IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ) ) ) ) ) ) ) ) ) )

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, v. Appellant Saheed A. LAWANSON Engineman Third Class (E-4) U.S. Navy, Appellee ) ) ) ) ) ) ) ) ) ) GOVERNMENT WRIT-APPEAL PETITION FOR REVIEW OF NAVY- MARINE CORPS COURT OF CRIMINAL APPEALS DECISION ON APPLICATION FOR EXTRAORDINARY RELIEF Crim.App. Dkt. No USCA Misc Dkt. No. 12- /NA TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: STEPHEN C. NEWMAN BRIAN K. KELLER Colonel, U.S. Marine Corps Deputy Director Director, Appellate Government Appellate Government Counsel Navy-Marine Corps Appellate Navy-Marine Corps Appellate Review Activity Review Activity Bldg. 58, Suite B01 Bldg. 58, Suite B Charles Morris Street SE 1254 Charles Morris Street SE Washington Navy Yard, DC Washington Navy Yard, DC (202) (202) , fax (202) Bar no Bar no

2 INDEX Page Table of Authorities...iv Preamble...1 History of the Case...1 Jurisdictional Statement...2 Specific Relief Sought...3 Issue Presented...4 THE LOWER COURT S OPINION ERRONEOUSLY SET ASIDE THE MILITARY JUDGE S RULING DENYING A MOTION TO DISMISS FOR LACK OF JURISDICTION: (1) SUCH ISSUES ARE PROPERLY AND BEST HANDLED AT DIRECT APPEAL; (2) THE LOWER COURT ERRED IN INTERRUPTING AN ONGOING TRIAL WHERE IT FOUND NO JUDICIAL USURPATION OF POWER, AND THE RULING WAS IN ANY CASE CORRECT; (3) GRANTING THE WRIT WAS IMPROPER, AS THE MILITARY JUDGE ISSUED NO FINAL RULINGS ON THE SECOND AND THIRD PRONGS OF THE JURISDICTION TEST; (4) THE LOWER COURT IMPROPERLY SET ASIDE THE MILITARY JUDGE S RULING ON CONSTRUCTIVE ENLISTMENT WHERE VOLUNTARINESS IS A FACTUAL MATTER WELL WITHIN THE DISCRETION OF THE MILTIARY JUDGE, AND THE LOWER COURT FOUND NO CLEAR ABUSE OF DISCRETION. Statement of Facts...4 A. Appellee signed a reenlistment contract on February 29, 2008, for a period of four years, ending on February 28, Appellee s original High Year Tenure date as an E-5 would have capped any subsequent reenlistment contracts at ii

3 B. Appellee was reduced at Captain s Mast to pay grade E-4 in His reenlistment Service Contract and End of Active Obligated Service remained February 28, His new pay grade of E-4 reduced his High Year Tenure date to February 1, 2012, making him ineligible to reenlist...6 C. Appellee begins involuntary separation checkout...8 D. The Report of Rape...8 E. Staff Judge Advocate Confirms that Appellee s EAOS is February 28, 2012, rather than February 1, F. Appellee is issued a DD-214 listing his HYT date as his End of Active Obligated Service...9 G. DD-214s and Separation Authorities in the Navy...10 H. NCIS seeks to conduct questioning, Command cancels Appellee s terminal leave, Appellee is returned to the command and interviewed. The Command believes Appellee s separation will occur at EAOS per regulation...12 Reasons Why the Writ Should Not Issue...16 I. THE MILITARY JUDGE S RULING IS CORRECT, AND DOES NOT AMOUNT TO A JUDICIAL USURPATION OF POWER; THE LOWER COURT ERRED IN PLACING A BURDEN ON THE GOVERNMENT. A WRIT IS NEITHER NECESSARY NOR APPROPRIATE WHERE THE LOWER COURT FOUND NO JUDICIAL USURPATION OF POWER, THE MILTIARY JUDGE S RULING WAS CONSISTENT WITH NAVY REGULATION, THE FACTUAL RECORD MAY BE FURTHER DEVELOPED ON MATTERS LEFT UNRESOLVED AS MOOT BY THE MILITARY JUDGE, AND THE JUDGE S RULING ON CONSTRUCTIVE ENLISTMENT IS SOUND. DIRECT REVIEW IS THE APPROPRIATE PLACE TO RESOLVE THIS MATTER...16 A. A writ of mandamus is not a substitute for the normal appellate process, and is appropriate only when a Military Judge makes an order amounting to a judicial usurpation of power...16 B. The lower court applied the wrong standard of review by reviewing this de novo. Motions to dismiss for iii

4 lack of jurisdiction are interlocutory matters reviewed for abuse of discretion under United States v. Labella, and should not be litigated piecemeal during ongoing trials. Moreover, a new HYT regulation was been issued, and interlocutory jurisdictional rulings have no jurisdictional effect beyond the instant case, so the issue is not characteristic of a practice likely to recur The lower court applied the wrong standard of review, reviewing the jurisdictional matter de novo rather than for an abuse of discretion Any error was unlikely to recur: a new regulation has been issued, and, a jurisdictional trial ruling has no jurisdictional effect beyond the case at hand until resolved on direct review...21 C. Appellee fails to demonstrate that the ordinary course of appeal will not resolve this issue. Moreover, the lower court erred in finding a writ necessary and appropriate without considering that direct review may resolve this issue...23 D. Denial of Appellee s motion was not a judicial usurpation of power. Appellee fails to indisputably demonstrate that the Military Judge clearly erred in finding that there was no separation authority to separate Appellee prior to EAOS, or that the DD-214 was issued contrary to Navy regulations. Contrary to the lower court s erroneous interpretation of the evidence but consistent with the Military Judge s ruling, the MILPERSMAN and Navy regulations clearly require separation at EAOS, and do not authorize separation twenty-seven days early The lower court erred in overturning the Military Judge s ruling that the DD-214 provided to Appellee was invalid as contrary to Navy regulations, in that it purported to separate Appellee at his HYT date, when the separation authority authorized separation only at EAOS; moreover, Appellee requested no early discharge from Navy Personnel Command, as required. The Military Judge s iv

