*1 STATES, Appellee, UNITED Sergeant, LUSTER, A. Staff
Bruce Force, Appellant.
U.S.
No. 00-0403.
Crim.App. No. S29525. Appeals for
U.S. Court Armed Forces.
Argued Nov. 2000. SULLIVAN, J., opinion delivered 7, 2001. Decided June GIERKE, EFFRON, Court, in which CRAWFORD, JJ., BAKER, joined. C.J., dissenting opinion. filed a Captain Shelly W. Schools Appellant: For Timothy W. (argued); Lieutenant Colonel Wise, R. Colonel James Murphy, Lieutenant (on brief); E. Captain Patience Schermer M. Rueth. Colonel Jeanne Michael Appellee: Lieutenant Colonel For (USAFR) An (argued); Colonel Savage E. P. Dattilo and Lieutenant Colonel thony (on brief); Lieutenant Rodgers A. Ronald (USAFR) B. Smith Colonel William Sigmon. Major Lance B. Crawford, Judge, dissenting filed Chief Judge delivered SULLIVAN
opinion. of the Court. (E-5) in the Air
Appellant,
sergeant
a staff
Force,
special court-martial
tried
members at
composed of officer and enlisted
Base, New Mexico. He
Air Force
Cannon
specification
single
pleaded guilty to
using marijuana,
in violation of
wrongfully
112a,
Code of
Jus-
Article
Uniform
26, 1998,
tice,
February
§ 912a. On
10 USC
to a bad-conduct
he was sentenced
Airman Basic
grade
to the
and reduction
(E-l).
30, 1998,
convening
On March
authority
this sentence. The Court
approved
(ACM
Appeals affirmed.
S29523
of Criminal
2000)).
(A.F.Ct.Crim.App., 4 Feb.
31, 2000,
granted re-
July
this Court
On
following question of law:
view on the
THE MILITARY JUDGE
WHETHER
AP-
ERRED WHEN SHE PROHIBITED
*2
PELLANT
own facts and the decision rests within
FROM PRESENTING EVI-
its
THE
A
military judge.
DENCE OF
EFFECTS
PUNI-
the discretion of
TIVE DISCHARGE WOULD HAVE ON
distinguished
was
Greaves
HIS RETIREMENT BENEFITS.
Henderson based on the fact that the ac-
cused was
for retirement
prejudicially
We hold that the
months at the time of the trial. And the
erred when she determined that defense sen-
was, “Perilously
court
that he
said
close
tencing
appellant’s expected
re-
years away
retirement.” Henderson was 3
pay
and
tirement
was irrelevant
too confus-
at the time of his trial. Becker was also
ing for
admission
his
.court-martial.
becoming
eligi-
within weeks of
Becker,
(1997);
141MJ
said, “Appellant
ble and the court also
Loya,
see also
United States
Assistant trial ar- counsel Sergeant would mean to Staff Luster. As gued that such evidence should not be admit- know, you as United States v. it ted. He said: military judge, was ruled that the the trial Honor, objects Your the Government judge, erred when he refused admit E Defense Exhibit on the basis of mitigation project- evidence of 403, holding Rule of Evidence that such ed dollar amount of retirement income confusing evidence is so collateral as to be might which the accused that case members, to the and such confusion sub- denied if a had been probative stantially outweighs whatever really two-prong adjudicated. There is have, may any, value if it under Rule 402. to, prosecution test and as the has alluded Appeals for the Last June the Court do how close is the a lot has to with cases; Armed Forces decided two United In this accused to retirement. Greaves United States case, Sergeant Luster is a little un- Staff the 1989 which clarified away 21 months from retirement. der by holding Henderson military judge’s discretion as And it’s the per there is no se irrelevance rule for this really. evidence, to how close to retirement is are kind of retirement benefits years in the case It is a lot less than the 3 not vested. Each case must be decided So, 4-year you And can have a enlistment. prosecution talked about. course, be, length time prong, thing does that is critical the second you years away, It’s 2 Sergeant Luster have to reenlist until retirement. Staff know; something long confusing too to be reach retirement. And that it’s far retire- is talked about members about the effects of *3 just where Becker did not have to re- ment. And on that basis tve think it’s particular confusing. enlist to retire. And in this too case, you personal if a data take look Becker, Greaves, I and ATC: have here sheet, Sergeant would be eli- Staff Luster of, copies if you to review Henderson ’99, gible for retirement on 9 November you would like. expires. when his current enlistment good. That would be I need to re- MJ: law, you Based on the case and when take I them again. view them have looked at that, a look at the defense submits closer before, recently. but not Sergeant that Staff Luster is situated a