UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                             KRIMBILL, RODRIGUEZ, and FLEMING
                                   Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                       Sergeant JAMAL R. WILLIAMS-MCCRAY
                             United States Army, Appellant

                                        ARMY 20190137

                            Headquarters, Fort Campbell
             Timothy P. Hayes, Jr. and Matthew A. Calarco, Military Judges
                   Colonel Andras M. Marton, Staff Judge Advocate


For Appellant: Major Angela D. Swilley, JA; Captain Paul T. Shirk, JA.

For Appellee: Lieutenant Colonel Wayne H. Williams, JA.


                                           16 April 2020

                                    ---------------------------------
                                     SUMMARY DISPOSITION
                                    ---------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent .

RODRIGUEZ, Judge:

      Pursuant to United States v. Grostefon, 

(C.M.A. 1982), appellant
personally asserts that the military judge abused his discretion in denying appellant
confinement credit for illegal pretrial punishment. 1 Specifically, appellant asserts


1
  A military judge sitting as a general court-martial convicted appellant, consistent
with his pleas, of two specifications of conspiracy to commit murder, one
specification of conspiracy to obstruct justice, one specification of premeditated
murder, and one specification of soliciting another to commit murder, in violation of
Articles 81, 118, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 918,
and 934 [UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for life, forfeiture of all pay and allowances, and reduction
to the grade of E-1. Pursuant to a pretrial agreement, the convening authority

                                                                                 (continued . . .)
WILLIAMS-MCCRAY—ARMY 20190137

the military judge erred in “failing to award [appellant] at least 200 days of credit
for illegal pretrial punishment.” We briefly discuss appellant’s claim for
confinement credit below, and find it merits no relief. 2

                                  BACKGROUND 3

       In October 2016, appellant was arrested for, among other things, the murder
of his ex-wife Private First Class (PFC) SM, an offense to which appellant
ultimately pleaded guilty. After his arrest, appellant’s company commander ordered
appellant into pretrial confinement. As Fort Campbell, Kentucky, does not have its
own confinement facility, appellant was held in pretrial confinement at the
Montgomery County Jail in Clarksville, Tennessee for 580 days, from 5 October
2016 to 7 May 2018.

       At trial, appellant argued that the conditions of his pretrial confinement while
at the Montgomery County Jail warranted credit against his sentence to confinement.
Specifically, appellant argued, among other things, that while in pretrial
confinement he was: (1) “commingled [with] post-conviction inmates;” (2) “housed
with non-Army prisoners;” (3) not visited frequently enough by his chain of
command; and (4) “forced to pay out-of-pocket for his medical care.” The military
judge ultimately denied appellant’s motion for confinement credit, finding that
appellant’s confinement conditions were not unduly harsh, and the government did
not intend to punish appellant. Appellant asked the military judge to reconsider his
ruling denying confinement credit. Upon reconsideration, the military judge again
denied appellant’s motion for confinement credit.

       On appeal, appellant personally asserts that the military judge erred in
denying him sentencing credit, and focuses on: (1) appellant’s commingling with
civilian and post-trial inmates; (2) the infrequency of command visits; and (3)
appellant’s $70.00 total payment for fourteen medical appointments while in pretrial
confinement.


(. . . continued)
approved only seventy-five years of appellant’s sentence to confinement, and
otherwise approved the sentence as adjudged. The convening authority also credited
appellant with 877 days against his sentence to confinement.
2
 We have given full and fair consideration to the other two matters personally raised
by appellant pursuant to Grostefon, 

, and find they are without merit.
3
  The following limited factual background is all that is necessary to resolve the
issue now before us.




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WILLIAMS-MCCRAY—ARMY 20190137

       Appellant’s argument on appeal primarily relies on a different military judge
granting confinement credit to appellant’s co-accused in a companion case, United
States v. Robinson, ARMY 20170536. 4 Therein, that military judge granted 200
days of confinement credit to the Robinson accused based on facts substantially
similar to those at bar. Accordingly, appellant’s argument in this case is rooted in
an alleged inequity that the Robinson accused received confinement credit, while
appellant did not.

                              LAW AND DISCUSSION

       The question of whether an appellant is entitled to credit for illegal pretrial
punishment is reviewed de novo. United States v. Zarbatany, 

, 174
(C.A.A.F. 2011) (citation omitted). In ruling on an Article 13, UCMJ, motion, a
“military judge’s findings of fact will not be overturned unless they are clearly
erroneous.” United States v. Fischer, 

, 418 (C.A.A.F. 2005) (citation
omitted). “Appellant bears the burden of proof to establish a violation of Article
13.”

UCMJ, provides:

             No person, while being held for trial, may be subjected to
             punishment or penalty other than arrest or confinement
             upon the charges pending against him, nor shall the arrest
             or confinement imposed upon him be any more rigorous
             than the circumstances required to insure his presence, but
             he may be subjected to minor punishment during that
             period for infractions of discipline.

       To determine if an Article 13, UCMJ, violation exists, appellate courts
consider: (1) whether “the government intend[ed] to punish” appellant; and (2) if
there was no intent to punish, whether the government’s actions were in furtherance
of “a legitimate nonpunitive governmental objective.” Howell v. United States, 

, 393 (C.A.A.F. 2016). If an appellant meets his or her burden to establish
an Article 13, UCMJ, violation, confinement credit may be awarded to an appellant
pursuant to Rule for Courts-Martial [R.C.M.] 305(k). 

.

      In this case, we have not found, nor does appellant assert, any of the military
judge’s findings of fact are clearly erroneous. Instead, appellant simply argues the


4
 We granted appellant’s motion to take judicial notice of the United States v.
Robinson, ARMY 20170536, record of trial, including that military judge’s ruling to
grant confinement credit to that particular accused.




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WILLIAMS-MCCRAY-ARMY 20190137

military judge erred in failing to grant appellant confinement credit for the
conditions of his pretrial confinement. 5 We disagree.

        In his ruling, the military judge found appellant failed to establish the
government intended to punish appellant through his pretrial confinement
conditions. We agree. We find nothing in the record to suggest the government
intended to punish appellant while he was confined at the Montgomery County Jail.
Similarly, we agree with the military judge that even if appellant had established an
Article 13, UCMJ, violation, he is not entitled to confinement credit because the
violations were de minimis. See United States v. Alston, 

, 887 (Army Ct.
Crim. App. 2017) ("[D]e minimis violations do not require administrative credit.)
(citing United States v. Corteguera, 

, 333 (C.A.A.F. 2002)).
Accordingly, we find the military judge did not err in denying appellant's request
for illegal pretrial confinement credit.

                                   CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

       Chief Judge KRIMBILL and Judge FLEMING concur.

                                        FOR THE COURT:




                                         Chief Deputy Clerk of Court




5
 Appellant argues we should adopt the ruling from a different military judge from a
separate case, United States v. Robinson, ARMY 20170536, in our analysis of his
case. While we considered and took judicial notice of the other military judge's
confinement credit ruling 'in Robinson, we focus our analysis on the military judge's
ruling in appellant's case. Doing so, we find the military judge, at bar, did not err in
denying appellant confinement credit.




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