3 M.J. 173 | United States Court of Military Appeals | 1977
Lead Opinion
Opinion of the Court
The petitioner, formerly a Private First Class in the United States Army, has petitioned this Court for review of the Army Court of Military Review’s decision on his petition for a certificate of innocence.
The petitioner was convicted of willful disobedience of a lawful command of a superior commissioned officer “to board the vehicle that was to transport him to the Overseas Replacement Station,” in violation of Article 90, Uniform Code of Military Justice, 10 U.S.C. § 890. The finding and his sentence to a dishonorable discharge, total forfeitures, confinement at hard labor for 2 years, and reduction to the grade of Private E-l were approved by the convening authority. The Army Court of Military Review, upon review of the case pursuant to Article 66, UCMJ, set aside the findings and sentence, and dismissed the charge. United States v. Forrest, 44 C.M.R. 692 (A.C.M.R.1971). Subsequently, he petitioned for a certificate of innocence. That court properly determined that the unjust conviction statute encompassed an unjust conviction by courts-martial,
A majority of the court concluded that although the petitioner’s conviction had been set aside on the ground that he was not guilty,
The decision of the United States Army Court of Military Review is affirmed.
. Such a certificate may be issued only under the precise guidelines set forth in 28 U.S.C. § 2513, which provides:
Unjust conviction and imprisonment.
(a) Any person suing under section 1495 of this title must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he had been pardoned upon the stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.
(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.
(c) No pardon or certified copy of a pardon shall be considered by the Court of Claims unless it contains recitals that the pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired.
*174 id) The Court may permit the plaintiff to prosecute such action in forma pauperis.
(e) The amount of damages awarded shall not exceed the sum of $5,000.
The certificate is a requisite for filing a claim against the United States for damages pursuant to 28 U.S.C. § 1495.
. Osborn v. United States, 322 F.2d 835 (5th Cir. 1963); Roberson v. United States, 124 F.Supp. 857, 129 Ct.Cl. 581 (1954); Cox v. United States, 112 F.Supp. 494 (N.D.Cal.1953).
. McLean v. United States, 73 F.Supp. 775 (W.D.S.C.1947).
. See 28 U.S.C. § 2513(a)(l)-(2).
. The dissenting judge shared the conclusion of the majority that a reversal based upon procedural defects or a failure of proof would not satisfy the requirements of the act.
. See Osborn v. United States, supra (lack of jurisdiction); United States v. Brunner, 200 F.2d 276 (6th Cir. 1952) (improper use of privileged testimony); Cratty v. United States, 83 F.Supp. 897 (S.D.Ohio 1949) (statute of limitations). In each instance the court involved denied the relief sought.
. The dissenting judge opined that the evidence indicated that the order was, in fact, illegal and, hence, Forrest’s actions were not an offense against the United States, nor was the prosecution brought upon by “his own misconduct.” See Weiss v. United States, 95 F.Supp. 176 (S.D.N.Y.1951); United States v. Keegan, 71 F.Supp. 623 (S.D.N.Y.1947). For the reasons enunciated in later portions of this opinion, although we can appreciate the validity of this position, we cannot accept it as determinative.
. The court in Osborn noted that the statute mandates that proof of the requisite facts shall be by a certificate of the issuing court, Hadley v. United States, 66 F.Supp. 140, 106 Ct.Cl. 819 (1946), and the facts found are intended to be conclusive on the issue of the claimant’s innocence. See Andolschek v. United States, 77 F.Supp. 950, 111 Ct.Cl. 567 (1948).
Concurrence in Part
(concurring in part and dissenting in part):
A proceeding for a certificate of innocence is civil in nature. United States v. Brunner, 200 F.2d 276 (6th Cir. 1952). Its purpose is to establish, not just that the accused was acquitted of a criminal charge because there was reasonable doubt of his guilt, but that, in fact, he did not “commit any of the acts charged,” or his acts “constituted no offense.” 28 U.S.C. § 2513(a)(2). The statute creating the proceeding may, indeed, apply to a Court of Military Review as the Army court held, but it does not follow that an appeal from a determination of that court lies to this Court.
The Court of Appeals for the District of Columbia Circuit had observed, in Rigsbee v. United States, 92 U.S.App.D.C. 244, 204 F.2d 70, 73 n. 3 (1953), that the statute “does not in terms afford appellate review.” Appellate civilian courts have reviewed trial decisions under the statute, but that authority has been exercised on the basis of its regular jurisdiction to review decisions of the trial courts. United States v. Brunner, supra; Osborn v. United States, 322 F.2d 835 (5th Cir. 1963). Recently, in McPhail v. United States, 1 M.J. 457 (1976), we reviewed the appellate and implicit supervisory jurisdiction of this Court. We concluded the Court could review actions that were taken “under the Uniform Code of Military Justice” which were “reasonably comprehended” within the provisions of the Uniform Code. As the proceeding which the Court is now asked to review is not, in my opinion, “reasonably comprehended” within the provisions of the Code, I believe we cannot review the correctness of the decision of the Court of Military Review.
Since the majority conclude that the Court has jurisdiction, I am constrained to examine the merits. It has been held in the civilian courts that an accused is not convicted within the meaning of section 2513 if the findings of guilty of the court-martial and sentence cannot be effectuated until completion of prescribed appellate review; consequently, if the charge against the ac
When the Court of Military Review overturned the accused’s conviction it did so on the basis of a legal concept that was in dispute. United States v. Stewart, 20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971). Thereafter, the matter was settled by this Court in a way that eliminated the ground upon which the petitioner had attacked the legality of the order he was convicted of having violated. United States v. Lenox, 21 U.S.C.M.A. 314, 45 C.M.R. 88 (1972). At the time the petitioner applied for the certificate of innocence, therefore, there was no impediment to the court-martial finding that the order he had violated was lawful. In the face of the clearly contradictory doctrine enunciated by this Court, I believe the Court of Military Review could properly disregard its prior. legal ruling and conclude, from the facts, that the petitioner was not entitled to a certificate of innocence.