

Federal Circuit, the authority for the military to hold an

enlistee in service after EAS without pay pending court-martial

unless there is an acquittal constitutes a “settled rule of

law.”    Simoy v. United States, 64 F.App’x 745, 746 (Fed. Cir.

2003); see also Anderson v. United States, 70 F.App’x 572, 575

(Fed. Cir. 2003); Dock v. United States, 46 F.3d 1083 (Fed. Cir.

1995).


allowances during the period of confinement except pursuant to sentences


                                      7
United States v. Fischer, No. 04-0756/MC


                               C.   ARTICLE 13

      Appellant contends that DoD FMR 010302.G.4, which was the

basis for terminating his pay after he reached his EAS while in

pretrial confinement, violated the Article 13, UCMJ, right to be

free from illegal pretrial punishment.           Article 13 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.”         We have interpreted Article 13 to

prohibit two types of activities: (1) the intentional imposition

of punishment on an accused prior to trial, i.e., illegal

pretrial punishment; and (2) pretrial confinement conditions

that are more rigorous than necessary to ensure the accused’s

presence at trial, i.e., illegal pretrial confinement.          See

United States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); United

States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997).

      Appellant focuses his argument on the illegal pretrial

punishment prong of Article 13.         A violation of this prong

“entails a purpose or intent to punish an accused before guilt

or innocence has been adjudicated.”           McCarthy, 47 M.J. at 165.

We apply this standard by examining the intent of detention

officials or by examining whether the purposes served by the

restriction or condition are “reasonably related to a legitimate

governmental objective.”        United States v. King, 61 M.J. 225,


ordered executed.”   MCM (1949 ed.), ¶ 19a.


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United States v. Fischer, No. 04-0756/MC


227 (C.A.A.F. 2005) (citing Bell v. Wolfish, 441 U.S. 520, 539

(1979); McCarthy, 47 M.J. at 165).

     The question of whether Appellant is entitled to credit for

an Article 13 violation is reviewed de novo.   United States v.

Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002).    It is a mixed question

of law and fact, and the military judge’s findings of fact will

not be overturned unless they are clearly erroneous.   Id.

Appellant bears the burden of proof to establish a violation of

Article 13.   Id.



                           II. DISCUSSION

     Appellant does not dispute the lower court’s finding that

neither Appellant’s jailors nor his chain of command intended to

punish Appellant by stopping his pay.   Instead, Appellant asks

this Court to find that the termination of Appellant’s pay, in

accordance with DoD FMR 010302.G.4, amounted to illegal pretrial

punishment because it operated as punishment imposed before

trial.



                      A. REGULATORY PURPOSE

     Appellant contends that the implicit purpose of DoD FMR

010302.G.4 is to punish.   Appellant interprets DoD FMR

010302.G.4 as denying pay only to those who are guilty, citing

the provision that those who are held in pretrial confinement


                                 9
United States v. Fischer, No. 04-0756/MC


past their EAS and later acquitted are reimbursed for the time

held without pay.    The Department of Defense regulations,

however, are not so narrow.

     A servicemember’s pay is not terminated just because the

servicemember is placed in pretrial confinement.   DoD FMR

010302.F.1 states that pay and allowances accrue to members in

military confinement unless: (a) confined by military

authorities on behalf of civil authorities; (b) pay and

allowances are forfeited by court-martial sentence; or (c) the

term of enlistment expires.   A servicemember who is confined

before trial is entitled to “receive pay until the end of his

enlistment contract, regardless of the ultimate disposition of

the case.”   Paalan, 51 Fed. Cl. at 745.   If a pretrial confinee

does not reach EAS until after the adjudication of the case, the

pretrial confinee is entitled to pay and allowances for the time

held in pretrial confinement, regardless of whether the

individual was found guilty or not guilty.

     Moreover, every servicemember’s entitlement to pay is

terminated at EAS.   See Simoy v. United States, 64 F.App’x 745,

747 (Fed. Cir. 2003) (“a service member’s entitlement to pay

ceases when his enlistment expires”); Matter of: Courts-martial

Sentences-Records Lost Before Appellate Review-Appellate Leave

Benefits, 1996 U.S. Comp. Gen. LEXIS 442, at *4-*5 (1996) (“It

is a well settled rule that no credit for pay and allowances


                                 10
United States v. Fischer, No. 04-0756/MC


accrues to a court-martialed enlisted member during periods

after the expiration of his term of enlistment . . . .”).

