UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee ve Sergeant WILLIAM J. KREUTZER, JR. United States Army, Appellant ARMY 19961044 82d Airborne Division (trial) Headquarters, XVIII Airborne Corps and Fort Bragg (rehearing) P. E, Brownback III, Military Judge (trial) Patrick J. Parrish, Military Judge (rehearing) Lieutenant Colonel Robert C. McFetridge, Staff Judge Advocate (trial) Lieutenant Colonel David L. Hayden, Staff Judge Advocate (post-trial) Colonel W. Renn Gade, Staff Judge Advocate (rehearing) For Appellant: Colonel Michael E. Mulligan, JA; Major Christopher B. Burgess, JA; Major Adam S. Kazin, JA (on brief). For Appellee: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Shay Stanford, JA; Captain Barbara A. Snow-Martone, JA (on brief). 5 November 2010 DECISION ON FURTHER REVIEW Per Curiam: In 1996, pursuant to his pleas, appellant was convicted of a violation of a lawful general regulation and larceny of military property, in violation of Articles 92 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 921 [hereinafter UCMJ]. Contrary to his pleas, appellant was convicted by a general court-martial composed of officers and enlisted members of attempted premeditated murder (cighteen specifications), and premeditated murder, in violation of Articles 80 and 118, UCMI, 10 U.S.C. §§ 880 and 918. A unanimous twelve-member panel sentenced appellant to death, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to Private El. The convening authority approved the sentence as adjudged.KREUTZER — ARMY 19961044 Upon his conviction and sentence, appellant was transferred to the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas. On 11 March 2004, this court set aside the findings of guilty to premeditated murder and attempted premeditated murder and the sentence. United States v. Kreutzer, 39 M.J. 773, 775 (Army Ct. Crim. App. 2004). This court denied a government request for en banc consideration and a motion for reconsideration. Subsequently, on 29 June 2004, the Judge Advocate General of the Army (TJAG) certified the case to the Court of Appeals for the Armed Forces (CAAF) pursuant to Article 67(a)(2), UCMS. On 21 September 2004, appellant petitioned this court for extraordinary relief seeking removal from “death row” at the USDB and placement in medium security in the general inmate population of the USDB. On 24 September this court denied appellant’s writ for lack of jurisdiction. On 29 September 2004, appellant petitioned CAAF for a writ of mandamus. On 5 January 2005, CAAF ordered appellant’s transfer from death row. Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005). On or about 13 January 2005, appellant was moved into medium custody housing within the USDB. This court’s decision was affirmed by CAAF on 16 August 2005. United States v. Kreutzer, 61 M.J. 293, 295 (C.A.A.F. 2005). The record of trial was returned to The Judge Advocate General for remand to the same or a different convening authority for a rehearing on findings and sentence, as practicable. On rehearing, a military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of one specification of attempted premeditated murder, premeditated murder, assault with a dangerous weapon, violation of a lawful general regulation, and larceny of military property, in violation of Articles 80, 92, 118, and 121, UCMJ. The military judge also convicted appellant, contrary to his pleas, of an additional sixteen specifications of attempted premeditated murder, in violation of Article 80, UCMJ. The military judge sentenced appellant to a dishonorable discharge, confinement for life, forfeiture of all pay and allowances and reduction to Private El. The convening authority approved the adjudged sentence. The case is before us for review pursuant to Article 66, UCMJ. Appellant asserts that the military judge erred when he denied appellant’s motion seeking sentence credit pursuant to Article 13, UCMJ and Rule for Courts-Martial 305(k). On consideration of the entire record, including consideration of the issues personally specified by the appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.KREUTZER — ARMY 19961044 GIFFORD, Judge (concurring in part, dissenting in part) I dissent, in limited part, from my brethren’s decision to affirm appellant's case and not grant partial relief under Article 13, Uniform Code of Military Justice (UCM) and Rule for Courts-Martial (R.C.M.) 305(k). On review to this court, appellant avers he should receive Article 13, UCMJ, and R.C.M. 305(k) credit for various confinement conditions which were imposed on him after this court issued its decision setting aside the findings of guilty to premeditated murder and attempted premeditated murder and the sentence to death. See United States v. Kreutzer, 59 M.J. 773 (Army Ct. Crim. App. 2004). Among those issues is appellant's assertion that he was not transferred from death row at the United States Army Disciplinary Barracks (USDB) after this court's 11 March 2004 decision until the Court of Appeals for the Armed Forces issued a Writ of Mandamus on 5 January 2005. Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005). The evidence in appellant's record of trial and applicable law do not support the actions of corrections officials at the USDB in retaining appellant on death row after this court issued its 11 March 2004 decision setting aside appellant's sentence to death and those charges which made him death penalty eligible.’ While this court recognizes that the functioning of correctional facilities is generally best left to corrections officials,’ the evidence in appellant's record of trial is lacking to establish a credible basis in law or fact for his continued retention on death row after issuance of this court's 11 March 2004 decision. In contrast, the evidence does reflect appellant repeatedly sought transfer from the USDB death row during the period in question. Accordingly, on this narrow issue alone and no other, I would grant appropriate Article 13, UCMJ, and R.C.M. 305(k) credit for the period in question, FOR THE COURT Qe P. TETREAULT ELDRIDGE Acting Clerk of Court ' See e.g., Army Regulation 190-47, para. 12-6, The Army Corrections System (15 June 2006) {and previous versions, as cited in Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005)] * See e.g., United States v. Palmiter, 20 M.J. 90, 100 n. 2 (C.M.A. 1985) (Everett, J.. concurring in the result) (citations omitted); Bell v. Wolfish, 441 U.S. 520, 540 n. 23 (1979).