United States v. Herring

U NITED S TATES AIR F ORCE

C OURT OF C RIMINAL APPEALS ________________________

No. ACM 39277 ________________________

UNITED STATES

Appellee v.

Michael S. HERRING

Captain (O-3), U.S. Air Force, Appellant ________________________

Appeal from the United States Air Force Trial Judiciary Decided 19 April 2018 ________________________

Military Judge: Mark Milam.

Approved sentence: Dismissal and confinement for 45 days. Sentence adjudged 3 May 2017 by GCM convened at Kirtland Air Force Base, New Mexico.

For Appellant: Major Patricia Encarnación Miranda, USAF; Major Re- becca J. Otey, USAF.

For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Mary Ellen Payne, Esquire.

Before HARDING, SPERANZA, and HUYGEN, Appellate Military Judges. ________________________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________

PER CURIAM: United States v. Herring, No. ACM 39277

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to Appellant’s substantial rights occurred. * Arti- cles 59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

* Appellant notes that the military judge “determined it was not necessary to ad- dress” the Defense Motion for Appropriate Relief: Unlawful Pretrial Punishment re- garding pretrial confinement after adjudging a sentence that included 45 days of con- finement and granting credit of 49 days for pretrial confinement. United States v. Zarbatany, 70 M.J. 169 (C.A.A.F. 2011), provides that credit for illegal pretrial con- finement may be applied to components of an adjudged sentence other than confine- ment, including a punitive discharge. Relief, however, “is not warranted or required where it could be disproportionate to the harm suffered or the nature of the offense.” Id. at 170. Acknowledging that the military judge should have decided the motion and assuming arguendo that Appellant was entitled to credit under Article 13, Uni- form Code of Military Justice, we find that a set aside of Appellant’s dismissal would be disproportionate to the nature of Appellant’s offenses and thus no prejudicial er- ror.