

   
   
   
   Steele v. Van Riper



Russell B. STEELE, Private First Class
U.S. Marine Corps, Appellant
v.
Paul K. VAN RIPER, Lieutenant General, U.S.
Marine Corps, Commanding General, Marine Corps Combat Development Command;
G. J. PRICE, Colonel, U.S. Marine Corps, Commanding Officer, Headquarters
and Service Battalion; R. F. MOBILIA, Lieutenant Commander, U.S. Navy,
Commanding Officer, Navy and Marine Corps Appellate Leave Activity; and
the UNITED STATES, Appellees
 
 
No. 98-8010
Crim. App. No. 97-1615
 
 
United States Court of Appeals for the Armed
Forces
Argued October 5, 1998
Decided March 26, 1999
 
 
Counsel
For Appellant: Lieutenant Frank M. Doherty,
JAGC, USNR (argued); Lieutenant Albert L. Di Giulio, JAGC, USNR
(on brief).
For Appellees: Captain Paul D. Kovac,
USMC (argued); Colonel Charles Wm. Dorman, USMC, Lieutenant Commander
Paul Jones, JAGC, USNR, and Lieutenant Russell J. E. Verby,
JAGC, USNR (on brief); Colonel Kevin M. Sandkuhler, USMC.
 
 


This opinion is subject
to editorial correction before publication.

 

PER CURIAM:
I. BACKGROUND
A. Trial Proceedings
Appellant was tried by a special court-martial
composed of officer and enlisted members. Contrary to his pleas, he was
convicted of wrongfully using marijuana, in violation of Article 112a,
Uniform Code of Military Justice, 10 USC § 912a. On June 26, 1996,
he was sentenced to a bad-conduct discharge and reduction to the lowest
enlisted grade.

B. Post-Trial Action by the Convening Authority
The next step in the court-martial process
-- action on the findings and sentence by the convening authority -- was
not taken until May 27, 1997, more than 11 months after the adjudication
of the sentence. The record contains no explanation as to why nearly a
year elapsed before completion of post-trial processing.
In the meantime, appellant retained his rank
and was returned to duty. For the next 7 months, he continued to perform
his duties as a Marine. On February 10, 1997 -- prior to action on the
case by the convening authority -- as appellant approached the expiration
of his term of service (ETS), his command initiated routine ETS processing,
including clearance with legal and administrative offices. After completing
the process, appellant was issued a Department of Defense (DD) Form 214
on February 14, 1997, discharging him from military service, effective
February 17, 1997, in the grade of Private First Class (E-2). After permanently
departing from Marine Corps Base, Quantico, he established a civilian residence
and obtained civilian employment. On February 24, the Marine Corps Finance
Center issued appellant a final accounting of pay, which he received on
March 5 and deposited in his checking account on March 10.
Following appellant's return to civilian life,
as noted above, the convening authority on May 27, 1997, approved the findings
and sentence. The convening authority ordered the reduction to be executed,
while the discharge remained in abeyance pending appellate review.

C. Proceedings at the Court of Criminal Appeals
On June 24, the Commanding General, Marine
Corps Combat Development Command, sent appellant orders placing him in
an involuntary leave status. A day later, the convening authority sent
appellant a letter stating that he had been discharged erroneously and
that he was being placed in an involuntary leave status. On September 10,
1997, nearly 15 months after the sentence was adjudged, the record of trial
was received by the Navy-Marine Corps Appellate Review Activity.
While the matter was pending before the Court
of Criminal Appeals, appellant filed with that court a petition for extraordinary
relief in the nature of a writ of prohibition. The petition was denied
by the Court of Criminal Appeals in a summary opinion.

D. Current Appellate Proceedings
Appellant appealed the denial of his request
for extraordinary relief to our Court, raising the following issue:



WHETHER APPELLEES CAN INVALIDATE APPELLANT'S
HONORABLE DISCHARGE, ORDER APPELLANT TO INVOLUNTARY LEAVE, AND EXECUTE
HIS COURT-MARTIAL SENTENCE TO A BAD-CONDUCT DISCHARGE AND REDUCTION TO
PAY GRADE E-1, AFTER APPELLANT WAS GIVEN HIS DD 214 BY APPROPRIATELY AUTHORIZED
OFFICIALS, RECEIVED HIS FINAL ACCOUNTING OF PAY FROM THE MARINE CORPS FINANCE
CENTER, AND UNDERWENT COMMAND CHECK-OUT PROCEDURES WITH THE SAME CONVENING
AUTHORITY WHO THREE MONTHS LATER TOOK HIS ACTION IN THE CASE.



In appellant's brief, he requested relief in the
form of a writ issued by this Court that would order the Marine Corps



to cease attempts to invalidate [appellant's]
honorable discharge, to cease ordering [appellant] to involuntary leave,
and to prevent the execution of [appellant's] court-martial sentence to
a bad-conduct discharge and reduction to E-1 upon the completion of appellate
review since [appellant] has been honorably discharged as an E-2.



