Monday, April 20, 2009

Marine Corps Times article on the Foster case

We have previously discussed NMCCA's unpublished opinion in United States v. Foster, setting aside as factually insufficient a Marine's conviction for raping his wife after he had already served nine years of his 17-year sentence. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The Marine Corps Times has now posted this lengthy article about the case. Gidget Fuentes, Innocent Marine freed after 9 years in prison, Marine Corps Times, posted 20 April 2009, 18:25:31 EDT.


Cloudesley Shovell said...

Assuming that the Marines decline to pursue a retrial on the assault charge, this case will present an interesting test of Art. 75 and the associated regulations regarding restoration.

I fear that Sgt Foster is going to encounter a great institutional reluctance to hand him a big fat six-figure check.

It will also be interesting to see how the Marine Corps handles the promotion issue. I would assume the broadly-worded "all rights, privileges, and property" language in Art. 75 would include reasonable promotions Sgt Foster would have been entitled to had he not been confined. Will the Marines at least promote him to E-6 so he can serve out his 20, or will they pay his back pay and discharge him for being past high-year tenure as a Sgt?

Anonymous said...

Once discharged a civil suit would be interesting against the Dept. of the Navy. I would love to be in on the deposition of DFAS general counsel.

Also, while I profess little knowledge of the facts beyond what I read in the opinion, if Foster had dependents they were denied benefits for 9 years.

Hayes said...

I am curious to see how this will turn out for him.

since he only had two years left on his enlistment prior to the court martial, it could be argued that he will only receive 2 years of back pay. It is not a foregone conclusion that he would have been reenlisted and therefore entitled to 10 years of backpay, including reasonable promotions, retirement, etc...

Had he accepted NJP, it is most likely that he would NOT have been reenlisted.

Anonymous said...

Hayes, you ignorant punk...he didn't accept NJP b/c he's INNOCENT!!! He just got found not guilty by the NMCCA. He did nothing wrong. This man should get paid. And Hayes should be banned from posting on this blog b/c he has SFB!!!

Anonymous said...

The regs are very clear, he's entitled to back pay for the entire time he was confined. Not that he'll have an easy time getting the money from DFAS though.

Anonymous said...

Not sure if he did the crimes or not but there is a big difference between being found not guilty by a military judge or members and having your case overturned on appeal. He was not found "not guilty" by NMCCA. the charge was overturned with prejudice. Not the same thing..punk.

waiting on the world to turn said...

its funny when the government persue court martials all the articles of the sacred UCMJ are on full display. Article 75 is not vague by any stretch of the imagination. This Marine should be paid every dime by my count about 450 grand with at the very least two promotions. The fact that its been debated continues to lend credibility to the belief that the military justice system is a joke.

Anything less than full promotion and prohibition from the marine corp from a forced discharge should be walked over to a federal court. Its irrelavant at this point whether he committed any crimes or not which all indications seem to be less than likely. When one is incarcerated the system does'nt give a damn whether you are infact innocent or not when they dehumanize you as sanctioned by the govt.

Hence, the man deserves the same defference at this time. He is innocent and should be compensated.
I thought there was a bill last year passed in congress to compensate the wrongly convicted service members?

Well, I speak from having experience the same injustice of the guilty of until proven innocent environment of the mil justice system.

I have suffered and continue to suffer as a consequence of the quakery thats allowed to sometimes permeate in the mil justice sytem.

In all fairness, the entire system is not less than would be desired of any jusitice system, for lady justice never promised perfection; however the unwillingnes to acknowledge mistakes and some overzealous trial counsels are sometimes blatantly appalling. My experience left me believeing that expediency is far more important at trial level that truth and hence the importance of justice prevailing.

I have suffered for ten years while the government continue to try to justify throwing me in jail as a consequence of the incomptenece at USACIL. Me, I plan to seek redress when this is over through every avenue available to me until am gray.

After all right is right. If you did not commit a crime you should'nt be plea bargaining nor should you be bowing to anyone. like Foster a man should never be afraid to stand up for what is right, especially one tasked with the privillege of defending this great nation.

