McBride v. West

940 F. Supp. 893, 1996 U.S. Dist. LEXIS 14926, 1996 WL 579974
CourtDistrict Court, E.D. North Carolina
DecidedSeptember 20, 1996
DocketNo. 5:96-CV-363-BO(1)
StatusPublished

This text of 940 F. Supp. 893 (McBride v. West) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McBride v. West, 940 F. Supp. 893, 1996 U.S. Dist. LEXIS 14926, 1996 WL 579974 (E.D.N.C. 1996).

Opinion

ORDER

TERRENCE WILLIAM BOYLE, District Judge.

This matter comes before the Court on defendant’s motion to dismiss. Plaintiff, alleging a variety of constitutional and statutory violations, has petitioned this Court for two forms of relief: 1) a preliminary injunction preventing the United States Army from discharging him, and 2) an order from this Court that plaintiffs waiver of his right to trial by court-martial was void for lack of voluntariness. For the reasons discussed below, defendant’s motion to dismiss is granted.

I. Statement of the Case

Plaintiff, Harold McBride, Jr., is a Sergeant in the United States Army, currently serving at Fort Bragg, North Carolina. At the time of the filing of this action, on April 30, 1996, plaintiff had approximately 17 years, 8 months of creditable active duty service.

On May 2, 1995, plaintiff, while serving at “Joint Task Force 6,”1 allegedly committed two violations of the Uniform Code of Military Justice (UCMJ): 1) plaintiff allegedly went to Mexico even though he had been told by a superior that it was “off limits,” in violation of Article 92 of the UCMJ, and 2) plaintiff allegedly wrongfully appropriated a military jeep, in violation of Article 121 of the UCMJ.

On June 8, 1995, plaintiff was informed by his battalion commander that plaintiff could accept nonjudieial punishment for the alleged misconduct, under Article 15 of the UCMJ (10 U.S.C. § 815), in lieu of proceeding with a trial by court-martial. The apparent advantage of accepting nonjudicial punishment under Article 15 is that there is a statutory ceiling on the possible punishments that can be administered. Plaintiff, by his own admission, was then instructed by his battalion commander “to seek legal advice concerning whether I should accept nonjudicial punishment or decline nonjudicial punishment and that an appointment to receive legal counseling from a military attorney had already been arranged.” (Plaintiffs Affidavit).

On that same day, June 8, plaintiff went to the trial defense office at Fort Bragg, North Carolina, and, before meeting with a military attorney, plaintiff was provided with a form which explained the possible nonjudicial punishments under Article 15. One of the punishments listed on the form is a reduction in rank of one military grade. Plaintiff then met with a military attorney, and the two of them discussed the possible punishments that were listed on the form. Plaintiff was again informed that he was not obliged to [895]*895accept nonjudicial punishment under Article 15 and that he had the right to a trial by court-martial. “The military attorney who advised me concerning the Article 15 explained to me that I had the right to decline the nonjudicial punishment and that I had the right to proceed to a trial by court-martial.” (Plaintiffs Affidavit).

On June 13, plaintiff appeared before his battalion commander and agreed to accept nonjudicial punishment and to forego a trial by court-martial. The battalion commander found plaintiff guilty of the alleged misconduct, and the punishment administered included a reduction in plaintiffs military grade from Staff Sergeant (E-6), to Sergeant (E-5). Plaintiff then appealed his Article 15 punishment to Colonel Ranger Roach, and plaintiff requested that his reduction in military grade be nullified. Colonel Roach denied plaintiffs appeal on June 16,1995.

As a result of plaintiffs reduction in military grade from E-6 to E-5, the Army now seeks to discharge plaintiff for exceeding what is called a Retention Control Point (RCP). Apparently, the Assistant Secretary of the Army, exercising authority delegated by the Secretary of the Army, and pursuant to 10 U.S.C. § 1169, Army Regulation 635-200, paragraph 16-8, has implemented what is called the Enlisted Qualitative Early Separation Program (EQESP), which provides for honorable discharge of certain classes of Army personnel prior to the expiration of their normal terms of service. According to the plaintiffs characterization of EQESP, “active duty Army noncommissioned officers in the military pay grade of Sergeant (E-5) who exceeded a total of 13 years of active military service ... would be involuntarily separated from active duty as being beyond an active duty Retention Control Point ...” (Plaintiffs Complaint, p. 5).

Plaintiff does not contest the Army’s statutory authority to dismiss soldiers who have exceeded their Retention Control Point under the EQESP. Rather, plaintiff contends that his waiver of a right to trial by court-martial was not knowing and intelligent because the military attorney with whom plaintiff discussed the possible nonjudicial punishments under Article 15 of the UCMJ did not tell plaintiff that a possible consequence of his reduction in military grade from E-6 to E-5 would be involuntary honorable discharge from the Army for exceeding the Retention Control Point. Plaintiff argues that because his eligibility for involuntary discharge under the EQESP is a direct result of his nonjudicial punishment under Article 15, the Army’s efforts to now discharge him can only be characterized as a part of— and not incidental to — the punishment. Plaintiff claims that his waiver of a right to trial by court-martial was therefore not knowing and intelligent, in violation of his statutory and constitutional rights to counsel and trial, .since he was not adequately informed of the possible punishments he could receive as a result of his voluntary waiver. Plaintiff also claims that the Army’s efforts to discharge him are a violation of its statutory powers under Article 15 of the UCMJ, since the possible punishments under Article 15 do not include discharge from the Army.

Plaintiff was informed by his command that the Army intended to discharge him on May 3, 1996. On April 30, 1996, plaintiff filed an action for a temporary restraining order and preliminary injunction. On May 1, 1996, by consent of the parties, the application for a temporary restraining order was withdrawn. On May 14, 1996, defendant filed a motion to dismiss. Defendant has voluntarily stayed plaintiffs discharge pending the outcome of this hearing. (Defendant’s Response to Motion for Preliminary Injunction and Defendant’s Motion to Dismiss, p. 9).

II. Preliminary Injunctive Relief

In determining whether a plaintiff is entitled to preliminary injunctive relief, a District Court, under the familiar “balance-of-hardship” test, must consider four factors: (1) whether the plaintiff will suffer irreparable harm if the injunction is not granted; (2) the injury to the defendant if the injunction is issued; (3) the plaintiffs likelihood of success on the merits; and (4) the public interest. North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir.1979); Jones v. Board of Governors of University of North Carolina, 704 F.2d 713, 715 (4th Cir.1983). If, after weighing [896]*896these four factors, the District Court determines that the balance tips in favor of the plaintiff, then the preliminary injunction should be granted.

A.

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940 F. Supp. 893, 1996 U.S. Dist. LEXIS 14926, 1996 WL 579974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-west-nced-1996.