Pittman v. United States

In the United States Court of Federal Claims
No. 15-1232C
Filed: December 5, 2017
****************************************
* Air Force Instruction 36-2605, 36-
* 2606, 36-3212;
* Military Pay Act, 37 U.S.C. § 204CHRIS L. PITTMAN, * (2012);
* Military Rules of Evidence (“MRE”)
Plaintiff, * 103(a)(1); 301(f)(2)–(3); 317; 401;
* 403; 404; 615;
v. * Rule for Courts-Martial (“RCM”) 915;
* Rule of the United States Court of
THE UNITED STATES, * Federal Claims (“RCFC”) 52.1(c);
* Tucker Act Jurisdiction, 28 U.S.C.
Defendant, * § 1491 (2012);
* Uniform Code of Military Justice, 10
* U.S.C. §§ 801–946a (2006).
*
****************************************
John B. Wells, Military Veterans Advocacy, Inc., Slidell, Louisiana, Counsel for Plaintiff.
Daniel Herzfeld, United States Department of Justice, Washington, D.C., Counsel for the
Government.
MEMORANDUM OPINION AND FINAL ORDER RESOLVING CROSS-MOTIONS
FOR JUDGMENT ON THE ADMINISTRATIVE RECORD
BRADEN, Chief Judge.
This case concerns a collateral attack on a special court-martial proceeding, in which
Christopher Pittman (“Plaintiff”) was convicted of conspiracy and violation of Air Force
Instruction 36-2605. Thereafter, Plaintiff was sentenced to a reduction in grade from E-7 to E-5
and three months of hard labor, without confinement. For the reasons discussed herein, the court
has determined that there is no basis upon which to order relief.
To facilitate review of this Memorandum Opinion And Final Order Resolving Cross-
Motions For Judgment On The Administrative Record, the court has provided the following
outline:
I. FACTUAL BACKGROUND. ................................................................................................ 3
A. Charges Filed Against Plaintiff For Violations Of The Uniform Code Of Military
Justice............................................................................................................................... 3
B. The Special Court-Martial Proceedings. .......................................................................... 4
C. The Request For Clemency. ............................................................................................. 9
D. The Judge Advocate’s Article 64(a) Review. ................................................................ 11
E. Plaintiff’s Retirement From The Air Force. ................................................................... 12
F. The Judge Advocate General’s Article 69(b) Review. .................................................. 12
II. PROCEDURAL HISTORY. ................................................................................................. 14
III. DISCUSSION. ...................................................................................................................... 14
A. Jurisdiction. .................................................................................................................... 14
B. Standing.......................................................................................................................... 16
C. Exhaustion Of Administrative Remedies ....................................................................... 17
D. Standard Of Review For A Motion For Judgment On The Administrative Record. ..... 17
E. The Government’s Motion For Judgment On The Administrative Record. .................. 18
1. AFI 36-2605 Is Not Void For Vagueness, Nor Overbroad. ...................................... 18
a. The Government’s Argument. .............................................................................. 18
b. Plaintiff’s Response. ............................................................................................. 19
c. The Government’s Reply. ..................................................................................... 20
d. The Court’s Resolution. ........................................................................................ 20
2. The Court-Martial Was Not Tainted By Prosecutorial Misconduct.......................... 21
a. The Government’s Argument. .............................................................................. 21
b. Plaintiff’s Response. ............................................................................................. 22
c. The Government’s Reply. ..................................................................................... 23
d. The Court’s Resolution. ........................................................................................ 23
3. The Military Judge’s Remedy For The Alleged Coaching Of Staff Sergeant A Was
Not In Error. .............................................................................................................. 25
a. The Government’s Argument. .............................................................................. 25
b. Plaintiff’s Response. ............................................................................................. 25
c. The Government’s Reply. ..................................................................................... 26
d. The Court’s Resolution. ........................................................................................ 26
4. The Military Judge’s Ruling That Video Evidence Should Not Be Suppressed Was
Not In Error. .............................................................................................................. 26
a. The Government’s Argument. .............................................................................. 26
b. Plaintiff’s Response. ............................................................................................. 27
c. The Government’s Reply. ..................................................................................... 28
d. The Court’s Resolution. ........................................................................................ 29
2
5. The Military Judge’s Ruling Not To Dismiss The Members Venire And Empanel
A New Venire Or Order A New Trial Was Not In Error. ......................................... 30
a. The Government’s Argument. .............................................................................. 30
b. Plaintiff’s Response. ............................................................................................. 31
c. The Government’s Reply. ..................................................................................... 31
d. The Court’s Resolution. ........................................................................................ 31
6. The “Cumulative Error Doctrine” Does Not Require That Plaintiff’s Conviction
Be Set Aside And A New Trial Ordered. .................................................................. 33
a. The Government’s Argument. .............................................................................. 33
b. Plaintiff’s Response. ............................................................................................. 33
c. The Government’s Reply. ..................................................................................... 33
d. The Court’s Resolution. ........................................................................................ 33
7. Plaintiff’s Reinstatement Request Is Not Justiciable. ............................................... 34
a. The Government’s Argument. .............................................................................. 34
b. Plaintiff’s Response. ............................................................................................. 35
c. The Government’s Reply. ..................................................................................... 35
d. The Court’s Resolution. ........................................................................................ 35
IV. CONCLUSION. .................................................................................................................... 36
I. FACTUAL BACKGROUND. 1
A. Charges Filed Against Plaintiff For Violations Of The Uniform Code Of
Military Justice.
Plaintiff enlisted in the United States Air Force (“Air Force”) on November 13, 1987, and
entered uniformed service on October 4, 1988. AR Tab 6 at 92. Thereafter, Plaintiff received
numerous commendations and meritorious service medals. AR Tab 6 at 92–93. In 2005, after
passing the required Weighted Airman Promotion System (“WAPS”) test, 2 Plaintiff was promoted
to the rank of Master Sergeant (E-7). AR Tab 17 at 331 (WAPS results and promotion).
On October 17, 2007, a Staff Sergeant (“Staff Sergeant A”) accused Plaintiff and others of
cheating on the 2005 promotion exams, including the WAPS promotion fitness examination
1
The facts discussed herein were derived from the October 22, 2015 Complaint (“Compl.”)
(ECF No. 1) and the September 1, 2016 Administrative Record (“AR Tabs 1–91” at 1–799) (ECF
No. 16 (Sept. 1, 2016 Notice regarding filing of Administrative Record on CD-ROM)).
2
The WAPS system generally includes a promotion fitness examination (“PFE”) and a
skills knowledge test (“SKT”). See generally U.S. AIR FORCE, AIR FORCE INSTRUCTION 36-2605
(Dec. 21, 2007) (“AFI 36-2605”); see also AR Tab 16 at 195 (testimony that the WAPS tests
include the PFE and SKT).
3
(“PFE”). AR Tab 23 at 474. On November 12, 2009, the Air Force Office of Special
Investigations (“OSI”) issued a Report (“OSI Report”). AR Tab 23 at 471–96.
On January 20, 2009, based on the OSI Report, Plaintiff was charged with cheating on the
WAPS PFE. AR Tab 4 at 30–32 (1/20/09 Charge Sheet). The first charge was for a violation of
Uniform Code of Military Justice (“UCMJ”) Article 81 (10 U.S.C. § 881 (2006)), and included
one specification for conspiracy to possess or distribute controlled WAPS test material. AR Tab
4 at 30. The second charge was for a violation of UCMJ Article 92 (10 U.S.C. § 892 (2006)), for
failing to obey a general regulation, i.e., Air Force Instruction (“AFI”) 36-2605, by wrongfully
discussing and sharing WAPS test material with other members of the Air Force. AR Tab 4 at 30;
AR Tab 16 at 133. The second charge included four additional specifications, based on separate
violations of Article 92. AR Tab 4 at 30, 32. 3
B. The Special Court-Martial Proceedings.
On January 21, 2009, by Special Order, a Brigadier General (the “Convening Authority”)
convened a special court-martial, pursuant to UCMJ Article 16.4 AR Tab 16 at 126; 10 U.S.C. §
816(b). The Special Order identified a court-martial venire 5 of ten individuals, including a
Lieutenant Colonel (“Lt. Col. X”). AR Tab 16 at 126.
On January 27, 2009, Plaintiff was served with the charges. AR Tab 16 at 127.
On January 30, 2009, the Air Force’s Chief Trial Judge set the special court-martial for
March 16, 2009, and established a pre-trial schedule. AR Tab 16 at 127–28.
On March 2, 2009, the Staff Judge Advocate filed a new charge for conspiracy, i.e.,
Plaintiff conspired with another service member to create a false travel order in violation of UCMJ
Article 81. AR Tab 9 at 100. The Staff Judge Advocate recommended that the charge be referred
3
A charge is the general offense with which an accused is charged, whereas a specification
is the particular instance of offending conduct. In this case, the first charge is “Violation of the
UCMJ, Article 81” and its specification is for conduct occurring from October 1, 2004, to on or
about March 31, 2005. AR Tab 4 at 30. The second charge, “Violation of the UCMJ, Article 92,”
included four specifications for conduct occurring between: (1) September 1, 2004, and on or about
December 31, 2004; (2) March 1, 2005 and on or about March 31, 2005; (3) May 1, 2005, and on
or about July 31, 2005; and (4) May 1, 2006, and on or about September 1, 2006. AR Tab 4 at 30,
32.
4
There are three types of courts-martial: (1) general; (2) special; and (3) summary. See 10
U.S.C. § 816 (2006). Each is distinguished by the number of members comprising the venire and
whether a military judge is present. See id. Generally, a special court-martial consists of no less
than three members or a military judge and no less than three members or, in some cases, only a
military judge. Id.5
A “venire” is a “panel of persons selected for jury duty and from among whom the jurors
are to be chosen.” Venire, BLACK’S LAW DICTIONARY 1789 (10th ed. 2014).
4
to the special court-martial, at the same time as the January 20, 2009 charges and specifications.
AR Tab 9 at 100.
On March 9, 2009, Plaintiff’s counsel moved in limine to dismiss the case for failure to
state an offense, arguing that charges were “derive[d] from the impermissible enforcement of an
unlawful, vague, and unconstitutional regulation.” AR Tab 30 at 569–70. The motion also
asserted that AFI 36-2605 denied Plaintiff’s right to freedom of association under the First
Amendment to the United States Constitution. AR Tab 30 at 571. On that date, Plaintiff’s counsel
also filed a motion in limine to suppress a video recording of a telephone call by a Technical
Sergeant (“Technical Sergeant B”), under Military Rule of Evidence (“MRE”) 317, because it was
cumulative and not obvious from the recording that Plaintiff was a party to the conversation. AR
Tab 34 at 583–88; AR Tab 16 at 144–45.
On March 11, 2009, Plaintiff’s counsel moved in limine to dismiss the charges “or [grant]
other appropriate relief for the improper selection of a court member and unlawful command
influence.” AR Tab 26 at 548. On that same day, Plaintiff’s counsel also moved to dismiss the
March 2, 2009 charge regarding the false travel order. AR Tab 31 at 575–76.
From March 16, 2009 to March 20, 2009, a special court-martial was convened at Keesler
Air Force Base, Mississippi. AR Tab 16 at 125–329 (summary record of special court-martial
proceeding).
On March 16, 2009, the Military Judge began the proceedings by hearing argument on two
motions in limine.
In addition, on March 16, 2009, the Military Judge considered Plaintiff’s motion to dismiss
the case for the Staff Judge Advocate’s selection of a court-martial member, based on unlawful
command influence. AR Tab 16 at 136–37. After the Air Force counsel briefly described the
court-martial member selection process, the Military Judge called the Staff Judge Advocate as a
witness. AR Tab 16 at 138.
The Staff Judge Advocate testified that, during the special court-martial member selection
process, a package was prepared that included: a letter for the Convening Authority’s signature; a
section for the Convening Authority to select the special court-martial members; information about
the prospective members; and “a copy of the [OSI] Report . . . and the endorsement by the
[C]ommander.” AR Tab 16 at 138–41. The Staff Judge Advocate signed the package “FOR THE
COMMANDER.” AR Tab 16 at 126.
The Staff Judge Advocate testified also that the scope of her assignment did not require a
discussion of UCMJ Article 25, 6 because “[w]e have done this with enough regularity that we
haven’t needed to reengage on the subject.” AR Tab 16 at 139, 141.
6
UCMJ Article 25 provides that commissioned officers on active duty, warrant officers on
active duty, and enlisted members of the armed forces on active duty, who are not members of the
same unit as the accused, may serve on courts-martial, but that “[w]hen it can be avoided, no
5
On March 17, 2009, the Military Judge denied Plaintiff’s motion to dismiss, based on the
Staff Judge Advocate’s selection of the court-martial members (AR Tab 16 at 142, 152–54
(summary transcript of ruling on motion); AR Tab 53 at 640–42 (written opinion)), but ruled that
the false travel order charge was improper, because Plaintiff was not “on notice that this was a
crime.” AR Tab 16 at 158–59.