I believe its said the truth spends all its energy trying to reveal itself and even more importanly the truth remains one's best witness. Go Foster, let the MARINE CORP make it right or keep walking to federal court!!!!!!

Anonymous said...

...Join the "not guilty" or "I got screwed by the JAG-OFF-icers" club.

Currently we have a few hundred accused waiting for relief which will nevercome, promises never kept, and Judges who rarely care.

Your story, like this man's, is deeply touching.

And I admire your spirit. I had that too. Spent years collecting evidence for a new trial - and when I did the AFCCA said it "probably" wouldn't matter.

I love it when I see CCA judges make the Government's arguement FOR THEM, bringing up issues the the Gov' hadn't even thought of. Really, it's classic.

Hope your quest doesn't leave you cynical and desperate.

Anonymous said...

Oops....Forgot to add that although the CCA Judge's have a tendency to "make" the Gov' case for them by raising issues/defenses which the Gov' hadn't even considered...This case the Judges raised issue FOR the Appellant...Kudos to them :)

Hayes said...

SFB? Ignorant punk? I guess I should be a real man and start posting anonymously lest I get offended...


I have done a few rehearing cases, but it's been awhile. There was one case where we were confident that we were not going to get a BCD at the rehearing. As I was prepping to brief the CA on the consequences of NOT ordering a rehearing, or conducting the rehearing and NOT getting a BCD, I recall going back and forth with defense counsel, PERS, and DFAS on the nuts and bolts of how one gets back pay. It is not an automatic "flipping of the switch." And, one of the calculations that is initially looked at is the svm's original EAOS and then an analysis is done on whether or not there was a reason that the service WOULD NOT have reenlisted that person.

Their argument is that he is restored back to the same place he was at the time of the CM: two years left on his EAOS.

I imagine the Marines are trying to figure out what to do with this guy and trying to answer these same questions.

Anonymous said...

Hayes, what is there to figure out?. Artice 75 makes no mention of EAOS,i THINK THIS HAS NOTHING TO DO WITH ANYTHING.Art 75 makes no mention of conditionaal restoration of privileges, there is nothing to discuss about options about to pay someone their due any such nonsense is a result of institutional BIAS but its not up to any yahoo personnel officer some where about to how to decide if a particular person needs to be restored,Oh and further more the milpers man addresses this and even in that regs they got it wrong. Anyone who believes anyone of these service members who feel wronged by the government are going to just say yes sir continue to screw me is wrong. People who have been waiting forever for redress learn a few things along the way and one of the most important things you learn is that half the people in these personnel offices across the military dont know what they are talking about. I learned I need to do my own research, so I'll be one of the people armed with the facts stating what I believe I am entitled to because I know where its written and what it says. Hence, no personnel folks are simply going to shoo me away. At this point anyone who believe they can intimidate me when its time for them to make it right are sorely mistaken and would be doing so at their own peril.There is a certain navy case that got it right a few years ago E6 was on appellate leave for five years all of which his EAOS expired he had to be paid 145 thousand dollars he did two more years to retire and did so as an E6 bored for corrections is still wrestling with his claim of advancement to E7.Oh this can be done if you educate yourself on the facts.

Anonymous said...

The Marine deserves his money -- all of it -- with interest. But no amount of money can give him back the 9 years of his life he spent at the DB.

Cloudesley Shovell said...

Hayes makes a good point regarding termination of enlistment while confined.

DoD FMR Chapter 7A, section 010302.G.5 appears to be the on-point rule. Available here:

That section says that if the enlistment expires while confined serving a court-martial sentence, then pay and allowance end "unless the sentence is completely overturned or set aside." The next sentence talks about pay and allowances not accruing again until the member is restored to full-duty status, but despite the poor phrasing, I see two rules there.

Rule #1: If your sentence is completely overturned, then your pay and allowances DO NOT expire at the end of your enlistment. This is another way of saying what the DoD FMR says (pay ends UNLESS sentence is completely overturned).

