Saturday, May 31, 2008

Some interesting appellate leave stats

I was recently up in Newport corrupting young legal minds at the Naval Justice School where, as usual, I learned more than I taught. One of the course participants called my attention to an article by Col Ralph Miller, then the head of Navy-Marine Corps Appellate Government. Col Ralph F. Miller, The Lost Battalion, Marine Corps Gazette, Jan. 2007, at 53. Here's a link, though you'll have to navigate through the table of contents link to the article; I don't seem to be able to link to the article directly.

Among the interesting data points set out in the article:

The number of Marines on appellate leave is "approximately 1,600, sometimes more."

"In the aggregate, Marines and sailors on appellate leave (the vast majority are Marines), and their dependents receive approximately $2.4 million of purchased medical care per year . . . . That figure does not include the value of care provided to them at military facilities."

"In 2003, 12 individuals on the rolls of NAMALA died while on appellate leave." When such individuals die before the CCA renders its opinion in the case, see generally United States v. Ribaudo, 62 M.J. 286 (C.A.A.F. 2006), "[t]he conviction is null and void, and all rights and privileges must be restored. His beneficiaries will receive the SGLI payment of $400,000; backpay, as adjusted for any earnings or public assistance received; and death gratuity."


Anonymous said...

Col Miller is such a good writer he makes me want to join this Lost Battalion! I also like his pun, "LCpl Villian," well-done (and I'm a defense attorney)! His report is well-balanced and his advice to commanders to consider the alternatives to get rid of bad Marines is sage and legally sound. I don't know him, but Col Miller writes as if he has seen all sides of military justice.

In my experience, most of my 'punkish' clients - if you know what I mean - do not use the available government benefits. Though I inform them of these benefits, most continue their drifting and chaotic lifestyle, too disorganized to be bothered with the 30-day ID card renewal process.

On the other hand, the very few number of my clients that have used these benefits are usually guys (yes, guys - males) who made a signficant mistake (UA, assualt, drunkenness of some sort and its somewhat predictable consequences) but are sober about that mistake and want to get on the right path.

So, on balance, there is probably a greater social good for this small percentage of soon-to-be members of the BCD club that are conscientious enough to seek out and use the benefits.

Now, the other "lost battalion" consists of all the military suicides. See recent news accounts reporting the record numbers. I am more concerned about these "lost." Lets spend some money to help these soldiers and sailors.

John O'Connor said...

I worked for Col Miller at LSST-D from 1995-97. He is a fine Marine. I attended his retirement yesterday at the National Museum of the Marine Corps (he was SJA at MCCDC after leaving Code 46).

I didn't agree with everything in his article, and wrote a letter to the editor to that effect. In particular, I think that much could be done to eliminate lengthy appellate leave situations, such as allowing waivers of appellate review through a PTA and dealing some types of commoditized cases (drug pops) to summary courts with a board waiver.

Cloudesley Shovell said...

Another one of Col Miller's great achievements was not just reducing, but eliminating the backlog of cases in enlargement on the government side. Two years ago it was common to have 75-100 cases in gov't enlargement. Today the number is close to zero, and it is a big deal to ask for an enlargement of time in any case, no matter how complicated. Navy Appellate Defense also did a wonderful job on their end (both sides being prodded along by the Court) of clearing the decks of high-enlargement cases. If only we could get the Courts to speed up on the Art. 62 and other interlocutory appeals.

Since the original publication of Col Miller's fine article, the number of people on appellate leave in the Navy and Marine Corps has dropped significantly. Codes 45 and 46 have seen a significant drop in caseload. Part of this is heightened awareness of the costs of the BCD as opposed to an OTH, but I think a larger part, especially on the Marine Corps side, is the fact that there's a war on, and the Marines have better things to do than shove a bunch of low-level cases through a SpCM when admin sep is more appropriate and expedient.

I have heard, anecdotally at least, that the Marine Corps response to various types of misconduct that require mandatory admin processing, such as a drug pop, has been to delay that processing. Such cases seem to increase as a deployment approaches, and the response has been, "You'll be processed for separation IAW the regs--just as soon as you return from deployment."

At any rate, I think reducing the number of cases, such as UA dives and drug pops, is a good thing. The requirement for good order and discipline is still met, fewer cases clogging the pipelines means a lower chance of a case getting lost somewhere (and it's usually the "thin" cases that get lost, not forwarded for review, etc., because they're not important enough for everyone to pay close attention), and more attention can be devoted to the cases that deserve that attention.

No Man said...

CAAFlog's showing his age, we blogged about this very article on Mar. 31, 2007 (and JO'C's response)


CAAFlog said...

Good point, No Man. :-) And the No Man being, as always, more technologically advanced than I, he managed to provide a link to the actual article rather than just the month's Gazette:

Alicia Herring said...

My brother passed away this weekend. His was on "appellate leave" in the Navy. Everything I've read says that appellate leave is an "active duty" status and that, if a soldier dies on appellate leave, his rights and privileges should be restored and all charges should be dropped.

Now the Navy is trying to determine if he is eligible to be buried in a VA national cemetary and whether or not he can have funeral honors. Based on my understanding of his status and the eligibility requirements on the VA website, I believe he has earned these rights and is due them.

Can anyone help?

See references below:

Alicia Herring said...

I forgot to include this link in my earlier post:

“It is the ‘longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him.’ United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). It is not until that appeal of right is complete that we can rest assured the interests of justice have been served. See United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998).”

Taken from page 7, paragraph 2 of United States, Appellee v. Brandon T. Ribaudo, Private U.S. Marine Corps, Appellate found at the following link: