United States v. DeBarrows

41 M.J. 710, 1995 CCA LEXIS 32, 1995 WL 21185

• Court: U S Coast Guard Court of Criminal Appeals
• Decided: January 17, 1995
• Docket: CGCMS 24045; Misc. Docket No. 001-94; Docket No. 1044
• Status: Published

Opinions

FEARNOW, Judge:

On April 7, 1992, a military judge sitting alone as a special court-martial (bad-conduct discharge not authorized) found Appellant guilty, consistent with his pleas, of signing false statements (two specifications) and theft of government funds in violation of Articles 107 and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907 and 921, respectively. Appellant was sentenced to reduction to pay grade E-4, confinement for 30 days and to be fined $4500. Pursuant to a pretrial agreement, the convening authority approved the sentence and ordered it executed, except that the fine was commuted to forfeitures of $608 per month for six months. The pretrial agreement contained a provision that: “The convening authority agrees not to initiate administrative separation based solely on the facts underlying these charges.” The Appellant served his sentence and remains on active duty.

In December of 1993, twenty-one months after the trial, the Commandant of the Coast Guard directed a special Reduction in Force (RIF) program to reduce the number of Coast Guard military personnel to a level consistent with the Service’s fiscal year 1994 budget. The Appellant met one of the criteria for separation under the program, in that he had been convicted by a special court-martial within the 24 months immediately preceding announcement of the RIF. On January 13, 1994, the Coast Guard’s Military Personnel Command (CGMPC) directed that the Appellant be discharged from the Service with an honorable discharge for convenience of the government.

On January 19, 1994, Appellant submitted an application for relief under Article 69(b), UCMJ, 10 U.S.C. § 869(b), via prescribed channels, to the Chief Counsel of the Coast Guard. In that application Appellant asserts that the discharge based on his special court-martial conviction would violate the terms of his pretrial agreement. On February 23, 1994, before receipt of the Article 69 application by the Chief Counsel, Appellant filed a petition for a writ of mandamus with this Court, citing the need for extraordinary relief from this forum in light of his imminent discharge, ordered for March 15, 1994. On March 1, 1994, the CGMPC directed that Appellant’s discharge be held in abeyance pending action by this Court. Upon receipt of Appellant’s Article 69(b) application, the Chief Counsel, pursuant to Article 69(d), referred it to this Court, along with the summarized record of trial², for review in conjunction with the mandamus petition. In addition to the question raised by Appellant concerning the effect of the pretrial agreement, we directed that the question of the competency of the convening authority in light of U.S. v. Almy, 37 M.J. 465 (C.M.A. 1993), be addressed by the parties.

Standard of Review

Under the terms of Article 69(e), this Court may only act with respect to matters of law. This standard of review is discussed in U.S. v. Burris, 21 M.J. 140, 144 (C.M.A. 1985):

When a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are “fairly supported by the record.” Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983), quoting 28 U.S.C. § 2254(d)(8). “[T]o give due deference to the trial bench,” a determination of fact “should not be disturbed unless it is unsupported by the evidence of record or was clearly erroneous.” United States v. Middleton, 10 M.J. 123, 133 (C.M.A.1981).

With a petition for extraordinary relief, the petitioner must show a clear and indisputable right to the relief requested. Smithee v. Vorbach, 25 M.J. 561 (C.G.C.M.R. 1987). Moreover, the petitioner must have exhausted all other adequate remedies before resorting to extraordinary relief. Coffey v. Commanding Officer, USS Charleston, 33 M.J. 938 (N.M.C.M.R.1991).

Appellant’s application under Article 69, as well as the petition for mandamus, as submitted by him, are both restricted to the single issue of whether the RIF-based discharge violates the pretrial agreement. Therefore, if this issue, as well as the one we have raised on our own, is resolved contrary to the appellant’s contentions in the Article 69 application, it seems to follow that it is not possible for the petitioner to show the “clear and indisputable right to relief’ required to grant mandamus relief. If the Article 69 application is resolved in the Appellant’s favor, then the mandamus petition is moot. In either case, resolution of the Article 69 application will also resolve the mandamus petition.