On March 17, 2009, the Military Judge also considered Plaintiff’s motion in limine to
suppress recorded evidence, pursuant to MRE 317. AR Tab 16 at 144–45. Although Plaintiff’s
counsel conceded during the hearing that MRE 317 was not the correct evidentiary basis,
nevertheless he objected under MRE 403, based on relevance and hearsay grounds. AR Tab 16 at
145, 159. The Military Judge sustained the objection. AR Tab 16 at 159–60.
On March 17, 2009, the Military Judge also denied Plaintiff’s March 9, 2009 motion in
limine, challenging AFI 36-2605, ruling that instruction reasonably furthered a military need and
was not “unconstitutionally vague[ because i]t clearly explains what conduct [was] prohibited in
relation to the WAPS testing in plain English.” AR Tab 16 at 155. In particular, the Military
Judge ruled that AFI 36-2605 “defines the term ‘suspected test material.’ It also defines ‘illegal
test material’ and ‘actual test material,’ so the accused . . . clearly [was] on notice as to what those
terms mean.” AR Tab 16 at 155. As to the argument that AFI 36-2605 impermissibly interfered
with Plaintiff’s right to freedom of association under the First Amendment to the United States
Constitution, the Military Judge ruled that Plaintiff was free to associate with other service
members, but “he was not free to discuss and share test materials or suspected test materials, as
defined by the AFI, with other examinees.” AR Tab 16 at 155–6.
Following these rulings, Plaintiff pleaded not guilty as to all specifications and charges.
AR Tab 16 at 163.
On March 17, 2009, the Air Force counsel also challenged Lt. Col. X for cause, based on
statements made during voir dire, suggesting that “group study” should be permitted for the WAPS
testing, but clarified that he no longer held that view. AR Tab 16 at 167–71. Then, Air Force
counsel challenged Lt. Col. X for cause; Plaintiff’s counsel objected. AR Tab 16 at 171. The
Military Judge denied the Air Force’s challenge. AR Tab 16 at 171. Next, the Air Force counsel
peremptorily challenged Lt. Col. X, who was then excused. AR Tab 16 at 172, 174. Thereafter,
three other members of the venire also were excused. AR Tab 16 at 174.
On March 18, 2009, the special court-martial continued with opening statements by
counsel and witness testimony. AR Tab 16 at 176. Fourteen witnesses testified (AR Tab 16 at
176–296), including four for the Air Force, but only after receiving grants of testimonial immunity
and orders to testify. 7 AR Tab 11 at 111–14; AR Tab 16 at 176–265. One witness was Staff
member of an armed force may be tried by a court-martial any member of which is junior to him
in rank or grade.” 10 U.S.C. § 825 (2006).
7
Three of the witnesses were implicated in the WAPS test incident at Keesler Air Force
Base. AR Tab 16 at 133–35 (charge sheet with specifications naming the witnesses). Staff
Sergeant A was court-martialed, but the other two witnesses only received administrative
6
Sergeant A, who identified study materials introduced as evidence by the Air Force as the same as
those she provided Plaintiff to prepare for the 2005 WAPS testing. AR Tab 16 at 250–51. On
cross examination, however, Staff Sergeant A testified that she had identified the wrong materials,
because those materials were dated July 1, 2005, and the alleged misconduct occurred in March
2005. AR Tab 16 at 256–57. On redirect, Staff Sergeant A corrected her prior testimony,
explaining that, after her direct testimony, she reviewed the materials that she identified and
realized the mistake. AR Tab 16 at 260–65.
After Staff Sergeant A’s redirect, Plaintiff’s counsel requested an Article 39(a) session. 8
AR Tab 16 at 261. Thereafter, Plaintiff’s counsel moved for a mistrial, on the grounds that
witnesses were not permitted to confer between direct and cross examination, but Staff Sergeant
A was coached between her cross-examination and redirect testimony. AR Tab 16 at 263. The
Military Judge denied the motion for a mistrial. AR Tab 16 at 263.
On March 18, 2009, the Air Force offered into evidence a video of Technical Sergeant B
talking on the telephone after an interview with OSI, and a transcript thereof. AR Tab 16 at 225.
Plaintiff’s counsel objected, because admitting that evidence contravened the Military Judge’s
prior ruling suppressing the video on hearsay grounds, and the fact that no character evidence was
allowed to be proffered on cross-examination, and the evidence was cumulative. AR Tab 16 at
225. The Military Judge overruled Plaintiff’s counsel’s objection to the video, but sustained the
objection to the transcript. AR Tab 16 at 226. The Military Judge also instructed the special court-
martial members that the video “was offered and admitted as corroboration of a conversation
[Technical Sergeant B] maintains he had with [Plaintiff] and it was not admitted for the truth of
the matter asserted.” AR Tab 16 at 227.
On March 19, 2009, the special court-martial members found Plaintiff guilty of Charge 1
(conspiracy to violate AFI 36-2605) and its specification, and of three of the four specifications of
Charge 2 for failing to obey Air Force Instruction 36-2605. AR Tab 16 at 305. Plaintiff, however,
punishment, under UCMJ Article 15 (non-judicial punishment that may be imposed without
convening a court-martial). AR Tab 11 at 111–13.
8
An Article 39(a) session is a part of the court-martial proceeding that is held outside the
presence of the court-martial members. See 10 U.S.C. § 839(a) (2006). The purpose of an Article
39(a) session is to allow the Military Judge to rule on certain motions, hear pleas, and perform
other procedural functions that do not require the presence of the members. See id. In this case,
the summary record of the special court-martial proceeding did not include any record about what
was discussed during the Article 39(a) session. For example, the summary record states that the
Article 39(a) session was held in the presence of the Military Judge and counsel, wherein Plaintiff’s
counsel moved for a mistrial and argument was heard, but the Military Judge denied the motion.
AR Tab 16 at 263. The summary record, however, provided no verbatim detail about the
proceeding, only that “[t]he defense counsel moved for a mistrial and stated that between direct
examination and cross-examination the witness is not supposed to talk to anybody and she did in
this case[,]” and that counsel argued their respective positions on the motion. AR Tab 16 at 263.
7
was found not guilty on the remaining specification (for conduct occurring from March 1, 2005,
to on or about March 31, 2005). AR Tab 16 at 305; see also AR Tab 4 at 30.
On March 20, 2009, the special court-martial members sentenced Plaintiff to a reduction
in grade from E-7 to E-5 and three months of hard labor, without confinement. AR Tab 16 at 322.
Because of the sentence, Plaintiff had no right to appeal to the Air Force Court of Criminal
Appeals. See 10 U.S.C. § 866(b) (2006). 9 Since Plaintiff had no right to appeal to the Air Force
Court of Criminal Appeals, he also had no right to appeal to the United States Court of Appeals
for the Armed Forces. See 10 U.S.C. § 867(a) (2006). 10
9
UCMJ Article 66(b) provides:
(b) The Judge Advocate General shall refer to a Court of Criminal Appeals the
record in each case of trial by court-martial—
(1) in which the sentence, as approved, extends to death, dismissal of a
commissioned officer, cadet, or midshipman, dishonorable or bad-conduct
discharge, or confinement of one year or more; and
(2) except in the case of a sentence extending to death, the right to appellate
review has not been waived or an appeal has not been withdrawn under . . .
[Article 61].
10 U.S.C. § 866(b) (2006).
UCMJ Article 19, however, prohibits a special court-martial from imposing the
sentences outlined in Article 66(b)(1). See 10 U.S.C. § 819 (2006). Therefore, as a matter
of law, a sentence imposed by a special court-martial, other than those outlined in Article
66(b)(1), cannot be appealed to the Air Force Court of Criminal Appeals.
10
UCMJ Article 67(a) provides:
(a) The Court of Appeals for the Armed Forces shall review the record in—
(1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals,
extends to death;
(2) all cases reviewed by a Court of Criminal Appeals which the Judge
Advocate General orders sent to the Court of Appeals for the Armed Forces
for review; and
(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition
of the accused and on good cause shown, the Court of Appeals for the
Armed Forces has granted a review.
10 U.S.C. § 867(a) (2006).
8
The following flowchart, derived from the information contained in a Post-Trial and
Appellate Rights Advisement provided to Plaintiff by his counsel prior to trial, shows the review
and appeal procedure from a special court-martial:
Special Court
Martial
Sentencing
Summary Record of
Trial Prepared
Staff Judge
Advocate Review &
Recommendation
(Optional) Request Convening
for Clemency Authority Action
Appellate Review;
Staff Judge Judge Advocate Air Force Court of
Advocate Addendum Review Criminal Appeals Venue Depends on
Sentence Received
Judge Advocate Court of Appeals for
General Review the Armed Forces
Supreme Court of
the United States
AR Tab 88 at 755–60.
C. The Request For Clemency.
On March 30, 2009, Plaintiff submitted a request for clemency for referral to the
Convening Authority, because the special court-martial conviction and sentence should be set
aside and non-judicial punishment should be imposed under UCMJ Article 15. 11 AR Tab 4 at 17–
88; see also UCMJ Article 60, 10 U.S.C. § 860 (2006). 12 First, the clemency request stated that
11
UCMJ Article 15 permits a Commanding Officer, “in addition to or in lieu of admonition
or reprimand, [to] impose one or more of [a number of] disciplinary punishments for minor
offenses without the intervention of a court-martial[.]” 10 U.S.C. § 815 (2006).
12
UCMJ Article 60 also provides, in relevant part:
9
the Air Force’s witnesses were granted immunity or otherwise received an Article 15 punishment,
but Plaintiff’s sentence was not commensurate with that imposed on those witnesses. AR Tab 4
at 19–20. Second, there was an appearance of prosecutorial misconduct, because the Staff Judge
Advocate improperly acted like trial counsel, as “she was in the front row of the gallery sitting
directly behind the trial counsel table on three out of the five days . . . [and] passed notes to the
trial counsel while court was in session during witness examinations.” AR Tab 4 at 17. In addition,
“[a]lthough no one is alleging any actual wrongdoing on the part of [the Staff Judge Advocate],
her actions in court do present the appearance of assisting trial counsel during trial and we would
therefore request that another legal office provide you with post-trial advice[,] if this case is not
downgraded to an Article 15.” AR Tab 4 at 17–18. The clemency request also discussed Plaintiff’s
health and the adverse financial impact the court-martial sentence would have, if Plaintiff were
retired from the Air Force for disability. 13 AR Tab 4 at 21.
(b)(1) The accused may submit to the convening authority matters for consideration
by the convening authority with respect to the findings and the sentence. Any such
submission shall be made in writing. Except in a summary court-martial case, such
a submission shall be made within 10 days after the accused has been given an
authenticated record of trial and, if applicable, the recommendation of the staff
judge advocate or legal officer under subsection (d). In a summary court-martial
case, such a submission shall be made within seven days after the sentence is
announced.
***
(c)(2) Action on the sentence of a court-martial shall be taken by the convening
authority or by another person authorized to act under this section. Subject to
regulations of the Secretary concerned, such action may be taken only after
consideration of any matters submitted by the accused under subsection (b) or after
the time for submitting such matters expires, whichever is earlier. The convening
authority or other person taking such action, in his sole discretion, may approve,
disapprove, commute, or suspend the sentence in whole or in part.
(3) Action on the findings of a court-martial by the convening authority or other
person acting on the sentence is not required. However, such person, in his sole
discretion, may—
(A) dismiss any charge or specification by setting aside a finding of guilty thereto;
or
(B) change a finding of guilty to a charge or specification to a finding of guilty to
an offense that is a lesser included offense of the offense stated in the charge or
specification.
10 U.S.C. § 860(b)(1), (c)(2)–(3) (2006).
13
In September 2008, prior to the special court-martial, Plaintiff was examined by a
Medical Evaluation Board, following reports of asthma, dyspnea on exertion, and wheezing during
exercise over the prior ten months. AR Tab 4 at 74–75. Plaintiff’s last Enlisted Performance
Report, issued prior to the court-martial proceeding, indicated that he did not meet the physical
10
On April 2, 2009, the Staff Judge Advocate submitted the clemency request, together with
a recommendation, for the Convening Authority’s review. AR Tab 4 at 11.
On April 4, 2009, the Convening Authority rejected Plaintiff’s clemency request and
approved the special court-martial conviction and sentence. AR Tab 16 at 327 (4/4/09 Action of
the Convening Authority). On that same date, the Convening Authority also signed a
memorandum stating that it “considered the attachments [to the clemency request] before taking
action on [the] case.” AR Tab 4 at 12.
