## Facts

- Senior Airman Timothy J. Pena pleaded guilty at a general court-martial to attempted indecent assault, indecent assault, indecent exposure, indecent language, and adultery under Articles 80 and 134, UCMJ.
- The military judge sentenced Pena to a dishonorable discharge, one year of confinement, and reduction to E-1; the convening authority approved the sentence, deferred mandatory forfeitures, and waived automatic forfeitures for six months for his spouse’s benefit.
- Pena served most of his confinement at Naval Consolidated Brig Miramar and was released 72 days before the one-year term ended under the Department of Defense Mandatory Supervised Release (MSR) program.
- MSR required compliance with conditions until the confinement term expired, including reporting to a supervising official, travel/residence restrictions, and sex-offender treatment.
- Release paperwork suggested longer treatment and payment obligations, but the brig applied MSR only for the remaining 72 days and did not require Pena to pay for treatment or computer-monitoring software.
- Pena objected to treatment requirements due to travel time and costs but provided limited evidence of specific personal, psychological, financial, or family harm.
- The Air Force Court of Criminal Appeals affirmed the findings and sentence; C.A.A.F. granted review on challenges to MSR, appellate-leave/pay consequences, due process, and the providence of Pena’s pleas.

## Issues

1. Whether placing Pena on unpaid appellate leave while he remained subject to MSR and before his confinement term expired violated Article 76a, UCMJ.
2. Whether MSR and its conditions unlawfully increased the severity of the adjudged sentence in violation of Article 55, UCMJ and the Eighth Amendment.
3. Whether due process required the military judge to announce MSR and its conditions as part of the sentence.
4. Whether Pena’s guilty pleas were improvident because the military judge did not advise him of possible MSR-related consequences.

## Decision

- C.A.A.F. affirmed the judgment of the Air Force Court of Criminal Appeals.
- The court held MSR, as applied during the final 72 days of Pena’s confinement term, was an administrative method of executing the confinement sentence, not an additional punishment.
- The court rejected claims that MSR conditions or the associated leave/pay status violated Article 76a, Article 55, the Eighth Amendment, or due process.
- The court held Pena’s guilty pleas remained provident because the judge was not required to warn of MSR as a collateral administrative consequence.

## Legal Principles

- Administrative correctional programs that regulate how a confinement sentence is served (including supervised release before the confinement term expires) do not constitute an increase in the adjudged sentence if they do not extend the term or impose independently unlawful punishment.
- To establish an Article 55 or Eighth Amendment violation based on post-trial supervision conditions, an appellant must present a developed factual record showing treatment that is cruel or unusual, or otherwise atypically severe beyond ordinary supervisory burdens.
- Due process does not require a court-martial to announce administrative execution measures (such as MSR conditions) as part of the sentence when those measures do not alter the maximum punishment or add a separate penal sanction.
- A military judge need not advise an accused of collateral administrative consequences of a guilty plea; failure to advise of potential MSR placement does not, without more, render a plea improvident.

## Conclusion

C.A.A.F. upheld Pena’s convictions and sentence, concluding that Mandatory Supervised Release during the remaining portion of a confinement term is an administrative execution measure rather than added punishment, does not require sentencing-stage announcement, and does not undermine guilty pleas absent a showing of unlawfully severe conditions or other statutory or constitutional violations.


United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)