United States v. Collins

44 M.J. 830, 1996 CCA LEXIS 365, 1996 WL 688324
CourtArmy Court of Criminal Appeals
DecidedNovember 26, 1996
DocketARMY 9201680
StatusPublished
Cited by8 cases

This text of 44 M.J. 830 (United States v. Collins) is published on Counsel Stack Legal Research, covering Army 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. Collins, 44 M.J. 830, 1996 CCA LEXIS 365, 1996 WL 688324 (acca 1996).

Opinion

OPINION OF THE COURT ON REMAND

CAIRNS, Senior Judge:

A special court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of indecent acts with another in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1988)[hereinafter UCMJ]. The court-martial sentenced appellant to a bad-conduct discharge, confinement for six months, forfeiture of $523.00 pay per month for six months, and reduction to Private El. The convening authority exercised his clemency powers by approving only so much of the sentence as provided for a bad-conduct discharge, confinement for three months, and reduction to Private El.

This court previously affirmed the findings and sentence in a short-form memorandum opinion.1 Subsequently, the Court of Military Appeals (now the Court of Appeals for the Armed Forces) set aside our decision, concluding that appellant had been held in post-trial confinement beyond his release date. When this court first considered this ease, the issue of illegal post-trial confinement was neither raised by appellant nor discernible from the record.2 Because the issue had not been raised before this court, the Court of Military Appeals remanded the case for us: (1) to determine as a matter of fact what appellant’s release date was; and, (2) “to consider “whether any sentence relief is required in order to purge the effects’ of this confinement. United States v. Walker, 23 M.J. 429 (C.M.A.1987); see United States v. Keith, 36 M.J. 518 (A.C.M.R.1992).” United States v. Collins, 43 M.J. 370, 371 (1995).

[832]*832On remand, we specified the following issue:

WHAT RELIEF, IF ANY, SHOULD BE AFFORDED APPELLANT FOR HAVING BEEN HELD IN POST-TRIAL CONFINEMENT BEYOND HIS RELEASE DATE.

FACTS

A Appellant’s Misconduct

The facts of appellant’s misconduct, while bizarre and perverted, are uncomplicated. The appellant was a regular customer of the Phone Center, an on-post service provided for the convenience of soldiers and family members to make and pay for long distance telephone calls from one of the facility’s sixteen booths. Customers pay the attendant who has a computerized record of their long distance charges.

After making a phone call one evening, the appellant engaged in casual conversation with Ms. B, the only attendant on duty and a person the appellant knew solely by virtue of his frequent patronage of the Phone Center. While the two were talking, an off-duty coworker called Ms. B on the telephone, and the three engaged in a conversation, with Ms. B acting as intermediary. During the course of this confab, Ms. B, who was seated behind a counter, looked up at the appellant and observed him masturbating. Feeling scared and sick to her stomach, Ms. B did not immediately protest, but waited until the appellant departed before she reported the incident. At that time, she noticed ejaculate on her work-station counter.

B. Case Processing

Based upon the entire record, including the post-trial stipulation3 of the parties, we make the following findings of fact relative to the post-trial processing of this case. See Article 66, UCMJ. The appellant was confined on 7 August 1992, the day the court-martial adjudged a sentence that included confinement for six months. Based on the six-month term of confinement, the appellant’s minimum release date, the calculation of which includes credit for good conduct,4 was 7 January 1993.

On 26 October 1992, the convening authority took his action and granted clemency by disapproving all forfeitures and approving confinement for only three months. Based on the approved three-month sentence to confinement, and deducting credit for good conduct time and extra good conduct time earned, the appellant’s minimum release date became 21 October 1992, five days preceding the date of the convening authority’s action.

On 17 November 1992, the staff judge advocate transmitted by facsimile the promulgating order reflecting the convening authority’s clemency action to the Fort Knox Correctional Facility, the place of appellant’s confinement. Prior to 17 November 1992, the staff judge advocate had not otherwise informed the Correctional Facility of the convening authority’s clemency action. The Fort Knox facility released appellant from confinement upon the receipt of the promulgating order on 17 November 1992.

DISCUSSION

A. Remanded Issues

In response to the first issue contained in the remand order from our superior court, we find that the appellant’s release date should have been 26 October 1992, the day the convening authority took his action. Athough the record reveals no malfeasance, we conclude that appellant served twenty-two days beyond his release date as a result of negligent processing by the responsible staff judge advocate.

[833]*833The remaining issue remanded to us is whether any sentence relief is required to purge the effects of the twenty-two days of unlawful confinement, and if so, what kind and amount of relief.

B. Law

When the record reveals that an accused has been improperly held in post-trial confinement beyond his release date, this court may fashion an appropriate and meaningful remedy. United States v. Keith, 36 M.J. 518 (A.C.M.R.1992). Bearing in mind that meaningful relief must also be appropriate, courts have fashioned remedies in such eases by balancing the relief sought against the nature and magnitude of the illegal post-trial confinement. United States v. Valead, 32 M.J. 122 (C.M.A.1991); Keith, 36 M.J. at 520; United States v. Presto, 17 M.J. 1105 (A.C.M.R.1984), rev’d on other grounds, 24 M.J. 350 (C.M.A.1987); see also, United States v. Suzuki, 14 M.J. 491 (C.M.A.1983). Not only should the remedy be proportional to the error, but the resulting sentence must be appropriate under Article 66(c), UCMJ. Even error of Constitutional dimension does not necessarily require disapproval of a punitive discharge when no other meaningful sentence relief is possible. Valead, 32 M.J. at 123. Providing relief that is totally disproportionate to the harm suffered, or that grants the appellant a major windfall, is neither required nor appropriate. Valead, 32 M.J. at 128 (Everett, S.J., concurring in the result).

C. Analysis

As appellant points out, since all confinement has been served — and the approved sentence did not include forfeitures — the only remaining meaningful relief would be to disapprove the bad-eonduet discharge. We decline to grant this relief requested by appellant because disapproval of the bad-eonduet discharge would be totally disproportionate to the harm suffered, would provide the appellant a major windfall, and would be too drastic a remedy in light of the seriousness of appellant’s misconduct.

Although we recognize that the loss of twenty-two days of liberty is serious harm, we must acknowledge that appellant suffered the harm as a result of negligent failure to recognize the effect of clemency on appellant’s release date. The harm did not result from any bad faith or intentional desire to punish the appellant.

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Bluebook (online)
44 M.J. 830, 1996 CCA LEXIS 365, 1996 WL 688324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-collins-acca-1996.