D. The Judge Advocate’s Article 64(a) Review.
On April 30, 2009, the Judge Advocate completed an Article 64(a) review 14 and concluded
that the court-martial had jurisdiction over Plaintiff, who was convicted of actual offenses, and his
sentence was lawful. AR Tab 3 at 3–10. 15
fitness standards required for Air Force service. AR Tab 18 at 356 (Enlisted Performance Report
for 11/16/07 to 11/15/08). Failure to meet physical fitness standards can result in a medical
separation from the military. See AIR FORCE INSTRUCTION 36-3212 ¶ 1.1 (Dec. 21, 2007). But,
retirement benefits, including any disability benefits, are based upon creditable service and the
grade in which a serviceman retires. See id. ¶¶ 5.14–5.15. Because Plaintiff’s sentence included
a reduction in grade from E-7 to E-5, it would adversely affect his retirement benefits, when and
if he were to be retired for disability.
14
An Article 64(a) review occurs in certain courts-martial, where the accused is found
guilty. See 10 U.S.C. § 864(a) (2006). In those proceedings, the Judge Advocate reviews the
record to determine whether: (1) the military court had jurisdiction over the accused and the
offense; (2) the charge and specification stated an offense of which the accused could be convicted;
and (3) the sentence was within prescribed limits. Id. The Judge Advocate also is required to
provide a written conclusion regarding each of these issues and respond to each allegation of error
made in writing by the accused. Id. In this case, the Administrative Record does not reflect that
Plaintiff made any written allegations of error for the purposes of the Article 64(a) review.
Therefore, the Judge Advocate’s review does not contain any written conclusions about specific
allegations of error.
15
The Administrative Record includes four copies of the first and third pages of Special
Court-Martial Order No. 4, on each of which was typed the following:
Article 64(a), UCMJ, Review:
I conclude:
(a) the court-martial had jurisdiction over the accused and each offense as to which
there is a finding of guilty which has not been disapproved;
(b) each specification as to which there is a finding of guilty which has not been
disapproved stated an offense; and DATE: APR 30 2009
(c) the sentence is legal.
HEADQUARTERS SECOND AIR FORCE (AETC)
[Judge Advocate’s signature and name]
11
E. Plaintiff’s Retirement From The Air Force.
On October 26, 2009, Plaintiff was retired from the Air Force, for disability, at the grade
of E-5. Compl. ¶ 35. On that date, Plaintiff had served in the Air Force for 21 years and 23 days.
Compl. ¶ 35.
F. The Judge Advocate General’s Article 69(b) Review.
On March 28, 2011, Plaintiff petitioned the Judge Advocate General for a UCMJ Article
69(b) review, 16 and for a new trial, under UCMJ Article 73. 17 AR Tab 89. The petition cited the
following seven issues for review, including those raised in the motions in limine that were filed
prior to and during the special court-martial and a request for clemency. AR Tab 89 at 767.
First, AFI 36-2605 does not comport with law, because “[t]here is no articulable military
need for this instruction” and it “lacks the required specificity to ensure that it is not
unconstitutionally vague [or] overly broad.” AR Tab 89 at 769. Specifically, AFI 36-2605 does
not define “suspected controlled Weighted Airman Promotion System testing material,” so
Plaintiff could not possibly know what would constitute an offense. AR Tab 89 at 771.
Second, Plaintiff’s conviction should be set aside or, in the alternative, he should be granted
a new trial, based on a post-trial Defense Computer Forensic Laboratory report analyzing a file
from a witness’s (“Technical Sergeant D”) computer showing “what appear[ed] to be questions
and answers that may be related to the [WAPS tests].” AR Tab 89 at 776. Therefore, the file
permissions listing Technical Sergeant D as the file’s owner, suggested that Plaintiff did not create
the file and, contrary to court-martial testimony, Technical Sergeant D did not delete the file. AR
Tab 89 at 776–77.
Judge Advocate
AR Tab 3 at 3, 5, 7, 9.
Although the four copies are numbered sequentially, none of the copies includes the second
page of the Special Order, that presumably includes other offenses for which Plaintiff was
convicted. However, the same language quoted above, signaling the Judge Advocate’s review, is
also found on the cover page of the summary record of trial. AR Tab 1 at 1. Because the charge
sheet also was included in the summary record, this indicates the information missing from AR
Tab 3 was otherwise available to the Judge Advocate during his review.
16
An Article 69(b) review is available for summary and special courts-martial and some
general courts-martial that are not reviewed under other provisions of the UCMJ. 10 U.S.C. §
869(b) (2006). The review allows the Judge Advocate General an opportunity to review and
modify or set aside a conviction and/or sentence, in whole or in part, “on the ground of newly
discovered evidence, fraud on the court, lack of jurisdiction over the accused or the offense, error
prejudicial to the substantial rights of the accused, or the appropriateness of the sentence.” Id.17
UCMJ Article 73 permits the accused to petition the Judge Advocate General for a new
trial “on the grounds of newly discovered evidence or fraud on the court.” 10 U.S.C. § 873 (2006).
12
Third, the Staff Judge Advocate improperly and “actually signed the convening authority’s
action on behalf of the Commander and forwarded the matter to the convening authority[,]” and
“‘coached’ the Trial Counsel during the trial, [by] providing adversarial advice to the Trial Counsel
team.” AR Tab 89 at 777. Therefore, the Staff Judge Advocate acted as a “de facto” member of
the prosecution. AR Tab 89 at 778. In addition, “[d]uring a break in the testimony, [Staff Sergeant
A] was taken aside by the trial counsel and coached[,]” rendering the Military Judge’s denial of
Plaintiff’s motion for mistrial erroneous. AR Tab 89 at 778.
Fourth, the video recording admitted under MRE 404 should have been suppressed,
because the Military Judge admitted the video after determining it was relevant to show
consciousness of guilt, but the criteria for admission set forth under United States v. Reynolds, 29
M.J. 105 (C.M.A. 1989), 18 were not met. AR Tab 89 at 779–80. Nor did the video show Plaintiff
requesting an attorney to obstruct justice, because it showed any request for an attorney was made
by Technical Sergeant B, not Plaintiff. AR Tab 89 at 780.
Fifth, the court-martial venire should have been dismissed and a new trial ordered, because
certain members, including Lt. Col. X, discussed the merits of the case prior to deliberations. AR
Tab 89 at 781–82. Consequently, Lt. Col. X was challenged for cause, and then peremptorily
dismissed, so there was “a disquieting effect on the remaining members,” who could reasonably
believe that the court was signaling the other members “to find that the [testing] system was fair,”
even though fairness was a question for the trier of fact. AR Tab 89 at 782. The proper course
would have been to dismiss all of the members and order another venire or a new trial. AR Tab
89 at 782.
Sixth, if the Judge Advocate General determines that the aforementioned issues are
insufficient to reverse or otherwise set aside the conviction, the “cumulative error doctrine”
demands that the conviction and sentence be set aside. AR Tab 89 at 782–83.
Seventh, the other individuals involved in the alleged conspiracy were given “much
lighter” and disparate sentences, but Plaintiff was sentenced more severely, receiving a “two grade
reduction and hard labor without confinement.” AR Tab 89 at 783–84. Since the sentence was
excessive, the Judge Advocate General should set aside the conviction and order a new trial. AR
Tab 89 at 784.
Sometime in late 2011, Plaintiff submitted a supplemental brief in support of the petition
for an Article 69(b) review or a new trial under Article 73. AR Tab 90 (undated supplemental
brief reflecting that “it has been over seven months since the [Article 69 petition] was docketed”).
The delay “seem[ed] to have resulted from the record of trial being misplaced,” therefore the
supplemental brief addressed two additional issues: (1) whether the court-martial conviction could
18
That case held that, when the prosecution seeks to introduce evidence of uncharged
misconduct, admissibility is determined by a balancing of: (1) whether the evidence reasonably
supports a finding that the accused committed prior crimes, wrongs, or acts; (2) whether the
evidence is relevant, under MRE 401; and (3) whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, under MRE 403. See Reynolds, 29
M.J. at 109.
13
be affirmed, without the original record of trial; and (2) whether the allegedly unreasonable post-
trial delay deprived Plaintiff of due process. AR Tab 90 at 795.
Thereafter, the Judge Advocate General issued a final decision, determining that the
“record of trial has been examined[,] pursuant to Article 69(b) . . . and Article 73[.]” AR Tab 91
at 799 (undated decision of Judge Advocate General). Having considered the record, as well as
“newly discovered evidence,” i.e., the computer forensics report, the Judge Advocate General set
aside the finding of guilty as to one specification of Charge II, but otherwise affirmed the
conviction and sentence. AR Tab 91 at 799. The Judge Advocate General also declined to order
a new trial, “as doing so would not probably produce a substantially more favorable result for the
applicant.” AR Tab 91 at 799.
II. PROCEDURAL HISTORY.
On October 22, 2015, Plaintiff filed a Complaint in the United States Court of Federal
Claims, alleging that the Government violated his constitutional rights and improperly withheld
pay and allowances owed, while he was on active duty and during retirement. ECF No. 1 at 1
(Compl. ¶ 2). The Complaint also alleges that: (1) AFI 36-2605 is overbroad and void for
vagueness (Compl. ¶¶ 41–46); (2) the court-martial was tainted by prosecutorial misconduct
(Compl. ¶¶ 47–56); (3) the video evidence admitted should have been suppressed, and the failure
to do so resulted in an unconstitutional conviction (Compl. ¶¶ 57–65); (4) the court-martial
members venire should have been dismissed and a new trial ordered, because the members
discussed the merits prior to deliberations (Compl. ¶¶ 66–74); and (5) the “cumulative error
doctrine” requires the vacating of Plaintiff’s conviction and sentence (Compl. ¶¶ 75–77).
On October 21, 2016, the Government filed a Motion For Judgment On The Administrative
Record, pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 52.1(c). ECF
No. 21 (“Gov’t Mot.”). The October 21, 2016 Motion also included a sealed appendix (“Gov’t
App.”). ECF No. 21.
On February 21, 2017, Plaintiff filed a Response to the Government’s October 21, 2016
Motion and a Cross-Motion For Judgment On the Administrative Record. ECF No. 32 (“Pl.
Resp.”).
On May 3, 2017, the Government filed a Response to Plaintiff’s February 21, 2017 Cross-
Motion and Reply in support of its October 21, 2016 Motion. ECF No. 38 (“Gov’t Reply.”).
On August 16, 2017, Plaintiff filed a Reply to the Government’s May 3, 2017 Response.
ECF No. 45 (“Pl. Reply”).
III. DISCUSSION.
A. Jurisdiction.
Although the judgments by courts-martial are “not subject to direct review by federal civil
courts, [such judgments] may nevertheless be subject to narrow collateral attack in such courts on
constitutional grounds[,] if the action is otherwise within a court’s jurisdiction[.]” Bowling v.
United States, 713 F.2d 1558, 1560 (Fed. Cir. 1983). The United States Court of Federal Claims
14
has jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (2012), “to render judgment upon any
claim against the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. §
1491(a)(1) (2012). The Tucker Act also provides that, to afford complete relief, “the court may,
as an incident of and collateral to any such judgment, issue orders directing restoration to office or
position, placement in appropriate duty or retirement status, and correction of applicable records,
and such orders may be issued to any appropriate official of the United States.” 28 U.S.C. §
1491(a)(2) (2012). The Tucker Act, however, is “a jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages. . . . [T]he Act merely
confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive
right exists.” United States v. Testan, 424 U.S. 392, 398 (1976).
To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United States,
386 F.3d 1091, 1094 (Fed. Cir. 2004) (“[J]urisdiction under the Tucker Act requires the litigant to
identify a substantive right for money damages against the United States separate from the Tucker
Act[.]”); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“The
Tucker Act . . . does not create a substantive cause of action; . . . a plaintiff must identify a separate
source of substantive law that creates the right to money damages. . . . [T]hat source must be
‘money-mandating.’”). Specifically, a plaintiff must demonstrate that the source of substantive
law upon which he relies “can fairly be interpreted as mandating compensation by the Federal
Government[.]” Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988) (“[O]nce the [trial] court’s subject matter jurisdiction [is] put
in question . . . [plaintiff] bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.”).
In this case, the October 22, 2015 Complaint alleges that Plaintiff is owed back pay under
the Military Pay Act, 37 U.S.C. § 204 (2012). Compl. ¶ 2. That Act provides that a member of a
uniformed service who is on active duty is “entitled to the basic pay grade to which [that member
is] assigned[.]” 37 U.S.C. § 204(a) (2012). Back pay has been held to be money-mandating under
the Tucker Act. See Matias v. United States, 923 F.2d 821, 823 (Fed. Cir. 1990) (“[Plaintiff] seeks
correction of his military records and back pay. Both of these issues fall squarely within the Claims
Court’s Tucker Act jurisdiction.”).