5 ruling was not clearly erroneous and did not usurp his judicial powers Appellee received his final pay only after the command preferred charges and placed him on legal hold, and the Record is inconclusive as to when and whether it was ready for delivery The lower court erred in overturning the Military Judge s ruling, which was not clearly erroneous and was not a usurpation of judicial power, differentiating this case from Smith v. Vanderbush on the basis that the Commander here, unlike in Smith, believed the separation date was February 28, and had no knowledge of the erroneous early separation date entered by Ms. MH The lower court failed to rule on, and erred in ignoring the Military Judge s ruling from an ongoing trial, that was not clearly erroneous and comported with R.C.M. 202(c)(1) and the lower court s own precedent interpreting that Rule, that actions with a view to trial attached courtmartial jurisdiction well in advance of Appellee s Expiration of Active Service date absent contrary intent Appellee fails to demonstrate the Military Judge was clearly erroneous in ruling that Appellee constructively reenlisted on February 2, 2012, and was subject to the Code when the Command preferred charges against him on that day...48 Conclusion...51 Certificate of Service...52 Certificate of Compliance...52 v

6 TABLE OF AUTHORITIES Page UNITED STATES SUPREME COURT CASES Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980)...18 Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953)...17, 18 Clinton v. Goldsmith, 526 U.S. 529 (1999)...2, 3, 17 Cobbledick v. United States, 309 U.S. 323 (1940)...23, 24 De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945)...20 Ex parte Harding, 219 U.S. 363 (1911)...23 Ex parte Peru, 318 U.S. 578 (1943)...18 Grafton v. United States, 206 U.S. 333 (1907)...28 Heckler v. Ringer, 466 U.S. 602 (1984)...18 La Buy v. Howes Leather Co., 352 U.S. 249 (1957)...19 Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, (1927)...19 Maryland v. Soper, 270 U.S. 9 (1926)...18 McCullough v. Cosgrave, 309 U.S. 634 (1940)...19 Pennsylvania Bureau of Correction v. U.S. Marshals, 474 U.S. 34 (1985)...17 Roche v. Evaporated Milk Ass n, 319 U.S. 21 (1943)...23 Stoll v. Gottlieb, 305 U.S. 165 (1938)...22, 23 Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939)...23 United States v. Dixon, 509 U.S. 688 (1993)...28 United States v. Duell, 172 U.S. 576 (1989)...18 United States v. United Mine Workers, 330 U.S. 258 (1947)...19 United States v. United States District Court, 334 U.S. 258 (1948)...18, 19 Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978)...18 vi

7 Will v. United States, 389 U.S. 90 (1967)...16, 17, 18, 19 FEDERAL COURT CASES In re Bushkin Assoc., Inc., 864 F.2d 241 (1st Cit. 1989)...24 Machado v. Commanding Officer, Plattsburgh Air Force Base, 860 F.2d 542 (2d Cir. 1988)...40 UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES AND COURT OF MILITARY APPEALS CASES Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008)...3 Frage v. Moriarty, 27 M.J. 341 (C.M.A. 1988)...3 Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005)...2 Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983)...18 Smith v. Vanderbrush, 47 M.J. 56 (C.A.A.F. 1997)..25, 26, 42 United States v. Caprio, 12 M.J. 30 (C.M.A. 1981)...3 United States v. Frischholz, 16 C.M.A. 150 (C.M.A. 1966)...17 United States v. Harmon, 63 M.J. 98 (C.A.A.F. 2006)...43, 45 United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008)...24, 28, 41 United States v. King, 27 M.J. 327 (C.M.A. 1989)...30, 40 United States v. Knudson, 4 C.M.J. 587 (C.M.A. 1954)...19, 20 United States v. LaBella, 15 M.J. 228 (C.M.A. 1983)...18, 20, 21 United States v. Meadows, 13 M.J. 165 (C.M.A. 1982)...25 United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003)...49 United States v. Self, 13 M.J. 132 (C.M.A. 1982)...25, 46 United States v. Smith, 4 M.J. 265 (C.M.A. 1978)...24, 25 United States v. Snyder, 18 C.M.A. 480 (C.M.A. 1969)...17 United States v. Strow, 11 M.J. 75 (C.M.A. 1981)...3 vii

8 United States v. Webb, 67 M.J. 415 (C.A.A.F. 2009)...25 United States v. Wilson, 53 M.J. 327 (C.A.A.F. 2000)..24, 31 COURTS OF CRIMINAL APPEALS CASES Lawanson v. United States, No , 2012 CCA LEXIS 345 (N-M. Ct. Crim. App. Aug. 31, 2012)...2, 20, 36, 37, 45 McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997)...19 Ponder v. Stone, 54 M.J. 613 (N-M. Ct. Crim. App. 2000)...18 United States v. Benford, 27 M.J. 518 (N-M.C.M.R. 1988)...47 United States v. Blanton, No. S31536, 2009 CCA LEXIS 215 (A. F. Ct. Crim. App. June 9, 2009)...25 United States v. Coker, 67 M.J. 571 (C. G. Ct. Crim. App. 2008)...25 United States v. Harmon, 60 M.J. 776 (N-M. Ct. Crim. App. 2004)...25, 46 United States v. Lee, 43 M.J. 794 (N-M. Ct. Crim. App. 1995)...25, 46, 47 United States v. Richardson, No , 2009 CCA LEXIS 244 (N-M. Ct. Crim. App. July 14, 2009)...25 United States v. Thomas, 33 M.J. 768 (N.M.C.M.R. 1991)...18 United States v. Webb, 67 M.J. 765 (A. F. Ct. Crim. App. 2009)...25 STATUTES AND RULES United States Code 10 U.S.C , U.S.C , 3 viii

