United States v. Barnett

70 M.J. 568, 2011 CCA LEXIS 418, 2011 WL 5986751
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 14, 2011
DocketACM 37578
StatusPublished
Cited by2 cases

This text of 70 M.J. 568 (United States v. Barnett) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barnett, 70 M.J. 568, 2011 CCA LEXIS 418, 2011 WL 5986751 (afcca 2011).

Opinion

OPINION OF THE COURT

SARAGOSA, Judge:

The appellant was convicted in accordance with his pleas of three specifications of violating a lawful general order, two specifications of dereliction of duty and one specification of wrongful use of marijuana on divers occasions, in violation of Articles 92 and 112a, UCMJ, 10 U.S.C. §§ 892, 912a. Furthermore, a panel of officer members sitting as a general court-martial convicted the appellant of three additional specifications of violating a lawful general order and one specification [569]*569of dereliction of duty, in violation of Article 92, UCMJ. The adjudged and approved sentence consists of a bad-eonduet discharge, eight months of confinement, and reduction to the grade of E-l. Based upon the military judge’s ruling on a pretrial motion regarding illegal pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, the appellant was granted relief in the form of 100 days of confinement credit.

The appellant raises three issues on appeal. First, he asserts the military judge erred in denying the full relief requested in his pretrial motion for appropriate relief based on illegal pretrial punishment. He asks this Court to grant one-for-one credit for the 491 days the appellant was detailed to the “Thunder Pride” Team Detail Program (“Thunder Pride” team). Second, he argues the military judge erred in failing to instruct the members during sentencing in accordance with Rule for Courts-Martial (R.C.M.) 1005(e)(4). In substance, the appellant argues the military judge should not have instructed the members he had been granted 100 days of administrative confinement credit. He asks this Court to set aside the sentence and order a rehearing on sentence or reassess the sentence to one that does not include a bad-conduct discharge. Finally, the appellant asserts he was deprived of his right to speedy post-trial review based on the fact that 243 days elapsed between announcement of the sentence and action by the convening authority.1 He argues this delay is so egregious, unexplained, and unnecessary he is entitled to a presumption of prejudice. He asks this Court to approve appropriate sentence relief.

Background

Appellant served as an Air Force recruiter for the 362nd Recruiting Squadron and was assigned to the recruiting office in Goodyear, Arizona. The charges for which he stands convicted stem from violations of Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships,2 and derelictions in his duties. Each of these charges relate to the appellant’s conduct with female recruits or applicants of the Air Force. He was convicted of wrongfully seeking sexual favors from three separate female reeruits/appli-cants in violation of the aforementioned Instruction. Further, he was convicted of engaging in a sexual relationship with a fourth female recruit/applicant. He was also convicted of wrongfully providing alcohol to two of the female recruits/applicants. Each of the four women involved ultimately joined the Air Force; three were still on active duty at the time of the trial and one had been medically discharged.

The remaining charges for which he stands convicted are use of government vehicles3 for activities of a personal nature and wrongful use of marijuana on divers occasions.

Rlegal Pretrial Punishment

When the allegations of misconduct arose, the appellant was relieved of his duties as an Air Force recruiter and was issued an order by his commander to have no contact with any recruits/applicants. As such, he was unable to work in his recruiting office location. In an effort to keep him gainfully employed, he was assigned to the “Thunder Pride” team at Luke Air Force Base (AFB), Arizona, beginning in December 2007. This program assigns enlisted personnel who are unable to perform regular duties within their unit to a team that performs a variety of base details.

In a pretrial motion for appropriate relief, the appellant asserted he had been subjected to illegal pretrial punishment in violation of Article 13, UCMJ, when he was assigned to work with the “Thunder Pride” team. An Article 39(a), UCMJ, 10 U.S.C. § 839(a), hearing was held, at which the military judge heard from the appellant’s 362nd Recruiting Squadron supervisor and flight chief, the “Thunder Pride” team supervisor, and sever[570]*570al other active duty members who were also assigned to the “Thunder Pride” team. The military judge rendered findings of fact. He concluded: none of the circumstances the appellant faced constituted any type of pretrial restraint or conditions tantamount to confinement; there was no intent to punish the appellant by assigning him to the “Thunder Pride” team; the “Thunder Pride” team itself is not punishment; and, none of the circumstances describing the “Thunder Pride” team are in and of themselves punishment. However, the military judge articulated concerns over: the length of time the appellant remained assigned to the “Thunder Pride” team (approximately 16 months which was twice as long as the other witnesses that testified on the motion); the fact that there is a base level instruction that governs the program and there is a provision that states no member will be assigned to the team for more than 60 days (there are noted exceptions); the failure to strictly comply and adhere to another provision of the instruction that requires legal coordination in the event a member remains on the “Thunder Pride” team for more than 60 days; and, what he deemed was a shortfall by the unit in efforts to find somewhere else to put the appellant while he was pending court-martial. Based upon these concerns, the military judge awarded the appellant 100 days of administrative confinement credit.

The question of whether an “appellant is entitled to credit for a violation of Article 13, UCMJ, is a mixed question of fact and law.” United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F.2002) (citing United States v. Smith, 53 M.J. 168, 170 (C.A.A.F.2000)). This Court “will not overturn a military judge’s findings of fact, including a finding of no intent to punish, unless they are clearly erroneous.” Mosby, 56 M.J. at 310 (citing Smith, 53 M.J. at 170). The ultimate question of whether an appellant is entitled to administrative credit for a violation of Article 13, UCMJ, is reviewed de novo. Mosby, 56 M.J. at 310. See also Smith, 20 M.J. at 532-33.

Based upon a review of the record, including trial motions, their attachments, and testimony presented on the motion, we hold the military judge’s findings are not clearly erroneous. We further hold, as a matter of law, the appellant is not entitled to additional sentence credit beyond the 100 days previously granted by the military judge for an Article 13, UCMJ, violation.

Sentencing Instructions

The appellant contends the military judge erred in failing to instruct the members in accordance with R.C.M. 1005(e)(4).

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Related

United States v. Condon
Air Force Court of Criminal Appeals, 2017
United States v. Barnett
71 M.J. 248 (Court of Appeals for the Armed Forces, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
70 M.J. 568, 2011 CCA LEXIS 418, 2011 WL 5986751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barnett-afcca-2011.