Final Brief at 5.
On February 19, 1998, we issued a temporary
stay, ordering that no action be taken that would invalidate appellant's
honorable discharge, order him to active duty, or execute the punitive
discharge or reduction pending further order of this Court. Both parties
subsequently filed briefs on the issue presented in appellant's writ-appeal.
On September 11, 1998, the Government withdrew
its initial response, which had taken the position that the convening authority
had the power to approve the sentence. In its new filing, the Government
conceded that appellant "is entitled to his honorable discharge as indicated
on his DD 214." The Government further acknowledged the sentence could
not be approved by the convening authority "and is effectively remitted
due to [appellant's] honorable discharge." Answer to Final Brief at 3.
The Government also asserted that the findings
could be approved after review by a judge advocate under Article 64, UCMJ,
10 USC § 864 (review of cases that have not been reviewed by a Court
of Criminal Appeals under Article 66, UCMJ, 10 USC § 866, or
by the Judge Advocate General under Article 69(a), UCMJ, 10 USC §
869(a)), but that absent an approved bad-conduct discharge, appellate
courts were without jurisdiction to review the findings. See Art.
66(b)(1) and Art. 67(a)(3), UCMJ, 10 USC § 867(a)(3).
Appellant filed no response to the Government's
September 11 filing. The validity of the findings was not challenged by
appellant in his writ-appeal petition for review, and was not briefed by
the parties. During oral argument, appellant disagreed with
the Government's assertion that the findings could be approved.

II. DISCUSSION
The issue presented in this writ appeal has
arisen because the statutory and regulatory provisions governing administrative
discharges, e.g., 10 USC §§ 1161-117 and Department
of Defense Directive 1332.14 (December 21, 1993), are separate from and
not necessarily coordinated with the authorities governing review of courts-martial,
e.g.,
10 USC §§ 859-876b. Because many administrative discharges can
be executed in the field without centralized approval, it is possible for
a person who has been sentenced to a punitive discharge by court-martial
to be discharged administratively while the unexecuted punitive discharge
is pending appellate review.1
This Court has held that, if a person is discharged
administratively while appellate review is pending, there is "no good reason
to hold the findings and sentence of the court-martial are impaired by
the discharge." United States v. Speller, 8 USCMA 363, 368, 24 CMR
173, 178 (1957). Similarly, the power of review authorities over the court-martial
is unaffected by the administrative discharge. See United States
v. Woods, 26 MJ 372 (CMA 1988); United States v. Jackson, 3
MJ 153 (CMA 1977); United States v. Entner, 15 USCMA 564, 36 CMR
62 (1965); United States v. Speller, supra; United States
v. Sippel, 4 USCMA 50, 15 CMR 50 (1954). Moreover, the administrative
discharge does not negate the responsibility of the convening authority
to act on the findings and sentence; nor does it restrict his power to
do so. See generally Speller, supra at 365-66,
24 CMR at 175-76 (recognizing validity of convening authority's action
where accused was released from active duty and transferred to Reserves
after court-martial but before the convening authority's action).
As indicated earlier, the convening authority
here approved the findings and sentence. The earlier honorable discharge
through administrative channels had the effect of remitting the bad-conduct
discharge that had been adjudged. See Speller, supra
at 369, 24 CMR at 179. As a result, the bad-conduct discharge cannot be
executed, see id., but the remission of the punitive discharge
does not affect the power of the convening authority or appellate tribunals
to act on the findings and sentence. As we said in Speller:



Assuming, for the sake of argument, that
a sentence cannot be satisfied because of the action of military authorities,
that has nothing to do with the legality of the findings or any part of
the sentence which has been satisfied. . . . It seems more logical to us
to hold that once findings are returned and sentence imposed by a court-martial
which is clothed with the power and authority to hear the charge, any action
taken thereafter which merely affects the execution of the sentence does
not affect the legality of the conviction.



Id.
In view of the Government's most recent filings,
which were reiterated during oral argument, it appears that appellant will
obtain the critical elements of the relief he requested. His honorable
discharge will be not be disturbed, and the adjudged sentence of
a bad-conduct discharge and reduction in rank will not be executed. In
light of the Government's concession that appellant's sentence will
not be executed, as well as his administrative separation from military
service, it also appears that he will not be placed on involuntary appellate
leave under Article 76a, UCMJ, 10 USC § 876a.

III. DECISION
The temporary stay issued on February 17, 1998,
is hereby lifted. Appellants writ-appeal petition for review is
denied without prejudice to his raising such issues as may be warranted
by the circumstances in the course of further direct review, or
through an appropriate petition for extraordinary relief. Direct review
under Articles 66 and 67 shall proceed.
FOOTNOTE:
1 The potential conflict
between administrative and judicial procedures -- and the difficult jurisdictional
issues raised thereby -- could be substantially reduced, if not eliminated,
through appropriate direction (e.g., by the President in
the Manual for Courts-Martial) that the authority to administratively discharge
persons with adjudged but unexecuted punitive discharges be restricted
to senior officials (e.g., the Secretaries of the Military
Departments).
 
 
CRAWFORD, Judge (concurring in the result):
I concur in the result, based solely on the
Government concessions in this case. To prevent possible future administrative
errors, the Services or the President should promulgate a regulation that
administrative discharges of those under charges or pending appellate review
will not be effective unless approved by the Service Secretary or a designated
Under Secretary. Cf. ___ MJ (8 n.1); Smith v. Vanderbush,
47 MJ 56 (1997).
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