9 Uniform Code of Military Justice, 10 U.S.C (2006): Article Article Article Rule for Courts-Martial R.C.M R.C.M R.C.M , 26 OTHER AUTHORITIES BUPERSINST B...5, 32, 38 BUPERSINST D...10, 11, 12 MILPERSMAN , 6, 7, 22, 33, 34, 35 MILPERSMAN , 10, 11, 32, 33, 38 NAVPERS 15560D...5 ix

10 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, ) GOVERNMENT WRIT-APPEAL Appellant ) PETITION FOR REVIEW OF NAVY- ) MARINE CORPS COURT OF CRIMINAL v. ) APPEALS DECISION ON ) APPLICATION FOR EXTRAORDINARY Saheed A. LAWANSON, ) RELIEF Engineman Third Class (E-4) ) U.S. Navy ) Crim.App. Dkt. No Appellee ) ) USCA Misc Dkt. No. /NA TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: Preamble COMES NOW THE UNITED STATES and respectfully requests that this Court reinstate the Military Judge s ruling on the courtmartial Motion to Dismiss for Lack of Jurisdiction, and set aside the lower court s decision on Appellee s Writ of Mandamus Petition. The United States asks this Court to stay all proceedings pending resolution of this Writ Appeal Petition. I History of the Case The Government preferred charges on February 2, 2012, and the Convening Authority referred charges to a general courtmartial on March 21, Appellee is charged with Rape, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920 (2006).

11 At his Court-Martial, Appellee filed a Motion to Dismiss for Lack of Personal Jurisdiction on April 4, (Appellee Mot., Apr. 4, 2012.) The Government filed its Response on April 11, The Military Judge heard testimony and argument from the parties on April 16, (Record at ) The Military Judge made Findings of Fact and Conclusions of Law, and denied the Motion to Dismiss on April 18, (Appellate Ex. X at 11.) On May 1, 2012, Appellee filed a writ of mandamus seeking the lower court to order the Military Judge to dismiss all charges and specifications for a lack of in personam jurisdiction. On May 2, 2012, the lower court stayed the proceedings below. The Government responded on May 24, 2012, pursuant to the lower court s show cause order, and the court heard oral argument on June 27, The lower court granted the Petition on August 31, 2012, dismissing the charges and specifications. Lawanson v. United States, No , 2012 CCA LEXIS 345 (N-M. Ct. Crim. App. Aug. 31, 2012). Jurisdictional Statement This Court has jurisdiction to issue all writs necessary or appropriate in aid of its existing statutory jurisdiction. 28 U.S.C. 1651(a); Clinton v. Goldsmith, 526 U.S. 529, 534 (1999); Loving v. United States, 62 M.J. 235, 239 (C.A.A.F. 2005). The All Writs Act provides that all courts established by Act of 2

12 Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. 1651(a). The Act requires two separate determinations: first, whether the requested writ is in aid of a court s jurisdiction; and second, whether the requested writ is necessary or appropriate. Denedo v. United States, 66 M.J. 114, 119 (C.A.A.F. 2008). This Court permits both discretionary Government writ appeals filed under C.A.A.F. R. 18(a)(4), 19(e), 27(b), 28, as well as mandatory reviews of Judge Advocate General certified cases involving service court extraordinary writ decisions filed under C.A.A.F. R. 18(a)(2), 19(b)(2), 22(b)(2). See United States v. Caprio, 12 M.J. 30, 35 (C.M.A. 1981) (holding that in addition to proper use of certification of extraordinary relief decisions under Article 67(b)(2), the Government as partial and partisan litigant also has ability to file writ appeal petitions for discretionary review at this Court); see, e.g., Frage v. Moriarty, 27 M.J. 341, 342 (C.M.A. 1988) (dual Government writ appeal and certified case); United States v. Strow, 11 M.J. 75 (C.M.A. 1981). II Specific Relief Sought Appellant seeks an Order reinstating the Military Judge s April 18, 2012, ruling on the Motion to Dismiss for Lack of 3

13 Jurisdiction, and setting aside the lower court s August 31, 2012, ruling. III Issue Presented THE LOWER COURT S OPINION ERRONEOUSLY SET ASIDE THE MILITARY JUDGE S RULING DENYING A MOTION TO DISMISS FOR LACK OF JURISDICTION: (1) SUCH ISSUES ARE PROPERLY AND BEST HANDLED AT DIRECT APPEAL; (2) THE LOWER COURT ERRED IN INTERRUPTING AN ONGOING TRIAL WHERE IT FOUND NO JUDICIAL USURPATION OF POWER, AND THE RULING WAS IN ANY CASE CORRECT; (3) GRANTING THE WRIT WAS IMPROPER, AS THE MILITARY JUDGE ISSUED NO FINAL RULINGS ON THE SECOND AND THIRD PRONGS OF THE JURISDICTION TEST; (4) THE LOWER COURT IMPROPERLY SET ASIDE THE MILITARY JUDGE S RULING ON CONSTRUCTIVE ENLISTMENT WHERE VOLUNTARINESS IS A FACTUAL MATTER WELL WITHIN THE DISCRETION OF THE MILTIARY JUDGE, AND THE LOWER COURT FOUND NO CLEAR ABUSE OF DISCRETION. IV Statement of Facts A. Appellee signed a reenlistment contract on February 29, 2008, for a period of four years, ending on February 28, Appellee s original High Year Tenure date as an E-5 would have capped any subsequent reenlistment contracts at Appellee enlisted in the United States Navy on February 2, (Appellate Exhibit IV at 46; Appellate Ex. X at 1.) Appellee then reenlisted for four years on February 29, (Appellate Ex. IV at 46; Appellate Ex. X at 1.) Appellee s signed re-enlistment contract lists Appellee s contract s 4