The United States Court of Federal Claims has jurisdiction, to review collateral attack on
a court-martial proceeding, only where the Military Pay Act claims arose from a conviction in a
court-martial that suffered severe constitutional defects. See Bowling, 713 F.2d at 1560–61 (“In a
careful and exhaustive opinion, . . . the Claims Court reviewed the applicable law and correctly
held that judgments by courts-martial, although not subject to direct review by federal civil courts,
15
may nevertheless be subject to narrow collateral attack in such courts on constitutional grounds if
the action is otherwise within the court’s jurisdiction.”). 19
In this case, the October 22, 2015 Complaint alleges that the special court-martial
proceeding was a fundamentally unfair trial, and the admission of certain evidence violated the
First and Fifth Amendments to the United States Constitution. Compl. ¶ 77. These errors require
restoration in the form of “pay and allowances and benefits for the grade of E-7 commensurate
with [Plaintiff’s] time in service, retroactive to the effective date of [Plaintiff’s sentence,]” as well
as correction of military records and reinstatement to active duty, incidental to the monetary claim.
Compl. ¶ 77.
A six-year statute of limitations applies to any claim filed in the United States Court of
Federal Claims, that commences when the claim first accrues. See 28 U.S.C. § 2501 (2012). The
United States Court of Federal Claims construes claims for back pay, based on wrongful discharge,
as accruing on the date of discharge. See Young v. United States, 529 F.3d 1380, 1383, 1385 (Fed.
Cir. 2008). Plaintiff’s date of discharge was October 26, 2009. Compl. ¶ 35. The Complaint in
this case was filed on October 22, 2015. ECF No. 1.
For these reasons, the court has determined that it has jurisdiction to adjudicate the back
pay claims alleged in the October 22, 2015 Complaint.
B. Standing.
Constitutional standing is a “threshold jurisdictional issue.” Myers Investigative & Sec.
Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002). Although the requirements of
constitutional standing are derived from Article III of the United States Constitution, those
requirements also apply to the United States Court of Federal Claims. See Anderson v. United
States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003) (“The Court of Federal Claims, though an Article
I court, . . . applies the same standing requirements enforced by other federal courts created under
Article III.”).
To establish standing, a plaintiff must show that he or she suffered, “an injury-in-fact that
is both fairly traceable to the challenged conduct of the defendant and likely redressable by a
favorable judicial decision.” Figueroa v. United States, 466 F.3d 1023, 1029 (Fed. Cir. 2006).
The party invoking jurisdiction, bears the burden of establishing constitutional standing. See
Myers Investigative, 275 F.3d at 1369 (“[T]he party invoking federal jurisdiction bears the burden
of establishing [its] elements.”).
19
This is an exception to the ordinary rule that the United States Court of Federal Claims
does not have jurisdiction over due process claims under the Fifth and Fourteenth Amendments to
the United States Constitution, because they are not money-mandating within the meaning of the
Tucker Act. See, e.g., LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (“[Plaintiff’s]
complaint included counts alleging violation of his rights under the Due Process Clauses of the
Fifth and Fourteenth Amendments, the Equal Protection Clause of the Fourteenth Amendment,
and the doctrine of separation of powers. None of these is a sufficient basis for jurisdiction because
they do not mandate payment of money by the government.”).
16
In this case, the October 22, 2015 Complaint alleges that the Air Force withheld money
Plaintiff is due under the Military Pay Act and a favorable decision by the court would allow
Plaintiff to recover that back pay owed. Therefore, the October 22, 2015 Complaint properly
alleges that Plaintiff suffered an injury-in-fact traceable to the challenged court-martial that can be
redressed by a favorable decision by the United States Court of Federal Claims.
For these reasons, the court has determined that Plaintiff has standing to seek an
adjudication of the back pay claims alleged in the October 22, 2015 Complaint.
C. Exhaustion Of Administrative Remedies.
The general rule is that, “before seeking to collaterally attack [a] court martial conviction
in the civilian courts, [the plaintiff] must have exhausted all remedies available to him within the
military.” Williams v. Sec. of Navy, 787 F.2d 552, 558 (Fed. Cir. 1986) (citing Schlesinger v.
Councilman, 420 U.S. 738, 758 (1975)). This requirement applies regardless of whether Plaintiff
“alleges violation of the Constitution, statutes, or military regulations.” Id.In this case, Plaintiff has utilized all available avenues for review and appeal of his
conviction and sentence within the military justice system. Plaintiff submitted a request for
clemency to the Convening Authority, that was denied. AR Tab 4 at 17–88; AR Tab 16 at 327.
The Judge Advocate conducted an Article 64(a) review of Plaintiff’s court-martial and denied
relief. AR Tab 3 at 3–10. Thereafter, Plaintiff requested an Article 69(b) and Article 73 review
by the Judge Advocate General, that both were denied. AR Tab 89; AR Tab 91. Under UCMJ
Article 66, Plaintiff cannot appeal to the Air Force Court of Criminal Appeals, because he received
a lesser sentence than can be appealed to that court. See 10 U.S.C. § 866 (2006). 20 Consequently,
Plaintiff also cannot file an appeal to the United States Court of Appeals for the Armed Forces or
petition for certiorari to the United States Supreme Court.
For these reasons, the court has determined that Plaintiff exhausted all available
administrative remedies before filing the October 22, 2015 Complaint in this case.
D. Standard Of Review For A Motion For Judgment On The Administrative
Record.
On a motion for judgment on the administrative record, “[t]he standards and criteria
governing the court’s review of agency decisions vary depending upon the specific law to be
applied in particular cases. The rule does not address those standards or criteria.” RCFC 52.1(c)
Rules Committee’s Note to 2006 adoption.
When a Complaint collaterally attacks a court-martial conviction in the United States Court
of Federal Claims, the court’s review is extremely narrow and limited to claims arising from a
court-martial that suffered substantial constitutional defects. See Bowling, 713 F.2d at 1560–61
(“This is true notwithstanding the fact that Article 76 of the UCMJ, 10 U.S.C. § 876, expressly
states that all dismissals and discharges under sentences by courts-martial following approval,
review, or affirmation are final and conclusive.”) But, “the constitutional claims must be serious
20
See supra note 9.
17
ones to support an exception to the rule of finality. They must demonstrate convincingly that in
the court-martial proceedings there has been such a deprivation of fundamental fairness as to
impair due process.” Id. at 1561. The United States Supreme Court has held that, “apart from
trials conducted in violation of express constitutional mandates, a constitutionally unfair trial takes
place only where the barriers and safeguards are so relaxed or forgotten . . . that the proceeding is
more a spectacle . . . or trial by ordeal . . . than a disciplined contest.” United States v. Augenblick,
393 U.S. 348, 356 (1969) (citations omitted). Therefore, the court’s “limited function [is] to
determine whether the military tribunal gave fair consideration to each of [Plaintiff’s] claims.”
Matias, 923 F.2d at 826.
E. The Government’s Motion For Judgment On The Administrative Record.
In sum, the Government argues that Plaintiff was not deprived of a fundamentally fair trial
nor of constitutional due process rights, because each issue now raised as a collateral attack on the
court-martial was fully briefed and argued in the military justice system. Gov’t Mot. at 11 (citing
Matias, 19 Cl. Ct. 635, 646 (Cl. Ct. 1990), aff’d, 923 F.2d 821 (Fed. Cir. 1990) (“When an issue
has been briefed and argued before a military court, it has received full and fair consideration, even
if that court disposes of the claim summarily with a statement that it did not consider the issue
meritorious or requiring discussion.”).
In this case, five of the issues that Plaintiff has raised were presented in the clemency
request to the Convening Authority, before the Judge Advocate, or the Judge Advocate General.
Gov’t Mot. at 12. Therefore, Plaintiff has received full and fair consideration of the issues or failed
timely to raise them. Gov’t Mot. at 12. Even if the court agrees that Plaintiff’s arguments were
not fully and fairly considered, nevertheless the court “should not re-weigh the facts” and only
may permit collateral attack on the conviction if it determines that the military rulings were so
unfair as to constitute a significant deprivation of Plaintiff’s constitutional rights. Gov’t Mot. at
12–13.
1. AFI 36-2605 Is Not Void For Vagueness, Nor Overbroad.
a. The Government’s Argument.
Plaintiff first contended in a March 9, 2009 motion in limine that AFI 36-2605 was
unconstitutionally vague or overbroad. AR Tab 30 at 569–71 (citing Grayned v. City of Rockford,
408 U.S. 104, 108 (1972) (“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.”)). On March 11, 2009, the Air Force
disagreed, because that instruction provided that “Air Force members cannot cheat.” Gov’t Mot.
at 4 (citing AR Tab 30 at 570–71; AR Tab 31 at 576 (citing Parker v. Levy, 417 U.S. 733, 757
(1974) (“Void for vagueness simply means that criminal responsibility should not attach where
one could not reasonably understand that his contemplated conduct is proscribed. In determining
the sufficiency of the notice a statute must of necessity be examined in the light of the conduct
with which a defendant is charged.”) (citations and quotation marks omitted))). The Military Judge
ruled that AFI 36-2605 was “not unconstitutionally vague[ because i]t clearly explains what
conduct is prohibited in relation to the WAPS testing in plain English” and specifically defines
“actual test material” and “suspected test material.” AR Tab 16 at 155. Plaintiff also raised this
argument in his March 28, 2011 appeal to the Judge Advocate General, who also rejected it. AR
18
Tab 89 at 768–75; AR Tab 91 at 799. Therefore, Plaintiff received “full and fair consideration of
his contentions [regarding AFI 36-2605] and [the] collateral attack should be denied on this basis
alone.” Gov’t Mot. at 13 (citing AR Tab 91 at 799) (Judge Advocate General decision declining
to order relief on any ground other than the newly discovered evidence).
“The void-for-vagueness doctrine requires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement.” Posters’N’Things,
Ltd. v. United States, 511 U.S. 513, 525 (1994) (internal citations and quotations omitted);
see also Cooper v. United States, 20 Cl. Ct. 770, 775 (Cl. Ct. 1990) (“A statute is not void for
vagueness when it requires a person to conform his conduct to an imprecise but comprehensible
normative standard; it is void for vagueness when no standard of conduct is specified at all.”). AFI
36-2605 provides that violating paragraph 5.9 can subject a service member to criminal
prosecution: “Failure to observe prohibitions and mandatory provisions in paragraph . . . 5.9 . . . is
a violation of Article 92, Uniform Code of Military Justice[.]” Gov’t Mot. at 14 (citing AR Tab
17 at 335). The Government contends that “[a] reasonable person should understand that these
provisions prohibit Air Force service members from accessing and sharing actual or suspected test
material.” Gov’t Mot. at 15. And, “[c]onsistent with the definition of ‘suspected test material,’”
Plaintiff was charged with conspiracy and improperly sharing highlighted and other test material
with Staff Sergeant A and others. AR Tab 16 at 133–35 (charge sheet); see also, e.g., AR Tab 16
at 246 (Staff Sergeant A’s testimony that she received highlighted test materials from Plaintiff that
also included handwritten notes).
Nor is AFI 36-2605 overbroad. “A general order or regulation is lawful unless it is contrary
to the Constitution, the laws of the United States, or lawful superior orders or for some other reason
is beyond the authority of the official issuing it.” U.S. DEP’T OF DEF., MANUAL FOR COURTS-
MARTIAL, Part IV, ¶ 16.c(1)(c) (2008). As a matter of law, an order is presumed to be lawful and
that may be overcome only when a plaintiff shows at least one of the following three requirements
is not met: “(1) issuance by competent authority—a person authorized by applicable law to give
such an order; (2) communication of words that express a specific mandate to do or not do a
specific act; and (3) relationship of the mandate to a military duty.” United States v. Deisher, 61
M.J. 313, 317 (C.A.A.F. 2005). The Secretary of the Air Force issued AFI 36-2605, pursuant to
10 U.S.C. § 8013(g)(1), authorizing that the Secretary “[m]ay assign, detail, and prescribe the
duties of members of the Air Force and civilian personnel of the Department of the Air Force[.]”
Gov’t Mot. at 16. The purpose of AFI 36-2605 is to prohibit service members from sharing or
discussing actual or suspected test material, because there is a clear military duty and need to
“identify the right person for the right job [and] select and classify individuals and assess their
skills and knowledge in various areas.” AFI 36-2605 ¶ 1.1; AR Tab 17 at 341–42. Since all three
requirements are met, AFI 36-2605 is not overbroad. Gov’t Mot. at 16–17.
b. Plaintiff’s Response.
Plaintiff responds that AFI 36-2605 is overbroad and void for vagueness, so that Plaintiff’s
conviction cannot stand. Pl. Resp. at 11. Moreover, because no military court determined the
constitutionality of AFI 36-2605, this court must review its validity as a matter of law de novo. Pl.
