UNITED STATES, Appellee
v.
Gregory A. BOYD, Captain
U.S. Air Force, Appellant
No. 00-0446
Crim. App. No. 33483
United States Court of Appeals for the Armed Forces
Argued November 14, 2000
Decided July 10, 2001
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.
SULLIVAN, J., filed a concurring opinion.
Counsel
For Appellant: Captain Patrick J. Dolan (argued); Lieutenant
Colonel Timothy W. Murphy, Lieutenant Colonel James R. Wise,
and Captain Bryan A. Bonner (on brief); Colonel Jeanne M.
Rueth.
For Appellee: Lieutenant Colonel Michael E. Savage (argued);
Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A.
Rodgers, and Captain James C. Fraser (on brief); Lieutenant
Colonel William B. Smith.
Military Judge: Jack L. Anderson
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Boyd, No. 00-0446/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer members
convicted appellant, pursuant to his pleas, of destroying
government property, wrongful use of controlled substances (2
specifications), larceny of military property (3 specifications),
and conduct unbecoming an officer by wrongfully injecting himself
with a controlled substance while on duty and in uniform, in
violation of Articles 108, 112a, 121, and 133, Uniform Code of
Military Justice, 10 USC §§ 908, 912a, 921, and 933,
respectively. The adjudged and approved sentence provides for a
dismissal, confinement for 90 days, and forfeiture of $215.00 pay
per month for 3 months. The Court of Criminal Appeals affirmed
the findings and sentence. 52 MJ 758.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED BY NOT INSTRUCTING THE
MEMBERS ON THE LOSS OF RETIREMENT BENEFITS THAT COULD RESULT
FROM A PUNITIVE DISCHARGE WHEN TRIAL DEFENSE COUNSEL
REQUESTED SUCH AN INSTRUCTION.
For the reasons set out below, we affirm.
Factual Background
The court below summarized the facts underlying appellant’s
conviction as follows:
The appellant was a nurse in the Intensive Care Unit
(ICU) at the Eglin Air Force Base Hospital. Between 1
July 1997 and 3 August 1997, he took 111 tubexes
(vials) of Meperidine, 73 vials of Morphine, and one
vial of Versed, for his own use. All three of these
drugs are controlled substances. He used the Morphine
and Meperidine to alleviate withdrawal symptoms caused
by his drug addiction. In addition, the appellant
withdrew portions of the contents of 22 vials of
Meperidine and 3 bottles of Morphine. He replaced the
drugs with a sterile saline solution, thereby diluting
the drugs, then returned the vials and bottles to the
drug storage unit. On 3 August 1997, while at work in
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the ICU and in uniform, the appellant injected himself
with Versed.
Id. at 760-61.
Prior to entry of pleas, the defense requested the military
judge to order a sanity board to determine whether appellant was
competent to stand trial. During the hearing on the defense
request, the prosecution presented evidence that appellant had
been evaluated by a physical evaluation board, and the board had
recommended temporary retirement for disability, based on various
mental disorders. The military judge ordered a sanity board,
which found that appellant was mentally competent to stand trial.
During voir dire, trial counsel asked the members if they
“would automatically rule a dismissal out as part of a sentence
simply because of the impact it might have on the accused’s
ability to obtain benefits.” All members responded in the
negative. Defense counsel asked no questions about the impact of
a dismissal on appellant’s retirement benefits. After
challenges, the panel consisted of two colonels, two lieutenant
colonels, two majors, and one captain.
The prosecution case on sentencing focused on appellant’s
breach of trust, stealing drugs entrusted to him, and diluting
drugs that could have been administered to patients under his
care. The parties agreed there was no evidence that any patient
had been administered a diluted drug.
The defense sentencing case focused on appellant’s long and
honorable service, his many commendations, his efforts to
overcome his addiction and retain his nursing license, and the
economic impact of terminating his military service. While
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questioning appellant’s wife, the defense made reference to
appellant’s 15½ years of service. His service also was reflected
in documents presented by the prosecution. However, neither
defense counsel nor trial counsel presented any evidence to the
members regarding the physical evaluation board’s recommendation
for temporary disability retirement.
Appellant’s wife testified that appellant was addicted to
morphine, and he was remorseful, ashamed, and embarrassed. She
testified that her earning potential was limited, and the family
would be financially devastated if appellant left the Air Force.
She testified that they had sold the family car and their boat,
and they would be unable to keep up the payments on the family
home if appellant’s military career was terminated.
Appellant made both oral and written unsworn statements. He
described his drug addiction and withdrawal symptoms. He
described his participation in the Florida Intervention Project
for Nurses, which offers licensed nurses an opportunity for
recovery from drug addiction, as well as an opportunity to retain
their nursing licenses. He expressed remorse and asked for an
opportunity to repay his family and friends for their support and
to be “a good father, husband, son, and a member of the
community.”
During the hearing on sentencing instructions, defense
counsel requested “an instruction on retirement benefits.”
Defense counsel used the phrase “perilously close to retirement,”
quoting from this Court’s decision in United States v. Greaves,
46 MJ 133, 139 (1997), and argued that “with 15½ years, if he’s
not dismissed and he can stay in service, he would likely reach
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retirement.” The military judge opined that Greaves was
authority for not giving the requested instruction, and he
declined to give it. The references to Greaves indicate that
both defense counsel and the military judge were talking about
retirement for length of service, not disability retirement.
Defense counsel did not request the military judge to instruct
the members on the impact of a dismissal on appellant’s
opportunity to be placed on the temporary disabled retired list.
During sentencing arguments, defense counsel argued that
“society will forgive someone who uses drugs,” but will not
forgive a punitive discharge. He argued that “a punitive
discharge carries with it an ineradicable stigma . . . that is
widely recognized by society.” Defense counsel argued that a
dismissal would cause appellant to “be branded on his forehead
for life.” Finally, defense counsel argued that a combination of
punitive separation and confinement would leave appellant without
“a leg to stand on,” and no chance for a future. Defense counsel
asked the court members:
[I]f you are so inclined to send him -- to give him a
dismissal, then please -- please don’t pull him out of
his recovery program, and from his wife, and from his
family, too. Please do not send him to confinement,
not just because of what it will do to him, but for a
whole host of reasons . . . .
The military judge instructed the members as follows
regarding the impact of a dismissal:
A dismissal is a punitive discharge. Our society
commonly recognizes the ineradicable stigma of a
punitive discharge, and a punitive discharge affects
the accused’s future with regard to legal rights,
economic opportunities, and social acceptability and
will deny the accused other advantages which are
enjoyed by one whose discharge indicates that he has
served honorably. The issue before you is not whether
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the accused should remain a member of the Air Force,
but whether he should be punitively separated from the
service.
A sentence to a dismissal of an officer is the general
equivalent of a dishonorable discharge for an airman.
A dismissal should be reserved for those who, in the
opinion of the court, should be separated under
conditions of dishonor after conviction of serious
offenses of a civil or military nature warranting such
severe punishment. A person dismissed from the armed
forces is denied substantially all veteran’s benefits.
You are not required to adjudge a discharge, but if you
do, you may only adjudge a dismissal.
After the military judge completed his instructions, the
President of the court-martial asked:
If a dismissal is the only discharge option that is
afforded us, and a punitive--you’ve already explained
the effects of a punitive dismissal. If we were to
determine that was not appropriate, what would be the
impact on Captain Boyd’s continued service? Would he
continue to serve in the Air Force, I guess, is the
question?
The military judge conferred with appellant and counsel for both
sides, out of the presence of the members, to determine how to
answer the question. With the express agreement of both sides,
the military judge gave the following additional instruction:
You have a duty to determine an appropriate punishment
for the accused in this case. That may include a
decision on whether to sentence the accused to be
discharged punitively from the service. If you
determine a punitive discharge is warranted in this
case, then the only punitive discharge this court may
adjudge is a dismissal. You are advised, however, that
a decision not to include a dismissal in your sentence
does not mean the accused would necessarily be retained
in the service. Such a decision would only reflect
your judgment that he does not deserve a punitive
discharge and the stigma that goes with it. Your
decision regarding a punitive discharge is but one part
of the process of determining an appropriate
punishment, and it must not be viewed merely as a
decision to retain or separate the accused from the
service.
