## Facts

- Ensign Brian R. Perry, a U.S. Naval Academy graduate, incurred a post-graduation active-duty service obligation in exchange for a government-funded education.
- Perry was convicted by general court-martial of attempted sodomy, conduct unbecoming an officer, and indecent acts.
- During sentencing, the defense sought to inform members that a dismissal could expose Perry to government recoupment of the cost of his Naval Academy education, estimated at about $80,000.
- The defense requested a sentencing instruction and offered a Naval Academy comptroller memorandum stating that a graduate who fails to fulfill the service obligation may be required to reimburse educational costs.
- The military judge denied the instruction, treating potential recoupment as a collateral consequence that was too remote and uncertain for member consideration.
- The members adjudged a sentence that included a dismissal.
- The Navy–Marine Corps Court of Criminal Appeals affirmed; Perry appealed to the United States Court of Appeals for the Armed Forces (CAAF).

## Issues

1. Whether a military judge must instruct members during sentencing that a punitive discharge (dismissal) may result in recoupment of service academy educational expenses.
2. Whether potential recoupment is an admissible, relevant sentencing consideration or a speculative collateral administrative consequence properly excluded.

## Decision

- CAAF affirmed the lower court and upheld the sentence, concluding the military judge did not err in refusing the requested instruction.
- The court treated possible recoupment of educational expenses as collateral to the court-martial sentence because it depended on later administrative action and discretion.
- Because recoupment was contingent and not automatic, the court agreed it was too speculative to place before members as a sentencing factor.

## Legal Principles

- Court-martial sentencing generally concerns the direct, authorized punishments imposed by the members, not downstream administrative actions controlled by other authorities.
- A consequence is typically “collateral” when it is not imposed by the court-martial and instead depends on separate administrative processes and discretionary determinations.
- Military judges may exclude or decline instructions on sentencing consequences that are uncertain, remote, or invite conjecture about future government decisions.
- By contrast, consequences that are direct, proximate, and readily ascertainable may be treated differently in sentencing relevance determinations.

## Conclusion

CAAF held that the possibility of recoupment of Naval Academy educational costs following a dismissal was a speculative collateral administrative consequence, so the military judge was not required to instruct members about it during sentencing, and the affirmed sentence including dismissal stood.


United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998)