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

                                       Before
                       D.C. KING, A.Y. MARKS, B.T. PALMER
                              Appellate Military Judges

                             WAYNE TATUM
                  STAFF SERGEANT (E-6), U.S. MARINE CORPS

                                               v.

                             UNITED STATES OF AMERICA

                                  NMCCA 9202530
           Review of Petition for Extraordinary Relief in the Nature of a
                            Writ of Error Coram Nobis

Sentence Adjudged: 15 June 1992.
Convening Authority: Commanding General, 2d Marine Aircraft Wing, Cherry
Point, NC.
For Petitioner: Jeffery C. King, Esq. .

                                       31 March 2016

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                               OPINION OF THE COURT
                       ---------------------------------------------------
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:

        On 15 June 1992, a military judge sitting as a general court-martial convicted the
petitioner, contrary to his pleas, of two specifications of committing a fraud against the United
States in violation of Article 132, Uniform Code of Military Justice, 10 U.S.C. § 932 and
sentenced him to confinement for four months, forfeitures, reduction to pay grade E-1, and a
bad-conduct discharge (BCD). On 29 October 1993, we affirmed the findings and sentence, and
on 30 June 1994, the Court of Military Appeals likewise affirmed. United States v. Tatum, No.
922530, unpublished op. (N.M.C.M.R. 29 Oct 1993), aff'd, 40 M.J. 320 (C.M.A. 1994)
(summary disposition). The petitioner alleges his 1992 general court-martial lacked jurisdiction
and requests this court dismiss and set aside the imposed findings and sentence. This is the
petitioner’s second such writ filed in this case.

                                          Jurisdiction
       The petitioner seeks relief in the nature of a Writ of Error Coram Nobis, the consideration
of which is properly within our jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a). See
United States v. Denedo, 556 U.S. 904, 912-13 (2009).

                                                    Background

        On 21 July 1990, an unrelated general court-martial convicted the petitioner of various
offenses and imposed a BCD. On 14 August 1991, the petitioner sought relief from the Navy
Clemency and Parole Board (NCPB), which granted clemency on 21 November 1991 and
remitted his BCD. Upon the Government’s request, the NCPB reconsidered its clemency
determination and on 6 February 1992, again remitted the BCD.1 In the interim, during 4-13
September 1991 and 19 September-5 October 1991, the petitioner engaged in travel claim fraud
resulting in the Government preferring new charges against him on 27 December 1991. On 27
April 1992, this court set aside and dismissed the charges stemming from the petitioner’s first
court-martial. United States v. Tatum, 34 M.J. 1115, 1119 (N.M.C.M.R. 1992). On 15 June
1992, the petitioner was convicted of the offenses preferred on 27 December 1991 and upon
completion of appellate review his bad-conduct discharge was executed.

         On 22 July 2008, the petitioner filed his first Petition for a Writ of Error Coram Nobis
requesting this court dismiss and set aside the findings on jurisdictional grounds. On 23
September 2008, we denied the Petition, finding the petitioner had not articulated a valid reason
for failing to seek the requested relief earlier.2 Tatum v. United States, No. 9202530, 2008 CCA
LEXIS 307 at 6, unpublished op. (N.M.Ct.Crim.App. 23 Sep 2008).
         The petitioner now claims different jurisdictional grounds. He alleges that he should
have been discharged immediately upon the NCPB’s 21 November 1991 clemency decision
because his scheduled end of active service date had long since expired and the NCPB decision
represented a final action by the Secretary of the Navy. He further argues the Government’s
request seeking NCPB reconsideration lacked authority and implies, without offering any
specific evidence, that the convening authority sought reconsideration as a means to maintain
jurisdiction over the petitioner until new charges could be preferred. Finally, he alleges that no
reasonable diligence could have uncovered this jurisdictional issue at trial because it was
“obscured by the appellate court’s setting aside of the first court-martial[.]”3 We disagree.

1
 Regardless of the NCPB action, this court retained jurisdiction to review the petitioner’s first court-martial. United
States v. Olinger, 45 M.J. 644, 646 (N.M.Ct.Crim.App. 1997) (“[N]otwithstanding the NCPB action remitting the
bad-conduct discharge, this court acquired jurisdiction to review the case under Article 66(b), UCMJ, 10 U.S.C. §
866(b). Jurisdiction under [Article 66(b)] is dependent solely upon the sentence approved by the convening
authority and whether appellate review has been waived or withdrawn. Jurisdiction is not based upon actions of the
NCPB.”).
2
  In reaching this decision, we found the petitioner “could have raised jurisdictional issues during his 1992 trial and
1993 appellate review processes[;]” that his “alleged jurisdictional defect is based upon information that he and his
counsel could and should have discovered through the exercise of reasonable diligence prior to the original
judgment or on appeal[;]” and that a “servicemember remains subject to the UCMJ until formally discharged . . .
[thus] the petitioner was subject to the UCMJ and the military had jurisdiction to try him in 1992.” Tatum, 2008
CCA LEXIS 307 at 6.
3
    Petition at 15.

