Article 13, UCMJ, prohibits pretrial punishment.
In United States v. Turner, NMCCA 200401570 (N-M.C. Ct. Crim. App. 22 December 2009), the court found pretrial punishment and set-aside the BCD. This may be somewhat pyrrhic because the sentence was adjudged in 2001. That means the appellant has been on unpaid appellate leave since 2001. In his claim for post-trial delay he does not assert that being on appellate leave without a DD214 was prejudicial.
When the ship returned from its brief underway period, the appellant was brought from the
pretrial confinement facility to appear before the Captain and crew at a public mast (“mast” is frequently understood to mean nonjudicial punishment proceedings, but it also includes award ceremonies and individual meetings held at a service member’s request). After the Captain informed the appellant and the crew that the charges were being referred for trial, the appellant returned to pretrial confinement.
NMCCA notes that at the time he was brought to the ship, during his appearance before the CO and the crew, and on his return to PTC the accused was in irons. Also, his counsel was neither informed nor present. The CO knew at the time that he was going to refer the charges to court-martial. The court also notes that the CO was given legal advice that this wasn’t a good idea. So this is not a case of a CO making a mistake. The CO’s action were considered, deliberate, and apparently against good legal advice.
Defense counsel note, the trial was held prior to United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003).
We further hold that in the future, failure at trial to raise the issue of illegal pretrial punishment waives that issue for purposes of appellate review absent plain error. See United States v. King, 58 M.J. 110 (C.A.A.F. 2003)(holding the same as to restriction tantamount to confinement).
Inong, Slip op. at 4.