Monday, August 18, 2008

Supremes docket another military cert petition

The Supremes have docketed a cert petition seeking review of CAAF's 3-2 opinion in United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). Hart v. United States, No. 08-193. When I return to D.C., I'll try to get the QP and post it.


Publius said...

Hart was one of the cases that made this past year the year of jurisdiction. Hart, a druggie, was an informant for the AFOSI in an effort to mitigate his own drug offenses. The SJA sent a letter to personnel asking that Hart be put on admin hold. Apparently the letter never got to the correct office in personnel and so he was never actually put on hold. Meanwhile, he was being processed for a disability discharge. The Secretary of the Air Force ordered him discharged. He outprocessed and received his certificate but not his final pay. Two days after the discharge was supposed to be effective, the base SJA discovered what had happened, ordered processing on the pay to stop, and had his commander order him back to base.

CAAF opinion was 3-2 to uphold jurisdiction. Chief Judge Effron and Judge Stucky dissented.

The bone of contention between the majority and the dissenters is 10 USC § 1168, which reads:

Discharge or release from active duty: limitations

(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.
(b) This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.

The majority claim that this statute says that you can't be discharged until you get the discharge certificate and a final accounting of pay has been made. As the final accounting had not been made, there was jurisdiction.

The dissenters, both former counsel to the Senate Armed Services Committee, contend that § 1168 "is a personnel
management statute designed to protect servicemembers and their
families from the adverse financial consequences of premature
separation. See United States v. Keels, 48 M.J. 431, 432 (C.A.A.F. 1998)." It was never meant to define jurisdiction for courts-martial.

I think the dissenters may have the better argument here. In fact, in federal court that is how §1168 has been used -- in the days prior to computers, military members would be sent to an installation to await discharge. The discharge certificate would be issued but not transmitted to the individual for a couple of months. Then the Government would make the individual pay back the pay he had received while awaiting discharge. Federal courts said no, the military member is entitled to military status until you pay him.

I hope the Supreme Court takes this case and resolves the issue. Too bad the Army appears to have caved in on Lopez de Victoria or we may have had a jurisdiction trifecta (that's if the SG ever seeks review of Denedo).

Anonymous said...

I think it's 10 days and counting on Denedo if my calendar tracks the Chief Justice's...I wager $10 that says the SG will file.

Anonymous said...

I was attacked and strangled in the U.S. Coast Guard in 1990. I am still waiting for miitary justice against my attacker! I was militarily kidnapped and falsely made against 10 U.S.C. section 1219 at Keesler A.F.B. to originate my own illness - "personality disorder" under oral threat never to see my family again! Capt. Anne Prechetta the one threatening me! My personnel and medical records were ordered in violation of NAVPERSMILCOMINST. 1910.1D demanding records accompany the member instead to be retained at C.G. GROUP KEY WEST. It all started when I filed attempted murder, assault, and maltreatment and gambling against my attacker. 3 false findings of fact in a reversal of original charges was the Coast Guard answer as military justice. I'm coming down the halls of the U.S. Supreme Court all you J.A.G.S. out there and I'm going to use Hart to kick some J.A.G. B..! Fraud has no statute of limitation C.G. J.A.G.! Yea it's your bu..ts hanging out there! The question is how many of you are leaving with dishonorables! You said putting me in a suicide ward when already diagnosed non-suicidal was "more justice then any other C.G. member had been ever given! I suspect a bundle of old C.G. cases are going to be reviewed after this dirty laundry is aired on N.B.C., C.B.S., e.t.c. and I suspect Kent Huntington of D.O.J. will have to explain his evidence tampering too...paraphrasing "open and shut" "the old man said he's got to go..." during recess of the board and sworn witness affidavit held from the Court of Claims - My great Uncle Cheif Justice Alton Parker of N.Y. Court of Appeals would be proud of me! So, I figure according to Hart I've been on active duty now for about 28 years.
That's what you get for violating statutes, Naval Regulations and Executive Order 9981 in procurring a fraudulent military discharge!

Anonymous said...

Oh, I forgot to mention I had 16 years of Honorable military service at the time of the attempted but fraudulent military discharge...Evidence is available that my attacker physically contacted me, put his arm around my neck, (strangled me)-missing 4 page statement, but the medical report said "contusions" "red marks on face" "groin soreness" but the C.O. said this was no evidence of an actual attack - how does one prove a military attack then, when 2 available witnesses are intentionally not interviewed, a 4 page statement disappears, the attacker confesses he never gave an order I was accussed falsely of disobeying! Yes, military justice,you got to love it!!

Anonymous said...

Lt. Ronald Kochan, U.S.C.G. are you worried? If you are not you should be because where you are going you will have a lot of time to think about denial of Federal Benefits to a disable veteran!

Anonymous said...

Lt. Kochan do you remember posting my private medical records for the entire unti to view?

Anonymous said...

If 14 U.S.C. section 365 says that no enlistment can exceed any six year period without issue of a "discharge certificate" to end the enlistment then how was I retained involuntarily for another 6 months without one issued? What happened to the "plain meaning of a statute? Was my holding a "constructive enlistment?" Or better yet was it a 13th Amendment U.S. Constitution violation, or am I according to Hart still on active duty? Don't bother answering - I know the right answer! What I do know for sure is 38 C.F.R. section 4.129 and that is the substantial portion of final pay still owing to me that leaves me on active duty J.A.G.s

Anonymous said...

Next time the military decides to conduct a fraudulent military discharge just a hint! Don't pick on the great-nephew of a famous jurist named Alton Parker who helped start the American Bar Association!

Anonymous said...

Well thats all for now for you know it all J.A.G.s - Bet you can't wait till this case hits the news stands or legal reviews! "For the rest of the story"

Anonymous said...

Good Night! or "Nightmare?"