CGCCA, you got some 'splainin' to do

On I Love Lucy, Ricky Ricardo's catch phrase was, "Lucy, you got some 'splainin' to do." That phrase came to mind when reading CGCCA's opinion in United States v. Tuscan, __ M.J. ___, No. 1281 (C.G. Ct. Crim. App. Dec. 9, 2008).

Fireman Machinery Technician Tuscan and Petty Officer LaPalm were co-actors in offenses that also involved a third Coastguardsman who was discharged before their misconduct came to light. The misconduct was essentially a brutal and humiliating punking of a high school student who was the boyfriend of one of their neighbors. The high school boy was "handcuffed, hog-tied, slapped around with a belt," and had shaving cream sprayed down his pants. Tuscan pointed a pistol at the boy while he was tied up, revealing only afterward that the weapon was loaded with dummy training rounds.

For his part in the incident, Petty Officer LaPalm was sentenced to reduction to E-1 and a fine of $5,000, with a 60-day contingent fine enforcement period of confinement. Tuscan was sentenced to reduction to E-1, a bad-conduct discharge, and confinement for 12 months. CGCCA found that Tuscan's misconduct in the incident was "significantly greater" than OS3 LaPalm's. The court also found that Tuscan's previous record was more spotted than LaPalm's. CGCCA found that "the disparity in the sentence is justifiable as a matter of law." So far, so good. Then CGCCA continued, "Nonetheless, we will exercise our Article 66 authority and approve only six of the twelve months of Appellant's adjudged confinement." Id., slip op. at 8. The court concluded, "Accordingly, the sentence of a bad-conduct discharge, confinement for six months, and reduction to E-1 is affirmed." Id., slip op. at 10.

This raises the question: what did CGCCA intend to do when it reduced the adjudged confinement by six months? Tuscan's court-martial ended on 25 January 2007, so he was released from confinement about a year before CGCCA set aside six of the 12 months of confinement. CGCCA couldn't have thought that it was actually achieving a diminution of Tuscan's deprivation of liberty. So what did CGCCA have in mind? Did it intend the sentence "relief" to be merely metaphysical or to somewhat reduce any stigmatizing effect of being ordered confined for a year by reducing the formal sentence (though not the executed sentence) to confinement for six months? Or did CGCCA intend to recompense Tuscan for his overly lengthy confinement by having his automatic forfeitures returned to him for whatever period of time in excess of six months he was actually confined?

Whatever the correct answer to that question, I believe that CGCCA should have spelled it out. It opens the military justice system to legitimate ridicule for an appellate court to retroactively set aside confinement that has already been served. If the appellate court has some other end in mind when it does so -- such as producing some benefit to the accused resulting from collateral consequences of formally disapproved but actually served confinement -- then the appellate court should say so. This is true for two reasons. First, it will help to eliminate the appearance of meaningless relief. Second, it would allow counsel to inform the court if the court's belief about the collateral consequences is incorrect.

Let's assume for the moment that CGCCA's actual intent in Tuscan was to have about six months of automatic forfeitures at an E-1 rate returned to him. But what if for some reason, contrary to the court's expectation, that wouldn't actually happen. It's hard enough for me to figure out what DFAS would do in a case like this -- I know NOTHING about how Coast Guard pay officials would deal with this. Might there be some chance that they would refuse to pay him the amount of automatic forfeitures at the E-1 level for his time in confinement in excess of six months? What if he was beyond the end of his contract date when he was court-martialed -- or his contract expired sometime during the first six months of his confinement? Would the Coast Guard still pay him for the now-excessive confinement? I don't know. And I could be wrong about this, but I'd bet that none of the judges on the Tuscan panel is absolutely sure of that answer. And if not, they should have made their expectation clear so that if it didn't come about, counsel could return to the court within the lengthy 30-day reconsideration period established by the Joint CCA rules and ask the court to award a meaningful form of relief if it were to turn out that the reduction in already-served confinement doesn't have any practical effect. And if I'm wrong and the court was absolutely sure that it was putting some money into Tuscan's pocket as a result of its relief, then it should say so to avoid the appearance of injustice that would be created by awarding meaningless relief.

So please CCAs, if you are going to award some form of apparently meaningless sentence relief, 'splain why you are doing so.