Dumas v. United States

• Decision Date: 16 April 1980
• Docket Number: No. 426-78.,426-78.
• Citation: 620 F.2d 247
• Parties: Randolph E. DUMAS and Fred Tucker v. The UNITED STATES.
• Court: U.S. Claims Court

620 F.2d 247

Randolph E. DUMAS and Fred Tucker v. The UNITED STATES.

No. 426-78.

United States Court of Claims.

April 16, 1980.

Richard P. Fox, Los Angeles, Cal., atty. of record, for plaintiffs. Richard P. Fox and Max Gest, P. C., Los Angeles, Cal., of counsel.

William D. White, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant. Lieutenant Colonel Ludolf R. Kuhnell, III, Springfield, Va., and Captain Robert E. Sutemeier, Washington, D. C., U. S. Air Force, of counsel.

Before KASHIWA, KUNZIG and BENNETT, Judges.

ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

KUNZIG, Judge:

Plaintiffs, as Airmen First Class in the United States Air Force, were charged with wrongful possession of marijuana and accepted nonjudicial punishment from their commanding officer pursuant to Article 15, Uniform Code of Military Justice, 10 U.S.C. § 815 (1976). They were ordered to forfeit $50.00 of their pay for two months and received a suspended reduction in grade. In this court, alleging constitutional defects in the Article 15 proceeding under the fourth, fifth and sixth amendments, plaintiffs demand correction of all records and return of their lost pay. The airmen moved for summary judgment, defendant filed its cross-motion, and the case is now before us for decision. We conclude we have jurisdiction and rule for defendant.

There is no material dispute over the facts of this case nor is there any significant difference between the situation of plaintiff Dumas and plaintiff Tucker. During the evening of January 14, 1976, plaintiffs, then Airmen First Class, (A1C), were riding in a car owned and operated by Airman Plank. At approximately 9:15 p. m. they approached the main gate of Vandenberg Air Force Base, California, where the car was stopped by Air Force security police (A1C Haun) because it did not display a base decal. A1C Haun detected the odor of marijuana coming from the vehicle, ordered the occupants out, and advised them of their rights pursuant to Article 31 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (1976).¹ Upon the arrival of several other Air Force security police, the three individuals were searched. Dumas was found to be in possession of approximately 13.2 grams of marijuana; Tucker had approximately 42.4 grams of marijuana.

On February 5, 1976, plaintiffs were individually notified in writing (Air Force Form 3070) by their commander, Lieutenant Colonel John B. Kerr, Jr., of his intent to impose nonjudicial punishment pursuant to Article 15, UCMJ, 10 U.S.C. § 815 (1976). Plaintiffs were charged with wrongful possession of marijuana at Vanderberg Air Force Base in violation of Article 134, UCMJ, 10 U.S.C. § 934 (1976), the "General Article."² Air Force Form 3070, "Notification of Intent to Impose Nonjudicial Punishment" informed plaintiffs of their option either to accept the nonjudicial punishment of their commanding officer or to refuse nonjudicial punishment and demand a trial by court-marital. The notification also told plaintiffs, inter alia, that they did not have to give any information about the offense charged, that free military legal counsel would be provided to them upon request and if they elected nonjudicial punishment they were entitled to a defense of the charges either in writing, in person, or both, before their commanding officer. Plaintiffs were to indicate their acceptance of nonjudicial punishment or their demand for court-martial by checking the appropriate boxes on page two of Form 3070 and signing it at the bottom.

Plaintiffs chose to retain a civilian attorney for advice and representation. The attorney informed them that while they could demand trial by court-martial, the maximum punishment could be much greater than that under an Article 15, nonjudicial punishment proceeding. Plaintiffs elected to accept nonjudicial punishment and further requested that they be allowed to make a personal presentation before their commander.

Plaintiffs, accompanied by their counsel, made this personal presentation before Lieutenant Colonel Kerr on February 24, 1976. Plaintiffs' attorney argued their fourth amendment rights had been violated by the search under principles established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Lieutenant Colonel Kerr questioned plaintiffs about the circumstances surrounding the incident of January 14, 1976. They answered his questions freely. At the conclusion of plaintiffs' presentation, and after a brief consultation with an Air Force attorney, Lieutenant Colonel Kerr imposed nonjudicial punishment. Each plaintiff received a $50.00 per month forfeiture for two months and a suspended reduction to the grade of Airman. Article 15, UCMJ, 10 U.S.C. § 815(b)(2)(H) (1976), Air Force Regulation (AFR) 111-9 (July 24, 1974).