Although Appellant characterizes the regulations as

“terminat[ing] a serviceman’s pay and allowances at the end of

his enlistment if the serviceman is in pre-trial confinement,”

there is no distinction between a servicemember in pretrial

confinement and one in any other status.   All servicemembers

lose their entitlement to pay and allowances upon expiration of

their enlistment contract.

     A servicemember may be paid after an enlistment expires in

two situations.   First, a servicemember who remains in the

service and performs productive work may be paid.   See United

States v. Shattuck, 1989 CMR Lexis 187, at *5 (A.F.C.M.R. 1989);

DoD FMR 010302.G.1.   Standard confinement duties, however, are

not considered active-duty work that would entitle a pretrial

confinee held past EAS to payment.   See DoD FMR 010302.G.1;

Combs v. United States, 50 Fed. Cl. 592, 594 n.2 (2001);

Shattuck, 1989 CMR Lexis 187, at *5.    The second situation is

the focus of Appellant’s concern.    If a servicemember held in

pretrial confinement past EAS is later acquitted, the

servicemember is retroactively paid for the time spent in

pretrial confinement past the EAS date.    See DoD FMR 010302.G.4.

Appellant assumes that because one group of pretrial confinees

(the group that is later acquitted) is reimbursed, then the


                                11
United States v. Fischer, No. 04-0756/MC


other group (the group that is later convicted) is being

punished.   This argument takes too limited a view of the

regulations.   Acquittal provides a rational, objective basis for

reimbursement.   The Government’s policy of retroactively paying

persons held past their EAS when a charge has not been sustained

at trial does not signify an intent to punish the other group.

In civilian criminal cases, for example, the Government may be

liable for reasonable attorney’s fees and litigation expenses to

a prevailing defendant if the Government position was

“vexatious, frivolous, or in bad faith.”    Hyde Amendment, Pub.

L. No. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (codified

in statutory notes at 18 U.S.C. § 3006A (2000)).   Although more

limited than the reimbursement provision of DoD FMR 010302.G.4,

the Hyde Amendment reflects a policy to compensate specific

individuals because of a flaw in their prosecution.   It is not a

policy designed to punish those who are not compensated.

Likewise, we should not assume that the compensatory provisions

of the military pay regulations reflect an implicit intent to

punish an individual in Appellant’s situation.

     We note Appellant does not allege that he was held in

pretrial confinement without due process.   Appellant was placed

in pretrial confinement in accordance with Rule for Courts-

Martial 305, which contains specific standards and detailed

requirements for notice and an opportunity to respond.


                                12
United States v. Fischer, No. 04-0756/MC


Following the determination that he should be held in pretrial

confinement, Appellant’s pay was terminated in accordance with a

neutral criterion, his EAS.

     Appellant does not claim before this Court that the

termination of his pay violated the Thirteenth Amendment’s

prohibition against involuntary servitude or that there is a

constitutional right to be paid while in pretrial confinement.

In that regard, we note that federal civilian employees may be

suspended without pay upon an indictment, regardless of whether

there is pretrial confinement.   See 5 U.S.C. § 7513(b) (2000).

As the Federal Circuit explained:

          [A]n indictment . . . will, as a general
          rule, provide reasonable cause for an agency
          to believe that the employee has committed
          such a crime, and, when the nature of the
          crime alleged relates to the employee's
          ability to perform his or her duties, an
          agency may summarily suspend the employee,
          without pay, pending the outcome of the
          criminal proceedings.

Richardson v. United States Customs Serv., 47 F.3d 415, 419

(Fed. Cir. 1995).   By contrast, the pay of military personnel is

not terminated upon the filing or referral or charges, nor is it

terminated upon pretrial confinement.   The fact that pay is

terminated only when pretrial confinement is combined with a

neutral criterion, the expiration of the term of service,

underscores the non-punitive nature of the policy.   When the

Government selects one among many available objective criteria


                                 13
United States v. Fischer, No. 04-0756/MC


for terminating pay, the fact that other criteria could have

been used does not demonstrate that the selected point fails to

serve a legitimate Government objective.   Like the indictment

date, the EAS date is a rational, objective point for

termination of pay, and it is reasonably related to the

legitimate Government objective of not paying people who are not

performing duties.


