United States v. Yunk
53 M.J. 145
C.A.A.F.
2000
Check Treatment
Docket

*1 STATES, Appellee, UNITED YUNK, Corporal, Lance T.

Matthew Corps, Appellant.

U.S.

No. 99-0695.

Crim.App. No. 98-0228. Appeals for Court of

U.S. Armed Forces.

Arguеd Dee. 1999. Decided June COX, S.J., judgment announced opinion an in which and delivered J.,

CRAWFORD, C.J., joined. concurring in the result. an filed EFFRON, JJ., ‍‌‌​​​‌​‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​​​‌​‌‌​‌​​​​‌​‌‌‍each filed SULLIVAN dissenting opinion. D. John Hol- Appellant:

For Lieutenant den, JAGC, (argued). USNR Jamison-, Major K. Appellee: Fоr Mark Eugene E. Ir- (argued); Commander USMC vin, JAGC, USN, and Kevin M. Colonel brief). (on Sandkuhler, USMC Judge COX announced the Senior judgment of the Court and delivered opinion which Chief CRAWFORD joined.

Appellant’s contention is that the Court finding Appeals, after that illegal pretrial confine- ment, failing to reduce his sentence erred meaningful compensa- sufficiently to effect court, appeal initial before tion.1 On claimed, time, that ‍‌‌​​​‌​‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​​​‌​‌‌​‌​​​​‌​‌‌‍11 for the first confinement were of his unnecessarily so on- served under conditions illegal pretrial punish- erous as to constitute ment; ultimately agreed.2 Ap- and the court (2000). unnecessarily including Appellant the 11 served under 1. 52 MJ 436 does not contend having abused its conditions. onerous undertaking discretion in to reassess sentence. brought to the attention of the trial the matter Eversole, (2000). court, any extra cred- was not awarded day-for-day for all did receive credit confinement, days spent *2 sеquence pre- contends that the court should have of the credit he received for discharge; good set aside his bad-conduct howev- trial confinement and the time credit he er, sentence, reassessing posttrial appellant in court in the de- completed clined to do so. We are satisfied that the had of confinement. Thus, way court did not abuse its discretion in this no the court could regard, and meaningfully we affirm. shorten served. by gеneral-court was tried Second, by 58a, operation of Article martial, alone, military judge at Marine UCMJ, § § 10 USC and 0152 of the Base, Pendleton, Camp California. Manual of the Advocate General of the plead- Pursuant Navy, any sentence that included either a guilty using amphetamine/metham- ed punitive discharge in or confinement excess phetamine; possessing distributing and automatically of 3 months reduced methamphetamine; violating federаl law Thus, grade lant’s to E-l. the unless by using telephone drug to facilitate a dis- were to both set exchange pleas, tribution.3 In for the appellant’s punitive discharge aside and re- go Government forward with the (theoretically) duсe his confinement to 3 prosecution drug of other offenses also re- less, way months or there was no ferred to that court-martial. mitigate ‍‌‌​​​‌​‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​​​‌​‌‌​‌​​​​‌​‌‌‍could rank reduction. 19, 1997, August military judge On Third, by UCMJ, operation of Article E-l, appellant sentenced to reduction to total 858b, any 10 USC sentence that included forfeitures, months, confinement for 30 either confinement for more than 6 months discharge. judge specifical- bad-conduct punitive discharge automatiсally or a result- ly appellant day-for-day awarded credit Thus, ed in total forfeitures. unless the against sentence to confinement for the 142 were to both set days appellant pretrial appellant’s punitive discharge aside and re- 12, January 1998, ment. On after consider- (theoretically) duce his confinement to 6 ing posttrial several submissions the de- less, way months or there was no fense, convening authority approved mitigate could forfeitures. in accordance with the fact, what agreement, suspended confinement excess peals purported compensate appel- to do was 24of months. days by reducing lant for the 11 his forfei- being grantеd eight After at least motions pay per tures from total to month for 30 enlargement pleadings by for of time to file appellant’s months. because for- Appeals, appellant, by operation feitures were total of Article counsel, through filed an initial Brief and purported positive reduction no had

Assignment of Error with that court on Jan- effect for 6,1999. date, uary On the same he moved to First, course, wrong What went here? attach cеrtain documents to the record. brig policy was the that created the unrea- 5, responded The Government on March Apparently policy sonable conditions.4 this requesting receiving 1- light of that came another оut enlargement month of time. jurisdiction, portions same of that record affidavit, along The Court of Criminal rendered were time, By its among March the documents received the Court things First, changed. several as a con- of Criminal еxhibits. it for the 11 days. regard. say, brig See United States v. Suffice it to had a MJ 248 policy restrictive facing lengthy potential punishments; for those 3. Violations of Articles 112a and charging stage, and as the case stood at §§ 10 USC 912a and readily fit thаt criterion. contours, precise policy 4. The are not here issue, as the lower court held will hand, arrows a court *3 declining to set aside its discretion abuse raised this issue at trial.” would have massively discharge or othеrwise punitive components. the various sentence reduce ‍‌‌​​​‌​‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​​​‌​‌‌​‌​​​​‌​‌‌‍what was the Court of Criminal So Jones, 317 v. 39 MJ posture? in that peals to do with the case Dukes, (CMA 1994); v. 5 MJ United States caught using dealing

Appellant was (CMA 1978). The relief 73 sought In he drugs. (a inaction), in product prior of his own seeks cap at 24 months to his confinement discomfiture he comparison with the punitive discharge. compensa- In a days, 11 does not reason- endured for have restrictive, 11 of tion fоr appropri- ably appear proportionate be to barbaric, confinement, must no means ate.6 have awarded Court of Criminal appropriate a more to a Navy- of the United States The dеcision leave? short absence without Appeals is affirmed. Certainly brig personnel, possibly others, are to be faulted for their failure to result): (concurring in legal requirements. But the time

conform to front, type lapse to deal with this of separately I and write concur the result appropriately at when could be position I only my adherence to the to note Rexroat, remedied. After United States Huffman, 40 MJ took in States (CMA ap wherе we 225, 228-29 military plied County to the Riverside v. of 1661, 114 McLaughlin, 500 U.S. S.Ct. SULLIVAN, Judge (dissenting): (1991)(magistrate’s probable L.Ed.2d 49 is: granted issue this ease cause review more than 48 hours arrest presumptively untimely), is such instances THE COURT WHETHER LOWER undiscovered, unremedied, illegal pretrial ERRED FINDING ERROR AND IN еxtremely confinement should be rare.5 AMOUNT- THEN AWARDING WHAT ED RELIEF TO SHAM BECAUSE bring Where an accused has failed to ille- THAT RELIEF EFFECTIVELY IS gal pretrial confinement conditions to the BY THE AUTOMATIC NULLIFIED here, magistrate, attention of a we have ARTI- OF FORFEITURE PROVISION declined to invoke formal waiver. United CLE UCMJ. Huffmаn, 40 MJ added.) 1994). Nevertheless, Appellant appealed his (Emphasis as the instant facts re- veal, grounds change in to the court below on the circumstances convictions punishment. In its deci- time a matter ‍‌‌​​​‌​‌​‌‌​‌​​‌​‌‌‌‌‌​‌‌​‌‌‌​‌​​​‌​‌‌​‌​​​​‌​‌‌‍should have been raised sion, major impact much later often has a on the lower court stated: suggest at back that his him to serve a few status does not exactly promptly under what confinement was not reviewed end of his magis- magistratе, complained or that he to circumstances the Court of Criminal duty military trate about the conditions of his confinement. to return him to a could order the is, leave. The fact status from asking for none of this. lant came to our dissenting 6. We cannot entertain our Brothers' was that his bad-conduct dis- All he wanted proposals. Appellant neither creative remedial dissenting charge brothers be set aside. Our argument or in oral claimed that the brief grant appellant speculative want us to could ''treat” unde- for, deferred, been that he has not asked briefed, that has not punishment ferred and thus direct opposing party and that the has not put appellant’s pocket. be Nor that dollars into opportunity respond to do to. We decline just inform us how much of would have allowed so. reduction in confinement carefully type appropriate examined the record оf relief which could be We trial, appellant’s assignment of error that illegally punished prior

he was to trial and response. the Government’s We conclude EFFRON, Judge (dissenting): appellant’s assignment of error has merit and he is entitled to aside the decision would set below relief.... will take corrective action in our decre- We remand the case to the Court paragraph. tal for consideration of the added). Unpub. op. (emphаsis at 1-2 appropriate relief under Article paragraph, decretal the lower court focused 10 USC 858b. its relief on the forfeiture Appellant’s request in this case is for “mean- effect, lant’s sentence reducеd the Pierce, ingful relief.” See United States v. *4 $1,050 pay per forfeitures from month to (CMA 1989). Although appellant 27 MJ 367 pay per month for 30 months. This requested discharge has that his bad-conduct apparent monetary resulted relief to aside, be set he has not taken an “all-or- $13,500. However, pellant of the relief was nothing” position that other mean- forecloses because, illusory by operation of an automat- ingful relief. The too lead takеs (an statute, pay ic forfeiture of Article 58b of the it narrow view law when concludes not mentioned in the lower court’s prevents any Article 58b relief opinion), appellant received no benefit simply setting because it views aside the the court’s order of relief. discharge disproportionate inappro- Was this “sham relief’? Was the lower priate. court not aware of Article 58b and its statu- case, If we were to remand this tory effect on the forfeiture option treating below could consider the gave lant’s sentence when the lower court days of confinement as deferred. first $13,500 apparent reduction of forfeitures? provide Under Article this would Did the lower court make a mistake when it modest, meaningful lant but relief giving appellant, yet said it was relief to Moreover, days’ pay. depending form of appears that the “relief’ amounted to no upon relationship the end of between relief? I would remand this case to the expiration and the lower court. A remand would allow that obligation, possible it is that the directly questions court to confront these approvеd lower court could reduce his con- explain what actual “relief’ was meant in finement so that the last 11 its decision. See in a of confinement served would be part affd Upon briefing by parties status. careful part, rev’d in Our below, and review system justice is best served unan- provide ap- well be other that could questions swered like these are cleared meaningful dispropor- eyes public. and the relief, in addition, remand, tionate view оf the conclusion of the the lower court could court below that was entitled pro- also consider the well-reasoned relief Brother, Effron, posed by my for 11 separate opinion analyzes excellent thе ment. which notes what the other On quiver. January affidavit dated “Until brig’s con- recently, I was unaware that the circumstances, we are satisfied Under known, I certain- improper. Had duct was Appeals did not that the Court of Criminal my ly counsel and would have informed