Convening Authority

This special court-martial was convened by Commander (CDR) G.E. Shapley, USCGR, “Commanding Officer, Coast Guard District Eleven Reserve Stationkeepers” (CO Stationkeepers). The trial judge sua sponte inquired into whether CDR Shapley was a proper convening authority. Following the introduction of a stipulation of fact, the testimony of Chief Boatswain’s Mate (BMC) Collins who served under the command of CDR Shapley, the Secretary of Transportation’s letter of May 1, 1987, designating Coast Guard court-martial convening authorities, and extracts from several Coast Guard manuals, the judge made the following findings of fact:

* * * Coast Guard Reserve Center Yerba Buena Island has been assigned an Operating Facilities Number by COMDTINST M5440.2J of 2 April 1991 and is recognized as an Eleventh Coast Guard District unit by Annex A of the Dll SOP-l(FY);

Coast Guard Reserve Center Yerba Buena Island is a sub-unit of the Eleventh Coast Guard District ...;

Coast Guard Reserve Center Yerba Buena Island is under the direct command of Commander G.E. Shapley, USCGR;

Commander Shapley is a reserve member of the U.S. Coast Guard on extended active duty;

Commander Shapley ... is assigned as Chief, Eleventh Coast Guard District Reserve Program[s] Branch;

Commander Shapley serves as Commanding Officer, Coast Guard District Eleven Stationkeepers and as such is the Commanding Officer of Coast Guard Reserve Center Yerba Buena Island;

Commander Shapley performs administrative duties with regard to personnel matters and procurement;

Coast Guard Reserve Center Yerba Buena Island is a Coast Guard unit with an Operating Facilities Number, personnel assigned and appropriated funds available; Coast Guard Reserve Center Yerba Buena Island has a prescribed mission to maintain and assist reserve units in their drilling obligations;

Commander Shapley has convened the court by his authority as the Commanding Officer, Coast Guard District Eleven Stationkeepers;

Commander Shapley was authorized to wear the Command Ashore Insignia----

Based on his findings, the military judge ruled that Commander Shapley was a proper convening authority.

We believe the military judge’s findings are “fairly supported by the record.” U.S. v. Burris, supra. The stipulation, testimony and documents presented at trial indicated that CDR Shapley was designated by standard Coast Guard procedures as Commanding Officer of Reserve Stationkeepers in the Eleventh Coast Guard District. In that capacity he had under his command the facilities and military personnel assigned to Coast Guard Reserve Center Yerba Buena Island (YBI), San Francisco. Coast Guard Reserve Center YBI was established by order of a Coast Guard Operating Facility Change Order (OFCO) issued in December 1987. It is listed in the Coast Guard Organization Manual as a Coast Guard unit with an assigned Operating Facility (OPFAC) number. It has personnel assigned to it, and appropriated funds are available for its operation. The Center’s mission is to support Coast Guard Reserve units that use it in meeting their drill requirements. Although he was located in Long Beach, California, and thus physically separated from Reserve Center YBI in San Francisco, CDR Shapley nevertheless performed administrative and procurement duties related to the command. He issued temporary assignments for personnel attached to the Center, approved their leave and liberty requests, and assigned their enlisted evaluation marks. These factors more than adequately support the military judge’s factual findings that CDR Shapley was in fact, and not only in title, a commanding officer of a Coast Guard unit, viz., Reserve Center Yerba Buena Island. Thus his designation as “Commanding Officer, Coast Guard District Eleven Reserve Stationkeepers” includes his assignment as Commanding Officer of Reserve Center YBI.

Affirming the military judge’s factual findings that CDR Shapley was commanding officer of an operating Coast Guard unit does not end the inquiry into whether he was competent to convene a special court-martial. What remains is to determine whether this commanding officer of this Coast Guard command had been properly designated as a convening authority under Article 23(a), UCMJ, because such authority is not an inherent attribute of every commander in the Armed Forces. While the military judge impliedly found that CDR Shapley was properly designated as a convening authority, there is no specific finding to that effect. The absence of such a finding is not important, however, as we consider this question to be one of law and not fact. Thus, we are not restricted to a determination of whether the military judge’s findings were supported by the evidence of record.

Article 23(a), UCMJ, 10 U.S.C. § 823(a), provides in pertinent part:

Special courts-martial may be convened by — * * *

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; ...;

(6) ...;

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned.

