United States v. RossUnited States v. Ross
This case was referred to the Court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866 on 4 February 1991. On 1 March 1991, appellate defense counsel submitted a motion to withdraw the case from appellate review pursuant to Rule 14, Courts of Military Reviеw Rules of Practice and Procedure. The reasons for withdrawal, as set forth in the motion, are as follows:
Appellant will soon reach the expiration of his enlistment and will be foreclosed employment opportunities if he must remain in an appellate leave status without a discharge certificate. Appellant has fully discussed his decision with apрellate counsel and specifically waives any right to review of his trial. Timely receipt of his discharge certificate upon*716 expiration of his enlistment constitutes Appellant’s sole concern.
A faxed copy of a letter frоm the appellant to his appellate defense counsel captioned “Waiver of Appellate Rights” is attached to the motion to withdraw and is included in its entirety as appendix A to this opinion. Among other things, appellant’s lettеr states his basis for requesting withdrawal of the appeal as follows:
3. The basis for this request is that I do not desire to remain in the service awaiting review of my case. I am in the process of being discharged. This discharge is a result of my request for an other than honorable (OTH) discharge in lieu of court-martial.
4. I waive my appellate rights pending an other than honorable disсharge in lieu of court-martial. Counsel is attempting to have my discharge expedited for a release date on or about 1 April 1991.
Appellant also states in that letter that, “I understand that once my request to withdraw this appeal is filed, it cannot be revoked and any further appellate review is barred.” Appellant is mistaken in this regard. We have previously hеld that it is not the filing of a request for withdrawal that will result in a bar to review. Only upon this Court’s granting of a motion to withdraw, with an accompanying order to that effect, will further review be barred. U.S. v. Johnson,
Additionally, it appears from appellant’s letter to his counsel thаt he may not be fully informed in other respects. For example, if his request for withdrawal is granted, Rule For Court Martial (RCM) 1110(g)(3), MCM 1984, requires the Judgе Advocate General to then forward the record to an appropriate authority for further review by a judge аdvocate under the terms of RCM 1112, a step which could result in further delay. Appellant also appears to believe that he cannot be discharged from the Coast Guard until this case is finally reviewed. That, too, is in error.
It is only a court imposеd punitive discharge that requires completion of appellate review before execution. Administrative dischаrges, such as the one appellant says he is seeking, do not require completion of court-martial review before they are effectuated. Appellant may be administratively discharged at any time deemed appropriаte by Coast Guard authorities notwithstanding the pendency of final action on a court-martial conviction and sentence. For that reason, we do not understand the basis for appellant’s requested withdrawal. It is particularly perplexing in light оf an express term of his pretrial agreement providing that he “will not be kept on active duty for the sole purposе of satisfying a term of suspension [of his bad conduct discharge],” which was suspended earlier by the convening authority in acсordance with that agreement.
In light of the confusion generated by appellant’s letter, we will simply treat the underlying basis fоr the withdrawal motion as a quest for expedited review and final action on this case. Accordingly, we will take the course of action that, in our view, will achieve this result, namely, completed review and final action by this Court. That is the same action we took in U.S. v. Johnson, supra, and our comments in Johnson on this matter have equal applicability here:
[C]ompletion of our appellate review will not interfere with the accused’s desired objective, as stated in his withdrawal request. At the same time, we believe that the integrity of the military judicial review process is better served by denial of the motion to withdraw and completion of appellate review at this level.... We see no useful рurpose to be served by*717 relinquishing the record. Moreover, we believe it would be a distinct waste of time and resourcеs to require someone else to further review the case pursuant to RCM 1112 when we can readily accomplish that tаsk. We will complete the action initially assigned to us upon referral of the case for review.
Id. at
For the foregoing reasons, the motion to withdraw the record from this Court is denied. Furthermore, we have disposed of this case as one submitted without specific assignment of error, reviewing the entire record pursuant to our responsibilities under Article 66, UCMJ. Upon such review, we find no error which materially prejudiced the substantial rights of the accused and we do not consider the sentence to be excessive. The findings and sentence are determined to be correct in law and fact and on the basis of thе entire record should be approved. Accordingly, the findings of guilty and sentence, as approved and partially susрended below, are affirmed.
If appellant has second thoughts about his directions to appellate counsel and wishes to assign errors for our consideration, a course open to him is to move for reconsideration pursuant to Rule 19, Courts of Military Review Rules of Practice and Procedure.
LETTER FROM SR ROSS
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