14 expiration date as February 28, (Appellate Ex. IV at 46.) The Navy s Personnel Online Listing listed Appellee s Expiration of Active Obligated Service (EAOS) date as February 28, (Appellate Ex. IV at 47; Appellate Ex. X at 1.) High Year Tenure is a Reenlistment Eligibility regulation appearing in the Naval Military Personnel Manual; it appears under the Chapter entitled Reeinlistments and Extensions. NAVPERS 15560D. High Year Tenure is an administrative force shaping tool that permits the proper sizing and shaping of the Navy. MILPERSMAN at 1. The High Year Tenure s function is to cap the date up to which Navy servicemembers may (a) reenlist or (b) extend at a specific number of years from the member s active duty service date, unless the servicemember obtains a HY waiver. MILPERSMAN at 1. Whereas High Year Tenure is a Naval Reenlistment Eligibility regulation, the Navy s Separation Authority regulations are governed by a different set of rules, discussed in more detail, infra, but namely: the Separation by Reason of Expiration of Active Obligated Service (EAOS), MILPERSMAN (June 20, 2005), and Certificate of Release or Discharge from Active Duty, BUPERSINST D (June 11, 2010). Because Appellee was an E-5, his original High Year Tenure Date was fourteen years from his Active Duty Service Date of February 2, MILPERSMAN at 2 (Oct. 29, 2011). 5

15 Thus at the time of Appellee s reenlistment on February 29, 2008, he would have been unable to reenlist or extend past approximately MILPERSMAN at 2. B. Appellee was reduced at Captain s Mast to pay grade E- 4 in His reenlistment Service Contract and End of Active Obligated Service remained February 28, His new pay grade of E-4 reduced his High Year Tenure date to February 1, 2012, making him ineligible to reenlist. On July 22, 2009, Appellee was reduced by non-judicial punishment from E-5 to pay grade E-4. (Appellate Ex. IV at 47; Appellate Ex. X at 1.) The non-judicial punishment NAVPERS 1070/607 document in Block 36, issued pursuant to Appellee s non-judicial punishment, specifically notes that Appellee s End of Active Obligated Service (EAOS) remained unchanged at February 28, Because Appellee was reduced to E-4, the HYT regulation in the Navy in 2011 thus adjusted Appellee s original HYT date to an earlier date: eight years from his February 2, 2004, Active Duty Service Date. MILPERSMAN at 2. Had Appellee been an E-4 at the time of his re-enlistment on February 29, 2008, this HYT date would have prevented him from extending or reenlisting past February 1, MILPERSMAN at 1. However, when he signed his re-enlistment on February 29, 2008, Appellee had been an E-5. No rules in the High Year Tenure regulation restricted an E-5 with an Active Duty Service 6

16 Date of February 1, 2004, from signing an enlistment contract on February 29, 2008, and obligating himself to service until February 28, MILPERSMAN at 1-2. The Naval High Year Tenure regulation in force in February 2012 stated: Personnel reduced in rate are authorized to complete an enlistment properly entered into prior to reduction even if the enlistment expires after HYT gates of the new pay grade. Members in this category must separate at current expiration of active obligated service (EAOS) if the new HYT gate is met or exceeded, unless they are granted a HYT waiver [to reenlist, from Navy Personnel Command,] or are subsequently advanced or reinstated. MILPERSMAN (9)(c)(1)-(2), CH-37, 29 Oct 2011 (emphasis added). Appellee was never advanced or reinstated, nor was he granted a HYT Waiver by Navy Personnel Command that would permit him to reenlist past his HYT date. (Appellate Ex. X at 6); MILPERSMAN Further: Members who elect not to remain on active duty until their normal EAOS may request early separation, if desired, from NAVPERSCOM (PERS-8354) via their CO. MILPERSMAN (9)(c)(1)-(2), CH-37, 29 Oct Appellee submitted no request to PERS-8354 directly or via any route to request early separation authority from Navy Personnel Command. (Appellate Ex. X at 6.) Nor did Appellee seek an HYT waiver that would allow him, per MILPERSMAN (9)(c)(1), to reenlist past his EAOS. 7

17 C. Appellee begins involuntary separation checkout. On May 6, 2011, Appellee began procedures for involuntary separation when he completed a Pre-separation Counseling Checklist (DD-2648), listing his anticipated date of separation as February 28, (Appellate Ex. IV at 46, 49; Appellate Ex. X at 1.) On July 12, 2011, Appellee met with Ms. MH, a civilian PSD clerk. (Appellate Ex. X at 1.) Ms. MH told Appellee to handwrite on his General Information Worksheet a separation date of February 1 the HYT date rather than the EAOS date of February 28. (Appellate Ex. IV at 52; Appellate Ex. X at 1.) The Military Judge, interpreting the controlling regulations, later held that replacement of the EAOS date with the reenlistment cap HYT date was legally erroneous. (Appellate Ex. X at 6.) D. The Report of Rape. On September 15, 2011, NG reported to Naval Criminal Investigative Service (NCIS), that she had been raped by Appellee. (Appellate Ex. X at 3.) The lead agent opened an investigation and consulted with LT F, SUBASE Staff Judge Advocate, and the SUBASE Commanding Officer, Captain D. (Appellate Ex. X at 3; R. 30.) During the ensuing investigation, SA Wynalda interviewed witnesses, collected forensic evidence, intercepted a phone call between NG and Appellee, performed surveillance on Appellee and his vehicle, supervised a photo 8

18 lineup with NG, seized video from the Appellee s barracks, and reviewed the initial USACIL analysis of the submitted forensic evidence. (R ) E. Staff Judge Advocate Confirms that Appellee s EAOS is February 28, 2012, rather than February 1, On October 28, 2011, the Staff Judge Advocate reviewed a Personnel Summary spreadsheet from Mr. RW, a personnel officer at the SUBASE administrative office. (R. 32, ) He noted Appellee s name on a spreadsheet with an anticipated separation date of February 1, (R , ) He reviewed the Enlisted Distribution & Verification Report (EDVR) and informed the Staff Judge Advocate that Appellee s Active Duty Obligation date continued to be February 28, (R ) Mr. RW informed the Staff Judge Advocate that Appellee s separation date would thus be February 28, (R ) F. Appellee is issued a DD-214 listing his HYT date as his End of Active Obligated Service. On November 18, 2011, the PSD Clerk provided Appellee with a signed DD-214, or Certificate of Release or Discharge from Active Duty. (Appellate Ex. IV at 65; Appellate Ex. X at 2.) The DD-214 cited MILPERSMAN as the separation authority in Block 25, which is a regulation entitled Separation by Reason of Expiration of Active Obligated Service. (Appellate Ex. III at 24; Appellate Ex. IV at 65); MILPERSMAN (June 20, 2005). 9