lot added.) (Emphasis closer to Becker in that he will be allowed to retire at the end of his current enlist- military judge subsequently granted The years in ment and after over 18 of service in prosecution’s motion limine. She said: Force, just the United States under is, going I’m not to court’s decision [T]he away. argue months The would allow those to be admitted. I will .allow retirement, perilously that that is to close generally counsel to talk about someone where he in his He last enlistment. years question with of service and to doesn’t have to reenlist to retire and the in them terms of voir dire about some of just members should have an idea of how they clearly that. And that understand punitive discharge serious would be discharge that a bad-conduct would mean stated, this case. As the Becker court remaining out the that he couldn’t serve should, sentencing authority partic- in this and, therefore, of his enlistment be months case, ular should determine that the ac- So, I eligible. I will allow all of that and richly cused deserves a clarify can either the instruction to the and also know what the loss of benefits of punitive I discharge. members about the substantial value over the remainder of add, request, if could even counsel would sentencing lifetime would mean. The although, I know have and members do authority shouldn’t have to make that deci- questions, that that include these would sion, however, merely speculating while inability the —that would —or significant impact punitive about the serving out the remain- the accused from discharge. If the members were not al- and, therefore, der of be- his enlistment type you lowed access to this data that benefits, coming eligible I for retirement you, have front of clarify could in instructions. I don’t have a Flight provided, Personnel has the mem- that, problem I think that it with makes merely guessing would bers as to what any questions. clear if there are And then type penalty punitive of financial dis- they any questions, if come back with like charge or reduction rank would have in had, impacts I’ve about reductions and And, Sergeant Staff Luster’s case. there- retire, they ability to then we take those as fore, you we ask that do that evi- allow come. Part it is because it’s almost 2 go you, your dence to forward. Thank years, type and in this of of- Honor. fense, wrongful marijuana, use of prosecution responded: The again, I know we don’t instruct members Honor, would, all, either, say I AFI
Your first of on this 36-3208 that, waiver, just provides reenlistment a factor to be consid- unless there is a be, you if I logically, ered and think about it and there could and don’t know the out, person support is 3 like would who commander whoever may anyway, you fact, are not have to reenlist that. unless those criteria met, know, well, they they experimen- could it’s before retire as because decide criteria, my ruling. going I’m not would be tal and it fits in, requests, allow but if the defense And it does those action has to be initiated. it my I will instruction to make add that year in the 16 to 20 talk about members very clear. consideration, lengthy getting service time, go specific headquarters, and it has to to a At this the defense would re- DC: instruction, quest type your Honor. regulation, it it in the which I don’t lists refer, which tend to state that need does ready proceed Okay. Are we with MJ: lengthy there is consideration. [service] voir dire? But if look at this unlike the other added.) (Emphasis talking cases where we’re or 3 months Appeals, Court of Criminal WL would, from retirement where the accused military judge’s ruling held that the therefore, nothing concerning the loss of retirement benefits did *4 retired, being an accused prejudice stating appellant, this the unit decided to initiate if Although judge granted the trial the get accused a bad- action and the didn’t government motion and refused to admit discharge, be conduct there would suffi- appellant’s potential evidence of the retire- go through cient time that to that benefits, ment she allowed counsel to voir process, the accused went to a board and if appellant’s about the dire the members him, discharge there was a decision to to service; argue of allowed him to the potentially route. lose in that benefits during appellant’s lengthy service his sen- Therefore, when I all these in consider of tencing argument; and the men- length case with during state- tioned the same