

   
   
   
   U.S. v. Miley



UNITED STATES, Appellee
v.
Teresa S. MILEY, Molder Chief (Surface Warfare)
U. S. Navy, Appellant
 
No. 98-0721
Crim. App. No. 96-0822
 
United States Court of Appeals for the Armed
Forces
Argued June 1, 1999
Decided August 11, 1999

CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.
 


Counsel
For Appellant: Lieutenant Omar R. Lopez,
JAGC, USNR (argued); Lieutenant Syed N. Ahmad, JAGC, USNR.
For Appellee: Captain Danny R. Fields,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander
E. E. Irvin, JAGC, USN (on brief); Major Troy D. Taylor, USMC.
Military Judge: Nels H. Kelstrom
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge CRAWFORD delivered the opinion of the Court.
Pursuant to her pleas, appellant was convicted
at a general court-martial of two specifications of larceny and five specifications
of forgery, in violation of Articles 121 and 123, Uniform Code of Military
Justice, 10 USC §§ 921 and 923, respectively. She was sentenced
to a bad-conduct discharge, 105 days confinement, and reduction to the
lowest enlisted grade. In accordance with a pretrial agreement, the convening
authority suspended confinement in excess of 90 days, reduction below E-5,
and the discharge for 12 months from the date of trial. The Court of Criminal
Appeals affirmed the findings and sentence on February 26, 1998, in an
unpublished opinion.
We granted review of the following issue:



WHETHER THE OFFICER EXERCISING GENERAL COURT-MARTIAL
JURISDICTION OVER APPELLANT ERRED IN VACATING THE SUSPENDED PORTIONS OF
APPELLANT'S SENTENCE.



We also specified the following issue:



WHETHER THE USE OF POLYGRAPH EVIDENCE DURING
AN ARTICLE 72 VACATION OF SUSPENSION PROCEEDING
IS PROHIBITED BY MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER,
118 S.Ct. 1261 (1998).



Without reaching these questions for the reasons
specified below, we will remand the case.

FACTS
Approximately 9 months into appellant's suspended
punishment, she was given punishment under Article 15, UCMJ, 10 USC §
815, upon testing positive for methamphetamine use. Unpub. op. at 2. During
the Article 15 proceedings before Commander (CDR) L, appellant allegedly
requested and was allegedly afforded the opportunity to take a polygraph
exam. Initially, no opinion could be rendered on the polygraph results
because appellant seemed to be distorting her breathing. Eventually, Naval
Criminal Investigative Service Special Agent Alex Bedoya, who administered
the exam, came to the conclusion that appellant was not being truthful
and, on the advice of counsel, appellant terminated the examination and
the post-test interrogation. Subsequently, the Article 15 proceedings continued
and she was punished. She appealed the Article 15 punishment to Rear Admiral
(RADM) Walker, who denied the appeal.
The court below found that CDR L, who imposed
the Article 15, was also the special court-martial convening authority
who in fact conducted the vacation proceeding, even though the Report of
those proceedings is signed by another officer as "Acting" Commanding Officer.
Unpub. op. at 4. The suspended sentence was vacated on August 2, 1996.
But it is unclear whether the Article 15 was conducted in one proceeding
or in a piecemeal fashion. It is also unclear from the record whether the
vacation proceedings were held simultaneously with the Article 15 or entirely
separate. Appellants Article 15 election-of-rights form indicates
that she demanded trial by court-martial (para. 6b), but the block on the
Article 15 form (NAVPERS 1626/7) styled Right to Demand Trial by Court-Martial,
is blank. Considering this defect, the lower court concluded that
appellant had accepted the Article 15 (after rejecting a "forged" so-called
"affidavit" but accepting a subsequently legitimate one) and that her ultimate
decision to do so had merely not been documented. Unpub. op. at
5. RADM Walker, the general court-martial convening authority, accepted
the recommendation of the hearing officer and vacated the suspended punishment
on August 2, 1996.
Appellant alleges that there was an improper
vacation because (1) RADM Walker relied on a hearing at which appellant
was not represented by counsel; (2) appellants counsel was not effective;
(3) there was never a bona fide hearing; (4) there was no appropriate recommendation
flowing from the hearing; (5) there were no appropriate findings; (6) "neither
RADM Walker nor the hearing officer was neutral and detached"; and lastly
(7) the record was not sufficiently summarized. Final Brief at 8.
The Government takes the position that counsel
showed more concern "about the possibility of another court-martial than"
a vacation proceeding is evidence of effective presentation. Answer to
Final Brief at 8. The Government further notes that there was a detailed
report given to RADM Walker upon which he made his judgment. Id.
at 9-11. Furthermore, because both RADM Walker and CDR L had received information
in their official capacities, they were not disqualified on account of
their involvement in the prior Article 15. Id. at 12-13.
Despite all these arguments, what we have before
us is a number of conflicting and incomplete affidavits from the commander,
the acting commander, two defense counsel, and a legal clerk. We also have
what appears to be a forged affidavit from that legal clerk. This record
is not in an acceptable condition for appellate review, and it is, therefore,
necessary to have further proceedings to consider the following questions:

1. Why was the polygraph test administered?
2. Did appellant have legal counsel and advice
prior to, during, or after the polygraph test?
3. Why was the post-polygraph interrogation
terminated?
4. When did the completion of the polygraph
examination take place?
5. Did appellant in fact accept punishment
under Article 15?
6. Was the Article 15 a part of the vacation
proceeding?
7. If not, was appellant represented by counsel
at the vacation proceeding?
8. Did she waive her right to counsel at the
vacation proceeding?
9. Was there any discussion of potential future
charges in the case?
10. What impact did any such discussion have
on the Article 15, the vacation proceeding, and appellants rights?
11. What were the circumstances under which
the affidavit purportedly from Legalman First Class G dated 27 Aug 97 was
provided?

The questions may be determined at a hearing pursuant
to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), or if
that is deemed impracticable, a new vacation proceeding may be ordered.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is set aside. The record of trial is returned
to the Judge Advocate General for submission to a convening authority for
compliance with this opinion. Thereafter, the record will be returned directly
to this Court.

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