19 However, the date listed on Appellee s DD-214 was not Appellee s End of Active Obligated Service date of February 28, 2012; rather, the DD-214 lists the E-4 HYT date of February 1, 2012 that is, the date exactly eight years from Appellee s Active Duty Base Date. (Appellate Ex. IV at 65.) Block 12.a lists February 2, 2004, as the Date Entered AD this period. (Appellate Ex. IV at 65.) This is a fiction permitted by the BUPERSINST when a member has served continuously on active duty. BUPERSINST D, 3o(1). In fact, Appellee had entered a new period of active duty when he re-enlisted on February 29, 2008, for a period of four years, with a new contract expiration date of February 28, (Appellate Ex. IV at 46.) Block 12b, however, is not permitted this fiction under the DD-214 regulation. BUPERSINST D, 3o(2). Appellee s Block 12b reads February 1, 2012, rather than his actual contract expiration date of February 28, (Appellate Ex. IV at 46.) G. DD-214s and Separation Authorities in the Navy. Enlisted separations in the Navy for reason of End of Active Obligated Service are governed by Separation by Reason of Expiration of Active Obligated Service (EAOS), MILPERSMAN (June 20, 2005). In contrast to the High Year Tenure regulation that appears under the Reenlistments and Extensions chapter of the Naval Military Personnel Manual, MILPERSMAN appears in the Separations, Enlisted chapter. Preparation 10

20 of the DD-214 in the Navy is governed by Certificate of Release or Discharge from Active Duty, BUPERSINST D (June 11, 2010). The former regulation, MILPERSMAN , is cited as the separation authority on Appellee s DD-214. (Appellate Ex. IV at 65.) It authorizes separation by a Commanding Officer upon the expiration of enlistment or fulfillment of service obligation. MILPERSMAN at 1. There is no exception in the regulation listed as authority to separate Appellee nor does one appear in any regulation that the Government is aware of for separation before EAOS by reason of a High Year Tenure date. Id. The only exception in MILPERSMAN that permits separation prior to EAOS under that authority occurs when a servicemember is serving outside the continental United States or when the servicemember is a resident of a state, territory, or possession outside the continental United States and is serving outside that place of residence. Id. Neither situation is present in Appellee s case: Appellee was given a DD-214 in Connecticut; his home of residence is in Chicago. (Appellate Ex. IV at 65; Appellate Ex. X at 2.) The latter regulation governs preparation of the DD-214. The BUPERSINST cites to the Naval Military Personnel Manual as a reference, noting that it provides separation/discharge 11

21 reasons. BUPERSINST D. Under Preparation of the DD 214, the instruction states: Accuracy and Completeness: the DD 214 is an important record of service. It must be accurate and complete. Only authorized items may be entered. BUPERSINST D, 2b. The BUPERSINST requires that Block 12b, Separation Date This Period, reflect the date the active duty obligation is completed. BUPERSINST D, 3o(2). Block 25, Separation Authority, must list the authority under which release is authorized using the appropriate article number from [the Naval Military Personnel Manual]. BUPERSINST D, 3hh(1). Block 28 must list the appropriate reason for separation that corresponds to the SPD Code used in block 26. H. NCIS seeks to conduct questioning, Command cancels Appellee s terminal leave, Appellee is returned to the command and interviewed. The Command believes Appellee s separation will occur at EAOS per regulation. Appellee remained on active duty, but entered into terminal leave status and drove home to Chicago, Illinois. (Appellate Ex. X at 2.) On or about December 12, 2011, Special Agent Wynalda contacted the Staff Judge Advocate in order to set up an interview with Appellee at NCIS New London. (R. 36.) The Commanding Officer learned for the first time that Appellee had been allowed to go on terminal leave. (R. 8, 20.) 12

22 The Commanding Officer ordered CMC Vatter to immediately cancel Appellee s terminal leave and to recall him to Groton. (R ) CMC Vatter recalled Appellee from terminal leave. (Appellate Ex. X at 2.) When Appellee returned to Groton on December 14, 2011, CMC Vatter informed him that his terminal leave had been canceled and he would be transferred to First Lieutenant s Division for duty. (R. 37, 69.) On December 15, 2011, NCIS Special Agents Nathan O Connor and Paul Masson interviewed Appellee. (Appellate Ex. IV at 66; Appellate Ex. X at 2.) Special Agents O Connor and Masson informed Appellee that he was suspected of rape and sexual assault and read him his Article 31(b) rights, which he waived. (Appellate Ex. IV at 66.) On January 5, 2012, Appellee returned to NCIS and voluntarily provided buccal swabs for potential DNA forensic analysis. (Appellate Ex. IV at 67; Appellate Ex. X at 2.) Subsequent to Appellee s buccal swab, the SJA contacted Special Agent Wynalda several times regarding the status of the investigation. (R. 38.) Special Agent Wynalda indicated that the lab results from the DNA and toxicology tests were still pending, as were additional witness interviews. (R. 38.) In January, Appellee sought and received legal counsel from the Naval Legal Service Office North Central, Detachment Groton. (R. 262.) Appellee discussed his pending separation and the 13