Resp. at 11.
19
For an order or regulation to be lawful, three conditions must be met, i.e., the order or
regulation must be (1) “reasonably in furtherance of or connected to military needs (e.g., promotes
morale, discipline and usefulness of command),” (2) “specific as to time and place and definite
and certain in describing the act or thing to be done or omitted,” and (3) “not . . . contrary to
established law or regulation.” Pl. Resp. at 11–12 (citing United States v. Wine, 28 M.J. 688, 690–
91 (A.F.C.M.R. 1989); see also U.S. DEP’T OF DEF., MANUAL FOR COURTS-MARTIAL, Part IV ¶
14.c(2)(a)) (2008). Plaintiff argues that “there is no articulated military need for this instruction”
and the prohibition against sharing “suspected” testing material does not serve any military
purpose. Pl. Resp. at 12. As a matter of policy, other military services promote the sharing of
knowledge in preparing officers and enlisted personnel for advancement. Pl. Resp. at 12.
In addition, there is no precise definition of “suspected controlled Weighted Airman
Promotion System testing material.” Pl. Resp. at 14. Therefore, Plaintiff could not possibly know
that distribution of the material fit this category and, since this regulation is so broad, the Air Force
can define “suspected” test material to be anything. Pl. Resp. at 14.
Moreover, AFI 36-2605 impermissibly interferes with Plaintiff’s First Amendment rights
to freedom of speech and association, because “[p]rohibiting innocuous study groups . . . fall[s]
short of [the] legitimate use of military authority.” Pl. Resp. at 16. In short, “the AFI is wholly
unconstitutional by interfering with [Plaintiff’s] core freedoms as an American.” Pl. Resp. at 18.
c. The Government’s Reply.
The Government also notes that, during the court-martial, Plaintiff did not contest whether
the Air Force Instruction served a military need. Gov’t Reply at 11.
d. The Court’s Resolution.
At each stage of the special court-martial and subsequent reviews, Plaintiff’s argument that
AFI 36-2605 was constitutionally flawed was rejected as without merit. During the court-martial,
the Military Judge carefully analyzed the text and definitions of terms contained in AFI 36-2605,
concluding that there was no merit to Plaintiff’s argument that he did not “know what [he was]
defending against” and that AFI 36-2605 was not unconstitutionally vague, because it “clearly
explains what conduct is prohibited in relation to the WAPS testing in plain English.” AR Tab 16
at 155. In addition, the instruction specifically defined “suspected test material,” “illegal test
material,” and “actual test material,” so “the accused is clearly on notice as to what those terms
mean.” AR Tab 16 at 155. The Military Judge also found Plaintiff’s argument that AFI 36-2605
violated his First Amendment right to freedom of speech and of association without merit. AR
Tab 16 at 155–56 (“The accused was free to associate with [other members of the Air Force].
However, he was not free to discuss and share test materials or suspected test materials, as defined
by the AFI, with other examinees.”).
The Judge Advocate reviewed the court-martial in an Article 64(a) review, and also
declined to order any relief. AR Tab 3 at 3–10.
Plaintiff also raised the same arguments in the petition for a UCMJ Article 69(a) review or
a new trial, pursuant to UCMJ Article 73. AR Tab 89 at 768–75. The Judge Advocate General
declined to order relief on this ground. AR Tab 91 at 799 (Judge Advocate General’s final
20
determination) (“I have determined that the findings . . . and the imposed sentence . . . are
appropriate. I find that there is no basis to grant a new trial[.]”). The Judge Advocate General’s
failure to identify these specific First Amendment claims in his determination does not indicate
that he failed to fully and fairly consider them. “When an issue has been briefed and argued before
a military court, it has received full and fair consideration, even if that court disposes of the claim
summarily with a statement that it did not consider the issue meritorious or requiring discussion.”
Matias, 19 Cl. Ct. at 646. The court sees no reason why the same principle would not apply, when
the Plaintiff’s recourse is not to a military appellate court, but to the Judge Advocate General.
For these reasons, the court has determined that Plaintiff received full and fair
consideration of whether AFI 36-2605 was void for vagueness, overbroad, or violated the First
Amendment and Due Process clause of the Fifth Amendment. Absent plain error, such that
Plaintiff’s Due Process was impaired, this court will not reweigh the determinations previously
made in the court-martial proceedings.
2. The Court-Martial Was Not Tainted By Prosecutorial Misconduct.
a. The Government’s Argument.
The Government next argues that Plaintiff received full and fair consideration of the
allegations of prosecutorial misconduct and, in any event, “cannot demonstrate constitutional error
justifying collateral attack of his court-martial conviction.” Gov’t Mot. at 17. “A plaintiff in this
court must make some showing, not merely an allegation, that the staff legal officer’s fulfillment
of his advisory functions led to unfairness or that the system is inherently unfair,” and, in the
absence of that showing, this court defers to the court-martial system to determine whether the
Staff Judge Advocate’s actions violated UCMJ Article 6(c). 21 Gov’t Mot. at 18 (quoting Gross v.
United States, 531 F.2d 482, 490 (Ct. Cl. 1976)). Although Plaintiff claims that the Staff Judge
Advocate signed the charge sheet, coached the prosecution trial counsel, and therefore improperly
advised the Convening Authority during the clemency request, “these allegations are not borne out
by the facts,” and Plaintiff’s argument was fully and fairly considered. Gov’t Mot. at 18–19.
The Government explained that the Staff Judge Advocate “did not sign the charge sheet[]
as part of the prosecution,” because she “signed the portion of the charge sheet in her role as Staff
Judge Advocate (1) to confirm receipt of the proposed charges by the Convening Authority and
(2) to refer and serve the charges.” Gov’t Mot at 19 (citing AR Tab 23 at 439–40 (1/20/09 charge
sheet signed “FOR THE COMMANDER” with the “official capacity of officer signing” listed as
“Staff Judge Advocate” in both receipt and referral blocks)). The summary record of trial also
does not evidence that she coached the prosecution, nor did Plaintiff’s counsel object to her
conduct during the court-martial proceeding. Gov’t Mot. at 19. Instead, Plaintiff asserted for the
first time in his clemency request that the Staff Judge Advocate “had attended several days of the
trial, sat behind counsel, and passed notes to the prosecution during witness examinations” but
21
UCMJ Article 6(c) provides, “No person who has acted as a member, military judge,
trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating
officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority
upon the same case.” 10 U.S.C. § 806(c) (2006).
21
simultaneously stated that “no one is alleging any actual wrongdoing on [her] part[.]” Gov’t Mot.
at 19 (citing AR Tab 4 at 17–18).
In any event, Plaintiff has not shown any prejudice. The Staff Judge Advocate prepared
information regarding the court-martial proceeding for the Convening Authority’s review, but
Plaintiff has not shown that she was actually, not just conceivably, biased. Gov’t Mot. at 19–20
(citing Gross, 531 F.2d at 488–89). And, although Plaintiff asserts that the Staff Judge Advocate’s
actions may have created an appearance of unlawful command influence, Plaintiff failed to raise
this issue in any prior proceeding or appeal. AR Tab 4 at 17–18; AR Tab 89. Therefore, Plaintiff
has waived this argument. See Martinez v. United States, 914 F.2d 1486, 1488 (Fed. Cir. 1990);
Klingenschmitt v. United States, 119 Fed. Cl. 163, 190–91 (Fed. Cl. 2014), aff’d, 623 F. App’x
1013 (Fed. Cir. 2015), cert. denied, 2016 WL 3078025 (U.S. Oct. 3, 2016).
b. Plaintiff’s Response.
Plaintiff responds that the Staff Judge Advocate committed prosecutorial misconduct
because, in this case, she “actually signed the convening authority’s action on behalf of the
Commander and forwarded the matter to the [C]onvening [A]uthority.” Pl. Resp. at 18–19. In
addition, the Staff Judge Advocate “made herself a prosecutor” by “providing adversarial advice
to the Trial Counsel team.” Pl. Resp. at 19. In the military justice system, a trial counsel may not
later act as a Staff Judge Advocate to the Convening Authority. Pl. Resp. at 19 (citing United
States v. McCormick, 34 M.J. 752, 756 (N-M.C.M.R. 1997)).
The Staff Judge Advocate’s actions resulted in an unfair and partial court-martial, and
evidenced unlawful command influence. Pl. Resp. at 20–21. Even if there was no actual unlawful
command influence, “there may be a question whether the influence of command placed an
intolerable strain on public perception of the military justice system.” United States v. Stoneman,
57 M.J. 35, 42–43 (C.A.A.F. 2002) (quotation and citation omitted). Therefore, the appropriate
remedy may include dismissal, even dismissal with prejudice. Pl. Resp. at 21–22. This is so,
because the Staff Judge Advocate’s actions are imputable to the Convening Authority and “[w]hen
unlawful influence is directed against a defense counsel, it . . . ‘affects adversely an accused’s right
to effective assistance of counsel.’” Pl. Resp. at 22 (citing United States v. Thomas, 22 M.J. 388,
393 (C.M.A. 1986)).
And, Plaintiff did not waive this argument, because it may be raised for the first time on
appeal. Pl. Resp. at 22 (citing United States v. Blaylock, 15 M.J. 190, 193 (C.M.A. 1983)). It is
well established that “[m]ilitary courts have never allowed doctrines of waiver to prevent
consideration of unlawful command influence.” Pl. Resp. at 22. Although the military courts
“will go to great lengths to ensure beyond a reasonable doubt that the decisions of the members
were not tainted by illegal command influence[,] . . . there must be more than a mere appearance
of evil to justify appellate action. . . . Prejudice is not presumed. The issue of unlawful command
influence must be alleged with particularity and substantiation.” United States v. Reynolds, 40
M.J. 198, 201–02 (C.M.A. 1994) (citations omitted).
22
c. The Government’s Reply.
The Government replies that Plaintiff incorrectly argues the Staff Judge Advocate “actually
signed the convening authority’s action on behalf of the Commander and forwarded the matter to
the convening authority.” Gov’t Reply at 12 (quoting Pl. Resp. at 18–19). To the extent Plaintiff
is referring to the Staff Judge Advocate’s signature on the referral of charges, AFI 51-201 ¶ 4.7.1
permits the Convening Authority to delegate authority to sign the referral block on the charge sheet
to a judge advocate, who then signs the referral “FOR THE COMMANDER” and that is what the
Staff Judge Advocate did in this case. AR Tab 23 at 440. The Staff Judge Advocate did not sign
the Commander’s action to execute the Action of the Convening Authority; instead, the Convening
Authority executed that document. Gov’t Reply at 12 (citing AR Tab 16 at 327).
In addition, the record does not support that the Staff Judge Advocate effectively acted as
trial counsel. Gov’t Reply at 13. Plaintiff never raised an objection to any “prosecutorial
misconduct” during the special court-martial, and first raised the issue in his request for clemency,
but therein Plaintiff stated that “no one is alleging any actual wrongdoing on the part of [the Staff
Judge Advocate].” Gov’t Reply at 13 (quoting AR Tab 4 at 17–18). In any event, the Convening
Authority considered this issue when it was raised (AR Tab 4 at 11–12), and any potential
prejudice was subject to review without action. Gov’t Reply at 14 (citing United States v. Dowty,
60 M.J. 163, 173 (C.A.A.F. 2004) (holding there was no prejudice where the Convening Authority
reviewed an action by the Staff Judge Advocate)).
Finally, Plaintiff’s contention that an allegation of unlawful command influence may be
raised for the first time on appeal is misplaced. Gov’t Reply at 14. This is so, because Plaintiff
never raised the issue to the Judge Advocate General, and the United States Court of Federal
Claims “does not sit as an appellate court reviewing courts-martial.” Gov’t Reply at 14–15 (citing
Flute v. United States, 535 F.2d 624, 626 (Ct. Cl. 1976)). Unlawful command influence cannot be
raised for the first time in this court. See Klingenschmitt, 119 Fed Cl. at 190–91; [N G] v. United
States, 94 Fed. Cl. 375, 388 (Fed. Cl. 2010) (“Assuming, arguendo, that plaintiff has shown facts
constituting [unlawful] command influence, plaintiff failed to adduce them while arguing his case
to the military. This is fatal to this position.”). Plaintiff’s speculation that the Staff Judge Advocate
coached the prosecution and acted as trial counsel likewise was not raised in the clemency petition.
Gov’t Reply at 16. Therefore, Plaintiff waived this issue by failing to raise it in the military justice
system. Gov’t Reply at 16.
d. The Court’s Resolution.
