# Petition for Writ of Certiorari — McElroy v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1195%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1192

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1195%3A1. Public record. Not legal advice.