If Your Lawyer Can Show Significant Art. 13 Pre-trial Punishment Your Discharge May Be Overturned

U.S. v. Zarbatany, 70 M.J. 169 (2011) has dramatically changed the landscape of potential relief associated with significant pretrial punishment.  Airman Zarbatany received 595 days of pretrial confinement credit as a result of a military judge’s ruling he was illegally punished prior to his court-martial.  The trial court highlighted several disturbing facts, in part, “appellant was in pretrial confinement at ACC for 119 days in virtual lock-down status; 2) he was confined to his cell for an average of 23 hours a day; 3) he was allowed out of his cell only to shower; 4) he could only meet with his wife over a television monitor; 5) his recreation area was about the size of his cell; 6) he was typically denied the right to talk to fellow inmates; 7) he shared his cell with post-trial inmates; and 8) without cause he was locked in the shower room, about 8 times,  for about 30 minutes a session.  Now, at trial, Zarbatany was sentenced to serve 6 months in confinement, which was far less than the Art. 13 award of 595 days; in fact, he had “415 days of excess confinement credit.”  The appellate court, in a remarkably gracious move held the sentence “disproportionate” and told the Government to effectively disapprove the bad conduct discharge.

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