United States v. Howell
2016 CAAF LEXIS 592
| C.A.A.F. | 2016Background
- In 2012 Staff Sergeant (E-6) Howell was convicted by general court-martial; members sentenced him to dishonorable discharge, 18 years confinement, forfeitures, and reduction to E-1; sentence later set aside and a rehearing ordered by the CCA.
- After the CCA set aside the conviction (May 22, 2014) Howell was released to full duty, returned to wearing E-6 insignia and performing E-6 duties, but DFAS directed he be paid at the E-1 rate pending the rehearing.
- At the rehearing (after June 2014) Howell was again convicted and sentenced; the military judge at rehearing awarded Article 13 confinement credit for the period Howell was paid as E-1 while performing E-6 duties.
- The Government sought extraordinary relief (writ of prohibition) from the Navy–Marine Corps CCA to vacate the military judge’s award of confinement credit; the CCA granted the writ in part (narrowing the credit period) and denied in part.
- This Court granted review on certified questions concerning (1) jurisdiction under the All Writs Act/Article 66, (2) whether the military judge had to follow Article III courts’ interpretations of Article 75(a), (3) whether a set-aside makes a reduction in grade “unexecuted,” and (4) whether paying Howell at E-1 pending rehearing violated Article 13 absent punitive intent.
- The majority held: the CCA had jurisdiction under the All Writs Act; Article 75(a) does not authorize withholding pay once an accused is returned to duty awaiting rehearing; there was no punitive intent so no Article 13 violation; the military judge abused discretion in awarding confinement credit.
Issues
| Issue | Plaintiff's Argument (Govt) | Defendant's Argument (Howell) | Held |
|---|---|---|---|
| Jurisdiction: May Govt invoke Article 66/All Writs to seek prohibition of Article 13 credit? | All Writs Act permits CCA to issue writs in aid of its Article 66 jurisdiction affecting findings/sentence. | CCA lacked jurisdiction because issue not appealable under Article 62. | Yes; writ was in aid of CCA jurisdiction and available. |
| Applicability of Article III pay rulings: Must military judge follow Federal Circuit/Court of Federal Claims (Dock/Combs) re: Article 75(a)? | Dock/Combs permit withholding restoration of pay until rehearing outcome; the military judge should follow those. | Military courts need not defer; interpreting Article 75(a) is within military court competence. | No; military judge did not clearly and indisputably err in declining to follow Article III rulings under these facts. |
| Effect of set-aside on executed reduction to E-1: Does set-aside render reduction "unexecuted"? | The CCA treated set-aside as stopping execution of the reduction pending rehearing. | Reduction remained executed for some purposes; context matters. | The premise was flawed; CCA correctly reasoned that a set-aside renders the sentence unenforceable pending rehearing. |
| Article 13: Did paying Howell at E-1 while he performed E-6 duties violate Article 13 absent punitive intent? | Government: DFAS acted in good faith based on statutory interpretation; no punitive intent; action served legitimate nonpunitive objective. | Howell: withholding pay while receiving higher-grade duties was punitive in effect and impermissible after set-aside. | No Article 13 violation: record shows no punitive intent and the Government pursued a legitimate nonpunitive objective; military judge abused discretion awarding confinement credit. |
Key Cases Cited
- Dock v. United States, 46 F.3d 1083 (Fed. Cir.) (Article 75(a) interpreted to permit restoration dependent on rehearing outcome)
- Combs v. United States, 50 Fed. Cl. 592 (Ct. Cl.) (applied Dock; restoration of pay contingent on rehearing result)
- Cheney v. United States Dist. Court for D.C., 542 U.S. 367 (U.S.) (standards for extraordinary writs; writs are drastic)
- Bell v. Wolfish, 441 U.S. 520 (U.S.) (test for punitive intent/effects in pretrial conditions)
- Keys v. Cole, 31 M.J. 228 (C.M.A.) (rehearing returns accused to status as if no trial occurred)
- Denedo v. United States, 66 M.J. 114 (C.A.A.F.) (All Writs Act standards in military context)