The Government contends that failure to raise unlawful command influence during the
court-martial itself waives the issue on collateral attack. See Klingenschmitt, 119 Fed. Cl. at 190
(citing Martinez, 914 F.2d at 1488 (holding that “failure to raise his constitutional claims in the
military court system bars him from raising them in federal court”)). But, Klingenschmitt is not
controlling, because that case concerned issues that were never raised during any of the military
proceedings. Id. at 190 (“Of the several examples of alleged improper command influence set
forth in his brief, however, only one . . . was raised before the court-martial. . . . The other
objections . . . were not raised and are therefore waived.”). The United States Court of Appeals
for the Federal Circuit affirmed Klingenschmitt in a nonprecedential, unpublished decision,
without a written opinion. And, Martinez, on which the United States Court of Federal Claims’s
23
holding in Klingenschmitt relies, only concerns arguments that a plaintiff has failed to raise at all
in the military court system. See Martinez, 914 F.2d at 1488 (“This case squarely presents the
issue ‘whether a plaintiff seeking to collaterally attack a court-martial conviction on constitutional
grounds may have waived his constitutional claims by failing to raise them at all in the military
justice system.’ . . . Absent a showing of good cause and prejudice, [such failure] bars him from
raising them in federal court.”) (emphasis added).
In this case, Plaintiff did not fail to raise the issue of unlawful command influence in the
military court system; it first was raised in the request for clemency, and again in the petition for
the Judge Advocate General’s review. Thus, neither Klingenschmitt nor Martinez is relevant to
whether Plaintiff’s unlawful command influence argument is waived.
In this case, the relevant military court precedent provides that Plaintiff was not required
to raise his unlawful command influence argument during the court-martial proceeding. See
Blaylock, 15 M.J. at 193 (“The failure of appellant’s defense counsel to contest at trial the manner
in which the charges were referred does not preclude appellant from raising this issue on appeal.
In view of the policy clearly stated in [UCMJ] Article 37, we have never allowed doctrines of
waiver to prevent our considering claims of improper command control.”) (citation omitted).
Therefore, Plaintiff was permitted to raise unlawful command influence for the first time in the
review proceedings following the special court-martial, and he did so.
Therefore, the court has determined that Plaintiff’s argument regarding unlawful command
influence is not waived, for the purposes of this collateral attack. Therefore, the court turns to
whether that issue received full and fair consideration in the military justice system.
The Convening Authority and the Judge Advocate General also reviewed the same
argument Plaintiff makes now and both found it without merit. “When an issue has been briefed
and argued before a military court, it has received full and fair consideration, even if that court
disposes of the claim summarily with a statement that it did not consider the issue meritorious or
requiring discussion.” Matias, 19 Cl. Ct. at 646. Nor has Plaintiff demonstrated that the Staff
Judge Advocate exerted any unlawful command influence, so that prior determinations were
erroneous. In short, the court does not presume prejudicial effect from the fact that the Staff Judge
Advocate held multiple roles. See Gross, 531 F.2d at 489 (“[W]e would not assume unfairness or
prejudice to a court-martial defendant from the mere existence of a legislative system giving the
convening authority multiple roles[.] . . . The reasons for our refusal to assume prejudicial effect
are stronger in this case, where plaintiff has challenged not the convening authority’s position but
that of the staff legal officer[.]”). And, the Administrative Record does not demonstrate that the
Staff Judge Advocate acted in any way contrary to the scope of her authority or duties. “[W]ithout
far greater proof than plaintiff has proffered, we cannot invalidate a conviction where all
requirements of a statutory system carefully devised by Congress and approved generally by the
Supreme Court were met.” Id.
24
3. The Military Judge’s Remedy For The Alleged Coaching Of Staff
Sergeant A Was Not In Error.
a. The Government’s Argument.
The Government argues that the court-martial judge fully and fairly considered Plaintiff’s
argument that Staff Sergeant A was coached and that argument was raised and considered in each
subsequent review. Gov’t Mot. at 21. The appropriate remedy for improper witness coaching is
permitting opposing counsel to cross-examine the witness in front of the jury. See Geders v. United
States, 425 U.S. 80, 89 (1976) (“[O]pposing counsel in the adversary system is not without
weapons to cope with ‘coached’ witnesses[,]” because counsel may cross-examine a witness “as
to the extent of any ‘coaching’ during a recess, subject, of course, to the control of the court.”);
Rhynes v. United States, 218 F.3d 310, 320 (4th Cir. 2000) (same). Therefore, the Military Judge’s
refusal to grant a mistrial was not erroneous. Gov’t Mot. at 21. In this case, because the Military
Judge permitted Plaintiff’s counsel to cross-examine Staff Sergeant A regarding the extent of any
purported coaching. Gov’t Mot. at 21 (citing AR Tab 16 at 264–65).
In addition, no sequestration order prohibited counsel from conferring with a witness
during a recess, nor is there any such general prohibition. Gov’t Mot. at 21 (citing United
States v. Rodriguez-Rivera, 60 M.J. 843, 847 (N-M. Ct. Crim. App. 2005) (“Without an explicit
instruction from the [M]ilitary [J]udge, the trial counsel were not prohibited either by [MRE] 615
or case law from discussing the [witness’s] testimony with her during recess.”), aff’d on this
ground, rev’d on other grounds, 63 M.J. 372, 378–79 (C.A.A.F. 2006)). And, even if there had
been a sequestration order, cross-examination remedied any potential error. Gov’t Mot. at 22.
Therefore, declaring a mistrial or striking the testimony was not required. Gov’t Mot. at 22 (citing
LAFAVE, CRIM. PROC. § 24.4(d) (4th ed. 2015) (“When the violation of a sequestration order is
indicated during or before trial (e.g., a witness . . . discusses evidence with another witness before
testifying), courts have discretion to choose from among several remedies. Mistrial is rarely
ordered.”) (footnotes omitted)).
Again, Plaintiff raised this issue on appeal to the Judge Advocate General. AR Tab 89 at
778–79. By doing so at this juncture, Plaintiff “simply seeks to relitigate an evidentiary issue
resolved in the military justice system.” Gov’t Mot. at 22 (citing Matias, 19 Cl. Ct. at 644
(“Plaintiff is again asking this court to reweigh the evidentiary findings of the military courts with
the hope that this [c]ourt will substitute its judgment for that of the trial court—a request that is
clearly beyond the limited review allowed in this [c]ourt.”)).
b. Plaintiff’s Response.
Plaintiff responds that Staff Sergeant A was taken aside during a break in her testimony
and coached to correct her prior testimony. Pl. Resp. at 22–23 (citing AR Tab 16 at 263–65).
Therefore, the Military Judge’s denial of Plaintiff’s motion for a mistrial was clear, not harmless,
error. Pl. Resp. at 23 (citing United States v. Shabazz, 52 M.J. 585, 594 (N-M. Ct. Crim. App.
1999) (holding that allowing testimony given by video teleconference was clear error, where the
video made it obvious the witness was being coached)).
25
c. The Government’s Reply.
The Government replies that the cross-examination of Staff Sergeant A about coaching
during a break in her testimony was sufficient to remedy any prejudice, and in any event, the Judge
Advocate General considered the issue on appeal. Gov’t Reply at 16. As such, Plaintiff has failed
to identify any constitutional violation or any denial of a full and fair opportunity to present his
concerns in the military justice system. Gov’t Reply at 17. Thus, Plaintiff “simply seeks to
relitigate an evidentiary issue resolved in the military justice system.” Gov’t Reply at 17 (citing
Matias, 19 Cl. Ct. at 644 (“Plaintiff is again asking this [c]ourt to reweigh the evidentiary findings
of the military courts with the hope that this [c]ourt will substitute its judgment for that of the trial
court—a request that is clearly beyond the limited review allowed in this [c]ourt.”)).
d. The Court’s Resolution.
Plaintiff raised the same arguments about alleged witness coaching in a motion for mistrial
and petition for a UCMJ Article 69(a) review or alternatively, a new trial, pursuant to UCMJ
Article 73. AR Tab 89 at 778–79. The Military Judge permitted cross-examination on the extent
of any purported coaching and, after hearing an argument for mistrial, denied the motion. AR Tab
16 at 263. This was an appropriate remedy for any alleged coaching. See Geders, 425 U.S. at 89–
90 (“[Counsel] may cross-examine a [witness] as to the extent of any ‘coaching’ during a
recess . . . . Skillful cross-examination could develop a record as to the [witness’s] credibility, if
it developed that . . . counsel had in fact coached the witness as to how to respond on the remaining
direct examination and on cross-examination.”). The Judge Advocate General also declined to
declare a mistrial. AR Tab 91 at 799 (Judge Advocate General’s final determination) (“I have
determined that the findings . . . and the imposed sentence . . . are appropriate. I find that there is
no basis to grant a new trial[.]”). Therefore, this issue received full and fair consideration. See
Matias, 19 Cl. Ct. at 646.
Plaintiff has cited no authority for the proposition that the cross-examination was
insufficient to remedy any coaching. Nor has Plaintiff demonstrated that the court-martial
proceedings on this issue or during any subsequent review were fundamentally unfair. See
Bowling, 713 F.2d at 1561. Absent plain error, such that Plaintiff’s Due Process was impaired, it
is not for this court to reweigh the determinations previously made in the military proceedings.
See id. at 1562.
4. The Military Judge’s Ruling That Video Evidence Should Not Be
Suppressed Was Not In Error.
a. The Government’s Argument.
The Government argues that Plaintiff also received full and fair consideration of the request
to suppress a video recording between Plaintiff and Technical Sergeant B, that was also raised and
rejected on review. Gov’t Mot. at 23. Plaintiff may not collaterally attack the Military Judge’s
determination regarding this evidentiary issue. See Bowling, 713 F.2d at 1561–62 (“[Suppression
of evidence obtained by an allegedly impartial officer is] a question of factual inquiry which the
military trial and appellate courts all resolved against plaintiff after his counsel had been afforded
every reasonable opportunity to establish partiality.”).
26
The new objection Plaintiff now raises—that the recording includes a request for counsel
that is inadmissible—was never presented during the court-martial. Gov’t Mot. at 23. At that
proceeding, Plaintiff objected to the recording, based on hearsay and MRE 404(b), arguing it was
inadmissible character evidence. Gov’t Mot. at 23–24; see also AR Tab 16 at 151, 225–27. Only
on appeal to the Judge Advocate General and now, on collateral attack, does Plaintiff object to the
evidence based on MRE 301(f)(3). 22 Gov’t Mot. at 23. Because Plaintiff failed to raise an
objection based on MRE 301(f)(3) during the special court-martial proceeding, the issue of
suppression is untimely and waived. See United States v. Finch, 64 M.J. 118, 122 (C.A.A.F. 2006)
(“Failure to object at trial constitutes waiver of that issue. When an objection is waived at trial, it
can only be reviewed by establishing plain error.”); see also Martinez, 914 F.2d at 1488 (holding
a failure to raise an objection in the military system waives that objection on collateral attack).
Moreover, even if there is some evidence in the record that may support suppression, that objection
was not preserved. See Martinez, 914 F.2d at 1489 (“[T]hat some of the evidence allegedly
supporting . . . [a] claim . . . overlaps evidence supporting different claims that [Plaintiff] did raise
before the Court of Military Review . . . is not sufficient to preserve his [new] claim in this
collateral proceeding.”).
Even if the court concludes that the argument is not waived, Plaintiff has failed to show
any “prejudicial constitutional violation that rendered his court martial a ‘trial by ordeal.’” Gov’t
Mot. at 23 (internal quotation marks omitted). MRE 301(f)(3), and the privilege against self-
incrimination under the Fifth Amendment to the United States Constitution, “do not prohibit the
prosecution from offering testimony of a defendant’s invocation of a lawyer in all circumstances.”
Gov’t Mot. at 25; see also AR Tab 16 at 204–05. But because the videotaped conversation
evidenced a joint motive to retain an attorney for the purposes of obstructing the investigation and
MRE 404(b) permits the admission of evidence to show course of conduct, admitting that evidence
does not invoke constitutional issues. Gov’t Mot. at 25; see also United States v. Reeves, 61 M.J.
108, 110 (C.A.A.F. 2005) (“[O]ne who advises, with a corrupt motive, that a witness exercise a
constitutional right or privilege may obstruct the administration of justice.”).
b. Plaintiff’s Response.
Plaintiff responds that admitting the video recording was error, and that the military judge
improperly denied Plaintiff’s motion for a mistrial. Pl. Resp. at 23. This is so, because the
evidence concerned uncharged misconduct, and was admitted, pursuant to MRE 404(b), “to show
consciousness of guilt in that the accused and [Technical Sergeant B] were obstructing justice by
stating that they would not make a statement [during the OSI investigation] and that they would
‘lawyer up.’” Pl. Resp. at 23; AR Tab 16 at 205–06. Such evidence is admissible under MRE
404(b), however, only if it satisfies a three-part test. Pl. Resp. at 23–24 (citing Reynolds, 29 M.J.
at 109). Evidence is admissible only if the court balances: (1) whether the evidence reasonably
supports a finding that the accused committed prior offenses; (2) whether the evidence is relevant,
i.e., a fact of consequence is made more or less probable by the existence of the evidence; and (3)
whether the probative value of the evidence is substantially outweighed by the danger of unfair
22
That rule provides, “[w]hen the accused does not testify at trial, defense counsel may
request that the members of the court be instructed to disregard that fact and not to draw any
adverse inference from it.” MRE 301(f)(3); see also infra note 23.