his unsworn months, not, will, you I do think it’s if appellant’s request, At the trial ment. collateral, confusing but it becomes more an on the effects judge tailored instruction time, eligible for, as to what he be at what punitive discharge time, being length and with that yet-as-earned retirement benefits to the poten- where a unit would still able to facts and circumstances of his case. She action, tially initiate he be dis- would instructed the members as follows: “This charged anyway get and not them. And may adjudge court a bad-conduct dis- purpose is for them to determine charge. discharge deprives one of Such discharge whether a bad-conduct is war- substantially all benefits administered however, willing, I to ranted. Department of Veterans Affairs address, said, my as I instruction to deny establishment and will Force very it clear to the members that make opportunity the accused in this case
when I talk about 'en- serve the remainder of his 21-month I wording bad-conduct to add that and, eligi- therefore, preclude the listment really talked about so that it’s clear and bility retirement benefits.” they understand that it would make him added). Unpub. op. (emphasis 2at ineligible to the remainder of his serve and, therefore, eligible enlistment become potential
in 21 months to
retirement bene-
Court
question
The first
before this
go
specifics
fits. But to
into the
what
military judge erred in exclud
whether the
are,
think,
point,
at this
it’s irrele-
those
retire
ing
estimated
evidence
again,
so
out. But
pay
vant because it’s
at
ranks if he was not
ment
various
far
they
question
high year
discharged
about
punitively
would ask
at this court-martial.
that,
anything
whether he
tenure or
like
46 MJ
United
discharged,
I think we can
admissible
had to be
then
held such evidence was
1001(c)(1)(B), Manual
have the document that
under RCM
address it and we
1984,1
States,
So,
Courts-Martial, United
where
provides
information.
us the
”
mitigation
court-martial....
of an offense is intro-
1. "Matter
punishment
adjudged
to be
duced to lessen the
the time
“literally knocking at
“AFI 36-3208” and the fact that
retire-
the accused
remaining
enlistment was sufficient to
time of his court-martial”
on his
ment’s door at the
opportunity
present”
conduct an administrative
board.
requests
and he
“an
ren-
evidence to
concluded that
this circumstance
such evidence and he has “such
She
rejected
preclud-
present.”
per
We
se rule
dered the whole matter of loss of retirement
ing
simply
“confusing”
present
because an
to mem-
such
benefits too
actually
accused was not
his retirement
bers and “irrelevant” because
at the time of his court-martial.
Id. at 144
guaranteed.
was not
See United States
2).
(quoting
Appeals’ Judge
(CCA
Luster,
Court of Criminal
supra
opinion).
im-
separate
The clear
Johnston’s
disagree
reasoning
with the
of the
We
port
concerning
of this and related decisions
military judge.
effectively established a
She
is that it is a critical
(no
guaranteed
possible
retirement standard
in-
matter of which the members should be
retirement)
regulatory impediment to
before
they
formed in
certain cases before
decide
this evidence could be admitted. Our case
punitive
impose
discharge.
generally
rejected per
type.
law has
se rules of this
Sumrall,
45 MJ
at 143
See United States v.
46 MJ
(1996);
Griffin,
(this
rejects
requiring
rule
strict re
(CMA 1988) (loss
of retirement benefits
trial).
eligibility
tirement
at time
More
single
important
“often
most
sentenc-
[is]
over,
concerning appellant’s
her conclusion
*5
ing matter to that accused and the sentenc-
specula
was based
admitted
ing authority”).
sepa
tion. She conceded that administrative
ground
mandatory
ration on this
was not
decisions, however,
provide
Our
do
the command
seek a
or meet
could
waiver
military judge with a certain amount of dis
addition,
certain
criteria.
In
she
regulatory
determining
in
cretion
whether to allow evi
in
admitted
there was no basis
the rec
dence regarding the loss of retirement bene
ord for her to conclude that the command
fits in a
case. See
v.
regulatory
would or would not seek a
waiver.
Greaves,
(1997).
133,
46
judge’s
MJ
139
The
Finally,
fully capable
the members were
solely
decision should not be based
responsible
determining
regula
for
number of
until an
months
accused’s retire
tory possibility
import
and its
after a full
ment where other facts and circumstances
presentation
by
of evidence
both sides.
indicate that the
loss
these benefits is a
Cf.