On February 24, 1976, plaintiffs appealed their punishment to the next superior in the chain of command, Colonel T. N. Mace, who denied the appeal in early April 1976. Plaintiffs then filed separate applications to the Air Force Board for the Correction of Military Records; both applications were denied by letter dated September 27, 1977. Plaintiffs timely filed their petition in this court on September 26, 1978.

Their next step was a motion for summary judgment which makes broad allegations that their constitutional rights were (or arguably could have been) violated. Specifically, it is alleged plaintiffs' search was (or may have been) conducted in violation of the fourth amendment; that their fifth amendment rights against self incrimination were not recognized; and sixth amendment rights to confrontation were denied. It appears, however, that plaintiffs do not directly allege a violation per se of their constitutional rights but, by the end of their briefing, are arguing merely that their commanding officer in his administration of nonjudicial punishment was remiss in not giving adequate consideration to the constitutional objections raised.

Defendant first notes that in previous cases this court has limited its review of Article 15 proceedings to examination of whether applicable regulations were followed. Hagarty v. United States, 196 Ct.Cl. 66, 449 F.2d 352 (1971). Here, there is no question that all pertinent regulations were complied with by the Air Force. Article 15 nonjudicial punishment, defendant emphasizes, is an administrative method Congress has prescribed to deal with minor offenses committed by servicemen. By opting for this method of punishment plaintiffs waived their right to contest the circumstances of their apprehension and punishment with the benefit of the full constitutional protections accorded by a court-martial. Even assuming full constitutional rights apply to an Article 15 proceeding, defendant asserts, the facts demonstrate plaintiffs' constitutional rights were observed.

I.

A brief comment concerning our jurisdiction is appropriate before proceeding to a discussion of the merits of the case. In United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Supreme Court sharply circumscribed this court's jurisdiction to review judgments of courts-martial. Court of Claims jurisdiction is limited because of the finality language of Article 76, UCMJ, 10 U.S.C. § 876 (1976).³ See McDonald v. United States, 205 Ct.Cl. 780, 507 F.2d 1271 (1974); Artis v. United States, 205 Ct.Cl. 732, 506 F.2d 1387 (1974). By its own terms, however, the finality provision of Article 76 applies only to court-martial proceedings. The fundamental character of an Article 15 nonjudicial proceeding, as here, is that it is not a trial by court-martial; plaintiffs expressly chose to forego the court-martial option. Consequently, the bar to review of court-martial proceedings presented by Article 76 in United States v. Augenblick, supra, is not directly applicable to Article 15 proceedings in the Court of Claims.

Accordingly, this court has undertaken review of Article 15 proceedings, Hagarty v. United States, 196 Ct.Cl. 66, 449 F.2d 352 (1971); Conn v. United States, 180 Ct.Cl. 120, 376 F.2d 878 (1967), to determine compliance with controlling regulations. In Hagarty, supra, 196 Ct.Cl. at 85, 449 F.2d at 362, we left open the question of our jurisdiction to review allegations of constitutional defects. In view of the inapplicability of the finality provision of Article 76 to Article 15 proceedings we conclude we have jurisdiction to review plaintiffs' money claims against the United States founded upon the Constitution. 28 U.S.C. § 1491 (1976). See Gross v. United States, 209 Ct.Cl. 70, 531 F.2d 482 (1976). We raise this point sua sponte, simply to illustrate that in the case at bar Augenblick is not controlling; neither party has sought to contest our jurisdiction.

II.

A general discussion of the nature and function of Article 15 nonjudicial punishment and a review of two pertinent Supreme Court cases, Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) and Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), should also precede analysis of the constitutional arguments raised by plaintiffs.

In the Uniform Code of Military Justice Congress has set forth four methods for disposing of cases involving offenses by servicemen: the general, special, and summary courts-martial and disciplinary punishment administered by the accused's commanding officer pursuant to Article 15, UCMJ, 10 U.S.C. § 815 (1976). The general and special courts-martial are essentially full judicial proceedings, presided over by lawyer judges with counsel for both the prosecution and defense. General courts-martial are authorized to award any lawful sentence, including death. Article 18, UCMJ, 10 U.S.C. § 818 (1976). The range of punishments available under a proceeding becomes more restricted and comparatively milder as procedures become less formally judicial in nature. For...