23 ongoing criminal investigation with counsel. (R ) Defense Counsel advised Appellee against any further cooperation with NCIS. (R ) From January 3, 2012, until at least the time of the lower court s opinion, Appellee has mustered with and worked for the First Lieutenant s Division. (Appellate Ex. IV at ) Appellee also continued to wear his Navy uniform and use his military identification card to access Base. (R , 257.) Throughout the entire five-month investigative period, neither the Commanding Officer nor the Staff Judge Advocate knew that PSD had purported to issue Appellee a self-executing DD-214 with a separation date of February 1, (R. 11.) Special Agent Wynalda scheduled a second interview with Appellee for January 31, (Appellate Ex. X at 3.) The Command planned on preferring the already drafted charges immediately following this interview. (Appellate Ex. X at 3.) Additionally, the Staff Judge Advocate prepared final copies of a legal hold letter, a request for defense counsel, and an Article 32 appointment letter. (Appellate Ex. X at 3.) January 31, 2012, a power outage shut down electricity at NCIS s offices for the entire day. (Appellate Ex. X at 3.) Special Agent Wynalda rescheduled Appellee s interview for the morning of February 1, (Appellate Ex. X at 3.) 14

24 On the morning of February 1, 2012, Appellee reported to NCIS where Agents again read Appellee his Article 31(b) rights. (Appellate Ex. IV at 108.) After waiving his rights, Appellee made an admission that he continued to have sex with NG after she said stop and attempted to push him off of her. (Appellate Ex. IV at 109.) Following this interview, Appellee met with his supervisor, MAC Caronan, who instructed him to report to the Staff Judge Advocate s office in the morning. (R. 163.) Appellee indicated that he understood and did not make any mention of his separation date or otherwise protest his supervisor s instruction to return the next morning. (R ) On the morning of February 2, 2012, the Command preferred charges. (Appellate Ex. IV at ) Simultaneously, the Staff Judge Advocate issued a legal hold letter, a defense counsel request, and an Article 32 appointment letter. (Appellate Ex. IV at , 118.) After Appellee arrived at the Staff Judge Advocate s office in his military uniform, Ms. Pam Hodoh, the Staff Judge Advocate s administrative assistant, served the charges on Appellee. (R. 163, 273.) Appellee did not mention his separation, and he made no protest when the command retained him on active duty for criminal prosecution. (R , 273.) Appellee reported back to work at First Lieutenant s Division. (R ) 15

25 PSD refused to run the legal hold, and instead informed the Command that Appellee had been discharged at 2359 on February 1, (R. 40.) The Command took immediate action to invalidate the previously issued DD-214 and to place a hold on Appellee s final pay. (Appellate Ex. IV at ; R. 41.) V Reasons Why The Writ Should Not Issue THE MILITARY JUDGE S RULING IS CORRECT, AND DOES NOT AMOUNT TO A JUDICIAL USURPATION OF POWER; THE LOWER COURT ERRED IN PLACING A BURDEN ON THE GOVERNMENT. A WRIT IS NEITHER NECESSARY NOR APPROPRIATE WHERE THE LOWER COURT FOUND NO JUDICIAL USURPATION OF POWER, THE MILTIARY JUDGE S RULING WAS CONSISTENT WITH NAVY REGULATION, THE FACTUAL RECORD MAY BE FURTHER DEVELOPED ON MATTERS LEFT UNRESOLVED AS MOOT BY THE MILITARY JUDGE, AND THE JUDGE S RULING ON CONSTRUCTIVE ENLISTMENT IS SOUND. DIRECT REVIEW IS THE APPROPRIATE PLACE TO RESOLVE THIS MATTER. A. A writ of mandamus is not a substitute for the normal appellate process, and is appropriate only when a Military Judge makes an order amounting to a judicial usurpation of power. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. Will v. United States, 389 U.S. 90, 96 (1967) 16

26 (internal citations omitted). Extraordinary writs thus cannot be employed as a substitute for relief obtainable during the ordinary course of appellate review, even though hardship may ensue from delay. [W]hatever may be done without the writ may not be done with it. Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953); see also United States v. Snyder, 18 C.M.A. 480, 483 (C.M.A. 1969); United States v. Frischholz, 16 C.M.A. 150 (C.M.A. 1966) (petitions for extraordinary relief not substitutes for normal appellate process). The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Pennsylvania Bureau of Correction v. U.S. Marshals, 474 U.S. 34, (1985). Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. Id. at 43. If alternative remedies are available, resort to the All Writs Act is out of bounds, being unjustifiable either as necessary or as appropriate. Clinton, 526 U.S. at 537. The All Writs Act invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law. Id. (citations omitted). Mandamus is intended to provide a remedy for a petitioner only if he has exhausted all of the avenues of 17

27 relief and only if the respondent owes him a clear nondiscretionary duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984) (internal punctuation omitted). A writ of mandamus is a drastic remedy... [which] should be invoked only in truly extraordinary situations. Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983) (citing United States v. LaBella, 15 M.J. 228, 229 (C.M.A. 1983)); United States v. Thomas, 33 M.J. 768 (N.M.C.M.R. 1991). The burden is on Appellee to show [his] right to issuance of the writ is clear and indisputable. Bankers Life, 346 U.S. at 384 (quoting United States v. Duell, 172 U.S. 576, 582 (1899)). Where a matter is committed to discretion, it cannot be said that a litigant s right to a particular result is clear and indisputable. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (quoting Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666 (1978)); see Ponder v. Stone, 54 M.J. 613, 616 (N- M. Ct. Crim. App. 2000). [I]t is clear that only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy. 1 Will v. 1 Thus the writ has been invoked where unwarranted judicial action threatened to embarrass the executive arm of the Government in conducting foreign relations, Ex parte Peru, 318 U.S. 578, 588 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, Maryland v. Soper, 270 U.S. 9 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal s mandate, United States v. 18