Rule #2: If confined and enlistment ends, pay and allowances stop. If you are later restored to full duty status in a situation where your sentence was not completely overturned, then your pay restarts only upon restoration to full duty status.

Rule #1 would apply to Foster, assuming there is no rehearing, because his sentence has been completely overturned. Thus, he should be entitled to pay and allowances for the entire period he was confined. In other words, he gets what Art. 75, UCMJ, says he gets.

Nonetheless, I can see Foster having trouble getting the back pay from the period his enlistment ended to the date he was released. The DoD FMR is not the most elegantly worded regulation, and section 010302.G.5 is no exception to that rule. Plus, he is going up against an institutional reluctance to shell out such a large chunk of money. One hopes he won't have to resort to the Court of Federal Claims.

As for you anonymi out there, thank you for the ad hominem attacks, off-topic rants, and impressive vocabulary and grammar. It helps the other readers and commenters judge the strength of both your argument and your character.

John O'Connor said...

There's a reason why Cloudesley is the commentariat MVP. Just don't ask him for a lift to the Isle of Scilly.

Tony B.F. of M. said...

I concur...Both on the reprimand of the anoms and the back pay issue.

Reaching back in my memory I remember a similar situation on Military Corruption's website where....Let me use Google....

...Ah, there it is. Not sure how enlightning (sp?) this is. But it seemed to happen before: AT LAST - AFTER SEVEN YEARS IN

It reads in part:


Speaking of money, we hear the Navy may try to block Forbes from receiving his back pay for the entire time he was confined at Leavenworth. We're told they might attempt to harass him further by claiming his pay should have stopped the day his enlistment ran out. The fact that Forbes shouldn't have been in jail in the first place, apparently didn't occur to them. Or they just don't care. That's probably the best answer.

At any rate, "Bull Dog" Wells is fired up and vows if his client is not paid "back pay" for all the time he spent in prison, the Louisiana lawyer will initiate "swift and sure action" in federal court to block "such a mean-spirited act."

The abrasive Payton-O'Brien must have sensed she was going to lose, we are told, as she "bailed out" of the case just before it concluded, leaving two lesser-experienced JAGS to carry the ball for the government.

Wells easily "out-lawyered" them. Impressed with his strong representation and evidence of outrageous and malicious behavior on the part of the Navy and prosecution team, "in an unprecedented action," Wells said, the members of the court-martial panel (three officers and five enlisted members) went up to Forbes and his wife in the courtroom after acquittal was granted and wished husband and wife well. It was an incredible public rebuke, and couldn't have been a pleasant sight for the JAG "persecution" team.


It may seem that a possible redress would actually taking the back pay issue to a federal court...Under the Tucker Act? Or am I mistaken?

Anonymous said...

Prosecutors are seldom punished or rebuked when they abuse power.

Although not a military justice story, the following article from yesterday's Lawyer Times represents two not infrequent abuses by prosecutors in the criminal justice system: 1) coaching witnesses and 2) witholding Brady material. These abuses sometimes happen in the military justice system.

"[Lawyer] quits disciplinary committee," Alan Cooper, April 20, 2009.

[A lawyer] resigned from the Virginia State Bar’s Third District Disciplinary Committee because of what he perceives as the bar’s failure to pursue allegations of ethical violations by prosecutors. ... [the lawyer] highlighted two recent incidents in his resignation letter.

Allegations that prosecutors coached a key witness in the capital murder case of Daryl Renard Atkins, if true, are “a corruption of the spirit of our canons of ethics and a disdain for the constitutional protections,” Baugh wrote.

“The inaction of the bar is beyond belief,” he continued. “I cannot in good faith be a part of or an enabler for such a practice, particularly when the consequences are the denial of rights and the diminishing of our standards as Americans and members of the Virginia State Bar to which I have sworn an oath to God.” ...

The second incident was a response from a prosecutor to his request for material required to be disclosed under the U.S. Supreme Court case of Brady v. Maryland. That case compels prosecutors to disclose any evidence that could be helpful to the defense.

The prosecutor’s response said there was no information in the files that indicated that any person other than the defendant had committed the offense.