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The members had no further questions. After deliberating for
slightly over 2 hours, the members imposed a sentence that
included a dismissal.
Discussion
Appellant now asserts that the military judge should have
instructed the members on the impact of a dismissal on his future
retirement benefits, including both retirement for length of
service and temporary disability retirement. The Government
argues that an instruction on retirement for length of service
was not required because appellant was not “perilously close” to
retirement. The Government also argues that appellant waived any
issue regarding an instruction on disability retirement because
he did not request such an instruction.
We review a military judge’s decision whether to instruct on
a specific collateral consequence of a sentence for abuse of
discretion. United States v. Perry, 48 MJ 197, 199 (1998).
Retirement for Length of Service
When an accused is eligible for retirement, “[t]he potential
loss of retirement benefits [is] a proper matter for
consideration by factfinders[.]” United States v. Sumrall, 45 MJ
207, 209 (1996); see also United States v. Griffin, 25 MJ 423,
424-25 (CMA 1988) (no error for the military judge to instruct,
pursuant to the request of an accused who was eligible for and
had applied for retirement, on the impact of a sentence on the
accused’s retirement benefits). In United States v. Becker, 46
MJ 141, 144 (1997), we held that it was error for the military
judge to exclude evidence of the impact of a punitive discharge
on retirement benefits, because the accused was “literally
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United States v. Boyd, No. 00-0446/AF
knocking at retirement’s door at the time of his court-martial,”
having served for 19 years and 8½ months. See also Greaves,
supra (military judge erred by not answering a court member’s
question about the impact of a punitive discharge on retirement
benefits, where accused was “perilously close to retirement,”
with 19 years and 10 months of service).
On the other hand, in United States v. Henderson, 29 MJ 221,
233 (CMA 1989), this Court held that a military judge did not
abuse his discretion by refusing to instruct on the impact of a
punitive discharge on retirement benefits, where the accused was
3 years from retirement and would have been required to reenlist
to be retirement eligible. Our Court took cognizance of
Henderson in Greaves and Becker, and we distinguished it in both
cases but did not expressly overrule it. 46 MJ at 138, 143. The
question whether Greaves and Becker overruled or modified
Henderson is still open.
Most recently, in United States v. Luster, 55 MJ 67 (2001),
we held that a military judge erred when she excluded evidence of
the estimated retired pay of an accused with 18 years and 3
months of service. We noted that the probability of retirement
was not remote, and the expected financial loss was substantial.
We also noted that, when the defense puts retirement benefits in
issue, the prosecution may present evidence to rebut the
likelihood that the accused will reach retirement eligibility.
Id. at 71.
Consistent with our holdings in Sumrall, Greaves, Becker,
and Luster, we will require military judges in all cases tried
after the date of this opinion to instruct on the impact of a
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punitive discharge on retirement benefits, if there is an
evidentiary predicate for the instruction and a party requests
it.• We expect that military judges will be liberal in granting
requests for such an instruction. They may deny a request for
such an instruction only in cases where there is no evidentiary
predicate for it or the possibility of retirement is so remote as
to make it irrelevant to determining an appropriate sentence.
The instruction should be appropriately tailored to the facts of
the case with the assistance of counsel, and it should include
language substantially as follows:
In addition, a punitive discharge terminates the
accused’s military status and the benefits that flow
from that status, including the possibility of becoming
a military retiree and receiving retired pay and
benefits.
Military Judges’ Benchbook at 97 (Department of the Army Pamphlet
27-9 (April 1, 2001)).
We need not decide, however, whether this appellant’s 15½
years of service was a sufficient evidentiary predicate to
entitle him to an instruction on retirement benefits, because we
are satisfied that even if there was error in denying the request
for such an instruction, it was harmless. The evidentiary
predicate for an instruction on retirement benefits was minimal.