                       B. REGULATORY EFFECT

     Appellant next argues that even if the regulation is not

implicitly punitive, the policy is punitive in effect under the

factors set out by the Supreme Court in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168 (1963).   In Mendoza-Martinez, the

Court set forth the following seven factors for use in

determining whether an Act of Congress is punitive or regulatory

in nature: (1) whether the sanction involves an affirmative

disability or restraint; (2) whether it has historically been

regarded as punishment; (3) whether it comes into play only on a

finding of scienter; (4) whether its operation promotes

retribution and deterrence -- the traditional aims of

punishment; (5) whether the behavior to which it applies is

already a crime; (6) whether an alternative purpose to which it

may rationally be connected is assignable for it; and (7)

whether it appears excessive in relation to the alternative



                               14
United States v. Fischer, No. 04-0756/MC


purpose assigned.   372 U.S. at 168-69; see Fischer, 60 M.J. at

656-58 (Villemez, J., dissenting).

       Our Court has not previously applied the Mendoza-Martinez

factors in the context of conducting a review under Article 13.

Assuming, without deciding, that the Mendoza-Martinez factors

are applicable to Article 13, these factors do not support a

finding that DoD FMR 010302.G.4 is punitive.

1. Affirmative Disability or Restraint

       We first take into account whether DoD FMR 010302.G.4

imposes an affirmative disability or restraint.   See Mendoza-

Martinez, 372 U.S. at 168.    DoD FMR 010302.G.4 provides for the

termination of pay for an individual in Appellant’s situation.

Although termination of pay at EAS could be viewed as a

disability, it is difficult to characterize this as an

affirmative disability because Appellant, and those in his

position, are not entitled to be paid.   See Yates; Shattuck,

1989 CMR LEXIS 187, at *4-*5.

2. Historic Perspective

       The next factor considers the historical perspective on the

consequence of the regulation.   Mendoza-Martinez, 372 U.S. at

168.   Appellant points out that “[f]orfeiture of pay has long

been regarded as punishment.”    In the present case, there has

been no forfeiture of pay.   Where Appellant was not entitled to

payment, nothing could have been forfeited.


                                 15
United States v. Fischer, No. 04-0756/MC


     Also, while we do not give great weight to negative

legislative history, we note that Congress has amended

provisions of the UCMJ addressing military pay on several

occasions, but has not disturbed the settled interpretation of

the relationship between Article 13 and termination of military

pay upon EAS.   See, e.g., Military Justice Act of 1983, Pub. L.

No. 98-209, 97 Stat. 1393 (1983) (amending Article 57, UCMJ, 10

U.S.C. § 857); National Defense Authorization Act for Fiscal

Year 1996, Pub. L. No. 104-106, tit. XI, 110 Stat. 461-67 (1996)

(amending Article 57, establishing Article 58b, 10 U.S.C. §

858b); National Defense Authorization Act for Fiscal Year 1998,

Pub. L. No. 105-85, § 581-82, 1073(a)(9)-(11), 111 Stat. 1759,

1900 (1997) (amending Article 58b).

3. Scienter

     As previously discussed, the pay of all servicemembers is

terminated when they reach EAS.    Consciousness of guilt is not a

factor in determining whether to implement the regulation, so

the regulation has no role in a finding of scienter.

4. Retribution and Deterrence

     The fourth factor considers whether DoD FMR 010302.G.4

promotes the traditional aims of punishment -– retribution and

deterrence.   Mendoza-Martinez, 372 U.S. at 168.   Appellant

argues that “it is difficult to imagine a better form of

retribution and deterrence.”    The policy, however, is not aimed


                                  16
United States v. Fischer, No. 04-0756/MC


at all who are accused of a crime and held in pretrial

confinement, but only applies if a neutral event occurs -- the

person’s EAS date.

5. Application to Criminal Behavior

        The fifth factor requires an evaluation as to whether the

policy is invoked as a result of behavior that is already a

crime.    Mendoza-Martinez, 372 U.S. at 168.   Appellant argues

that this factor is met because the relevant FMR provisions

would not have been triggered if there was no probable cause to

believe Appellant violated the UCMJ.    However, the behavior to

which DoD FMR 010302.G applies is reaching the end of an

enlistment contract, which is not a crime.

        As noted above, a servicemember does not lose entitlement

to pay by virtue of being in pretrial confinement.    The deciding

factor is whether the servicemember has reached EAS, not whether

there is probable cause to believe the individual violated the

UCMJ.    See DoD FMR 010302.G.4.

