Dobzynski v. Green

16 M.J. 84, 1983 CMA LEXIS 19509

Opinions

Opinion of the Court

FLETCHER, Judge:

The present petition for extraordinary relief is in the nature of a writ of mandamus regarding imposition of nonjudicial punishment. Under the facts as herein presented, we conclude that there is no legal error calling for invocation of our power to grant a petition for extraordinary relief. We express our strong opinion, however, that the disposition of the offenses in this case lends itself, at the very least, to the impression of injustice — a perception to be avoided in a fundamentally fair justice system. We turn, first, to the perimetric facts presented.

This case arose from possession of marihuana on board the USS RICHMOND K. TURNER. Having received an anonymous note to the effect that a cache of drugs was hidden in the officers’ head, the executive officer authorized a search, resulting in discovery in a nearby locker of a seabag identified as belonging to petitioner and an unidentified black civilian briefcase. This briefcase was opened and what appeared to be marihuana was found inside. Both the briefcase and its contents were then coated with yellow theft-detection dye. Subsequently, petitioner was encountered with traces of this dye on his person. The ship’s executive officer ordered the marihuana seized. Petitioner admitted ownership of the briefcase but denied ownership of the marihuana. Furthermore, petitioner consented to a search of his personal locker. A small quantity of marihuana was found therein. For the marihuana found in the locker, petitioner was awarded nonjudicial punishment at captain’s mast.

On December 2, 1981, petitioner’s case was referred to a special court-martial for possession of the marihuana within the briefcase, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The trial judge, prior to the introduction of evidence on the merits, granted a motion to suppress, under the Fourth Amendment, all evidence regarding the search for and seizure of the marihuana contained in the black civilian briefcase. At this point, the convening authority withdrew the charges from the properly convened special court-martial.

Subsequently, on January 29, 1982, the charges were referred to captain’s mast. After finding petitioner guilty as to the marihuana in the briefcase, the Captain awarded nonjudicial punishment of 45 days’ restriction, 45 days’ extra duty, and forfeiture of $250 pay per month for 2 months.

Before us, petitioner claims he is not seeking review of his latter Article 15

Footnotes

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* punishment; rather he seeks review of his special court-martial where charges were withdrawn after suppression of evidence. In other words, petitioner seems to be arguing that the military judge violated his due-process rights by allowing withdrawal of charges after arraignment and suppression of evidence prior to presentation of evidence on the merits. We cannot agree that such is the case.

It is clear that paragraph 56b, Manual for Courts-Martial, United States, 1969 (Revised edition), allows withdrawal of charges for good cause. Further, “[a]mong the proper grounds upon which a particular specification may be withdrawn ... [is] that the evidence in support thereof is insufficient.” Thus withdrawal by the convening authority of the charges is certainly not a due-process violation. However, he goes on to assert that paragraph 56b, Manual, supra, was violated in that the charges were “withdrawn ... with a view to further prosecution.” That provision states:

Further, a convening authority normally should not withdraw an entire case after commencement of the trial with a view to further prosecution unless he determines that urgent and unforeseen military necessity requires that the trial be postponed or terminated, and it does not appear that the military situation will permit the rescheduling or resumption of the trial within a reasonable time. However, this action may sometimes be appropriate for other good cause in the interest of justice.

We agree with the respondents that this Manual provision does not refer to nonjudicial punishments, which are not criminal in nature. Parker v. Levy, 417 U.S. 733, 750, 94 S.Ct. 2547, 2558, 41 L.Ed.2d 439 (1974); cf. Middendorf v. Henry, 425 U.S. 25,31-32, 96 S.Ct. 1281, 1285-1286, 47 L.Ed.2d 556 (1976). Petitioner cites no authority for the proposition that a military judge has any authority or could take any action respecting charges which are withdrawn. We further conclude that the convening authority acted in accordance with the law and within his discretion in withdrawing the charges from the special court-martial.

The underlying purpose of Article 15 disciplinary proceedings is the maintenance of discipline. See para. 129a, Manual, supra. Under these facts, it is undeniable that petitioner’s possession of marihuana on board ship called for discipline to maintain morale and good order. The nonjudicial punishment imposed was just and appropriate for the offense committed. A commander has discretion regarding whether such charges should be referred to the disciplinary system and disposed of under Article 15, or whether they warrant introduction into the criminal justice system for disposition at a special court-martial, where legal requirements are more complex and the possible punishment more costly to the alleged criminal. Here his role requires serious evaluation of the strength of the case, the admissibility of the evidence, and the effect on his command. This election should not be made casually; even though he may be able to rely on the disciplinary system if the evidence is insufficient, he should realize that the effect is a perception of injustice in the eyes of the layman who will see the series of actions as some sort of attempted prosecution-at-any-cost. Such a perception does not serve the commander’s interest in being seen as a fair and detached imposer of discipline and orderly administration.

However, all perception aside, we conclude, under the pertinent manual provisions in light of the code, that the charges were properly withdrawn from the special court-martial and that the Article 15 punishment was properly imposed.

The petition is dismissed.

Judge COOK concurs.

Uniform Code of Military Justice, 10 U.S.C. § 815.