Forrest v. United States

3 M.J. 173, 1977 CMA LEXIS 9641

• Court: United States Court of Military Appeals
• Decided: June 27, 1977
• Docket: No. 32,862; CM 425279
• Status: Published

Opinions

Opinion of the Court

FLETCHER, Chief Judge:

The petitioner, formerly a Private First Class in the United States Army, has petitioned this Court for review of the Army Court of Military Review’s decision on his petition for a certificate of innocence.¹ Forrest v. United States, CM 425279, 2 M.J. 870 (A.C.M.R.1976). We have granted review on two issues: (1) whether this Court has jurisdiction to review the Court of Military Review’s denial of a certificate of innocence; and (2) if the answer to the first question is in the affirmative, was the action of the Court of Military Review correct in denying the requested certificate of innocence. Upon examination of the applicable statutes and case law, we determine that we do have jurisdiction to review the Court of Review’s decision, and we conclude that within the ambit of our review the decision must be affirmed.

The petitioner was convicted of willful disobedience of a lawful command of a superior commissioned officer “to board the vehicle that was to transport him to the Overseas Replacement Station,” in violation of Article 90, Uniform Code of Military Justice, 10 U.S.C. § 890. The finding and his sentence to a dishonorable discharge, total forfeitures, confinement at hard labor for 2 years, and reduction to the grade of Private E-l were approved by the convening authority. The Army Court of Military Review, upon review of the case pursuant to Article 66, UCMJ, set aside the findings and sentence, and dismissed the charge. United States v. Forrest, 44 C.M.R. 692 (A.C.M.R.1971). Subsequently, he petitioned for a certificate of innocence. That court properly determined that the unjust conviction statute encompassed an unjust conviction by courts-martial,² and that under the facts of this case, it was an appropriate forum to issue the certificate within the terms of 28 U.S.C. § 2513.³

A majority of the court concluded that although the petitioner’s conviction had been set aside on the ground that he was not guilty,⁴ he did not satisfy all the statutory conditions imposed as a prerequisite for the issuance of the certificate. The court⁵ observed that the standard for the issuance of a certificate of innocence differs from that employed by a court in its determination of innocence or guilt of an accused, and that the intent of Congress had been for only those “truly innocent” to be accorded relief under the statute. Osborn v. United States, 322 F.2d 835, 840 (5th Cir. 1963).⁶ The majority determined that the basis for the initial reversal had been that as the commanding general failed to properly process the petitioner’s second application for a discharge as a conscientious objector under the provisions of AR 635-20, the evidence was insufficient to establish the legality of the order to Forrest beyond a reasonable doubt. Upon review of the record, it concluded the petitioner was not “truly innocent” simply because the question of whether he qualified as a conscientious objector under the provisions of the regulation had not been properly determined,⁷ and, therefore, the record did not contain the proper basis for the issuance of a certificate of innocence.

We have been urged by appellate defense counsel to conduct a de novo or “full review of the record,” and to overturn the decision of the Army Court of Military Review as being contrary to the statutory standards. This we cannot do, for our standard for review must properly be limited to a determination of whether the lower court decision was an abuse of discretion in the application of 28 U.S.C. § 2513 to the record in the case. Rigsbee v. United States, 92 U.S.App.D.C. 244, 204 F.2d 70 (1953); United States v. Brunner, 200 F.2d 276 (6th Cir. 1952). As the U. S. Court of Appeals for the District of Columbia Circuit correctly observed in Rigsbee, Congress intended for the issuance of the certificate to be in the discretion of the proper forum, and to be more than a mere ministerial act. See also United States v. Keegan, 71 F.Supp. 623 (S.D.N.Y.1947). The reviewing court, therefore, can only set aside the lower court refusal to issue the certificate where it was plainly erroneous. Appellate defense counsels’ reliance upon the Fifth Circuit’s decision in Osborn v. United States, supra, for a different standard of review is misplaced. In Osborn, unlike this case, the court was compelled to conduct a full review of the record because the trial judge had failed to set forth his reasons for denial of the certificate as required.⁸ The unusual factual situation present in Osborn does not persuade us that our standard for review can, or should be, anything other than that adopted in Brunner and Rigsbee. We feel that absent an abuse of discretion by the issuing forum, we cannot properly reverse that forum’s decision.

The decision of the United States Army Court of Military Review is affirmed.

Judge PERRY concurs.

1 . Such a certificate may be issued only under the precise guidelines set forth in 28 U.S.C. § 2513, which provides:

Unjust conviction and imprisonment.

(a) Any person suing under section 1495 of this title must allege and prove that:

(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he had been pardoned upon the stated ground of innocence and unjust conviction and

(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.

(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.

(c) No pardon or certified copy of a pardon shall be considered by the Court of Claims unless it contains recitals that the pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired.

id) The Court may permit the plaintiff to prosecute such action in forma pauperis.

(e) The amount of damages awarded shall not exceed the sum of $5,000.

The certificate is a requisite for filing a claim against the United States for damages pursuant to 28 U.S.C. § 1495.

2 . Osborn v. United States, 322 F.2d 835 (5th Cir. 1963); Roberson v. United States, 124 F.Supp. 857, 129 Ct.Cl. 581 (1954); Cox v. United States, 112 F.Supp. 494 (N.D.Cal.1953).

3 . McLean v. United States, 73 F.Supp. 775 (W.D.S.C.1947).

4 . See 28 U.S.C. § 2513(a)(l)-(2).

5 . The dissenting judge shared the conclusion of the majority that a reversal based upon procedural defects or a failure of proof would not satisfy the requirements of the act.

6 . See Osborn v. United States, supra (lack of jurisdiction); United States v. Brunner, 200 F.2d 276 (6th Cir. 1952) (improper use of privileged testimony); Cratty v. United States, 83 F.Supp. 897 (S.D.Ohio 1949) (statute of limitations). In each instance the court involved denied the relief sought.

7 . The dissenting judge opined that the evidence indicated that the order was, in fact, illegal and, hence, Forrest’s actions were not an offense against the United States, nor was the prosecution brought upon by “his own misconduct.” See Weiss v. United States, 95 F.Supp. 176 (S.D.N.Y.1951); United States v. Keegan, 71 F.Supp. 623 (S.D.N.Y.1947). For the reasons enunciated in later portions of this opinion, although we can appreciate the validity of this position, we cannot accept it as determinative.

8 . The court in Osborn noted that the statute mandates that proof of the requisite facts shall be by a certificate of the issuing court, Hadley v. United States, 66 F.Supp. 140, 106 Ct.Cl. 819 (1946), and the facts found are intended to be conclusive on the issue of the claimant’s innocence. See Andolschek v. United States, 77 F.Supp. 950, 111 Ct.Cl. 567 (1948).