WILLIAM J. BIONDI, PETITIONER V. UNITED STATES OF AMERICA No. 89-5075 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A2) is unreported, although the judgment is noted at 873 F.2d 1451 (Table). The opinion of the United States Claims Court (Pet. App. C1-C5) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 7, 1989. The petition for a writ of certiorari was filed as of June 19, 1989, on July 12, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court-martial's sentencing of petitioner, an enlisted member of the Air Force, to a term of imprisonment that extends beyond his term of enlistment, entitles him to receive military pay after that enlistment term expires. STATEMENT 1. Petitioner was an enlisted serviceman in the United States Air Force. On October 31, 1984, he was convicted by a general court-martial for offenses under the Uniform Code of Military Justice, and sentenced to a term of eight years' imprisonment, a bad conduct discharge, forfeiture of part of his pay, and a reduction in rank. The convening authority approved the findings and sentence on March 14, 1985. The Air Force Court of Military Review affirmed the findings and sentence on October 7, 1985. Petitioner's term of enlistment expired four days later (October 11), at which time he had already begun serving his sentence. As a result, the Air Force followed the controlling military regulation /1/ and terminated petitioner's pay and allowances. Pet. App. C2. /2/ 2. On September 21, 1987, the date of his formal discharge from service (and while still serving his custodial sentence), petitioner filed an action against the United States in the Claims Court, seeking to recover the military pay and allowances terminated when his enlistment term expired. Petitioner contended "that he should receive service pay for the period after his enlistment expired because the court-martial, by meting out punishment for partial forfeiture of pay for eight years, intended to extend his pay to cover the period during his confinement" (Pet. App. C2-C3). In addition, petitioner argued that the Air Force's termination of his pay effectively increased the court-martial's sentence in violation of the Rules of Court Martial and the Eighth Amendment. Pet. App. C5. The Claims Court dismissed the action, holding that petitioner had failed to state a claim for relief (Pet. App. C1-C5). As an initial matter, the court held that petitioner erred in invoking the court-martial's "intent," since his "entitlement to continued pay * * * is governed by statute" (Pet. App. C3), namely, 37 U.S.C. 204. /3/ For purposes of determining basic pay and allowances, that statute, as implemented by the controlling regulation, Department of Defense Military Pay and Allowances Entitlement Manual Paragraph 10317e (see note 1, supra), excepts a serviceman from "active duty" status when his enlistment term expires while he is serving a court-martial sentence. Pet. App. C4. In support of the military's regulation, the Claims Court cited case law which holds that "an enlistee's entitlement to pay * * * after his enlistment period expires turns on whether his detention is for the 'convenience of the Government * * *.'" Pet. App. C4 (quoting United States v. Cates, 230 F. Supp. 273, 274 (E.D.N.Y. 1964)). The court found that petitioner "was detained as punishment for a crime, not for the Government's convenience" (Pet. App. C4-C5), and therefore concluded that he was "not entitled to receive pay after his enlistment expired in 1985" (id. at C5). In rejecting petitioner's argument that the Air Force's termination of his pay effectively increased the court-martial's sentence in violation of the Rules of Court Martial, the Claims Court reiterated that the controlling regulations "clearly state that (petitioner's) pay appropriately stopped upon expiration of his enlistment period" (Pet. App. C5). "If, in fact, (petitioner) is not entitled to pay for the remaining * * * years of his confinement," the court stated, "it would be illogical to construe the regulations as increasing his punishment by depriving him of pay, when he has no right to pay to begin with" (ibid.). /4/ 3. In an unpublished memorandum opinion, the court of appeals affirmed on the basis of the Claims Court's opinion (Pet. App. A2). ARGUMENT 1. Petitioner contends (Pet. 4-13) that the United States may not lawfully terminate his military pay and allowances once his enlistment term expires, where he effectively remains on military duty beyond the expiration of that term as a result of the court-martial's sentence. But the statutory right to military pay under 37 U.S.C. 204 terminates upon the expiration of an enlisted member's current term of enlistment, unless he is held in military service for the convenience of the government or for the purpose of making up lost time. See, e.g., Jones v. United States, 7 Cl. Ct. 673, 677 (1985); Cowden v. United States, 600 F.2d 1354, 1358-1359 (Ct. Cl. 1979); United States v. Cates, 230 F. Supp. 273, 274 (E.D.N.Y. 1964). Under this settled rule, as reflected in Department of Defense Military Pay and Allowances Entitlement Manual Paragraph 10317e (see note 1, supra), an enlisted serviceman, whose term of service expires while he is serving a custodial court-martial sentence and awaiting appellate review of the findings and sentence, loses his statutory right to pay and allowances once that enlistment term lapses. Pay and allowances do not accrue while the serviceman remains imprisoned (and subject to the military's control), unless either the findings