While we believe CO Stationkeepers’s (Reserve Center YBI) authority to convene this court is sustainable under Article 23(a)(5)³, the lack of clear precedent interpreting designations under that provision causes us to focus our attention on Secretarial designations under Article 23(a)(7). Pursuant to that provision, the Secretary’s letter of May 1, 1987 designated as special court-martial convening authorities (SpCM CAs) “Commanding Officers of all Coast Guard units, some of whom have specific statutory authority.” Since CO Stationkeepers (Reserve Center YBI) is a commanding officer of a Coast Guard unit, it falls within the Secretarial designation as a SpCM CA. However, the defense argues that in this case this Secretarial designation is an improper delegation under U.S. v. Greenwell, 19 U.S.C.M.A. 460, 42 C.M.R. 62 (1970), and its progeny ⁴. The defense asserts that the authority to create SpCM CAs is nondelegable and that the Secretary’s letter purporting to designate all Coast Guard unit commanding officers as SpCM CAs was a de facto abdication of designation authority to the Commandant and his immediate staff. In U.S. v. Almy, 34 M.J. 1082 (C.G.C.M.R.1992), we were required to analyze a unit designated as the Coast Guard Pacific Area Tactical Law Enforcement Team (TACLET), and in responding to a challenge to the authority of the Commanding Officer of that unit to convene a SpCM, we stated:

Establishment of Coast Guard units with commanding officers is properly accomplished by the Commandant of the Coast Guard. Units so constituted by the Commandant are separate, self-sufficient organizations designed to carry out one or more of the varied Coast Guard missions. They are not paper organizations created simply to accommodate administrative and disciplinary needs, as appeared to be the case in U.S. v. Greenwell, supra, and U.S. v. Cunningham, supra. In our view, the holdings in U.S. v. Greenwell, supra, and U.S. v. Cunningham, supra, are inapplicable here.

34 M.J. 1082, 1084. We believe this view applies equally well to the instant case. We adopt it in rejecting the claim that when the Commandant of the Coast Guard, acting through his Chief of Staff, establishes a new Coast Guard unit, he has unlawfully usurped authority to designate SpCM CAs that is vested in the Secretary. The Commandant is not designating an SpCM CA, rather he is only establishing a Coast Guard unit that is within the scope of the Secretarial designation and which derives its ability to convene courts-martial from the Secretary.

In reviewing this Court’s decision in Almy, the Court of Military Appeals did not rely on the above rationale, but instead noted that the TACLET was a unit that had been established before the Secretary of Transportation issued the then current Convening Authority designation letter in May 1987. The CO of the TACLET, therefore, received his authority to convene SpCMs directly from the Secretary, and there was no question as to the exercise of improper authority by the Commandant. U.S. v. Almy, 87 M.J. 465 (CMA 1993). In this case, however, Reserve Center YBI was unquestionably established after the Secretary’s May 1987 letter; the version still in effect at the time of the trial. However, we are not persuaded that this leads to a different result from that in Almy, supra.

The May 1, 1987 designation letter represents a personal and complete exercise of the Secretary’s discretion. The Secretary clearly delineated between general court-martial (GCM) and SpCM CAs and did not designate any summary court-martial (SCM) CAs. The Secretary decided that all Coast Guard commanding officers, no matter what type of command, should at least be SpCM CAs, but declined to give SpCM CA to officers in charge under Article 23(a)(7) or to create any SCM-only CAs under Article 24(a)(4), UCMJ, 10 U.S.C. § 824(a)(4). Under the circumstances, there was no discretion left for any subordinate to exercise — if a Coast Guard unit is created, which warrants a commanding officer, that officer is a SpCM (not a SCM) CA. Like the Congressional statutory designations, the Secretary made no distinction between presently existing units and those that would be established in the future. The same authority that Congress has to designate CAs, including future ones, was vested in the Secretary without any restrictions on how to exercise that authority.⁵ Just as commissioning a new vessel creates a command with SpCM authority under Article 23(a)(5), the creation of a new shore unit should not require a new designation letter by the Secretary under Article 23(a)(7) to invest SpCM authority in the new commanding officer. To hold otherwise would lead to the rather absurd requirement for the Secretary to repeatedly reissue the same letter, with only the date being new, to account for units coming into existence since the previous designation letter was issued.

Pretrial Agreement

As alluded to earlier, the Appellant contends that the government’s move to -discharge him under a RIF program violates the provision of his pretrial agreement whereby the CA agreed not to initiate administrative separation based solely on the facts underlying the charges in the case.