                                                           2
                                                     Discussion

       A Writ of Error Coram Nobis is extraordinary relief available only under “exceptional
circumstances” based upon facts that were not apparent to the court during the original
consideration of the case and that may change the result. United States v. Frischholz, 36 C.M.R.
306, 309 (C.M.A. 1966) (quoting United States v. Tavares, 27 C.M.R. 356, 358 (C.M.A. 1959)).
The petitioner’s alleged error must be “of the most fundamental character, that is, such as
rendered the proceeding itself irregular and invalid.” United States v. Morgan, 346 U.S. 502,
509 n.15 (1954) (internal quotation marks and citations omitted); see also Aviz v. Carver, 36 M.J.
1026, 1028 (N.M.C.M.R. 1993) (the writ is a drastic remedy that should be used only in
extraordinary circumstances). The petitioner bears the burden of showing a “clear and
indisputable right” to the extraordinary relief requested. United States v. Denedo, 66 M.J. 114,
126 (C.A.A.F. 2008) (citing Cheney v. United States District Court, 542 U.S. 367, 381 (2004));
Ponder v. Stone, 54 M.J. 613, 616 (N.M.Ct.Crim.App. 2000); Aviz, 36 M.J. at 1028.

        To prevail on a petition for a writ of error coram nobis, the petitioner must meet six
stringent threshold requirements: (1) the alleged error is of the most fundamental character, (2)
no remedy other than coram nobis is available to rectify the consequences of the error, (3) valid
reasons exist for not seeking relief earlier, (4) the new information could not have been
discovered through reasonable diligence prior to the original judgment, (5) the writ does not seek
to reevaluate previously considered evidence or legal issues, and (6) the sentence has been
served but the consequences of the conviction still exist. Denedo, 66 M.J. at 126-27.

        The petitioner has not met his burden. No new facts or law has arisen since the original
1992 trial affecting the court’s analysis. The only change is a different legal argument, which he
did not consider at the time of the 1992 trial4 or at the filing of his first writ. The petitioner, with
the exercise of reasonable diligence, could have raised these jurisdictional issues during his 1992
trial and 1993 appellate review processes. The NCPB made its clemency decision prior to the
petitioner’s court-martial, and the petitioner now provides no legitimate reason as to why he
failed to consider whether the clemency affected the court-martial’s jurisdiction. The petitioner
therefore fails on prongs (3) and (4) of the threshold set in Denedo. Id. at 126.

        Furthermore, even if the petitioner was able to meet the coram nobis threshold
requirements, we find no error entitling him to relief. “Court-martial jurisdiction attaches over a
person when action with a view towards trial is taken. Once court-martial jurisdiction . . .
attaches [it] shall continue for all purposes of trial, sentence, and punishment notwithstanding the
expiration of that person’s term of service.” RULES FOR COURTS-MARTIAL 202(c) MANUAL FOR
COURTS-MARTIAL, UNITED STATES, 1984. A servicemember remains subject to the UCMJ until
he is formally discharged from military service. Art. 2, UCMJ; United States v. Williams, 53
M.J. 316, 317 (C.A.A.F. 2000). “Generally . . . jurisdiction over active duty military personnel


4
  The petitioner asserts he did not raise this argument at trial because it was “obscured” in the “incredibly rare
scenario of contesting charges at a second court-martial after the first court-martial was set aside[.]” Petition at 15.
We find the set-aside decision made seven weeks before trial was more than sufficient time for the parties to identify
and act on all potential issues resulting therefrom.

                                                           3
continues until the member receives a valid discharge[.] Id. at 317 (citing United States v. King,
27 M.J. 327, 329 (C.M.A. 1989)). “A servicemember will not be considered to have been
lawfully discharged, however, unless: (1) the member received a valid discharge certificate or a
certificate of release from active duty, such as a Department of Defense Form (DD Form) 214;
(2) the member's final pay or a substantial part of that pay is ready for delivery to the member;
and (3) the member has completed the administrative clearance process required by the Secretary
of the service of which he or she is a member.” United States v. Melanson, 53 M.J. 1, 2
(C.A.A.F. 2000) (internal quotation marks and citations omitted).

        The petitioner offers no evidence that he was discharged prior to his second court-martial
and acknowledges in his own pleadings that he was, in fact, not discharged until 2 December
1993.5 Moreover, charges were preferred only 36 days after the first NCPB decision remitting
the BCD, and the petitioner offers no evidence he sought discharge before the date of preferral.
United States v. Wheeley, 6 M.J. 220, 222 (C.M.A. 1979) (court-martial jurisdiction continues
over a servicemember until discharged or “he objects to his continued retention and a reasonable
time expires without appropriate action by the Government.”)

        Finally, even if the convening authority did not request NCPD reconsideration, the
petitioner would have still been on active duty until some date after 27 April 1992, when the
appellate review of his first court-martial concluded.

                                           Conclusion

        The petitioner has failed to demonstrate a clear and indisputable right to the extraordinary
relief he has requested. Accordingly, the petition is denied.

                                                     For the Court




                                                     R.H. TROIDL
                                                     Clerk of Court




5
    Petition at 4, Exhibit 7.

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