Sometimes a command will impose nonjudicial punishment (also referred to as Captain’s Mast or Article 15) on a servicemember for an offense and then later decide to send that same offense to court-martial. This usually occurs when it turns out that the initial offense is part of a more serious offense or series of offenses. For example, a servicemember may initially have nonjudicial punishment imposed when a command learns of an adulterous relationship. If later the other individual in the adulterous relationship makes allegations of physical or sexual assault, the adultery charge may be referred to court-martial along with the assault charges.
Article 15 of the UCMJ, which covers nonjudicial punishment, allows this double-charging so long as the nonjudicial punishment is taken into account in determining the court-martial sentence. In 1989, the Court of Military Appeals issued its opinion in United States v. Pierce. In this opinion, the Court determined that servicemembers could not be punished twice for the same offense, and had to be given complete credit for the nonjudicial punishment at court-martial. This became tricky as judges and appellate courts had to determine how to apply this Pierce credit when the punishments administered at nonjudicial punishment differed from what was adjudged at court-martial . Eventually, a table was created to make this calculation easier. The application of credit to any confinement issued by a court-martial was simple though, because until the Military Justice Act of 2016, all court-martial sentences were “unitary.” No matter how many offenses the servicemember was found guilty of, only one sentence was adjudged.
The Military Justice Act of 2016 introduced segmented sentences. With a segmented sentence, the periods of confinement and amounts of a fine are determined for each individual guilty finding. The periods of confinement can be ordered to run consecutively, one after another, or concurrently, at the same time. Initially it was used only for courts-martial where a servicemember elected to be sentenced by the military judge. Now, nearly all courts-martial require sentencing by military judge and include a segmented sentence.
In United States v. Leese, the Court of Appeals for the Armed Forces faced the question of how to award Pierce credit to a segmented sentence. PFC Leese had been punished for two Article 90 offenses for disobeying a superior commissioned officer at nonjudicial punishment. He was later court-martialed for those same two offenses and an assault consummated by a battery in violation of Article 128. He was sentenced to 14 days confinement for the first Article 90 offense, thirty days confinement for the second, and three months confinement for the assault. The Military Judge ruled that they would be served concurrently.
The parties then turned to how to apply the Pierce credit for the previous nonjudicial punishment. The Government believed that it should just be applied to the portion of the sentence that corresponds with the offense for which nonjudicial punishment was imposed. Their position was that PFC Leese should receive 14 days of credit for the first Article 90 offense and 14 days for the second. This would leave 16 days of confinement for the second offense and the full three months for the Article 128 offense to run concurrently. PFC Leese would serve three months. The defense disagreed and argued that the credit should be applied to the sentence that PFC Leese was actually going to serve, the three months. PFC Leese would then serve two months and two days. The Military Judge adopted the Government’s argument and awarded the credit to the segments of the sentence related to the offenses for which PFC Leese received nonjudicial punishment and he served the full three months.
On appeal, the Army Court of Criminal Appeals agreed with the Military Judge and affirmed the findings and sentence. PFC Leese appealed again to the Court of Appeals for the Armed Forces. The Court of Appeals for the Armed Forces affirmed the Army Court’s decision, finding that the application of Pierce credit to the segments of the sentence that correlate with the offenses for which he was nonjudicially punished ensured that he was not punished twice for the same offense.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.