197,
Perry,
United States v.
48
199
MJ
significant
issue
the ease. See United
(1998).
light,
In this
we conclude that
the
Becker,
Here,
supra
appel
at 144.
legal prin
relied on erroneous
years
lant had 18
and 3 months of
ciples in deciding
profferred
to exclude the
serving
service and he was
an enlistment
defense evidence. See United
v. Tra
States
normally
which
eligibility
result in his
vers,
(CMA 1987) (abuse
61,
25 MJ
63
for
retirement.
v.
Cf.
discretion occurs where
relies on erro
(CMA 1989).
221,
legal principles).
neous
Moreover,
retirement,
probability
the
but
punitive discharge,
for a
was not otherwise
question
The second
before us is
remote,
by
shown
the Government to be
prejudiced
appellant
materially
whether
was
expected
the
financial loss was substantial.
judge’s
the
erroneous decision to exclude
Greaves,
139;
supra
See United States v.
59(a), UCMJ,
evidence. Article
this defense
Sumrall, supra
United States v.
at 209.
859(a).
§
The exclusion of evidence
USC
military judge,
projected
on her own initia
of “the value
re
[an accused’s]
tive, rejected
prejudicial
evidence of these facts and
tirement” has been found to be
regulatory possibility
years
instead
the
focused on
error where the servicemember had 19
appellant
8$
would not be
if he
retired even
months of active service and had
punitively discharged
showing
projected
was not
at this court-
reliable evidence
loss.
Becker,
appellant’s potential
supra
martial. She noted
v.
at 142.
See United States
Here,
separation
appellant
drug
administrative
use under
had 18
and 3 months of
benefits.”)
successfully
eligibility for
com-
service and needed
to
However,
day
as
plete
to be
to
decided the same
his current enlistment
Greaves,
prior
further held that an accused
retire. He also had no record of
con-
(al-
non-judicial punishments
materially prejudiced
also be
he was
victions or
could
airman)
perfect
right
present
though he
and he
denied the
to
to the members a
was not
projected
comprehensive picture
loss
of his
had reliable evidence as to
detailed and
punitive
of retirement income as a result of a
financial loss to demonstrate
circumstances,
where
discharge.
impact
punitive discharge.
these
financial
of a
Greaves,
punitive
decision
award
controls.2
(see
was such a close call
also United States
light,
question
In this
the critical
is not
Eversole,
132,
(2000)),
we are
generally understood
whether the members
grave
“left in
doubt” about the influence of
that retirement benefits would be forfeited
gen-
judge’s
error on the sentence. See
Instead,
punitive discharge.
we must
States,
erally
v. United
328 U.S.
Kotteakos
appellant was allowed to sub
ask whether
750, 765,
1239,
Our decision with re- ings is affirmed and as to sentence is were not to instruction members set aside. The rec- versed. The sentence is the effect of a Judge consider is returned to the Advocate ord of trial light in expected pay, given rehearing A of the Air Force. General by questions the members. It is clear that may sentence ordered.
the members of this court-martial properly instructed were CRAWFORD, (dissenting): Judge Chief (A judge “dis- on this issue. bad-conduct in case whether the in The sole issue this charge deny ... will the accused this case considerable dis- military judge abused her opportunity to serve the remainder of his and, therefore, refusing a document that cretion in to admit 21-month enlistment say purpose. that United speculate different It suffices whether the members of 2. We need Becker, (1997), comprehends MJ 141 46 court-martial could infer the dollar presentation critical infor- and fair of this appellant's loss a full amount of sentencing body, not after-the-fact appellant's pay to the at various mation from other evidence speculation. grades presented for a at this court-martial
73 appellant would receive at To reverse for “an abuse of discretion reflected sums far than a difference in pay grades E-5 and involves more various levels between opinion____ challenged ... The action permitted E-l to retire from the United ‘arbitrary, ... found to be fan- must rejecting Ah- Force. Prior States ciful, unreasonable,’ clearly ‘clearly (Defense E Exhibit for Identifica- in erroneous’ order to be invalidated on tion), military judge announced on appeal.” that the evidence was irrelevant and record
posed
confusing
a risk of
the members.
