41 Fed. Cl. 190 | Fed. Cl. | 1998
OPINION
This case comes before the court on defendant’s Motion to Dismiss or Motion for Judgment Upon the Administrative Record, to which plaintiff responded with an Opposition and Cross-Motion. A copy of the Administrative Record has been filed with the now completed briefing. There are no disputed facts, only a question of how Article 75(a) of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 875(a) (1994)) and the recent Federal Circuit decision in Dock v. United States, 46 F.3d 1083 (Fed.Cir.1995), apply to the facts of this case. Applying them to this case, the court finds that plaintiffs complaint must be DISMISSED.
FACTS
On August 12, 1988, plaintiff Yancy P. Johnson enlisted in the reserve component of the United States Marines Corps. On March 7, 1989, plaintiff requested a discharge from the reserve component and enlisted in the Marine corps as a regular, at pay grade E-1.
On March 7, 1993, plaintiffs enlistment expired while he was serving his sentence of confinement. Over a year later, on March 24, 1994, the Court of Criminal Appeals set aside the convening authority’s action due to two administrative clerical errors found in the convening authority’s record of review: (1) a typographical error in the length of Mr. Johnson’s unauthorized absence (lengthening it by one year), and (2) the staff judge advocate’s failure to list in his written advice to the convening authority all of the awards Mr. Johnson was entitled to wear. Consequently, the Court of Criminal Appeals suspended further appellate review and returned plaintiffs record to the convening authority for a new staff judge advocate review and convening authority action. On June 29, 1994, plaintiff was released from confinement after having served 25 months and 2 days, and was placed on appellate leave
Plaintiff filed a complaint in this court, claiming entitlement to (1) “pay and allowances forfeited by plaintiff for the time period which elapsed between the initial imposition of the forfeitures and the date the convening authority imposed its new sentence [or] the date of plaintiffs release from confinement;” and (2) “pay and allowances forfeited for the six months during which he was confined beyond the reduced sentence imposed by the Court of Appeals’ second and final decision.”
DISCUSSION
Article 75(a) of the UCMJ states:
Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
10 U.S.C. § 875(a) (1994). By the plain language of the statute, plaintiff Johnson should be entitled to restoration of that portion of his military benefits that were taken from him as a result of the indecent exposure portion of his conviction, because that “exe
Article 75(a) and Dock’s application thereof control the disposition of this ease,
In Dock, the Federal Circuit divided plaintiffs claim into three time periods, and ruled that he was not entitled to compensation or restoration of benefits for any of these three periods. A parallel division of plaintiff Johnson’s case facilitates the application of Dock’s holding to this case.
The first period runs from the approval of Johnson’s imtial conviction, January 27, 1993, to the date on which enlistment expired, March 7, 1993. With respect to this period, “Congress has decreed in Article 75(a) that a forfeiture of pay ordered in a regularly constituted court-martial and executed by competent authority, even though the order is found later to be legally defective, can be related back by a subsequent court-martial that imposes a sentence in which the executed part is included.” 46 F.3d at 1088. Defendant agreed that plaintiff was entitled to some compensation for tMs period, and in fact issued a cheek to plaintiff in the amount of $49.93 on August 9, 1995. Administrative Record (AR) at 306-07. This amount represented “the amount of pay and allowances due Mr. Johnson during tMs period as a result of the forfeiture reduction ordered by the Court of Criminal Appeals.”
The second period delineated by Dock corresponds to the period between March 7,
Unfortunately for plaintiff, the facts in his case preclude any relief for this “second period.” Plaintiff served 25 months and two days in confinement. His sentence was ultimately reduced to 30 months. He thus served less than his retroactively reduced sentence. In addition, his retroactively reduced sentence was not reduced to the point that he would have served time in confinement while still within his enlistment period. Given these facts, the imposition of a different forfeiture at the conclusion of plaintiffs appeals does not afford him any rights against the government. Unless plaintiffs ultimate sentence had retroactively amounted to something less than 25 months and two days, plaintiff could not possibly maintain any action for pay or allowances. Under the circumstances, any credit plaintiff received retroactively from the government is meaningless because plaintiff served less time than the ultimately imposed 30 month sentence. Plaintiff is thus due no relief for the second period.
Plaintiff is also not entitled to any pay or allowances for the third period that Dock defined, between the final overturning of the initial sentence and the imposition of the second sentence, which for plaintiff corresponds to the time from March 24, 1994 to June 30, 1995 (the date of the Court of Criminal Appeals’ partial affirmance of the second convening authority’s action). The reason for this is simple: “If the accused is within his period of enlistment he is entitled to pay and allowances even though in confinement — no court martial has yet effectively ordered a forfeiture.” Dock, 46 F.3d at 1091. Plaintiff, however, was well outside his period of enlistment during this “third period,” and is thus due nothing for that time. Defendant’s position on this issue is supported by the relevant Department of Defense regulations, specifically DODPM ¶ 10317c,
CONCLUSION
For the reasons set forth above, the court GRANTS defendant’s Motion to Dismiss and for Judgment Upon the Administrative Record. Plaintiff is entitled to no other relief beyond the $49.93 previously forwarded to him by defendant in satisfaction of claims to compensation for the period between January 27 and March 7, 1993.
It is so ORDERED.
. "Appellate leave” is a type of administrative leave given to a service member awaiting appellate review of a discharge ordered by a general court-martial. A service member on appellate leave is entitled to military benefits such as health care and commissary and exchange privileges, but not military pay and allowances.
. The Navy Military Personnel Manual states that with respect to members on appellate leave, "[p]ay and allowances will terminate as of the date of the departure or date of expiration of accrued leave, as applicable.” NMPM Ch. 12 5(d).
. See also Armstrong v. United States, 121 F.3d 667 (Fed.Cir.1997) (affirming Dock’s analysis and interpretation of the statute).
. The court finds that, for purposes of statutory construction, the action of the Court of Criminal Appeals on March 24, 1994, setting aside the convening authority’s action and suspending further appellate review pending correction of the record, was equivalent to an order of rehearing. In fact, the second convening authority reviewed plaintiffs conviction and sentence and approved it on August 24, 1994; an actual rehearing was unnecessary at that time because plaintiff had already been released from confinement (on June 29, 1994).
. The Court of Criminal Appeals, in addition to reducing plaintiffs already-served term by 6 months, reduced plaintiffs forfeiture from "all pay and allowances” to $785.00 per month, which left a difference from January 27 to March 6, 1993 of $49.93. Def. Mot. to Dismiss at 7.
. The regulation states:
c. Enlistment Expires Before Trial. An enlisted member retained in the service for the purpose of trial by court martial is not entitled to pay for any period after expiration of the enlistment unless acquitted or the charges are dismissed, or the member is retained in or restored to full-duty status.
DODPM 110317c. Subsection (j) further states that “[a] member confined pending appellate review or released on parole from confinement pending appellate review is not entitled to pay and allowances for such period unless the conviction is completely overturned or set aside.” (emphasis added).