                      UNITED STATES, Appellee

                                    v.

                       David A. BECK, Captain
                        U.S. Army, Appellant

                              No. 02-8010
                      Crim. App. No. 20020001


    United States Court of Appeals for the Armed Forces


                    Submitted January 28, 2002
                       Decided April 19, 2002




                                Counsel


For Appellant:     Eugene R. Fidell and Debra D. Cooper (on
    brief).


For Appellee: Colonel Steven T. Salata, Lieutenant Colonel
    Paul H. Turney, and Captain Mark A. Visger (on brief).




 THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Beck, No. 02-8010/AR


PER CURIAM:

     Appellant filed a writ-appeal petition for review of

the United States Army Court of Criminal Appeals’ decision

on application for extraordinary relief in the nature of a

writ of prohibition, mandamus, habeas corpus, and stay of

proceedings.   Additionally, appellant filed a motion for

stay of court-martial proceedings.      Appellant argues his

order to active duty in the United States Army is void, and

he bases this argument on the conclusion that he was

fraudulently induced into signing a contract for service in

the Army.   Appellant is also litigating this matter in the

United States District Court.       See Beck v. Secretary of the

Army, Civ. No. 01-0529 (D.D.C.).

     Citing Woodrick v. Divich, 24 MJ 147 (CMA 1987),

appellant contends this Court should stay his court-martial

proceedings pending a resolution of the civil matter,

dismiss the court-martial charge against him, and direct

his discharge from the Army.    We disagree.    In Woodrick,

“‘[t]he district court, after a de novo review, accepted

the Magistrate’s findings and recommendations and denied

the Air Force’s motion to dismiss for’ failure to exhaust

remedies, concluding that a court-martial ‘could not

determine the merits of’ his ‘contractual claims.’      It also

ruled in Woodrick’s favor on his contract claims.”      Id. at


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United States v. Beck, No. 02-8010/AR


149, quoting Woodrick v. Hungerford, 800 F.2d 1413, 1415

(5th Cir. 1986).   Thereafter, the Court of Appeals reversed

on the basis that Woodrick had not exhausted his military

remedies.    800 F.2d at 1418.

       As a matter of comity given the posture of the

Woodrick case when it arrived at this Court, we refused to

resolve the merits of Woodrick’s claims because the

District Court previously had adjudicated the matter,

holding that Woodrick’s contract for military service was

void.    This Court did, however, grant a stay of proceedings

pending further review in the District Court, so Woodrick

could obtain a reinstatement of the favorable District

Court ruling on his claim of an invalid contract.    24 MJ at

155.

       Issuance of an extraordinary writ staying court-

martial proceedings requires the careful exercise of

discretion.    When a writ petition asks us to stay a court-

martial in deference to proceedings in a court outside the

military justice system, it would be inappropriate to issue

a stay absent a persuasive ruling from such a court or

similar prudential considerations.

       The writ-appeal petition and motion for stay of court-

martial proceedings are denied.




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United States v. Beck, 02-8010,AR


    SULLIVAN, Senior Judge (concurring in part and dissenting in

    part):



    I agree with the majority’s decision to deny appellant’s

requests to both dismiss the court-martial charges against him

for a lack of jurisdiction and direct his discharge from the

United States Army.     Such action is entirely consistent with this

Court’s opinion in Woodrick v. Divich, 24 MJ 147, 155 (CMA 1987).



    I disagree, however, with the majority’s decision to deny a

stay of court-martial proceedings until the pending proceedings

in federal district court are resolved.      Such a stay was granted

in Woodrick v. Divich, supra, even though that petitioner’s civil

cause of action, along with the trial court’s factual findings in

his favor, had been dismissed by the Court of Appeals.      Based on

principles of comity and the probable refiling of his action,

this Court granted a stay of “court-martial proceedings until

Woodrick’s claims have been finally adjudicated in the civilian

courts.”     Id. at 153.   These same principles of comity should

also apply in Beck’s case, where the civil case is actually

pending.



    This Court spoke to this precise issue in Woodrick v. Divich,

 as follows:

               Whether, as in [Parisi v. Davisdson,
             405 U.S. 34 (1972)], a claim is made for
United States v. Beck, No. 02-8010/AR

            release from military status by reason of
            conscientious objection or whether
            instead the claim is for release because
            of a material misrepresentation, a court-
            martial is not the most convenient forum
            to handle the matter. These tribunals
            “are not convened to review and rectify
            administrative denials of” release from
            active duty. Id. 405 U.S. at 42, 92
            S.Ct. at 820. Furthermore, the issues of
            contract law involved here are not those
            in which courts-martial “have a special
            competence.” Id. at 39 n. 6, 92 S.Ct. at
            819 n.6.

              Parisi makes clear that there are many
            reasons why it would be desirable if the
            validity of Woodrick's enlistment
            contract could be adjudicated in a
            Federal District Court, rather than
            before a court-martial. Moreover, it
            seems clear that, under the principles of
            comity adverted to in Parisi, the
            military justice system properly may
            defer to proceedings in the Federal
            civilian courts. Just as the Supreme
            Court urged Federal civilian courts to
            “give careful consideration to the
            appropriate demands of comity,” id. at
            46, 92 S.Ct. at 822, when related
            proceedings are pending before courts-
            martial, the military justice system
            should consider the “demands of comity”
            in connection with related proceedings in
            a Federal District Court.

Id.

      The majority denies the request for a stay of the court-

martial proceedings on the basis that the federal district court

has not yet made a persuasive ruling in the civil action and the

absence of “similar prudential considerations.” _____ MJ at (3).

It is uncontroverted, however, that the district court is

prepared to go forward and itself suggested to appellant that he

seek a stay of the court-martial proceedings before it further


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United States v. Beck, No. 02-8010/AR

acts in his case.   The principles of comity delineated in

Woodrick v. Divich, supra, strongly suggest that this Court

should not act in a way which fosters competing civilian and

military legal proceedings.



    In sum, I would hold that appellant’s writ-appeal petition

should be resolved on the basis of this Court’s decision in

Woodrick v. Divich, supra.    Accordingly, following our Court’s

precedent, I would vote to grant the requested stay.




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