Friday, February 20, 2009

Meaningful relief cont'

Yesterday we discussed the case of United States v. Burch and the quest for meaningful appellate relief. Today an alert reader called our attention to an article in the current issue of the Marine Corps Times casting doubt on whether DFAS will actually provide monetary relief as a result of any appellate ruling short of a complete reversal without retrial. William H. McMichael, Ruling: Pay restoration is not guaranteed, Marine Corps Times, Feb. 23, 2009, at 18. Unfortunately, the article appears to be available to subsribers only. I hope I can offer this much of the lede without offending copyright protections:

When a military judge reverses or sets aside a court-martial ver­dict and a new trial is not ordered, all rights and privileges — includ­ing back pay — are restored to the accused.

But if a sentence is merely reduced, pay restoration is not automatic.
McMichael reports that DFAS makes case-by-case determinations as to whether to restore money in other cases.


Anonymous said...

The quote was from a DEFAS memo from about 8 years ago. thye may have been relying on it, but it is probably a misstatement of the law. Expect a new interpretation this spring.

Anonymous said...

Couldn't the court in its decision order the government to provide such relief as is consistent with its decision, or something along those lines?

Anonymous said...

Anon 1632,

I think the courts adopted that strategy in the Gorski cases, but if I recall correctly DFAS took the position that the courts' orders were of no effect when it came to matters within DFAS' sole cognizance.

Anonymous said...

Well they are all part of the same big G, so I would hope the new interpretation remedies this.