United States v. Private E1 BRADLEY A. DUMONT ( 2009 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    GALLUP, HAM, and JOHNSON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 BRADLEY A. DUMONT
    United States Army, Appellant
    ARMY 20080516
    Headquarters, United States Army Aberdeen Proving Grounds
    Michael Nelson, Military Judge
    Lieutenant Colonel Don F. Pollack, Staff Judge Advocate (pretrial)
    Major Richard L. Hatfield, Acting Staff Judge Advocate (recommendation)
    Lieutenant Colonel Bobbi J.W. Davis, Staff Judge Advocate (addendum)
    For Appellant:  Lieutenant Colonel Mark Tellitocci, JA; Major Grace M.
    Gallagher, JA; Captain Alison L. Gregoire, JA (on brief).
    For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Major Christopher
    B. Burges, JA (on brief).
    30 April 2009
    -----------------------------------
    SUMMARY DISPOSITION
    -----------------------------------
    Per Curiam:
    A military judge sitting as a special court-martial convicted
    appellant, pursuant to his pleas, of possession of marijuana with the
    intent to distribute in violation of Article 112a, Uniform Code of Military
    Justice, 
    10 U.S.C. §§ 912
     [hereinafter UCMJ].  The military judge sentenced
    appellant, inter alia, to confinement for two months and awarded appellant
    with sixty-five (65) days of pretrial confinement credit and five (5)
    additional days confinement credit in accordance with Rule for Courts-
    Martial (R.C.M.) 305(k) against appellant’s sentence to confinement.  The
    convening authority approved the adjudged sentence and “credited appellant
    with 70 days of pretrial confinement credit against the approved sentence
    to confinement.”  The action, however, failed to distinguish between the
    two different confinement credits awarded by the military judge.  This case
    is before the court for review pursuant to Article 66, UCMJ.
    At trial, appellant and the government explicitly agreed that five
    days R.C.M. 305(k) credit properly addressed the government’s failure to
    comply with its obligations under R.C.M. 305(h).  On appeal, appellant
    argues and the government concedes that the convening authority failed to
    properly apply the R.C.M. 305(k) credit and appellant is entitled to
    relief.  Appellant and the government, however, disagree on the appropriate
    remedy.
    Rule for Courts-Martial 305(k) states that “if the confinement
    adjudged is insufficient to offset all the credit to which the accused is
    entitled, the credit shall be applied against hard labor without
    confinement, restriction, fine, and forfeiture of pay, in that order.”
    Because the military judge did not sentence appellant to hard labor without
    confinement, restriction, or a fine, the credit should have been applied
    against appellant’s “forfeiture of pay.”  The convening authority, however,
    failed to apply the credit to appellant’s forfeiture of pay and,
    consequently, appellant has already forfeited $800 pay per month for two
    months.  Appellant is now entitled to relief based upon the amount of pay
    that he inappropriately forfeited.  Rule for Courts-Martial 305(k) states
    that “1 day of confinement shall be equal to one day of total forfeiture or
    a like amount of fine.”  Consequently, appellant is entitled to receive an
    amount equal to five days pay.
    The findings of guilty and sentence are affirmed.  An administrative
    credit of an additional five days, equating to five days pay at the E1
    rate, will be applied against the forfeiture of pay affirmed by this court.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    

Document Info

Docket Number: ARMY 20080516

Filed Date: 4/30/2009

Precedential Status: Non-Precedential

Modified Date: 4/17/2021