United States v. Finlay

6 M.J. 727, 1978 CMR LEXIS 562

• Court: U.S. Army Court of Military Review
• Decided: November 27, 1978
• Docket: CM 437254
• Status: Published

Opinions

OPINION OF THE COURT

FULTON, Senior Judge:

The appellant, Second Lieutenant Robert E. Finlay, B.S., U.S.M.A.1976, was charged with unauthorized absences from 29 July to 29 August 1977 and from 15 November 1977 until 17 March 1978, in violation of Article 86, Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 886 (1976). At his request, he was tried by a court comprised of a military judge without court members. He pleaded guilty in return for the convening authority’s promise to approve no sentence greater than a dismissal from the service, confinement for four months, total forfeitures for four months, and “any fine which may legally be adjudged.” The judge sentenced him to dismissal, confinement for two months, total forfeitures, and “to pay the United States a fine of $30,000.” The convening authority approved the sentence. The sole issue raised on this appeal is whether the fine is an appropriate sentence.¹

Our responsibility to determine whether a sentence is appropriate and to reduce a sentence that is not fair and just is well established. United States v. Johnson, 12 U.S.C.M.A. 640, 643, 31 C.M.R. 226, 229 (1962); United States v. Cavallaro, 3 U.S.C.M.A. 653, 14 C.M.R. 71 (1954); see also United States v. Lanford, 6 U.S.C.M.A. 371, 376-79, 20 C.M.R. 87, 92-95 (1955).

Military courts, unlike civilian criminal courts, may impose forfeitures of pay as punishment. Fines play a somewhat different role in the military scheme of punishment; maximum limits are not specified for particular offenses as is commonly the case in civilian penal statutes. Cf. United States v. Schultz, 1 U.S.C.M.A. 512, 530, 4 C.M.R. 104, 122 (1952) (fine approved greater than authorized in related civilian jurisdiction). Therefore fines generally have been considered appropriate only when the convicted person has been unjustly enriched, as indicated by the Manual provision previously discussed, or when the Government has incurred a loss as the result of the accused’s defalcation. United States v. Cuen, 9 U.S.C.M.A. 332, 336-37, 26 C.M.R. 112, 116-17 (1958); see U. S. War Dept., Technical Manual 27—255, paragraph 125b (23 Feb. 1945); United States v. Everett, 1 C.M.R. (A.F.) 657, 661-62 (A.F.J.C.1949); Davis, A Treatise on the Military Law of the United States (1st ed.1898) 175. In accordance with these views a fine has been regarded as appropriate when the United States suffered a shortage in its accounts, but not when the accused mainly benefitted from training received and favorable personnel actions. Compare United States v. Larson, 45 C.M.R. 894 (N.C.M.R.1972), with United States v. McElroy, 3 U.S.C.M.A. 606, 14 C.M.R. 24 (1954).

It seems clear that the adjudged fine and its amount relate to the circumstance that, although the appellant was educated and paid at Government expense while attending the United States Military Academy, by virtue of his unauthorized absences and dismissal from the Army (a punishment he requested), he would not be fulfilling the five-year military service obligation incurred by his graduation from the Academy. Following the evidence in extenuation and mitigation, the trial judge suggested that a fine might be appropriate and requested evidence as to the cost of education at the Military Academy during the appellant’s attendance. The parties stipulated that a representative of the Academy would testify that the four-year cost per graduate of the Class of 1976 was $110,000.²

Conceding that the appellant presumably will derive future benefit from the education obtained at Government expense, and that his misconduct and attitude make it impractical to hold him to the service obligation incurred by his graduation from the Academy, we nevertheless doubt that a fine designed to recoup for the Government a share of the educational cost is appropriate in this case. We note significant mitigating circumstances. There is no hint of fraud or bad faith in the appellant’s completion of the course at the Military Academy despite the fact that his apprehensions concerning military service can be traced to his third (junior) year there. His completion of the course despite his misgivings can as well be traced to the subtle, and perhaps unconscious, influences of his military family background and the urging of his advisers at the Academy — both well-intentioned, but, as may now be seen, inappropriate. Neither can the appellant’s unauthorized absences be solely ascribed to an intent to shirk service. A shattered marriage and other personal difficulties commonly associated with absenteeism were major contributing if not dominant factors. While this does not make the offenses less reprehensible, it suggests a different basis for punishment.

We do not hold that a fine is inappropriate punishment in this case. We hold only that, taking into account the entire record, a fine measured in relation to the assumed cost to the Government of the appellant’s education, training, or experience is inappropriate.³ We will, therefore, reduce the fine to an amount regarded as appropriate on the entire record to fulfill the other purposes of punishment.

The findings of guilty are affirmed. After considering the entire record, the Court affirms only so much of the sentence as provides for dismissal from the service, confinement at hard labor for two months, forfeiture of all pay and allowances, and a fine of $2,000 to be paid to the United States.

1 . There is no dispute that the fine as such and its amount were lawfully adjudged. The only relevant potential restriction on the court’s sentencing authority under Article 18, U.C.M.J., 10 U.S.C. § 818 (1976), is the following observation in the Presidentially-prescribed Manual for Courts-Martial:

[A] fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched as the result of the offense of which he is convicted.

Manual for Courts-Martial, United States, 1969 (Revised edition), paragraph 126h (3). Unauthorized absence is not an offense contemplated as resulting in unjust enrichment. United States v. Martinez, 2 M.J. 1123, 1124 (C.G.C.M. R.1976); cf. United States v. Gabriel, 3 C.M.R. 407 (N.B.R.1952) (court evidently failed to distinguish between fine and forfeitures). However, the quoted provision is only directory, not mandatory. United States v. Cuen, 9 U.S.C.M.A. 332, 337 n. 5, 26 C.M.R. 112, 117 n. 5 (1958); United States v. Higdon, 2 M.J. 445, 456 (A.C.M.R.1975); United States v. Kehrli, 44 C.M.R. 582, 584 (A.F.C.M.R.1971).

2 . Without conceding the accuracy of this figure, we will not speculate as to how it was computed, much less how the amount of the fine ($30,000) was arrived at.

3 . We note that, besides dismissal from the service for criminal conduct, there are other situations in which the United States does not receive quantitative (much less qualitative) satisfaction of the service obligation incurred through attendance at the Academy. So far as we are aware, neither the Executive nor the Congress has yet seen fit to require or authorize recoupment of the educational costs involved.