Glenn,
Quoting
v.
473 F.2d
United States
(D.C.Cir.1972).
excluding
191, 196
Both are sound reasons for
evi-
dence under the
Rules of Evidence
“An
abuse of discretion arises
cases
401, 402,
and case law. See Mil.R.Evid.
which the
was controlled
some
403,
Courts-Martial,
Manual
United
order,
error of
or where
law
based
(2000 ed.);
States
46
factual,
upon
legal,
distinguished
as
(1997).
majority
MJ 141
concludes
conclusions,
evidentiary sup-
is without
legal
“relied on erroneous
House, Inc.,
port.” Renney v.
275
Dobbs
principles”
rejecting
the evidence and thus
562,
290,
(1981), citing
S.C.
274 S.E.2d
291
she
her
abused
discretion.
This Court’s standard of review on the
potpourri of
“abuse
discretion” definitions
sentencing
admission or exclusion of
matters
applied
therein
found
them different
deferential,
highly
a
reversing
Miller,
United,
contexts.
States
MJ
clear abuse of discretion. See
352,
(1997),
we tested denial of a continu-
Zakaria,
280,
See also
ance for
143;
supra at
Lov
(1994),
ing, 41
rulings
“reasons or
... are
[which]
on other
aff'd
deprive
party
...
grounds,
untenable and
a
517 U.S.
116 S.Ct.
right
substantial
such
as to amount to
L.Ed.2d 36
The term “abuse of dis
justice”;
imply
denial of
“does not
an
[this]
variety
cretion”
has
definitions. See S.
motive,
improper
purpose,
willful
or inten-
Davis,
Childress & M.
Federal Standards of
wrong.”
tional
(3d ed.1999).
§ 4.21
Review
Definitions of
“abuse of discretion” from this Court have Yet,
later
the same
we tested the
appropriately
depending
fluctuated
produce
denial
request
*7
being
action
tested on review.
whole,’
witness based on “whether ‘on the
improp-
denial of the defense witness was
Travers,
61,
In United States v.
25 MJ
62-
”
359, quoting
er.’
47
at
v.
MJ
United States
(1987),
63
we set out this basic definition:
(1997).
Ruth,
1,
Ruth,
46 MJ
3
we said
An
of
“abuse
discretion” exists where
reviewing
that
set
“[t]he
court should not
rulings
military
“reasons or
judge
of the”
judicial
aside a
action ‘unless it
a definite
has
“clearly
deprive
are
untenable and ...
a
firm
conviction that the court below com-
party
right
of a substantial
such as to
judgment
a
mitted
clear error of
the con-
justice”;
amount to a denial of
it “does
upon weighing
clusion it reached
a
of the
”
motive,
imply
improper
purpose,
an
willful
(Citations omitted.)
relevant factors.’
wrong.” Guggenmos
intentional
v.
Peterson,
In United States v.
omitted)(citmg
military
at
Ac mated value
25 MJ
Johnson,
467,
v.
49 MJ
cord United States
46
at 144.
retirement.”
MJ
(1998)
Miller,
v.
473
and United States
46
also an unanimous
from
(1997)
63,
(evaluating
military
65
a
MJ
Court,
judge
this
erred
found
evidence under
judge’s discretion
admit
instructing the members not to
consider
403);
Barron,
Mil.R.Evid.
United States
impact
a
(1999) (testing
comment on retirement sentencing argument. dire
both voir centerpiece trial defense counsel’s
argument plea punish appellate in was a way by awarding
some other than a bad- him depriving
conduct of an
opportunity to become retirement Additionally,
21 months. re-
quest instructed the mem- discharge deprives that a
bers bad-conduct (which military judge’s 3. The instructions were tained the members was de minimus. Ac- given verbally to the members both and in writ- cordingly, rejected trial defense exhibit counsel’s ing) appellant's included accurate assessments of nothing added to the member’s basis of knowl- grades base at the various from E-5 to E-l. edge concerning retirement benefits or the loss Appendix. The difference between the Thus, the did thereof. instruction not cover the monthly figures appellant oppor- was denied the Appendix. last column in the tunity present figures easily and the ascer-