From the limited discussion reflected in the summarized record of this trial, it is apparent that the provisions of the pretrial agreement were accepted as clear and unambiguous at the time of trial and that is how we construe them now. The pretrial agreement’s clear language is that the CA would not initiate a discharge against the Appellant. The CA remained true to his word and did not request such action. Rather, the Commandant ordered a Service-wide RIF, independent of the Appellant’s particular case, and Appellant’s discharge was ordered into execution by the CGMPC to fulfill the requirements of the RIF. The restriction in paragraph 11 of the agreement was that the discharge would not be “based solely on the facts underlying these charges” (emphasis added). The RIF discharge was not based solely on the fact that Appellant stole government funds or signed two false statements; moreover, the discharge was not based even partially on this particular misconduct.- It was based on the fact that the Coast Guard needed to reduce its size for budgetary reasons. A special court-martial conviction, which is normally not grounds in itself for an administrative discharge under the Coast Guard Personnel Manual (COMD-TINST 1000.6A), was chosen as one of the ways of identifying those that the Service could no longer afford to retain. The choice of wording in paragraph 11 indicates that it dealt only, with command-initiated involuntary discharges and not a Headquarters budgetary initiative which necessitated involuntary discharges of many servicemembers. Therefore, Appellant’s RIF discharge does not breach the pretrial agreement.

Conclusion

The military judge’s finding that CO Stationkeepers was in fact a commanding officer of a properly constituted unit was supported by the evidence and not clearly erroneous. The judge’s determination that the CO Stationkeepers was a convening authority under Article 23 was correct in law. Appellant’s eligibility for a discharge for the convenience of the government under a Service-wide RIF was not precluded by his pretrial agreement. Consequently, we find no legal error warranting relief under Article 69. And, therefore, the Appellant has also failed to show a clear and indisputable right to extraordinary relief. Appellant’s appeal is denied, and his petition is dismissed.

Judges BRIDGMAN and WIESE concur.

3 . Article 23(a)(5)’s terms, "vessel, shipyard, base, or station,” are not defined farther in the statute. See 10 U.S.C. §§ 101 & 801. Under the circumstances, the court gives ordinary meaning to the terms used. However, that does not mean that we are required to use a rigid or formalistic approach. See Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227, 65 L.Ed. 475 (1920) (rejecting out of hand a defense argument to narrowly construe Presidential designation authority under the Articles of War). The fact that the Coast Guard did not use “shipyard, base, or station” in the unit name when it created or changed a shore unit is not controlling. It would be putting form over substance if we held that Congress intended only certain specific names to be used for shore units in order for the command to have CA authority. Rather, like "vessel” which encompasses any ship, cutter, or boat within the Navy and Coast Guard (see 1 U.S.C. § 3), "shipyard, base, or station” should be construed as generic terms. In the Coast Guard, “station” is traditionally used to refer to smaller shore units. See Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. 953-54 & 1138 (1949); S.Rep. No. 486, 81st Cong., 1st Sess. 14 (1949). Even BMC Collins in his testimony referred to his Reserve Center as "Station YBI.” Moreover, the members who actually oversee the Reserve Centers are called "Station-keepers."

CO Stationkeepers is an umbrella command over the three Reserve Centers which are small shore units which are considered stations. The fact that the command consisted of a group of stations, instead of one, does not undermine CO Stationkeepers from being a commanding officer of a station under the statute.

4 . U.S. v. Cunningham, 21 U.S.C.M.A. 144, 44 C.M.R. 198 (1971) (the Greenwell Secretarial delegation was also found wanting with respect to the Commanding Officer, Enlisted Personnel, Headquarters Eighth Naval District); see also per curiam decisions in U.S. v. Walker, 20 U.S.C.M.A. 79, 42 C.M.R. 271 (1970) (Commanding Officer, Transient Company, Transient Facility, Marine Corps Base, Camp Smedley D. Butler); U.S. v. Hevner, 20 U.S.C.M.A. 80, 42 C.M.R. 272 (1970) (same); and U.S. v. Riley, 20 U.S.C.M.A. 145, 42 C.M.R. 337 (1970) (same CA as in Greenwell, Commanding Officer, Student Company, Schools Battalion, Marine Corps Base, Camp Pendleton).

5 . Article 23(a) simply provides that "Special courts-martial may be convened by — * * * (7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned" (emphasis added), and nothing more. See also Brown v. U.S., 508 F.2d 618, 625 (C.A.3 1974) ("[T]he Greenwell rule did not limit the Secretary’s discretionary power in this area in any way____”), and Lucas v. U.S., 121 Ct.Cl. 819, 827, 1952 WL 5996 (1952) ("This authorization given by Congress to the Secretary of the Navy without limitation or qualification appears to us to embrace commanding officers of every possible phase of naval activity.”).