              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
            K.J. BRUBAKER, F.D. MITCHELL, M.C. HOLIFIELD
                       Appellate Military Judges

               D'URVILLE A. CHRISTOPHER, SR.
     CRYPTOLOGIC TECHNICIAN (TECHNICAL) FIRST CLASS (E-6)
                         U.S. NAVY

                                       v.

                       UNITED STATES OF AMERICA

                              NMCCA 201500066
        Review of Petition for Extraordinary Relief in the Nature of a
                                Writ of Mandamus

Military Judge: CAPT Moira D. Modzelewski, JAGS, USN.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, D.C.
For Appellant: LT Jon T. Taylor, JAGC, USN.
For Appellee: Col Mark Jamison, USMC.

                              21 April 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     This case is before us pursuant to a Petition for
Extraordinary Relief in the Nature of a Writ of Mandamus. The
petitioner requests that this court order dismissal of all
charges and specifications averring that the court-martial lacks
in personam jurisdiction over him.

     On 16 March 2015, we granted the Request to Stay
Proceedings and ordered the Government to show cause why the
requested relief should not be granted. Additionally, we
ordered the Government to produce an authenticated record of the
proceedings. On 26 March 2015, the Government filed its
response to our order to show cause. The court received an
authenticated record of proceedings on 30 March 2015. The
petitioner filed a Reply Brief on 2 April 2015.

     The petitioner raises two issues: (1) whether a court-
martial has jurisdiction over a properly retired service member
where the charges were referred after the effective date of
retirement; and, (2) whether a subordinate convening authority
has in personam jurisdiction over a retiree where the Secretary
of the Navy has withheld authority to convene courts-martial
involving retirees. As we do not find the military judge’s
ruling on the defense’s Motion to Dismiss for Lack of
Jurisdiction to be erroneous or beyond her authority, we
conclude the petitioner is not entitled to the requested relief.

                              Factual Background

     We accept the following findings of fact from the military
judge‘s 30 January 2015 “Ruling on Defense Revised Motion to
Dismiss for Lack of Personal Jurisdiction,” 1 as we find them to
be correct and supported by the record:

        a. In April 1994 the [petitioner] entered into active duty
           service.

        b. After [May 2013] the [petitioner] was processed through
           the Physical Evaluation Board system to determine the
           extent of his disability for retirement purposes.

           . . . .

        g. In 2013 [the Naval Criminal Investigative Service]
           initiated an investigation of the [petitioner] for
           accusations involving sexual contact with a stepchild in
           2004.”

        h. On 23 April 2014, the Commanding Officer, [Naval Support
           Activity Washington (NSAW)] took the following actions:

            (1) Placed the [petitioner] on legal hold pending
                the adjudication of the criminal case.



1
    Appellate Exhibit XXVII, ¶ 3 (internal citations omitted).
                                        2
   (2) Required Navy Personnel Command (PERS) cancel
       the [petitioner’s] Fleet Reserve Request
       scheduled for April 30, 2014, due to a pending
       court-martial. The request was answered on May
       1, 2014, by a Naval message that cancelled the
       [petitioner’s] existing request to transfer to
       Fleet Reserves [sic].

   (3) Issued the [petitioner] a Page 13 Counseling,
       informing him that he was placed on legal hold
       “until further notice” and was not allowed to
       “[transfer], or be discharged until released form
       this legal hold status.”

i. Personnel Support Detachment (PSD) Washington received
   the legal hold paperwork on 23 April 2014, and on the
   same day, uploaded the document into its database, the
   Transaction Online Processing System (TOPS).

j. Although PSD Washington uploaded the legal hold
   paperwork in TOPS, PSD Washington did not update the
   [petitioner’s] Accounting Classification Code (ACC) to
   “disciplinary legal hold” status per [the Naval Military
   Personnel Manual].

k. Although the [petitioner’s] command took the appropriate
   steps to place the [petitioner] on legal hold on 23 April
   2014, it appears that the command did not separately and
   affirmatively notify the Physical Evaluation Board (PEB)
   that the [petitioner] was on legal hold and that his PEB
   processing should cease.

l. On 4 June 2014, as a result of the ongoing [PEB] to
   determine the [petitioner’s] disability, a message was
   released stating that the [petitioner] was eligible for
   medical retirement on 27 June 2014.

m. On June 10, 2014, in response to the medical retirement
   message, the Staff Judge Advocate (SJA) for NSAW
   confirmed with PERS-8 that the message would be cancelled
   and that the legal hold would keep the [petitioner] on
   active duty until his court-martial was completed.

n. It appears the [petitioner’s] ACC was not updated or
   corrected even at this time. While [PERS] was again made
   aware of the pending disciplinary proceedings against the


