Jones v. Commander, Naval Air Force, U.S. Atlantic Fleet

18 M.J. 198, 1984 CMA LEXIS 19085

Opinions

Opinion

FLETCHER Judge:

This petition, which calls upon us to exercise our powers of extraordinary relief, seeks a writ of mandamus directing the convening authority to reverse his disapproval of an appeal of nonjudicial punishment and directing the United States Navy to reinstate petitioner by annulling his administrative discharge. Under the facts as presented and argued before us, and in light of Dobzynski v. Green, 16 M.J. 84 (C.M.A. 1983), we hold that the wrong perpetuated here does not rise to the level of a legal error demanding the exercise of our extraordinary relief powers. Nevertheless, this ease foreshadows unreasonable-abuse of command disciplinary powers which can not be tolerated in a fundamentally fair military justice system.

We turn briefly to the pertinent facts. Originally petitioner was tried at a general court-martial on various drug-related charges including conspiracy and dereliction of duty. After various successful suppression motions and withdrawal of the dereliction charge on the grounds of failure to state an offense, the court proceeded to hear the Government’s case-in-chief. Cf. Dobzynski v. Green, supra. At the conclusion of this evidence a motion for a finding of not guilty was granted by the military judge.

However, subsequently, petitioner, “who was attached to or embarked in a vessel,”

Footnotes

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* was administratively punished under Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815, for two offenses: a modified charge and specification of dereliction of duty stating all legally necessary elements and a conspiracy charge and specification based on substantially the same evidence as the prior conspiracy charge but alleging a different co-conspirator. Subsequent to the Captain’s mast, petitioner was processed for an administrative discharge under less than honorable conditions. Jones filed an appeal to imposition of nonjudicial punishment and waived his right to an administrative board. He was administratively discharged under less than honorable conditions. The Article 15 appeal was denied by the Commander, Naval Air Force, U.S. Atlantic Fleet.

There is no doubt that had the conspiracy charge as alleged in the Article 15 charge and specification been referred to a court-martial, the Government would have been collaterally estopped from its prosecution. We conclude that its allegation of conspiracy amounted to essentially the same crime alleged in the general court-martial with mere substitution in the second instance of a previously unnamed conspirator. The Government argued before us that no constitutional restraints may be imposed on a commander in the exercise of his disciplinary powers. Without rendering an advisory opinion in this regard, we merely observe that authority under Article 15 implicitly is to be exercised by a commander imbued with reasonableness and sensitivity to constitutional implications. We would like to assume that this commander received inadequate constitutional advice from his counsel concerning this discipline. In any event, we do not conclude that this legal error rose to the level requiring extraordinary relief by this Court. Dobzynski v. Green, supra. Petitioner may well seek relief in the Article III Courts. The petition is dismissed.

See Article 15(a), Uniform Code of Military Justice, 10 U.S.C. § 815(a).