Petition for Writ of Certiorari — McElroy v. United States

941279 DEC 1 6 19%

No. QERGE-OE THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

WILLIAM G. McCELRoy,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

AND OTHER CASES

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

ERIc N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-5113

December 1994 (202) 767-1562

SL

QUESTION PRESENTED

WHETHER THE INSTRUCTIONS ON VESTED BEN-

EFITS GIVEN AT TRIAL BY THE MILITARY

JUDGES IN QUESTION WERE INACCURATE, VIO-

LATIVE OF THE COLLATERAL CONSEQUENCES

RULE AND, IN ADDITION, A VIOLATION OF THE

EQUAL PROTECTION CLAUSE OF THE 5TH

AMENDMENT OF THE UNITED STATES CON-

STITUTION

(i)

il

LISTING OF PARTIES PURSUANT TO RULE 24.1(b)

WILLIAM G. MCELROY, United States Air Force

USCAAF Dkt No. 93-0946/AF

ANTHONY P. DUCHINSKY, United States Air Force

USCAAF Dkt No. 93-0963/AF

JOSEPH B. OWENS, United States Air Force

USCAAF Dkt No. 93-1323/AF

TRAVIS J. MARTZ, United States Air Force

USCAAF Dkt No. 94-1189/AF

MICHAEL F. HEBERT, United States Air Force

USCAAF Dkt No. 94-0445/AF

TABLE OF CONTENTS

Page

Sy A ETN Semen eae eo 1

RE A iI ce ne 2

STATEMENT OF THE CASE ....................................... 2

REASON FOR GRANTING THE WRIT ...................... 3

THE INSTRUCTIONS ON VESTED BENEFITS

GIVEN AT TRIAL BY THE MILITARY JUDGES

IN QUESTION WERE INACCURATE, VIOLA-

TIVE OF THE COLLATERAL CONSEQUENCES

RULE AND, IN ADDITION, A VIOLATION OF

THE EQUAL PROTECTION CLAUSE OF THE

5TH AMENDMENT OF THE UNITED STATES

ER A 3

A. The Instructions Were Inaccurate ........................ 3

B. The Instructions Violated The Collateral Conse-

TD RE a ee 4

C. The Instructions Violated The Equal Protection

Clause Of The 5th Amendment Of The United

I <a ssinnasioniviesauaibaareees 5

Sp avastiademmcsasmuncodaasinate 6

APPENDIX A

Opinion of the U.S. Court of Appeals for the

Armed Forces—McKlroy ........................................-.-. la

APPENDIX B

Opinion of the U.S. Air Force Court of Criminal

| ee ee 12a

iv

TABLE OF CONTENTS—Continued

APPENDIX C

Final order of the U.S. Court of Appeals for the

Armed Forces—Duchinsky ...................cc.--seeccccseeeoee

APPENDIX D

Final order of the U.S. Court of Appeals for the

Armed ForceSs—Owens -20............--..cccccccceesseceecceeeeeeeee

APPENDIX E

Final order of the U.S. Court of Appeals for the

BO | ee ee Ce

APPENDIX F

Final order of the U.S. Court of Appeals for the

Armed Forces—Heber te .o..............cccccecccsseeesececeeeeeeneeeee

Page

17a

18a

19a

Vv

TABLE OF AUTHORITIES

SUPREME COURT CASES:

United States v. Young, 105 S.Ct. 1038 (1985) ......

MILITARY CASES:

United States v. Fisher, 21 M.J. 327 (C.M.A.

FID scisichervssinctincerstninamcnsconiicuideananlanpscinmmmumeiaieiaeiaii nadie tiles

United States v. Goodwin, 33 M.J. 18 (C.M.A.

TID piinesssteseccnnivininscthceiceiihagedantetahalea touche aameremaiaen cs.

United States v. Griffin, 25 M.J. 423 (C.M.A.