27
prejudice. Reynolds, 29 M.J. at 109. In this case, the military judge did not consider each of these
elements or conduct any balancing. Pl. Resp. at 24.
In addition, invoking the right to remain silent and to counsel neither impedes nor obstructs
an investigation. Pl. Resp. at 24. An agreement to do lawful acts does not amount to obstruction
of justice and, in any event, the observation that “everyone should keep quiet and request an
attorney” originated with Technical Sergeant B, not with Plaintiff, so the evidence does not
demonstrate Plaintiff’s alleged consciousness of guilt. Pl. Resp. at 24. Therefore, it cannot be a
prior crime or bad act that falls within MRE 404(b). Plaintiff further contends that the conversation
was invoking his right to counsel and to remain silent, and therefore “any reference to the fact that
an accused exercised [these rights]” is error. Pl. Resp. at 25 (citing United States v. Nees, 39
C.M.R. 29, 33 (C.M.A. 1968) (“We need not decide the question of prejudice [resulting from the
admission of the accused’s invocation of the right to counsel, based on the court’s ruling on another
issue]. Error, however, is clearly apparent.”)). The “obvious intent” of the recorded conversation
was to retain an attorney to ascertain the nature of the allegations and potential adverse evidence.
Pl. Resp. at 26. Technical Sergeant B had an interest in ascertaining this information, but that
interest cannot be imputed to Plaintiff. Pl. Resp. at 26–27.
In any event, Plaintiff was not charged with obstruction of justice, therefore admitting
evidence suggesting obstruction of justice is an “error of [c]onstitutional proportions.” Pl. Resp.
at 27. Failure to raise such plain error in the trial court does not render the argument waived,
because rulings that “seriously affect the fairness, integrity or public reputation of judicial
proceedings” always have been considered plain error. United States v. Atkinson, 297 U.S. 157,
160 (1936). But, if the court concludes that admitting the video evidence was not plain error in
this case, it is still “a violation of military due process, which in itself constitutes a violation of the
Fifth Amendment right to due process.” Pl. Resp. at 28. This is so, because members of the
military are granted additional substantive and procedural rights via the MANUAL FOR COURTS-
MARTIAL. See United States v. Forbes, 59 M.J. 934, 941 (N-M. Ct. Crim. App. 2004), aff’d, 61
M.J. 354 (C.A.A.F. 2005).
c. The Government’s Reply.
The Government responds that Plaintiff never objected to the video evidence on the basis
of MRE 404(b) during the special court-martial proceeding. Instead, Plaintiff objected based on
MRE 317 (AR Tab 34), then on the basis of relevance, hearsay, and cumulativeness (AR Tab 16
at 159–60). Plaintiff’s objections were sustained, but the Military Judge stated that the evidence
may later be admissible as character evidence. AR Tab 16 at 159–60. When the prosecution later
sought to introduce the evidence, Plaintiff objected, not because it was inadmissible under MRE
404, but on grounds of hearsay, bolstering the witness, and cumulativeness; the Military Judge
overruled those objections. AR Tab 16 at 225–27. Plaintiff first raised the objection based on
MRE 404(b) during appeal to the Judge Advocate General. AR Tab 89 at 779–81.
Because Plaintiff did not object on MRE 404 grounds during the special court-martial
proceeding, the military judge was not required to conduct the analysis required by Reynolds.
Gov’t Reply at 19 (citing United States v. Forbes, 61 M.J. 354, 358 (C.A.A.F. 2005)). And, the
failure previously to object, based on MRE 404(b), precludes collateral attack on the issue. Gov’t
Reply at 19–20 (citing Martinez, 914 F.2d at 1488–89).
28
In addition, any objection on the basis of MRE 301(f)(3) is waived, because it was first
raised in Plaintiff’s appeal to the Judge Advocate General. Gov’t Reply at 23 (citing AR Tab 89
at 779–81). In any event, even if that objection is not waived, the Military Judge did not err,
because military courts have recognized that “otherwise lawful advice” made under the guise of
corrupt, dishonest, or self-serving motives can constitute wrongful conduct that obstructs justice.
Gov’t Reply at 24 (citing United States v. Culbertson, 65 M.J. 587, 591 (N-M. Ct. Crim. App.
2007)). Therefore, the admission of the video was not plain error. See Bowling, 713 F.2d at 1561–
62.
d. The Court’s Resolution.
As the court previously determined, Klingenschmitt and Martinez are not determinative of
whether an argument not raised during a court-martial, but subsequently raised, is waived. The
Military Rules of Evidence provide that
[e]rror may not be predicated upon a ruling which admits or excludes evidence
unless the ruling materially prejudices a substantial right of a party and . . . in case
the ruling is one admitting evidence, a timely objection or motion to strike appears
of record, stating the specific ground of objection, if the specific ground was not
apparent from the context[.]
MRE 103(a)(1).
Therefore, failure to make a specific objection “may waive the objection for purposes of
both trial and appeal.” U.S. DEP’T OF DEF., MANUAL FOR COURTS-MARTIAL, Appendix, at A22-2
(2008) (Analysis of the Military Rules of Evidence). Rulings regarding constitutional issues,
however, are subject to more stringent standards, such as the harmless error and plain error
doctrines. Id.The Military Judge in this case initially excluded the video evidence on hearsay grounds,
but stated in her ruling that later, based on additional evidence, it may be admissible for other
purposes. AR Tab 16 at 159–60, 225–26. On that occasion, however, Plaintiff’s counsel did not
object because the video evidence demonstrated an intent to invoke Plaintiff’s right to counsel, or
contravene the Fifth Amendment Miranda protections. Nor did Plaintiff’s counsel object, based
on MRE 404(b). 23 But, the Administrative Record shows that Plaintiff raised these objections to
Technical Sergeant B’s testimony. AR Tab 16 at 204–06. But that objection did not preserve the
Military Judge’s ruling on the video for appeal. Failure to object on these grounds waives the
23
MRE 404(b) provides that
[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character[] [but] [t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
MRE 404(b)(1)–(2).
29
objection, absent plain error. In addition, the Military Judge admitted the video evidence for the
purpose of corroborating testimony by Technical Sergeant B about the telephone conversation, not
for the purposes of showing consciousness of guilt or uncharged misconduct. AR Tab 16 at 227.
In addition, the Military Judge provided a limiting instruction to the special court-martial members
that they were to consider the video only for the purpose of corroboration, not for the truth of the
matter asserted. AR Tab 16 at 227. As such, the Military Judge’s ruling was not plain error.
Nor can the court conclude that the Military Judge’s failure to order relief, based on
Plaintiff’s prior arguments concerning exclusion of the video evidence, under MRE 301(f)(2), 24
was plain error. MRE 301(f)(2) provides that
[t]he fact that the accused[,] during official questioning and in exercise of rights
under the Fifth Amendment to the United States Constitution or Article 31
remained silent, refused to answer a certain question, requested counsel, or
requested that questioning be terminated, is not admissible against the accused.
MRE 301(f)(2).
Plaintiff’s argument regarding MRE 301(f)(2) and Miranda are misplaced, because those
protections apply in the context of a custodial interrogation; in this case, there was no custodial
interrogation in which Plaintiff or Technical Sergeant B invoked their Fifth Amendment right to
counsel.
For these reasons, the court has determined that Plaintiff’s counsel waived any objection
to the video evidence under MRE 404(b) and 301(f)(2), and, in any event, the Military Judge’s
ruling on that evidence was not plain error.
5. The Military Judge’s Ruling Not To Dismiss The Members Venire And
Empanel A New Venire Or Order A New Trial Was Not In Error.
a. The Government’s Argument.
The Government argues that the court generally does not re-weigh the empaneling of the
members venire of a court-martial proceeding. Gov’t Mot. at 26 (citing Reed v. United States, 23
Cl. Ct. 517, 524 (Cl. Ct. 1991) (“The [M]ilitary [J]udge determined that there was no evidence of
[impropriety in the empaneling]. The convening authority also considered the issue, as did the
[reviewing court]. . . . Since plaintiff received full and fair consideration of this issue . . . the court
finds no reason to set aside plaintiff’s court martial in this regard.”)). Even if members discussed
the case prior to deliberation, then dismissal is sufficient to remove any prejudice, so Plaintiff was
not deprived of constitutional due process. Gov’t Mot. at 26.
24
The October 22, 2015 Complaint cites MRE 301(f)(3) (Compl. ¶ 62), but Plaintiff’s
Response To The Government’s Motion For Judgment On The Administrative Record quotes
language from MRE 301(f)(2) (Pl. Resp. at 24–25). The court considers MRE 301(f)(2) as the
relevant evidentiary rule.
30
In addition, Plaintiff waived any argument regarding the pre-deliberation discussions,
because he failed to object or seek a mistrial on that basis during the special court-martial
proceeding. Gov’t Mot. at 26. The Government contends that Plaintiff first argued that the
members venire was improper on appeal to the Judge Advocate General. Gov’t Mot. at 27; AR
Tab 89 at 781–82.
Even if not waived, Plaintiff’s argument lacks merit, because upon learning during voir
dire that some of the potential members venire discussed the case, the Military Judge’s actions in
instructing members not to discuss the case prior to deliberations and dismissing those members
remedied any prejudice that may have been created. Gov’t Mot. at 27 (citing AR Tab 16 at 167–
69). Moreover, Plaintiff’s trial counsel objected to the dismissal of two members. AR Tab 16 at
171–74. Therefore, Plaintiff has not demonstrated any constitutional violation to justify collateral
attack. Gov’t Mot. at 27.
b. Plaintiff’s Response.
Plaintiff’s counsel became aware during voir dire that the potential members venire
discussed the merits of the case, and this was prejudicial. Pl. Resp. at 29 (citing Remmer v. United
States, 347 U.S. 227, 229 (1954)). The challenge to Lt. Col. X “seemed to have a disquieting
effect on the remaining members” and signaled to the remaining members venire that they “were
expected to find that the [WAPS testing] system was fair.” Pl. Resp. at 29; see also AR Tab 16 at
172. The Military Judge’s failure to discharge all members of the venire and order a new venire
“tainted” the special court-martial and the conviction and sentence should be set aside. Pl. Resp.
at 29.
c. The Government’s Reply.
The Government replies that this argument is waived, because Plaintiff “never sought a
mistrial during the court-martial based on the removal of members engaged in pre-deliberation
discussions.” Gov’t Reply at 26 (citing AR Tab 16 at 167–74). The Military Judge’s remedy that
“assured there would be an unbiased venire,” did not give rise to and cured any potential
constitutional violation. Gov’t Reply at 28.
d. The Court’s Resolution.
As discussed previously, Klingenschmitt and Martinez are not dispositive, where the
plaintiff raises an issue after the court-martial, but prior to collateral attack. Rule for Courts-
Martial (“RCM”) 915 provides that, on motion for a mistrial or “when it otherwise appears that
grounds for a mistrial exist,” the Military Judge may, “as a matter of discretion, declare a mistrial
when such action is manifestly necessary in the interest of justice because of circumstances arising
during the proceedings which cast substantial doubt upon the fairness of the proceedings.” RCM
915.
In the military justice system, failure to move for a mistrial waives or forfeits the issue
from being raised on appeal. See United States v. Jones, 2009 WL 3467495 at *4–*5 (N-M. Ct.
Crim. App. Oct. 29, 2009) (“Where, as here, there is no formal request for a mistrial, we must
consider first whether the [trial counsel] waived or forfeited the issue at trial.”). Waiver is the
knowing decision not to exert a particular right or privilege, whereas forfeiture is the failure to
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timely raise the issue. Id. at *5. Military courts review forfeited issues for plain error, whereas
they do not review waived issues at all, “because a valid waiver leaves no error for [them] to
correct on appeal.” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009).
Plaintiff’s counsel, however, did not object to the empaneling, nor did he move for a
mistrial on that basis. Plaintiff’s counsel objected only when the prosecution challenged Lt. Col.
X for cause and that motion was denied, thereby preserving the issue whether the Military Judge
erroneously denied the challenge, but not the issue of mistrial. See Jones, 2009 WL 3467495 at
*2. Instead, Plaintiff’s counsel raised the issue of mistrial in the petition for an Article 69(b) review
or new trial under Article 73—two years after the court-martial concluded.
