United States v. Hammond

60 M.J. 512, 2004 CCA LEXIS 147, 2004 WL 1464962
CourtArmy Court of Criminal Appeals
DecidedJune 29, 2004
DocketARMY 20010710
StatusPublished
Cited by3 cases

This text of 60 M.J. 512 (United States v. Hammond) 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. Hammond, 60 M.J. 512, 2004 CCA LEXIS 147, 2004 WL 1464962 (acca 2004).

Opinion

OPINION OF THE COURT

PIETSCH, Chief Judge:1

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of aggravated assault with intentional infliction of grievous bodily harm, assault consummated by a battery, and leaving the scene of a collision, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a dishonorable discharge, confinement for 4 years and 134 days, forfeiture of all pay and allowances, and reduction to Private El. The convening authority also approved 134 days of confinement credit. This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866.

We discuss seven issues, but conclude that only one merits sentence relief. First, we hold that appellant is not entitled to pay and allowances as he was in pretrial confinement after his expiration term of service (ETS) date. Additionally, the government did not violate Article 13, UCMJ, 10 U.S.C. § 813, by failing to extend appellant’s ETS date to the date of his trial. Second, fleeing the scene of an intentional collision states an offense under Article 134, UCMJ. Third, appellant’s conviction of fleeing the scene of an intentional collision does not violate the Fifth Amendment or Article 31, UCMJ, 10 U.S.C. § 831. Fourth, appellant’s separate convictions of aggravated assault with intentional infliction of grievous bodily harm and fleeing the scene of an intentional collision are not multiplicious or an unreasonable multiplication of the charges. Fifth, these same two offenses are not so inconsistent with each other as to require remedial action. Sixth, the adjudged confinement of 4 years and 134 days is not an illegal sentence. Seventh, we [514]*514will reduce appellant’s confinement by thirty days to moot appellant’s claim of prejudice resulting from the staff judge advocate’s (SJA’s) misstatement of the maximum possible sentence in his post-trial recommendation (S JAR) to the convening authority.

FACTS

Appellant intentionally inflicted physical harm on his spouse, Petty Officer (PO) Hammond, on two separate occasions. First, appellant went to his wife’s home and in the course of an argument, appellant pushed PO Hammond and then hit her in the face two or three times with his fist. Petty Officer Hammond fled to a military police guard shack. Appellant received company level, nonjudicial punishment under Article 15, UCMJ, for this misconduct. At his trial, the military judge awarded fifteen days of confinement credit to compensate appellant for this pretrial punishment.2

Seven months later, appellant was driving his vehicle on Fort Gordon, Georgia, with PO Hammond riding as passenger. During a quarrel, appellant pulled to the side of the road. While the vehicle was still rolling, PO Hammond opened the door, jumped out, and rolled free of the vehicle onto the ground.

Staff Sergeant (SSG) Soper, a witness to the collision, pulled his vehicle over to offer PO Hammond assistance. Meanwhile, appellant turned his vehicle around, crossed traffic, and accelerated against traffic on the road shoulder—driving directly into PO Hammond. Appellant’s vehicle hit PO Hammond at a speed of about thirty-five miles per hour. Petty Officer Hammond’s body was dashed against the hood and windshield and then went over the roof. She was thrown about twenty-five feet from appellant’s vehicle. Petty Officer Hammond suffered head trauma, two broken bones in her leg, and multiple lacerations and abrasions to her face, arms, and body that required plastic surgery. In the collision, appellant also struck and damaged SSG Soper’s vehicle.

Appellant fled the scene in his vehicle at a high rate of speed. Two witnesses chased appellant across Fort Gordon and through traffic in their own vehicles. Appellant went through or around several stop signs and a traffic light; he stopped only when one of the witnesses boxed him in near a military police guard shack. A military policeman promptly apprehended appellant.

DISCUSSION

A. Pretrial Administrative Termination of Pay and Allowances

Appellant’s ETS date passed while he was in pretrial confinement, and the Department of Defense Finance and Accounting Service (DFAS) stopped paying him. In his Grostefon3 statement, appellant asserts: “When my ETS date arrived, I stopped receiving pay. I think that finance unfairly stopped my pay. Other soldiers in pre-trial confinement status continued to receive pay past their ETS dates.”

Although waiver currently applies when allegations of Article 13 violations are not raised at trial,4 we decline to apply waiver under the particular facts and circumstances of appellant’s case. See United States v. Singleton, 59 M.J. 618, 622-23 (Army Ct.Crim.App.2003) (discussing waiver of unlawful pretrial punishment). We will address this issue on its merits. Government and defense appellate counsel now agree that, under the applicable finance regulation, DFAS had no duty to pay appellant after his ETS date.5 Appellant asserts, however, that his unit’s failure to extend his ETS date so he would continue to receive pay until his trial was unlawful because other soldiers in [515]*515similar circumstances received more favorable treatment in this regard, thereby creating a situation so grossly unfair that it amounted to punishment in violation of Article 13, UCMJ.

“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 ____” UCMJ art. 13. The stopping of appellant’s pay after his ETS date, by itself, does not constitute a punishment or penalty. As the Office of the Comptroller General persuasively explained to the Secretary of the Army over fifty years ago:

[P]ay and allowances simply do not accrue to an enlisted person after the expiration of his enlistment, unless he is held in the service for the convenience of the Government or for the purpose of making good time lost, and ... the nonpayment of pay and allowances which do not accrue does not constitute a ... punishment or penalty

30 Comp. Gen. 449, *5-6 (1951); see also Cowden v. United States, 220 Ct.Cl. 490, 600 F.2d 1354, 1359 (1979) (“[A]n enlisted man confined after expiration of his term of enlistment is due pay and allowances for that period of confinement, if the original conviction is invalidated and either no new trial occurs, or one does occur and results in acquittal.”); Moses v. United States, 137 Ct.Cl. 374, 389, 1957 WL 8298 (1957) (holding that pay and allowances terminate when enlistment expires during confinement, subject to a return to duty status); see also Curry v. United States, 52 Fed.Cl. 799, 804 (2002) (expressly leaving open the issue of whether pay and allowances continue after ETS for marine in pretrial confinement), aff'd,

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United States v. Private E1 TIMOTHY W. ROACH
65 M.J. 866 (Army Court of Criminal Appeals, 2007)
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United States v. Hammond
61 M.J. 676 (Army Court of Criminal Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
60 M.J. 512, 2004 CCA LEXIS 147, 2004 WL 1464962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hammond-acca-2004.