Here's the most interesting question that the case presents: can a servicemember confined as the result of a court-martial conviction whose punitive discharge has not yet been executed invoke the tolling provisions of the Service members' Civil Relief Act (SCRA) to file a Tucker Act action collaterally challenging beyond the six-year statute of limitations? Yes, rules Judge Block.
Judge Block frames the decisional issue as whether confinement pursuant to a court-martial conviction is "military service." If so, then the SCRA tolls the Tucker Act's statute of limitations until the court-martial convict is actually discharge.
Judge Block concludes that service of confinement in a military facility as the result of a court-martial conviction is military service, reasoning:
[P]laintiff was not absent during the period of his military confinement but instead was present, in military custody, at the bases to which he was assigned by the Marine Corps. Furthermore, . . . plaintiff remained on active duty during his military confinement because he had neither received his final pay nor was his DD Form 214 "ready for delivery." One can hardly consider plaintiff's confinement as not being "service connected" 00 which this Court believes is the test for "active duty." Simply put, plaintiff was convicted and incarcerated for violations of the UCMJ relating to his actions while he served on active duty. For this Court to accept defendant's argument would be to denigrate the crucial role that law and regulation play in military discipline. Further, there exists a constitutional component to the Court's position. Failing to recognize that a service member is on active duty, even when incarcerated in the "brig" for violations of military law, until officially separated or discharged, ignores the near-plenary power that the Constitution delegates to Congress "to make Rules for the Government and the Regulation of the land and naval forces . . . ." U.S. Const., art. I, § 8, cl. 14. The Constitution clearly envisioned the promulgation of a special system of military justice, and this system has indeed become an essential part of the American military. See O'Callahan, 395 U.S. at 262-62. It can hardly be said that those service members subject to that system -- even when tried, convicted, and incarcerated under military law -- are not engaging in activities that are "service connected."Lowe v. United States, No. 06-121C, slip op. at 11 (some internal citations omitted).
What do you think? Did Judge Block get it right?