Kelly v. United States

23 C.M.A. 567, 1 M.J. 172, 50 C.M.R. 786, 23 USCMA 567, 1975 CMA LEXIS 651

• Court: United States Court of Military Appeals
• Decided: September 30, 1975
• Docket: Miscellaneous Docket No. 75-44
• Status: Published

Opinions

MEMORANDUM OPINION

Petitioner in this Petition for Extraordinary Relief asks that we order his immediate release from the United States Disciplinary Barracks pending the convening authority’s decision whether to refer this case to trial or to dismiss the charges and that we grant such other relief that the Court deems just and equitable.

Petitioner avers that he was tried by general court-martial on April 21, 1975, and that he was sentenced, inter alia, to a dishonorable discharge and confinement at hard labor for 18 months. On August 14, 1975, the United States Army Court of Military Review set aside the findings and the sentence and authorized a rehearing. In his petition, dated September 9, 1975, petitioner states that no chargés have been preferred against him and that he has not been advised of his status although he has remained in confinement at the Disciplinary Barracks. Petitioner challenges the failure to refer charges to trial and his being kept in the Disciplinary Barracks contrary to Army Regulation 190-4.

During oral argument on the petition, counsel for respondents informed us that the convening authority had referred petitioner’s case to a court-martial on September 19, 1975, thé same day that we ordered oral argument on the petition. Moreover, counsel for respondents informed us that the convening authority had both approved continued confinement for petitioner on September 18, 1975, and directed that Disciplinary Barracks personnel obtain the approval to keep petitioner in the Disciplinary Barracks as required by paragraph 1-3, Army Regulation 190-4.

Based on these factors, counsel for respondents argue that the petition is moot since petitioner has received the relief that he seeks—that his case be referred to trial. While petitioner does indeed request that we order his release pending the convening authority’s decision regarding referral of the charges, and that referral has now taken place, recent pronouncements of the Supreme Court,¹ and other federal courts,² on the pretrial confinement issue require that we not acquiesce to the respondents’ mootness argument. This is especially so in view of the apparent confinement of petitioner contrary to the provisions of Article 13, Uniform Code of Military Justice, 10 USC § 813, and Army Regulation 190-4.

Respondents also urge that we ignore petitioner’s petition because it does not, on its face, show proof of service on respondents. Rule 23A, Rules of Practice and Procedure, United States Court of Military Appeals. We decline to hold this in propria persona petitioner absolutely responsible for knowing all of our rules. Here, we have provided respondents with notice of his petition and they have had full opportunity to present argument on the petition.

Because of respondents’ apparent disregard for petitioner’s continued confinement in contravention of both the Code and Army regulations, we are compelled to exercise our extraordinary writ authority³ to issue writs of mandamus. Therefore, we are returning this petition to the United States Army Court of Military Review in order for that Court to exercise its extraordinary writ authority. That Court will take action upon the petition within 5 days of the receipt of this order.

1 Gerstein v Pugh, 420 US 103 (1975).

2 See, e.g., DeChamplain v Lovelace, 510 F2d 419 (8th Cir 1975), judgment vacated as moot, 43 USLW 3633 (US June 3, 1975).

3 Noyd v Bond, 395 US 683 (1969); Newsome v McKenzie, 22 USCMA 92, 46 CMR 92 (1973) (Duncan, Judge, dissenting); United States v Snyder, 18 USCMA 480, 40 CMR 192 (1969); United States v Bevilacqua, 18 USCMA 10, 39 CMR 10 (1968); Gale v United States, 17 USCMA 40, 37 CMR 304 (1967); United States v Frischholz, 16 USCMA 150, 36 CMR 306 (1966).