6. Alternative Purpose

        The sixth factor considers whether there is a non-punitive

purpose to the regulation.    Mendoza-Martinez, 372 U.S. at 168-

69.   Here, Appellant reiterates his argument that the stated

purpose of the FMR is pretext, specifically noting that DoD FMR

010302.G.4 returns pay and allowances to servicemembers in

Appellant’s position who are subsequently acquitted.


                                   17
United States v. Fischer, No. 04-0756/MC


     However, there is an alternative, non-punitive purpose of

DoD FMR 010302.G.4.   The alternative purpose is that a

servicemember held in pretrial confinement who has passed EAS

and who is not providing productive service is not entitled to

pay and allowances.   As discussed above, EAS is a neutral, non-

punitive point in time which is reasonably related to the

legitimate governmental interest in terminating the pay of

persons who are not performing productive service.

7. Excessiveness

     The final factor considers whether the regulation is

excessive in relation to the alternative purpose assigned to it.

Mendoza-Martinez, 372 U.S. at 169.     Appellant argues that the

FMR inflicts an excessive toll.    We disagree.   In civilian life,

pretrial confinees may lose their jobs and are often not

compensated for the time spent in pretrial confinement.    The

military’s policy to reimburse pretrial confinees who were

mistakenly held is more generous than the Hyde Amendment,

discussed above, that applies in civilian criminal cases.

Although Appellant may undergo personal financial loss because

of the policy reflected in the regulations, the termination of

pay upon the expiration of the enlistment contract does not

signify that the policy is excessive.




                                  18
United States v. Fischer, No. 04-0756/MC


                            III. CONCLUSION

       As Appellant conceded, the brig authorities in this case

had no intent to punish Appellant.    The regulation is not

implicitly punitive or punitive in effect.    There is a

legitimate, non-punitive reason behind the regulation.     The

application of the policy was reasonable, given that Appellant

reached his EAS and did not perform productive services.      Under

an Article 13 claim, we look to whether there was intent to

punish or a punitive effect.   If Appellant takes issue with the

propriety of the underlying decisions as a matter of fiscal law,

he must pursue that issue before the United States Court of

Federal Claims.

       As a final matter, Appellant also maintains that his Fifth

Amendment rights were violated because he was punished by virtue

of the application of DoD FMR 010302.G.4 without due process of

law.   In view of our conclusion that the regulation has a

legitimate non-punitive purpose, there is no punishment at issue

in this case.   Moreover, as explained above, there was no

forfeiture in this case because Appellant had no entitlement to

pay and allowances.



                            IV. DECISION

       The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.


                                 19
United States v. Fischer, No. 04-0756/MC


        ERDMANN, Judge, with whom GIERKE, Chief Judge, joins

(dissenting):

        The majority opinion finds that terminating the pay of

a servicemember in pretrial confinement, whose term of

service has been involuntarily extended by the Government,

does not constitute illegal pretrial punishment under

Article 13, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 813 (2000).    I would hold that the regulation

requiring the termination of pay under those circumstances

is punitive in effect and its application constitutes

illegal pretrial punishment.

        Fischer was placed in pretrial confinement on May 4,

2001.    His enlistment expired on June 29, 2001.   Rather

than discharging him from military service at the end of

his enlistment and thereby losing jurisdiction over him,

the Marine Corps understandably extended his active duty

status pending court-martial.1    Fischer remained in

confinement and his pay and allowances were terminated.

When Fischer asked for his pay to be reinstated, the

1
  Rule for Courts-Martial 202(c)(1) provides that a
servicemember whose enlistment has expired may be “held on
active duty.” Marine Corps Manual for Legal Administration
§ 1005 (31 Aug 99), details this involuntary extension of
active duty and requires that proper administrative action
be taken to effectuate the extension. While the record in
this case contains references to the fact that Fischer’s
active duty was extended, it contains no references to the
administrative action effectuating the extension.
United States v. Fischer, No. 04-0756/MC


Government responded that it was prohibited from paying him

under Department of Defense (DoD) regulations.

     One of the basic guarantees under the Due Process

Clause is that a pretrial detainee cannot be punished until

there is a finding of guilt.   Bell v. Wolfish, 441 U.S.

