United States v. Pflueger

65 M.J. 542, 2006 CCA LEXIS 328, 2006 WL 4571401
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedDecember 5, 2006
DocketNMCCA 200400213
StatusPublished
Cited by1 cases

This text of 65 M.J. 542 (United States v. Pflueger) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Pflueger, 65 M.J. 542, 2006 CCA LEXIS 328, 2006 WL 4571401 (N.M. 2006).

Opinion

FELTHAM, Judge:

A military judge, sitting as a special court-martial, convicted the appellant, pursuant to his pleas, of making a false official statement, four specifications of larceny by using another Marine’s ATM card to withdraw cash from that Marine’s account, and obstruction of justice by destroying the ATM card. The appellant’s offenses violated Articles 107, 121, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 921, and 934. The convening authority approved the adjudged sentence of confinement for four months, reduction to [543]*543pay grade E-l, and a bad-conduct discharge, but suspended the bad-conduct discharge and confinement in excess of 90 days for a period of 12 months.

On appeal, the appellant claimed he had been denied speedy review of his conviction. We agreed and, on 30 July 2004, affirmed the findings and only that portion of the sentence that extended to confinement for four months and reduction to pay grade E-l. United States v. Pflueger, No. 200400213, unpublished op. (N.M.Ct.Crim.App. 30 Jul 2004).

The appellant then appealed to our superi- or court, which, on 24 January 2005, granted review of the following issue:

Whether the Navy-Marine Corps Court of Criminal Appeals awarded meaningful sentence relief (not affirming an automatically remitted bad-conduct discharge) after it found sentencing relief to be appropriate under United States v. Tardif, 57 M.J. 219 (C.A.A.F.2002) for unreasonable post-trial delay.

United States v. Pflueger, 60 M.J. 464, 465 (C.A.A.F.2005).

Following oral argument, our superior court concluded that the parties, in their briefs and oral arguments, “did not provide a definitive answer to the question of the legal and practical effect of the remission of the adjudged bad-conduct discharge,” and remanded the record to us for consideration of the following:

(1) whether the appellant was entitled to financial compensation or other relief under Article 58b(c), UCMJ, or otherwise as a result of the remission of the adjudged bad-conduct discharge by the convening authority; and, if so, the duration and amount of such compensation or other relief;
(2) whether the appellant was entitled to financial compensation or other relief under Article 58b(c), UCMJ, or otherwise as a result of our 30 July 2004 decision to approve a sentence that did not include a bad-conduct discharge; and, if so:
(a) the duration and amount of such compensation or other relief; and
(b) whether such compensation or other relief was in addition to any compensation or other relief to which the appellant was entitled under item (1) above; and
(3) such other matters as we deem appropriate with respect to the form of relief warranted in this case under Tardif.

Pflueger, 61 M.J. 272 (C.A.A.F.2005).

Applicability of Article 58b(c), UCMJ

The convening authority took the following action:

In the special court-martial case of Lance Corporal Gerald R. Pflueger ... U.S. Marine Corps, tried on 24 March 2000, at Twentynine Palms, California, the sentence is approved and, except for the bad conduct [sic] discharge, ordered executed, but that portion of the sentence adjudging all confinement in excess of 90 days and the bad conduct [sic] discharge is suspended for a period of twelve months from the date of this action, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.

Convening Authority’s Action of 1 Feb 2001.

Although the appellant was sentenced to confinement for less than six months, mandatory forfeitures applied because his sentence also included a punitive discharge. Article 58b(a)(1) and (2), UCMJ, 10 U.S.C. § 858b(a)(1) and (2). Because the punitive discharge was suspended for a period of twelve months from the date of the convening authority’s action, it was automatically remitted upon completion of this period. Rule for Courts-Martial 1108(a), Manual for Courts-Martial, United States (2000 ed.). “Remission cancels the unexecuted part of a sentence to which it applies.” Id. “The ‘unexecuted part of any sentence’ includes that part which has been approved and ordered executed but which has not actually been carried out.” R.C.M. 1108(b). Remission only applies to sentence execution. Id. It does not reduce the sentence adjudged by a court-martial, or the sentence approved by the convening authority. Id. It only affects that part of the adjudged sentence [544]*544which has been approved and ordered executed, but not yet carried out. Id.

The fact that a convening authority remits part of an adjudged sentence does not mean the remitted portion is disapproved; rather, it only means the remitted portion will never be executed. United States v. Gaines, 61 M.J. 689, 695-96 (N.M.Ct.Crim.App.2005) rev. granted, 64 M.J. 79 (C.A.A.F.2006). Although it will never be executed, the remitted portion of a sentence is still part of the adjudged punishment. Id.

In the instant case, the punitive discharge remained part of the adjudged and approved sentence, even though it was eventually remitted by the convening authority at the end of the 12-month suspension period. Because the punitive discharge remained part of the adjudged and approved sentence after it was remitted, it continued to qualify the appellant for automatic forfeitures until it was disapproved in our decision of 30 July 2004. But for our action, the appellant would have continued to qualify for automatic forfeitures, despite the remission of the punitive discharge. Therefore, he was not entitled to financial compensation or other relief under Article 58b(c), UCMJ, or otherwise, as a result of the remission of the adjudged bad-conduct discharge by the convening authority. We answer our superior court’s first question in the negative.

With regard to the second question, our 30 July 2004 decision to approve a sentence that did not include a bad-conduct discharge entitled the appellant to financial compensation under Article 58b(c), UCMJ.

Because mandatory forfeitures are keyed to specific types of sentences set forth in the statute, there is provision for repayment if appellate review results in a change in the sentence. If the sentence is subsequently set aside or disapproved, or if it is modified so that it no longer provides for a qualifying punishment under Article 58b(a)(2), any amounts taken for purposes of mandatory forfeitures are returned to the member. Art. 58b(c).

United States v. Emminizer, 56 M.J. 441, 443 (C.A.A.F.2002).

The Department of Defense Financial Management Regulation, Volume 7A (“Military Pay Policy and Procedures Active Duty and Reserve Pay”) provides information and guidance for the administration of military pay.

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Related

United States v. Pflueger
65 M.J. 127 (Court of Appeals for the Armed Forces, 2007)

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65 M.J. 542, 2006 CCA LEXIS 328, 2006 WL 4571401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pflueger-nmcca-2006.