28 United States, 389 U.S. 90, 95 (1967) (citation omitted). In the context of writs of mandamus, military courts have read this rule to require a petitioner to establish a ruling or action that is contrary to statute, settled case law, or valid regulation. See, e.g., Dettinger v. United States, 7 M.J. 216, 224 (C.M.A. 1979); McKinney v. Jarvis, 46 M.J. 870 (A. Ct. Crim. App. 1997). B. The lower court applied the wrong standard of review by reviewing this de novo. Motions to dismiss for lack of jurisdiction are interlocutory matters reviewed for abuse of discretion under United States v. Labella, and should not be litigated piecemeal during ongoing trials. Moreover, a new HYT regulation has been issued, and interlocutory jurisdictional rulings have no jurisdictional effect beyond the instant case, so the issue is not characteristic of a practice likely to recur. A court is always competent to determine its own jurisdiction, but that does not make it a proper matter for mandamus relief. [E]xcept in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction. United States v. United Mine Workers, 330 U.S. 258, 292 (1947) (citations and internal quotations omitted). An appellate court, in the exercise of that supervision and control, does not United States District Court, 334 U.S. 258 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by [the Supreme] Court, La Buy v. Howes Leather Co., 352 U.S. 249 (1957); see McCullough v. Cosgrave, 309 U.S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 706, 707 (1927) (dictum). Will, 389 U.S. at

29 as a usual thing review interlocutory rulings at the time of their rendition. United States v. Knudson, 4 C.M.J. 587, 594 (C.M.A. 1954) (Brosman, J., concurring). When a court has no judicial power to do what it purports to do, its error elevates past mere error and becomes a usurpation of power. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945). Questions of jurisdiction ruled on by a trial court are interlocutory matters reviewed for abuse of discretion. United States v. Labella, 15 M.J. 228 (C.M.A. 1983). Interlocutory questions are determined, as the Trial Counsel correctly noted, by a preponderance of the evidence. (R. 5); R.C.M. 801(e)(1) (and the Discussion, noting the status under the Code would have to be proved by a preponderance of the evidence to uphold jurisdiction, see R.C.M. 907 ). To justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even gross error ; it must amount to a judicial usurpation of power,... or be characteristic of an erroneous practice which is likely to recur. Id. 1. The lower court applied the wrong standard of review, reviewing the jurisdictional matter de novo rather than for an abuse of discretion. Here, the lower court erred in explicitly reviewing the Military Judge s ruling de novo, citing to this Court s enunciation of the standard on direct review. Lawanson,

30 CCA LEXIS 345, at * Moreover, the lower court made no finding that the Military Judge s findings were a gross error or clearly erroneous, much less the required judicial usurpation of power or likely to recur. Nor did the lower court recognize the deference given to trial courts rulings on jurisdictional matters within their competence and presumptively matters for resolution on direct appellate review. In Labella, the Court of Military Appeals vacated the Court of Criminal Appeals decision overturning a military judge s ruling granting a Motion to Dismiss for Lack of Jurisdiction. 15 M.J. 228, 229. The Labella court reasoned that the military judge s ruling was neither (1) a judicial usurpation of power, nor (2) characteristic of an erroneous practice likely to occur. Id. Thus, the Labella court held, the writ of mandamus is not available. Id. So too here, the lower court set aside an interlocutory jurisdictional ruling on a matter within the trial court s competence, a Military Judge ruling based both on fact and law, without making any finding of a judicial usurpation of power, nor finding that the practice was likely to recur. 21

31 2. Any error was unlikely to recur: a new regulation has been issued, and, a jurisdictional trial ruling has no jurisdictional effect beyond the case at hand until resolved on direct review. Tellingly, even if a judicial usurpation of power, this situation will not likely recur: the October 29, 2011, MILPERSMAN regulation was recently replaced by an entirely different, far more complex version of the High Year Tenure regulation changing not just this paragraph, but nearly every paragraph of the regulation. See MILPERSMAN , CH- 39, 1 Jul Regardless, as detailed infra, nothing in either the present or prior version of the regulation creates any separation authority or separation code that permits separation by reason of High Year Tenure. Moreover, as noted in Stoll v. Gottlieb, 305 U.S. 165, 172 (1938), even were the Military Judge s ruling erroneous, that ruling does nothing to actually enlarge the jurisdiction of any sitting court or any other court-martial, hence is not in any sense an ongoing error, and may be reversed, or affirmed, on direct review. A trial ruling on jurisdiction is not such an erroneous practice which is likely to recur, but is limited to the case at hand, particularly given that there are no standing courts-martial. The mere assertion of jurisdiction over a case by any court does not resolve the matter for all future cases before the 22

32 court or other courts-martial; rather, the interlocutory ruling on jurisdiction affects only the instant case absent later resolution of the matter on direct appellate review: An erroneous affirmative conclusion [by a court] as to [its] jurisdiction does not in any proper sense enlarge the jurisdiction of the court until passed upon by the court of last resort, and even then the jurisdiction becomes enlarged only from the necessity of having a judicial determination of the jurisdiction over the subject matter. Stoll, 305 U.S. at 172. [Even when the question is whether a lower court has exceeded its jurisdiction, a]ppellate courts are reluctant to interfere with the decision of a lower court on jurisdictional questions which it was competent to decide and which are reviewable in the regular course of appeal. Roche v. Evaporated Milk Ass n, 319 U.S. 21, 26 (1943) (citing Ex parte Harding, 219 U.S. 363, 369 (1910); cf. Stoll v. Gottlieb, 305 U.S. 165; Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939)). Failing to consider that any error in this ongoing trial with regard to jurisdiction risks little if any repetition, the lower court needlessly set aside an interlocutory ruling well within the trial court s competence without applying the proper standard for considering and granting extraordinary relief in the nature of a writ of mandamus. 23