“[The commonwealth’s attorney’s] letter reveals a total ignorance of the requirements of Brady extending to tender of materials which impeach government witnesses or information, not amounting to excuse, which might negate or lessen the degree of punishment if convicted,” [he] wrote.

“Brady constitutional obligations require the government to tender to the defendant any evidence which negates his guilt, mitigates or lessens his punishment or impeaches a government witness,” [he] added. “It is not limited to tender solely information stating that someone other than the defendant committed the offense.”

During his tenure on the district committee, [he] said, “I have seen lawyers sanctioned in varying degrees for lapses in judgment, alcohol problems, negligent omissions and, rarely, intentional misdeeds.

“What I have not seen or even heard of, although I know complaints have been filed by members of the bar and the bench, officials reports of violations of due process obligations arising from Brady violations by prosecutors. Such complaints appear to have been met by indifference by the office of bar counsel.”

[He] said the result “is an absence of appreciation of one of the most basic governmental obligations in a criminal case, and a perpetuation of deliberate indifference and purposeful ignorance of prosecutors, young and old.”

Tony B.F. of M. said...

While I share your frustration with prosecutorial misconduct which is a reoccuring theme for us "convicts". And though I was a victim of both witness coaching and Brady v. Maryland, I think we should strive to stay more on topic:

Back pay for those who cases are reversed, for whatever reason.

The post of that story is to show that such situations have happened, I agree with the previous post about the regs stating he will be entitled to back pay/grade increase...The question is to what extent and how much.

Is it for the entire legnth of confinement (which I believe it ought to be)?

Or the time of his original ETS/EAS?

And can he use the Tucker Act to attack any ruling by DFAS that is adverse?

Going to a blog and complaining how prosecutors do business, when every JAG was one, and where many here are still are, will do little but invoke the ire of the Anoms who will result in ad-hom. attacks like "You can't Spell", "You're just a Convict and not as ethical as us shysters", "Only we should post on blogs because we went to school for three years to learn how to Doctor Juries", etc.

Anyways, back on point. It'll be interesting to see what his entitlements will be.

Bill Cassara said...

I have had two cases recently where we won on appeal and the cases resulted in either a dismissal of charges or an acquittal on re-trial. Both are still waiting for dollars from DFAS. In one of them, the government did not turn over clearly exculpatory evidence prior to his original trial, which led to a dismissal of charges after the charges were reversed.

Anonymous said...

BC, can you give us some more details as too the situations (were they already discharged/still in confinement).

And as to "waiting for dollars" did they already agree to pay, or are you still haggeling with them?


Bill Cassara said...

Case one: Client still in confinement, CAAF busts. Pending re-trial when charge dismissed. DFAS still screwing around. First they say he will only get paid till ETS. We show them Article 75 and U.S. v. Parker (Court of Claims case.) They now agree he is owed money but not sure how much.
Case two: Client out of confinement when CAAF busts. Retrial: Acquittal. Same run around from DFAS. They first say he is not due any money because he is out of confinement, but they now say he will only be paid as an E-1, even though the law obviously says otherwise.

Anonymous said...

so, Bill does it seem you'll have to go Tucker way?

Tony Cossio said...

Thnx BC.

Anonymous said...


Pick one name and go with it.

Anonymous said...

“The Marine Corps could make the situation right,” he said. “The Marine Corps has to step up and make the situation right in this case.”

Poor guy. He did all those and years and doesn't get it. The Corps did make it right. High fives and end of tour awards all around from the CO who decided he was guilty and then got mad when he declined NJP, right up to the CAs who pushed this stinker.

Betting window now open:

1.1-1 He is offered 'take your E-1 pay and get out' and is threatened with something nasty otherwise

1.5-1 He declines and is sent to AFG to walk in front of convoys with a metal detector, in between burning barrels

4.7-1 Is ordered to move from KC to another base, and has his travel audited and is NJPed and chaptered out

50-1 He gets his E-5 back pay and is promoted to E-7 and allowed to finish his 20 out.