I ciaiissn:sassasinnncshaesdcsidacluninaduiacaielicaeiadau hla tapaaiatabicaias

United States v. Henderson, 29 M.J. 221 (C.M.A

TOUTED. ssuscusivvcishishansleeiiist dehicitiindiibainancanD Cadena ec

United States v. Longhi, 36 M.J. 988 (A.F.C.M.R

I sis cesiccsince chilli alae aid Rae ee lata a

United States v. McElroy, 40 M.J. 368 (C.M.A

MTD sins: saisscckcsininstcnitecnpachdtdideinttceiabialtatel dada teen tudaidiecsesedaes

United States v. Murphy, 26 M.J. 454 (C.M.A

| Ee ON NE RR CORO er EAP Ne Us Lica n

United States v. Quesinberry, 12 U.S.C.M.A. 609,

Se Si, Ue ED iccocieccheciececeehtaeateeeteteees

United States v. Rowe, 11 M.J. 11 (C.M.A. 1981)...

IN THe

Supreme Court of the United States

OCTOBER TERM, 1994

No.

WILLIAM G. MCELRoy,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

AND OTHER CASES

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioners, William G. McElroy, et al., respect-

fully pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Armed Forces entered in this proceeding.

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Armed Forces in United States v. McElroy, 40 M.J.

368 (C.M.A. 1994) is reprinted as Appendix A. The

unreported decision of the United States Air Force Court

of Criminal Appeals in United States v. McElroy, issued

2

on March 24, 1993 is attached as Appendix B. The final

order of the United States Court of Appeals for the

Armed Forces affirming the decision of the Air Force

Court of Criminal Appeals in United States v. Duchinsky,

M.J. (C.M.A 1994) is reprinted at Appendix

C. The final order of the United States Court of Appeals

in United States v. Owens, M.J. (C.M.A.

1994), is reprinted at Appendix D. The final order of

the United States Court of Appeals in United States v.

Martz, M.J. (C.M.A. 1994), is reprinted at

Appendix E. The final order of the United States Court

of Appeals in United States v. Hebert, M.J.

(C.M.A. 1994), is reprinted at Appendix F.

JURISDICTION

The final orders of the United States Court of Appeals

for the Armed Forces were entered between 19 Septem-

ber 1994 and 5 October 1994. The jurisdiction of this

Court is invoked under 28 USCA § 1259(3) (Supp.

1992) and 10 USCA § 867(a) (Supp. 1992).

STATEMENT OF THE CASE

This is a consolidated petition representing interested

service members of various ranks from the United States

Air Force whose convictions were affirmed by the United

States Court of Appeals for the Armed Forces between

19 September and 5 October 1994 based on its decision

in United States v. McElroy. (Appendix A). In each

of the five cases, the members of the court-martial panel

were improperly instructed by the military judge that vet-

erans benefits from previous periods of honorable service

were “vested”. In each case, this instruction was given

after testimony was presented to the members that the

accused had a previous period of honorable service. By

way of example, in United States v. McElroy, the military

judge instructed the members in pertinent part as follows:

This court can adjudge a dishonorable discharge or a

bad-conduct discharge. Such a discharge deprives one

3

of substantially all benefits administered by the De-

partment of Veterans Affairs and for that matter by

the Department of the Air Force that are based on

the current term of service. However, vested benefits

from a prior period of honorable service are not for-

feited by a receipt of a dishonorable discharge or a

bad-conduct discharge that would terminate the ac-

cused’s current term of service.

R. 173, emphasis added. In a previous opinion on this

instruction, United States v. Longhi, 36 M.J. 988

(A.F.C.M.R. 1993), the Air Force Court of Criminal

Appeals noted that, while the use of the term “vested”

was not technically coirect, the “essence” of the instruc-

tion was. 36 M.J. at 989. In United States v. McElroy,

40 M.J. 368 (C.M.A. 1994) (Appendix A), the United

States Court of Appeals for the Armed Forces, affirmed

the position of the Air Force Court of Criminal Appeals

in Longhi and McElroy by holding that it was not per-

suaded that such an instruction would clearly or substan-

tially mislead the members. 40 M.J. at 372.