or sentence are set aside on appeal /5/ or the military restores the serviceman to full duty status pending completion of appellate proceedings. See, e.g., Matter of Department of Defense Military Pay and Allowance Committee Action Number 557, 63 Comp. Gen. 25, 27, 29 (1983); Matter of David G. Saulter, 59 Comp. Gen. 12, 13 (1979). And, as the Claims Court correctly recognized (Pet. App. C4-C5), a court-martialed enlisted member whose sentence is not set aside on appeal has not been held beyond his enlistment term for the government's convenience. To the contrary, that member remains subject to military control solely by virtue of his own misconduct. See, e.g., Matter of Department of Defense Military Pay and Allowance Committee Action Number 557, 63 Comp. Gen. at 29. Petitioner falls squarely within this well-established rule. When his enlistment term expired, petitioner was confined under the court-martial's sentence pending completion of appellate review. As the Claims Court made clear, petitioner "cannot claim that his detention was for the Government's convenience" (Pet. App. C4), particularly where, as here, the court-martial's findings and sentence were not disturbed on appeal. Under these circumstances, both the Claims Court and the court of appeals correctly rejected petitioner's claim to receive pay and allowances once his enlistment term expired. Petitioner cannot, by virtue of his criminal conduct, obligate the government to pay him for serving a period of imprisonment that does not constitute the performance of services for the government and for which the government had no pre-existing obligation to compensate him. 2. In an effort to avoid this established rule, petitioner contends (Pet. 6-10) that, since 10 U.S.C. 1168(a) provides that a serviceman may not be discharged (or released from active duty) until "his final pay (is) ready for delivery to him," and since 37 U.S.C. 204(a)(1) mandates that a serviceman on active duty receive his basic pay, he was not effectively discharged or released from active duty when his enlistment term expired, and therefore is entitled to the withheld pay and allowances. Petitioner's syllogistic argument, however, has two flaws. First, petitioner's formal discharge status is irrelevant to his entitlement to pay under Section 204(a)(1); the critical issue is the reason for his remaining under the military's control -- in this case, not for the convenience of the government or to make up lost time but to serve the court-martial's custodial sentence as a result of his criminal misconduct. See, e.g., United States v. Cates, 230 F. Supp. at 274. Second, petitioner's argument is based on a false premise. For purposes of determining basic pay and allowances, Section 204(a)(1), as implemented by the controlling regulation, Department of Defense Military Pay and Allowances Entitlement Manual Paragraph 10317e (see note 1, supra), excepts a serviceman from "active duty" status when his enlistment term expires while he is serving a court-martial sentence. Thus, contrary to petitioner's assumption, the statute does not entitle an enlisted serviceman to pay and allowances for the period of custody following the expiration of his enlistment term. And, petitioner has offered no sound basis for concluding that Congress intended the counterintuitive application of Section 204(a)(1) that he espouses. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General 4 STUART E. SCHIFFER Acting Assistant Attorney General ANTHONY J. STEINMEYER RUSSELL CAPLAN Attorneys AUGUST 1989 /1/ Department of Defense Military Pay and Allowances Entitlement Manual Paragraph 10317e provides in pertinent part: If a member is confined serving court-martial sentence when the enlistment expires, pay and allowances end on the date the enlistment expires unless the sentence is completely overturned or set aside * * *. They will not accrue again until the date the member is restored to a full-duty status. /2/ Upon discretionary review, the Court of Military Appeals affirmed the court-martial's findings and sentence on May 21, 1987. 24 M.J. 332. On September 21, 1987, the convening authority executed petitioner's bad conduct discharge and designated the United States Disciplinary Barracks, Fort Leavenworth, Kansas, as petitioner's place of confinement. Under Article 57(c) of the Uniform Code of Military Justice, 10 U.S.C. 857(c), petitioner's bad conduct discharge was effective as of September 21, 1987. Pet. App. C2. /3/ 37 U.S.C. 204 provides in pertinent part: (a) The following persons are entitled to the basic pay of the pay grade to which assigned or distributed, in accordance with their years of service * * * -- (1) a member of a uniformed service who is on active duty * * *. Petitioner has not sought further review of his argument based on the court-martial's "intent" in crafting his sentence. /4/ The Claims Court also dismissed petitioner's Eighth Amendment claim as "without substance" (Pet. App. C5). Since "(c)onstitutional provisions such as the Eighth Amendment * * * do not mandate payment of money for their violations * * *, the court would have no jurisdiction to grant relief on Eighth Amendment grounds" (ibid.). Petitioner has not sought further review of his constitutional claim. /5/ In that event, the serviceman is considered to have been held in service for the convenience of the government. As such, he is entitled to pay and allowances until the military formally discharges him from service. United States v. Cates, 230 F. Supp. 273, 274 (E.D.N.Y. 1964).