United States v. Washington

55 M.J. 441, 2001 CAAF LEXIS 1194, 2001 WL 1135281

• Court: Court of Appeals for the Armed Forces
• Decided: September 26, 2001
• Docket: No. 01-0285; Crim.App. No. S29570
• Status: Published

Opinions

Judge SULLIVAN

delivered the opinion of the Court.

Appellant was tried at Altus Air Force Base, Oklahoma, by a special court-martial with members. In accordance with her pleas, she was found guilty of a single specification of larceny of $240.00, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. On April 14, 1998, she was sentenced to a bad-conduct discharge, restriction for 2 months, and reduction to the grade of Airman (E-2). On June 15, 1998, the convening authority approved this sentence. The Court of Criminal Appeals affirmed. United States v. Washington, ACM S29570, 2000 WL 1879542 (A.F.Ct.Crim.App. Nov. 27, 2000).

On May 24, 2001, this Court granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN SHE REFUSED TO ALLOW APPELLANT’S EXHIBIT E INTO EVIDENCE, A STATEMENT ADVISING THE MEMBERS THAT THE IMPOSITION OF A BAD-CONDUCT DISCHARGE WOULD DEPRIVE APPELLANT OF ALL RETIREMENT BENEFITS.

We hold that the military judge committed prejudicial error by refusing to admit a summary of expected lost retirement pay (approximately $240,000.00) if appellant was awarded a punitive discharge. See United States v. Luster, 55 MJ 67, 72 (2001).

Appellant was a senior airman (E-4) who at the time of trial had completed over 18 years of active military service and who could retire during her current enlistment. The excluded defense evidence demonstrated the estimated pay that appellant would receive if she retired at paygrades E-4 or E-3 after completing 20 years of service. It stated:

RETIREMENT BENEFIT ANALYSIS

Retirement for an E-4 with 20 years of service who was born in 1959, entered the military in 1980, retired in 2000 and has a life expectancy of 73 years, with a monthly gross payment of $716.00.

Life Expectancy: 73

- Age of Retirement: - 41

= Year’s of Retirement Benefits: 32

x 12 months x 12

= Number of Payments: 384

x Monthly Gross Payment: X $716.00

= Total Gross Payments $274,944.00

Retirement for an E-3 with 20 years of service who was born in 1959, entered the military in 1980, retired in 2000 and has a life expectancy of 73 years, with a monthly gross payment of $615.00.

Life Expectancy: 73

- Age of Retirement - 41

= Years of Retirement Benefits: 32

x 12 months x 12

= Number of payments: 384

x Monthly Gross Payment: x $615.00

= total Gross payments $236,160.00

Difference in amount between retiring as an E-4 and an E-3 based on the information above.

$274,944.00

- $236,160.00

$38,784.00

In our view the military judge erred when she prevented the defense (R. 41, 43) from presenting to the members a complete picture of the financial loss appellant would suffer as a result of a punitive discharge. See United States v. Luster, supra at 72 (error for judge to require defense to obliquely address retirement issue only through voir dire questions and argument under similar circumstances).

We also conclude that appellant was materially prejudiced by the judge’s erroneous decision to exclude this defense evidence. Article 59(a), UCMJ, 10 USC § 859(a). Appellant had been previously court-martialed less than a year earlier for crimes related to use of an American Express Government Travel Card. However, evidence was presented in this case that appellant suffered from post-traumatic stress disorder as a result of her home being twice burglarized while she was stationed in England in 1992. After the burglaries, appellant “had difficulty sleeping” and began to gamble excessively to avoid being home alone at night. Appellant became addicted to gambling and was gambling when she committed the offense for which she pleaded guilty and the offenses for which she was previously court-martialed. (R. 76-77) She was eventually diagnosed with compulsive gambling disorder and began receiving treatment for that disorder along with the post-traumatic stress disorder that occasioned it.

Moreover, appellant’s rehabilitative potential was not necessarily bleak. Major Brooks, her squadron commander, did testify that appellant’s rehabilitation potential “seems slim.” (R. 75) However, defense counsel’s cross-examination revealed that neither Major Brooks nor Master Sergeant (MSgt) Patten, her supervisor (another government witness), knew of appellant’s gambling addiction when they testified as to her rehabilitation potential. Two defense witnesses, Lieutenant Wall and MSgt Wilson, both testified that appellant was “one of the best supervisors” they had worked with, that her work performance was “outstanding,” and that her level of performance had not changed even while this charge had been pending. (R. 98-105) MSgt Wilson also opined that she believed appellant had rehabilitation potential. (R. 105) Finally, Captain (Dr.) Lawson, a clinical psychologist who was treating appellant for her disorders, opined:

Her symptoms will appear mainly at night. It does not affect her job performance, as such. She will operate just fine during the day. It is a specific situation. At home is when she’ll experience most of her symptoms.

(R. 91)

All this evidence tends to show that the decision to adjudge a punitive discharge in appellant’s case was a “close call.” See United States v. Luster, supra at 72. Appellant was denied the opportunity to present her particular sentencing case to the members that a punitive discharge effectively imposed a financial punishment over one thousand times the amount she had stolen. We cannot say with reasonable certainty that the members’ decision as to sentence would have been the same if the excluded information had been presented to them. See United States v. Luster, supra.

The decision of the United States Air Force Court of Criminal Appeals as to findings is affirmed and as to sentence is reversed. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.