Annual Report of the Code Committee on Military Justice for FY 2005

The Army is currently defending <strong>the</strong> historical practice <strong>of</strong> allowingline <strong>of</strong>ficers to defend Soldiers at special courts-martial. In Payne v.Secretary <strong>of</strong> <strong>the</strong> Army, <strong>the</strong> plaintiff filed suit in <strong>the</strong> United StatesDistrict Court for <strong>the</strong> District <strong>of</strong> Columbia challenging <strong>the</strong> qualifications<strong>of</strong> his non-attorney defense counsel. Mr. Payne, a former Army enlistedSoldier, was convicted <strong>of</strong> negligent homicide at a special court-martial inNovember 1960. He was represented by a military defense counsel who wasnot an attorney. This practice is consistent with Article 19, UCMJ, whichprovides that military defense counsel at a special court-martial need notbe attorneys as long as <strong>the</strong> sentence does not exceed six months confinementor forfeiture <strong>of</strong> more than two-thirds pay per month for six months.Plaintiff petitioned <strong>the</strong> ABCMR in 1992, and again in 2004, challenging <strong>the</strong>qualifications <strong>of</strong> his defense counsel, but he was denied relief. He hasfiled suit claiming that he was denied his Sixth Amendment right to counseland challenging <strong>the</strong> ABCMR’s denial <strong>of</strong> relief. The government has filed amotion to dismiss, arguing that: (1) plaintiff’s claim is barred by <strong>the</strong>statute <strong>of</strong> limitation; (2) his military defense counsel satisfiedconstitutional requirements; and, (3) <strong>the</strong> ABCMR lacked <strong>the</strong> authority tooverturn plaintiff’s court-martial conviction. A decision on <strong>the</strong>government’s motion is pending.In a highly-publicized case that has lingered for many years, MichaelNew continues to challenge his court-martial conviction. In December 2004,in New v. Secretary <strong>of</strong> Defense, <strong>the</strong> United States District Court for <strong>the</strong>District <strong>of</strong> Columbia dismissed New’s challenge to his court-martialconviction for refusing to wear <strong>the</strong> proper uniform. SPC New was tried bycourt-martial in 1996 for refusing to wear <strong>the</strong> United Nations insignia onhis uniform during preparation for deployment to Macedonia. He wasconvicted <strong>of</strong> disobeying a lawful order and sentenced to a bad-conductdischarge. Military appellate courts affirmed <strong>the</strong> conviction. Mr. New<strong>the</strong>n sued in district court, challenging his court-martial conviction on<strong>the</strong> basis that <strong>the</strong> order to wear <strong>the</strong> UN insignia was unlawful. The courtagreed with <strong>the</strong> Army that <strong>the</strong> important issues raised by New had been fullylitigated in <strong>the</strong> military proceedings and were thus non-reviewable. Thedistrict court also found his o<strong>the</strong>r challenges were ei<strong>the</strong>r barred by <strong>the</strong>political question doctrine or were meritless. New appealed <strong>the</strong> districtcourt’s dismissal <strong>of</strong> his complaint to <strong>the</strong> Court <strong>of</strong> Appeals for <strong>the</strong> District<strong>of</strong> Columbia Circuit. Appellate briefs have been filed and <strong>the</strong> case ispending.The Army successfully defended against a double-jeopardy claim by anArmy physician who was court-martialed after entering into a pretrialdiversion program with <strong>the</strong> D.C. Corporation Counsel for <strong>the</strong> samemisconduct. On 31 March 2005, <strong>the</strong> United States Court <strong>of</strong> Federal Claimsgranted summary judgment to <strong>the</strong> Army in Ragard v. Army after concludingthat plaintiff’s constitutional rights were not abridged by his courtmartialconviction. On 14 October 1997, CPT Ragard was arrested by anational park police <strong>of</strong>ficer in Washington, D.C., for engaging in oral sexin a public place. After plaintiff’s arrest, <strong>the</strong> Office <strong>of</strong> <strong>the</strong> D.C.12