33 C. Appellee fails to demonstrate that the ordinary course of appeal will not resolve this issue. Moreover, the lower court erred in finding a writ necessary and appropriate without considering that direct review may resolve this issue. This Court routinely requires litigants to wait until after final judgment to vindicate valuable rights. The correctness of a trial court s rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal. Cobbledick v. United States, 309 U.S. 323, 325 (1940) (quotation omitted). In light of the trial court s reasonable and correct rejection of Appellee s claims of jurisdictional deficiencies, extraordinary relief is not now necessary. Direct appeal is the correct avenue for review. This is so for several reasons. First, Appellee fails to demonstrate that the ordinary course of appeal cannot resolve this issue, and the lower court erred in finding a writ necessary. The Military Judge s ruling at trial may be reversed on direct review. Appellee s situation is hardly novel: military courts routinely reject mandamus writ petitions at both the service court and the Court of Appeals for the Armed Forces without prejudice to raising the issue on direct review, then proceed to substantively consider and resolve the issue on direct review. See, e.g., United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008); United States v. United States v. Wilson, 53 M.J. 327, 333 (C.A.A.F. 2000). 24

34 But ordinary mistakes are not grist for the mandamus mill; the writ is reserved for extraordinary cases and its currency is not profligately to be spent. In re Bushkin Assoc., Inc., 864 F.2d 241, 245 (1st Cit. 1989) (internal quotations omitted). Nor should the writ control run-of-mine misuses of judicial discretion. Id. Yet that is the state of this Record thus far: Appellee, and the lower court, merely disagree with the Military Judge s interpretation of the controlling regulations. And as will be shown, infra, that interpretation was not only not a judicial usurpation of power, but it was correct. Direct review, in such a case, is clearly the correct place to resolve such a reasonable ruling. Second, direct review is the standard or median venue for resolution of personal jurisdiction issues such as Appellee s. See, e.g., United States v. Meadows, 13 M.J. 165 (C.M.A. 1982); United States v. Self, 13 M.J. 132 (C.M.A. 1982); United States v. Smith, 4 M.J. 265 (C.M.A. 1978); United States v. Richardson, No , 2009 CCA LEXIS 244 (N-M. Ct. Crim. App. July 14, 2009); United States v. Harmon, 60 M.J. 776 (N-M. Ct. Crim. App. 2004); United States v. Lee, 43 M.J. 794 (N-M. Ct. Crim. App. 1995). Other service courts are in accord in typically addressing personal jurisdiction on direct review. See, e.g., United States v. Blanton, No. S31536, 2009 CCA LEXIS 215 (A. F. Ct. Crim. App. June 9, 2009); United States v. Coker, 67 M.J. 25

35 571 (C. G. Ct. Crim. App. 2008). Only a few outliers exist. See United States v. Webb, 67 M.J. 765 (A. F. Ct. Crim. App. 2009) (denying extraordinary relief and remanding to trial, without prejudice to raising the personal jurisdiction issue on direct review), aff d, 67 M.J. 415 (C.A.A.F. 2009); Smith v. Vanderbrush, 47 M.J. 56 (C.A.A.F. 1997) (Judge Advocate General certified case of a service court s ruling on an extraordinary writ). Thus, multiple examples from this and the service courts mitigate in favor of the general policy approach of Will, relying on direct appeal as the primary mechanism to examine even issues of jurisdictional or constitutional merit. Extraordinary relief is unnecessary. Third, direct appeal is the proper or appropriate place for resolution of jurisdictional claims such as Appellee s. Direct review is particularly appropriate for resolving Appellee s claims. As discussed, infra, the Military Judge has explicitly withheld from a final ruling on the latter two prongs of the jurisdiction test. (Appellate Ex. X at 9, n.12 (noting [this] court s ruling on the first factor obviates further analysis. ).) And of course, no such intra-trial ruling would be final, as jurisdiction is an interlocutory matter that can be considered throughout trial, and becomes final only later. R.C.M. 801(e)(4), 907(b)(1)(A). 26

36 Unless and until the Military Judge conducts further analysis, consideration of extraordinary relief is premature; nor should this or any court take the jurisprudential leap to reach conclusions as to those outstanding factual matters, in the absence of a Military Judge and the parties hearing the witnesses, weighing further evidence, conducting crossexamination, in the crucible of confrontation. Absent demonstration of an indisputable right to relief and a ruling amounting to a gross usurpation of judicial power, Appellee s disagreement with the analysis and decisions of the Military Judge is insufficient to justify continued interruption of the trial process, or reversal of a Military Judge s ruling by extraordinary writ. Here, should trial on the merits begin, it still remains possible that Appellee or his well-qualified counsel may yet find support for his position that there is authority in the Navy to use High Year Tenure as a separation authority and not merely as a reenlistment or extension limiting factor. Or, in the alternative, Appellee may find support for his argument that the Military Judge wrongly interpreted the regulation as requiring reduced servicemembers to seek PERS-8354 endorsement of any separation prior to EAOS. The United States is aware of no such authority. Nonetheless, Appellee remains able to assign errors in briefing before the Navy-Marine Corps Court of 27

37 Criminal Appeals, and may petition to raise those matters further before this Court during the ordinary course of appeal. At this stage of trial pre-trial on the merits nothing Appellee cites supplies adequate cause to further delay the commencement of trial and adjudication of these rape charges on the merits. Further delay of trial only further delays final resolution of Appellee s guilt, risks loss of evidence, witnesses, and memory, and delays justice to the victim. Cf. United States v. Dixon, 509 U.S. 688 (1993) (citing Grafton v. United States, 206 U.S. 333 (1907), for proposition that courtsmartial acquittals preclude, on double jeopardy grounds, later prosecution in civilian Federal court for the same offense). Consequently, the errors alleged by Appellee should be addressed in the normal course of appellate review. The Military Judge analyzed the evidence and the relevant regulations extensively, and found correctly that not only that Navy regulations were not followed in purporting to separate Appellee prior to his End of Active Obligated Service, but found that regardless, based on testimony, a constructive enlistment existed. Moreover, the Military Judge withheld issuing a ruling on the last two prongs of the test from United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), noting that his finding of an invalidly issued DD-214 was dispositive in favor of the existence of jurisdiction. (Appellate Ex. X at 8 fn 12.) 28