                           3
       [petitioner], PERS failed to direct PSD Washington [to]
       update the [petitioner’s] ACC on 10 June 2014.

     o. On 16 June 2014, the [petitioner] secured a DD-214
        [Certificate of Release or Discharge from Active Duty],
        using the 4 June 2014 message authorizing his transfer to
        the Permanent Disability Retirement List [(PDRL)].

     p. On 20 June 2014, the [petitioner] routed a request with
        his chain of command to have his “legal hold status
        lifted so that [he] can retire from active service.”

     q. On 1 July 2014, [PERS] issued a message cancelling the
        [petitioner’s] erroneous “retirement.”

     r. On 9 July 2014, the [petitioner] reported to NSAW for
        duty.

     s. On 22 July 2014, the [petitioner] was issued a DD Form
        215 (correction to DD Form 214) that purports to correct
        the previously issued DD Form 214.

             Authority to Issue Extraordinary Writs

     The All Writs Act, 28 U.S.C. § 1651(a), grants all courts
established by Act of Congress the power to issue all writs
necessary or appropriate in aid of their respective jurisdiction
and agreeable to the usages and principles of law. As a court
created by Act of Congress, this court has the authority to
issue the writ requested in this case. United States v. Dowty,
48 M.J. 102, 106 (C.A.A.F. 1998); Dettinger v. United States, 7
M.J. 216, 219 (C.M.A. 1979).

   Principles of Law for Consideration of Extraordinary Writs

     A Writ of Mandamus is a drastic remedy that should be used
only in extraordinary circumstances. Aviz v. Carver, 36 M.J.
1026, 1028 (N.M.C.M.R. 1993) (citing United States v. Labella,
15 M.J. 228 (C.M.A. 1983)). The petitioner bears the heavy
burden to show he has a clear and indisputable right to the
extraordinary relief requested. Ponder v. Stone, 54 M.J. 613,
616 (N.M.Ct.Crim.App. 2000); Aviz, 36 M.J. at 1028. See also
Will v. United States, 389 U.S. 90, 96 (1967).

     The Supreme Court has held that three conditions must be
met before a court may provide extraordinary relief in the form
of a writ of mandamus: (1) the party seeking the writ must have

                                4
“no other adequate means to attain the relief”; (2) the party
seeking the relief must show that the “right to issuance of the
relief is clear and indisputable”; and (3) “even if the first
two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Cheney v. United States
Dist. Court, 542 U.S. 367, 380-81 (2004) (citations and internal
quotation marks omitted). As detailed below, we find that the
petitioner has failed to meet the second of these conditions.

                        In Personam Jurisdiction

     “‘When an accused contests personal jurisdiction . . . we
review that question of law de novo, accepting the military
judge’s findings of historical facts unless they are clearly
erroneous or unsupported by the record.’” United States v.
Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v.
Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000)).

      In ruling on the defense’s Motion to Dismiss for Lack of
Jurisdiction, the military judge assumed arguendo that the
petitioner’s transfer to the PDRL was valid and, citing Article
2(a)(4), UCMJ, found that as a “[r]etired member[] of a regular
component of the armed services who [is] entitled to pay,” 2 he is
subject to UCMJ jurisdiction. She is correct: Article 2(a)(4),
UCMJ, confers in personam jurisdiction over retired members of a
regular component of the armed forces who are entitled to pay.
See also Pearson v. Bloss, 28 M.J. 376, 377-78 (C.M.A. 1989).
The military judge further found that the convening authority in
this case “is indisputably empowered to convene a General Court-
Martial.” 3 Our reading of RULE FOR COURTS-MARTIAL 504, MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), Article 22(a), Uniform Code
of Military Justice, 10 U.S.C. § 822(a), and paragraph 0120 of
Judge Advocate General of the Navy Instruction 5800.7F (26 Jun
2012) shows the military judge to be correct on this point, as
well. 4 Thus, we find no error in the military judge’s analysis,
and nothing to indicate the military judge’s ruling constituted
a “judicial usurpation of power” or was “characteristic of an
erroneous practice which is likely to recur.” Labella, 15 M.J.
2
    AE XXVII at 4.
3
    Id.
4
  In her ruling, the military judge noted that the defense’s Motion to Dismiss
did not raise the issue of whether the referral was proper. Although the
petitioner’s Petition for Extraordinary Relief seems to conflate the
authority to convene with the authority to refer, we agree that this is an
issue not currently before us.
                                      5
at 229 (citations and internal quotation marks omitted).
Accordingly, the petitioner has failed to show that he has a
clear and indisputable right to the requested Writ of Mandamus.

                           Conclusion

     The petition for a Writ of Mandamus is denied. This
court’s order of 16 March 2015 staying the Petitioner’s court-
martial if hereby lifted.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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