520, 533 (1979).   Article 13 of the UCMJ, which prohibits

pretrial punishment, has its roots in this constitutional

guarantee.    Servicemembers who are accused of crimes can be

placed in pretrial confinement to ensure that they will

appear at trial and to prevent further misconduct.    Rule

for Courts-Martial (R.C.M.) 305(h)(2)(B).   When placed in

pretrial confinement, Article 13 protects them from

conditions that constitute punishment, penalty or excess.

In this case we are called on to determine whether

terminating the pay and allowances of a servicemember, who

is in pretrial confinement and whose enlistment has been

involuntarily extended, constitutes punishment under

Article 13.

     The DoD regulation in question, the Department of

Defense Financial Management Regulation (DoD FMR), vol. 7A,

ch. 1, 010302.G.4 (May 2005),2 provides:



2
  The May 2005 version of subpara. 010302.G.4 is identical
to provisions that were in effect during Fischer’s pretrial
confinement. See Department of Defense Financial

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United States v. Fischer, No. 04-0756/MC


     4.   Confined Awaiting Trial by Court-Martial.
          If a member is confined awaiting court-
          martial trial when the enlistment expires,
          pay and allowances end on the date the
          enlistment expires. If the member is
          acquitted when tried, pay and allowances
          accrue until discharge.


     The majority focuses on the fiscal implications of the

regulation and relies, in part, on opinions of the

Comptroller General and Court of Claims.    While these

opinions are interesting both from a fiscal and a

historical perspective, they do not provide any binding

authority for this court as they do not interpret Article

13 or the cases from this court or the U.S. Supreme Court

dealing with illegal pretrial punishment.   Nor do those

opinions consider the “status” based nature of court-

martial jurisdiction under the UCMJ.    It is the primary

duty of this court to provide such interpretations.

     I have no quarrel with the majority’s finding that a

servicemember’s entitlement to pay is terminated when his

or her enlistment expires.    That, however, is simply not

the situation in this case.   One of the mandatory factors

underlying court-martial jurisdiction is that the person to

be tried must be subject to the UCMJ.   In other words, the

person must be in a “status” in which he or she is a


Management Regulation, vol. 7A, ch. 3, 030207.D (Feb.
2000).

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United States v. Fischer, No. 04-0756/MC


“person[] . . . subject to” the UCMJ.     See Article 2(a),

UCMJ, 10 U.S.C. § 802(a) (2000).   Article 3(a), UCMJ, 10

U.S.C. § 803(a) (2000), makes it clear that personal

jurisdiction is “status based” under the UCMJ:     “. . . a

person who is in a status in which the person is subject to

this chapter . . . .”   Emphasis added.     Holding Fischer

beyond his term of service continued his status as a

“servicemember on active duty” through disposition of the

charges against him.    R.C.M. 202(c)(1).

     As I read the majority opinion, once a servicemember’s

term of enlistment is involuntarily extended, the

obligation to provide pay and allowances is extended as

well except in the event that the servicemember is in

pretrial confinement.   The result of this view is that the

Government can, solely for its own purposes, imprison a

presumptively innocent individual, unilaterally continue

military status with all its obligations and duties and at

the same time take away one of the basic rights associated

with active duty military status -– the right to pay.3        I

cannot join the majority’s view that these circumstances do

not constitute a violation of Article 13.




3
  37 U.S.C. § 204(a)(1) (2000) provides that members of a
uniformed service on active duty are entitled to pay.

                               4
United States v. Fischer, No. 04-0756/MC


     As the majority notes, this court has not previously

applied the criteria of Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168 (1963), in order to determine whether

conditions of pretrial confinement violate Article 13.

Were I to apply those factors, I would disagree with the

conclusion reached by the majority that the regulation at

issue is not punitive in effect.     However, I do not believe

that such an analysis is necessary.     In my view, this

court’s Article 13 jurisprudence provides a proper

framework for determining whether Fischer was subject to

unlawful pretrial punishment.

     Article 13 prohibits two types of activity:     (1) the

intentional imposition of punishment on an accused prior to

trial; and (2) pretrial confinement conditions that are

more rigorous than necessary to ensure the accused’s

presence at trial.   United States v. Inong, 58 M.J. 460,

463 (C.A.A.F. 2003); United States v. McCarthy, 47 M.J.