The court need not determine whether mistrial was waived or forfeited, because the
outcome is the same in either case. If the issue was waived, then the military’s inability to review
the issue means there is no issue that can be collaterally attacked. Campos, 67 M.J. at 332 (“[A]
valid waiver leaves no error . . . to correct on appeal”); see also Martinez, 914 F.2d at 1488–89
(waiving an issue in the military system bars a plaintiff from collaterally attacking the issue in
federal court). And, the failure to move for a mistrial is “strong evidence” against finding there
was a basis on which to declare a mistrial. Cf. United States v. Palmiter, 20 M.J. 90, 97 (C.M.A.
1985) (failing to raise issue of illegal confinement was strong evidence that the confinement was
not illegal); United States v. Norment, 36 M.J. 1156, 1160 (A.C.M.R. 1993) (failure to raise
member inattentiveness during court-martial was strong evidence that no member was inattentive
or asleep during trial).
In the alternative, even if the issue was forfeited, in this case, the record does not
demonstrate plain error. The Military Judge did not sua sponte consider whether to declare a
mistrial, indicating that it was not “manifestly necessary in the interest of justice.” RCM 915. As
such, the court is not inclined to question the Military Judge’s actions in empaneling the venire.
See Reed v. United States, 23 Cl. Ct. at 524. For example, the court cannot conclude that requiring
counsel to use a peremptory challenge rather than one for cause sent any prejudicial message to
the rest of the venire. Rather than amounting to plain error, the Military Judge’s actions ensured
that an impartial venire was empaneled, thereby preserving one of the basic protections of due
process in a criminal proceeding. “[A]part from trials conducted in violation of express
constitutional mandates, a constitutionally unfair trial takes place only where the barriers and
safeguards are so relaxed or forgotten . . . that the proceeding is more a spectacle . . . or trial by
ordeal.” Augenblick, 393 U.S. at 356 (citations omitted). In this case, the Military Judge’s rulings
did not evidence plain error.
Plaintiff’s counsel also briefed and argued this issue before the Judge Advocate General.
Therefore, even if the issue of mistrial was not waived, the court has determined that it was fully
and fairly considered by the Judge Advocate General, and was found to be without merit. See
Matias, 19 Cl. Ct. at 646.
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6. The “Cumulative Error Doctrine” Does Not Require That Plaintiff’s
Conviction Be Set Aside And A New Trial Ordered.
a. The Government’s Argument.
The cumulative error doctrine provides that “a number of errors, no one perhaps sufficient
to merit reversal, in combination necessitate the disapproval of a finding.” United States v. Pope,
69 M.J. 328, 335 (C.A.A.F. 2011) (quoting United States v. Banks, 36 M.J. 150, 170–71 (C.M.A.
1992)). Plaintiff “cannot demonstrate any error from the special court-martial, much less multiple
plain errors that would justify invoking this doctrine.” Gov’t Mot. at 28 (citing Razik v. United
States, 525 F.2d 1028, 1035 (Ct. Cl. 1975) (“As the court could find no merit on individual
consideration of plaintiff’s preceding five specifications of procedural error, this last catch-all
cumulative error argument must likewise be dismissed as meritless.”)). And, even if there were
any errors, they pertained to factual findings that cannot be challenged on collateral attack. See
Bowling, 713 F.2d at 1561 (“Our own precedents hold that questions of fact resolved by military
courts cannot be collaterally attacked.”). In addition, the Judge Advocate General considered this
argument in conjunction with new post-trial evidence, and granted limited relief on that basis.
Gov’t Mot. at 28; see also AR Tab 91 at 799.
Therefore, there is no basis for Plaintiff’s counsel’s request to set aside Plaintiff’s
conviction and a new trial be ordered.
b. Plaintiff’s Response.
Plaintiff’s counsel responds that Plaintiff’s conviction and sentence must be set aside,
because the cumulative errors “touch every specification” of the charges and raise the question of
whether Plaintiff was afforded a fair trial. Pl. Resp. at 30. The cumulative error doctrine requires
the court to review the totality of the case. See Kotteakos v. United States, 328 U.S. 750, 757
(1946). And, the United States Court of Appeals for the Armed Forces has reversed convictions
where the court could not “say with any certainty that the cumulative effect of these errors did not
affect the outcome of [the] case.” United States v. Dollente, 45 M.J. 234, 243 (C.A.A.F. 1996).
In effect, the court must make a “gut call” whether the trial was fair, and if the court reasonably
questions the trial’s fairness, the conviction must be set aside. Pl. Resp. at 31.
c. The Government’s Reply.
The Government adds only that Plaintiff’s assertion that the court should make a “gut call”
misstates the court’s scope of review. Gov’t Reply at 29. Instead, the court must determine
“whether the court-martial was so unfair that it constituted a trial by ordeal (not, merely, unfair).”
Gov’t Reply at 29 (citing Augenblick, 393 U.S. at 356; Flute, 535 F.2d at 626).
d. The Court’s Resolution.
The court has carefully reviewed each of the issues raised on collateral attack and has
determined that none meets the standard set forth in Augenblick, i.e., Plaintiff has not demonstrated
convincingly that his court-martial proceedings so deprived him of fundamental fairness as to
impair due process. See Bowling, 713 F.2d at 1561 (citing Augenblick, 393 U.S. at 356). As the
United States Supreme Court has held,
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the military . . . have heard [Plaintiff] out on every significant allegation which they
now urge. Accordingly, it is not the duty of the civil courts simply to repeat that
process—to reexamine and reweigh each item of evidence of the occurrence of
events which tend to prove or disprove one of [Plaintiff’s] allegations . . . It is the
limited function of the civil courts to determine whether the military have given fair
consideration to each of these claims.
Burns, 346 U.S. at 144.
In this case, all of the significant allegations were raised during the military’s review, or
were waived. Plaintiff’s due process rights were not violated at any stage of the court martial
proceedings, nor has Plaintiff demonstrated any individual errors. Accordingly, the court has
determined that the cumulative error doctrine is not implicated in this case. Cf. Razik, 525 F.2d at
1035 (“As the court could find no merit on individual consideration of plaintiff’s preceding five
specifications of procedural error, this last catch-all cumulative error argument must likewise be
dismissed as meritless.”). 25 Nor did Plaintiff’s court-martial amount to a trial by ordeal. See
Augenblick, 393 U.S. at 356.
7. Plaintiff’s Reinstatement Request Is Not Justiciable.
a. The Government’s Argument.
The Government argues that Plaintiffs request for reinstatement to a grade of E-7, with
corresponding retirement benefits, “presents a non-justiciable question because [Plaintiff] was
retired due to disability prior to the date he would have qualified for these benefits and his
enlistment contract expired prior to the date” Plaintiff would have been eligible for such benefits.
Gov’t Mot. at 28–29. Military routine personnel decisions are non-justiciable and non-reviewable.
See Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988). Plaintiff has no right to enlist or
reenlist in the Air Force, without a statutory grant of such right. See Dodson v. United States, 988
F.2d 1199, 1203–04 (Fed. Cir. 1993). Because Plaintiff, in this case, was discharged, he may not
recover pay or benefits beyond the term of his enlistment. See Thomas v. United States, 42 Fed.
Cl. 449, 453 (Fed. Cl. 1998) (“A servicemen who has been improperly discharged is entitled to
recover pay and allowances only to the date on which his term of enlistment would have otherwise
expired.”), aff’d, 217 F.3d 854 (Fed. Cir. 1999) (unpub. tbl. dec.).
Plaintiff was retired for disability after having served in the Air Force for 21 years and 23
days. Compl. ¶ 35; see also Gov’t App. at 5 (“Effective 27 Oct 09 you are permanently disability
retired in the grade of SSG per AFI 36-3212 and SAF Memo dated 13 Aug 09, with compensable
percentage for disability of 040 percent.”). The Government contends that Plaintiff is eligible for
E-7 retirement benefits, only if he retired after 24 years of service, which he did not. Gov’t Mot.
at 29.
25
The United States Court of Appeals for the Federal Circuit has held that United States
Court of Claims decisions issued prior to September 30, 1982, are binding precedent. See S.
Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982).
34
In any event, Plaintiff’s term of service would have expired before he had served 24 years,
because his enlistment contract ended March 16, 2010. Gov’t Mot. at 30 (citing Gov’t App. at
20). When the enlistment contract ended, Plaintiff still would need to serve an additional two and
a half years to be eligible to retire as an E-7, and this court cannot order relief beyond the expiration
of that enlistment contract. Gov’t Mot. at 30 (citing Voge, 844 F.2d at 780 (addressing justiciability
of military personnel decisions); Maier v. Orr, 754 F.2d 973, 983 (Fed. Cir. 1985) (“Federal courts
have uniformly declined to order promotions, . . . and to order relief beyond a current
enlistment[.]”) (internal citations omitted)).
b. Plaintiff’s Response.
Plaintiff argues that the Government misconstrues the high year tenure policy with
statutory eligibility for retirement from the Air Force. Pl. Resp. at 8. The high year tenure policy
concerns the “maximum date an Airman may remain on active duty, based on grade and years of
service, as determined by the Secretary of the Air Force.” AFI 36-2606, Attachment 1 (Glossary
of References and Supporting Information). Thus, the reinstatement request is justiciable, because
if Plaintiff had not been forcibly retired as an E-5 as a result of the court-martial sentence, Plaintiff
could have remained on active duty as an E-7 until at least twenty-four years of service. Pl. Resp.
at 8. The reduction in grade, in effect, forcibly retired Plaintiff at the grade of E-5. Pl. Resp. at 8.
c. The Government’s Reply.
The Government agrees that it incorrectly stated that Plaintiff would have to have served
for 24 years to retire as an E-7, nevertheless Plaintiff was retired based on disability with 21 years
and 23 days of service. Gov’t Reply at 29. Plaintiff cannot receive back pay beyond the date he
retired. See Groves v. United States, 47 F.3d 1140, 1145 (Fed. Cir. 1995) (“He is entitled to
constructive active duty credit, with all corresponding back pay and allowances, for as long as he
retained this status—that is, until this active duty status ended as a result of some action releasing
him from active duty.”); see also Barnick v. United States, 591 F.3d 1372, 1379–80 (Fed. Cir.
2010) (refusing to provide pay beyond the date a service member would have been “found unfit
for duty due to physical disability, and either retired or discharged”).
d. The Court’s Resolution.
“A controversy is justiciable only if it is one which the courts can finally and effectively
decide, under tests and standards which they can soundly administer within their special field of
competence.” Voge, 844 F.2d at 780 (citations and internal quotation marks omitted). As the
United States Court of Appeals for the Federal Circuit has stated, “no one has a right to enlist or
reenlist in the armed forces, unless specially given one by statute or regulations,” and “judges do
not run the [military].” Dodson, 988 F.2d at 1203–04; see also Maier, 754 F.2d at 980 (“No one
has an individual right, constitutional or otherwise, to enlist in the armed forces, the composition
of those forces being within the purview of the Congress and the military.”).
Plaintiff’s request for reinstatement to active duty in the grade of E-7, retroactive to his
separation date, “incident to the monetary claim” (Compl. at 14), apparently relies on the Tucker
Act’s provision that,
35
[t]o provide an entire remedy and to complete the relief afforded by the judgment,
the court may, as an incident of and collateral to any such judgment, issue orders
directing restoration to office or position, placement in appropriate duty or
retirement status, and correction of applicable records, and such orders may be
issued to any appropriate official of the United States.
28 U.S.C. § 1491(a)(2) (2012).
But, the court has determined that there is no basis to grant relief for any of Plaintiff’s other
claims. Plaintiff is effectively asking this court to second guess the sentence decided by the special
court-martial members, something for which there are no “tests or standards [it] can soundly
administer within [its] special field of competence.” Voge, 844 F.2d at 780.
In any event, Plaintiff’s retirement is a collateral consequence of his special court-martial
conviction, because he was sentenced to a reduction in grade to E-5, and therefore reached the
high-year tenure for that grade. But, “[t]he complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force are essentially professional
military judgments,” and “the ultimate responsibility for these decisions is appropriately vested in
branches of the government which are periodically subject to electoral accountability.”
Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Routine military personnel decisions are not
justiciable, even if they are collateral consequences from other, challenged proceedings. Voge,
844 F.2d at 780; cf. Turner v. Egan, 358 F. Supp. 560, 563 (D. Alaska), aff’d, 414 U.S. 1105(holding forced retirement of officers after specified number of years of military service was not
justiciable).
For these reasons, the court has determined that Plaintiff’s reinstatement request is not
justiciable.
IV. CONCLUSION.
For these reasons, the Government’s October 21, 2016 Motion For Judgment On The
Administrative Record is granted, and Plaintiff’s February 21, 2017 Cross-Motion For Judgment
On The Administrative Record is denied.
Accordingly, the clerk of the court for the United States Court of Federal Claims is directed
to enter judgment dismissing Plaintiff’s Complaint.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Chief Judge
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