REASON FOR GRANTING THE WRIT

THE INSTRUCTIONS ON VESTED BENEFITS GIVEN

AT TRIAL BY THE MILITARY JUDGES IN QUES-

TION WERE INACCURATE, VIOLATIVE OF THE

COLLATERAL CONSEQUENCES RULE AND, IN AD-

DITION, A VIOLATION OF THE EQUAL PROTEC-

TION CLAUSE OF THE 5TH AMENDMENT OF THE

UNITED STATES CONSTITUTION

A. The Instructions Were Inaccurate

In a letter issued from the Office of the General Coun-

sel, Department of Veterans Affairs, Mr. John H. Thomp-

son, Assistant General Counsel, made pointedly clear that

there is no such thing as “vested benefits.” This is in stark

contrast to the judges’ erroneous instructions in these cases

which affirmatively advised the members that the appel-

lants’ prior periods of honorable service had caused cer-

—

4

tain benefits to “vest.” The military judges’ advice to the

members that said benefits were “vested” materially prej-

udiced the respective appellants. In each case, the mem-

bers were misled into believing that adjudicating punitive

discharges against the appellants would not effect their

ultimate receipt of their veterans benefits.

An accused is entitled to the members receiving a cor-

rect instruction if the military judge endeavors to give

one. Unlike the issue in United States v. Goodwin, 33

M.J. 18 (C.M.A. 1991), the military judges in the cases

at bar gave incorrect instructions, rather than omitted the

instruction regarding the benefits administered by the Vet-

erans’ Administration. Jd. at 19. Accordingly, the mili-

tary judges committed plain error. United States v.

Young, 105 S. Ct. 1038 (1985); United States v. Fisher,

21 M.J. 327 (C.M.A. 1986). The appellants were en-

titled, “and ha[d] a right to a fair trial in accordance with

the Uniform Code of Military Justice” United States v.

Rowe, 11 M.J. 11, 13 (C.M.A. 1981). The judges’ er-

roneous instructions deprived them of this right.

B. The Instructions Violated The Collateral Consequences

Rule

In addition to being just plain incorrect, the military

judges’ instructions on purportedly “vested” benefits clearly

runs afoul of the collateral consequences rule: “The gcn-

eral rule concerning collateral consequences of a sentence

is that ‘courts-martial fare] to concern themselves with the

appropriateness of a particular sentence for an accused

and his offense, without regard to the collateral administra-

tive effects of the penalty under consideration.’” United

States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988). cert.

denied, 487 U.S. 1206 (1988); United States v. Hender-

son, 29 M.J. 221 (C.M.A. 1989); United States v.

Murphy, 26 M.J. 454 (C.M.A. 1988); United States v.

Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195,

198 (1962). Clearly, the instruction in question is solely

5

concerned with collateral administrative consequences,

namely, administrative benefits administered by the Vet-

erans Administration. Under established precedent, there

is simply no reason for a military judge to be getting into

such an area of the law during a sentencing proceeding,

except perhaps, to benefit the government in increasing

the likelihood of a punitive discharge.

C. The Instructions Violated The Equal Protection Clause

Of The 5th Amendment Of The United States

Constitution

Lastly, appellants would also submit that the instruc-

tions given by the military judges also violated the Equal

Protection Clause of the Fifth Amendment since they

ironically placed individuals with previous Honorable Dis-

charges in worse positions than those individuals without

such periods of prior honorable service! In other words,

common sense dictates that a panel would be much more

willing to discharge an individual if it believed that that

individual would not be deprived of his or her veteran’s

benefits. Clearly, the instructions given by the military

judges in the cases sub judice were not designed to benefit

the respective appellants. On the contrary, such an in-

struction could only benefit the prosecution by removing

a psychological barrier to discharging people who are

clearly in need of their Veterans’ Administration benefits.

Accordingly, the dissimilar treatment afforded the peti-

tioners and those individuals without such previous Hon-

orable Discharges violates the Equal Protection clause

of the Fifth Amendment.

6

CONCLUSION

By giving the inaccurate, constitutionally defective in-

structions concerning the collateral administrative conse-

quences of a punitive discharge, the military judges in the

cases sub judice, virtually guaranteed that the respective

appellants would be punitively separated from the Air

Force. These erroneous instructions, which rise to the

level of plain error, will have significant, negative, life

long consequences for each of the appellants concerned.

Consequently, this Honorable Court should grant this peti-

tion for a writ of certiorari and give clear guidance to the

military justice system with regard to the extent that in-

structions to members should be concerned with the col-

lateral, administrative consequences of a criminal convic-

tion.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

ERIC N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

Air Force Legal Services Agency

172 Luke Avenue, Suite 343

Bolling AFB, DC 20332-5113

December 1994 (202) 767-1562