162, 165 (C.A.A.F. 1997).   The first prong prohibits 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, 441 U.S. at 539;

McCarthy, 47 M.J. at 165.   The second prevents unduly


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United States v. Fischer, No. 04-0756/MC


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.    Id.; United States v. James, 28 M.J. 214, 216

(C.M.A. 1989).   A determination of whether Fischer is

entitled to relief for unlawful pretrial punishment

involves independent, de novo review.   United States v.

Smith, 53 M.J. 168, 170 (C.A.A.F. 2000); McCarthy, 47 M.J.

at 165; see Thompson v. Keohane, 516 U.S. 99, 113 (1995).

     Fischer’s active duty military status was extended in

virtually every respect save one -– he was no longer paid.

The sole reason that his pay was stopped, as opposed to

other servicemembers extended on active duty, was that he

was in pretrial confinement.   Fischer was in pretrial

confinement because both his Commanding Officer and the

Initial Review Officer found that he constituted a flight

risk and a threat to commit serious misconduct.   I find no

reasonable relation to a legitimate government objective

served by terminating an active duty servicemember’s pay

and allowances because he or she is in pretrial

confinement.   Since Fischer’s pay would not have been

terminated except for the pretrial confinement, its effect

on Fischer is obviously punitive.


                               6
United States v. Fischer, No. 04-0756/MC


     The regulation’s objective, as characterized by the

majority, is that servicemembers held in pretrial

confinement are not considered to be performing “active

duty work” and therefore should not be entitled to pay.

This logic breaks down, however, because a servicemember

who is later acquitted has performed the same duties while

in pretrial confinement and receives compensation.

Servicemembers in pretrial confinement are not

automatically excused from performing useful duties.

Military appellate case law is replete with cases

discussing various duties performed by pretrial confinees.

See, e.g., United States v. Nelson, 18 C.M.A. 177, 178-79,

39 C.M.R. 177, 178-79 (1969); United States v. Palmiter, 20

M.J. 90, 94 (C.M.A. 1985); United States v. Dvonch, 44 M.J.

531, 533 (A.F. Ct. Crim. App. 1996).   Similarly, an active

duty servicemember in pretrial confinement who has not been

involuntarily extended performs those same duties and

receives his or her pay and allowances.

     Forfeiting pay traditionally has been regarded as a

form of punishment in the military services.   See generally

United States v. Stebbins, 61 M.J. ___, ___ (11-18)

(C.A.A.F. 2005).   This regulation imposes a forfeiture upon

a servicemember in the absence of any due process or

adjudication of guilt.   The effect of this action as


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United States v. Fischer, No. 04-0756/MC


punishment is illustrated by how the forfeiture is linked

to the results of trial.   If a servicemember in Fischer’s

situation is acquitted, he or she is paid retroactively.4

But if that person is convicted, there is no pay

adjustment.    While the initial termination of pay was based

solely on Fischer’s pretrial confinement status, the

ultimate termination of his pay in this situation is based

solely on a finding of guilt.       This is punishment.

     The nexus between the permanent termination of pay and

a finding of guilt raises an additional concern which I

believe further highlights the unlawful nature of this

deprivation.   Congress has delegated to the President the

authority to establish maximum punishments.      Article 56,

UCMJ, 10 U.S.C. § 856 (2000).       Under the Rules for Courts-

Martial, the President has directed that the only

authorized punishment involving a loss of pay is a

forfeiture of pay to be accrued.       See R.C.M. 1003(b)(2) and

discussion.    Additionally, execution of any punishment to

forfeit pay is effective and executed only after trial.


4
  The majority’s conclusion that this payment is akin to
compensation for the accused when the charge has not been
sustained at trial creates a dangerous precedent. An
acquittal in a criminal action does not mean that the
Government was wrong in bringing the charges, nor should an
acquittal entitle an accused to compensation. It merely
means that the court-martial did not find the accused
guilty beyond a reasonable doubt.

                                8
United States v. Fischer, No. 04-0756/MC


See Article 57, UCMJ, 10 U.S.C. § 857 (2000).   Tying the

deprivation of Fischer’s pay to his conviction creates a

punishment beyond that authorized by the UCMJ and the

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

     There is no legitimate governmental objective in DoD

FMR 010302.G.4 that outweighs its clear punitive effect,

and the regulation therefore constitutes illegal pretrial

punishment in violation of Article 13.   I would hold that

the regulation is unenforceable and Fischer is entitled to

his full pay and allowances for the period in question.     I

therefore dissent.




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