Appellant tendered no evidence pertaining to the projected value
of his retirement for service. Appellant did not mention his
hopes for retirement in his two unsworn statements. Neither
appellant nor his defense counsel asked the court members to save
•
Of course, an instruction on potential retirement benefits may also entitle
the prosecution to an instruction on the legal and factual obstacles to
retirement faced by a particular accused.
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appellant’s retirement. The court members asked no questions
about retirement benefits. Defense counsel made no mention of
retirement benefits until the sentencing hearing was completed
and the parties were reviewing the military judge’s proposed
instructions.
The focus of the defense sentencing case was on preserving
appellant’s ability to continue with his drug rehabilitation
program, retaining his ability to practice his profession, and
restoring his ability to be a worthy member of the community.
The focus was not on preserving the possibility of military
retirement in 5 years. The defense emphasized the present, not
the future. Accordingly, we conclude that any failure to
instruct the members about the impact of a dismissal on future
retirement benefits did not have a substantial influence on the
sentence. Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Temporary Disability Retirement
In United States v. Stevenson, 53 MJ 257, 258-59 (2000),
this Court explained the nature of temporary disability
retirement as follows:
If a servicemember while on active duty becomes
disabled, the Service Secretary may retire the member
with pay, subject to detailed statutory and regulatory
procedures. These procedures provide two basic types
of disability retirement--permanent and temporary.
When there is a determination that a disability is
“permanent . . . and stable,” the Service Secretary may
retire the member with pay. 10 USC § 1201.
If, however, the disability “may be of a permanent
nature,” but the circumstances do not permit a final
determination that the condition is, in fact,
“permanent . . . and stable,” the Secretary is required
to place the member on the “temporary disability
retired list [TDRL], with retired pay.” 10 USC § 1202.
While on the TDRL, a member is required to submit
to periodic physical examinations to “determine whether
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there has been a change in the disability for which he
was temporarily retired.” Failure to submit to such a
periodic examination may lead to termination of retired
pay. 10 USC § 1210(a).
When a periodic examination leads to a
determination that the member is “physically fit” to
perform his or her duties, there are a number of
options. The member may be returned to active duty
with his or her consent, retired if otherwise eligible
for retirement, discharged, or transferred to the
inactive reserves. If the member does not consent to a
proposed return to active duty, “his status on the
temporary disability retired list and his disability
retired pay shall be terminated as soon as practicable
and the member shall be discharged.” 10 USC § 1211(c).
If a member remains on the TDRL for 5 years, the
Secretary is required to make a final determination.
If there is a determination that the disability “still
exists,” it is considered at that point to be
”permanent . . . and stable,” and the member is
retired. 10 USC § 1210. If the member is determined
to be fit for duty, the service has the same options as
when such a determination is the result of a periodic
examination; return to active duty with consent,
retirement if otherwise eligible, discharge, or
transfer to the inactive reserves.
Because the defense did not request an instruction on the
impact of a punitive discharge on temporary disability
retirement, we will grant relief only if the military judge’s
failure to instruct sua sponte was plain error. See United
States v. Grier, 53 MJ 30, 34 (2000), citing United States v.
Cooper, 51 MJ 247, 252 (1999), and United States v. Powell, 49 MJ
460, 463 (1998).
In this case, there was no factual predicate for an
instruction on temporary disability retirement. For reasons not
disclosed on the record, the defense did not present any evidence
to the members reflecting appellant’s eligibility for disability
retirement. The only evidence in the record was presented by the
prosecution during a hearing before the military judge on the
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question whether appellant was competent to stand trial. That
evidence was not presented to the members by either side. We
hold that there was no error at all, much less plain error.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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SULLIVAN, Judge (concurring):
I agree. In my view, this opinion accurately reflects the
present state of the law as stated in United States v. Luster,
55 MJ 67 (2001). The 5-year march from United States v. Sumrall,
45 MJ 207 (1996), to United States v. Luster, supra, has been a
steady and proper advancement of the law to insure fair treatment
of the servicemember in the sentencing process.