US ex rel. New v. Perry, Civil A. No. 96-0033 PLF.

• Citation: 919 F. Supp. 491
• Decision Date: 28 March 1996
• Docket Number: Civil A. No. 96-0033 PLF.
• Parties: The UNITED STATES ex rel. Michael G. NEW, Petitioner, v. William PERRY and Togo West, Respondents.
• Court: U.S. District Court — District of Columbia

919 F. Supp. 491

The UNITED STATES ex rel. Michael G. NEW, Petitioner, v. William PERRY and Togo West, Respondents.

Civil A. No. 96-0033 PLF.

United States District Court, District of Columbia.

March 28, 1996.

Michael P. Farris, Purcellville, VA, Herbert W. Titus, Troy A. Titus, P.C., Virginia Beach, VA and Ronald D. Ray, Crestwood, KY, for petitioner.

Robert Shapiro, Assistant U.S. Attorney, Washington, DC, for respondents.

OPINION AND ORDER

FRIEDMAN, District Judge.

Army Specialist Michael G. New voluntarily enlisted in the United States Armed Forces for an eight year term, four of which were to be served in the "Regular component of those forces," beginning on February 18, 1993. Pet.'s Ex. A, Enlistment Agreement. On January 13, 1996, just under three years after he reported for duty, Specialist New asked this Court to halt pending court martial proceedings against him and to remove him from the jurisdiction of the military justice system. The court martial concerned Michael New's refusal to comply with an order to appear in military formation on October 10, 1995, wearing a United Nations' cap and shoulder patch on his uniform in preparation for deployment as a member of a United Nations Peacekeeping Force in the former Yugoslav Republic of Macedonia. Pet.'s Ex. E, Charge Sheet.

Specialist New refused to obey the order because he contended that it was unlawful for him to wear the badges or accept the office of a foreign government. He sought an emergency stay of the court martial in this Court, arguing that the combination of wearing United Nations' accouterments on his uniform, carrying United Nations' identification, serving under United Nations' operational control and being subject to new codes of conduct and protections would transform him from his status as a member of the United States Armed Forces into that of a member of a United Nations force. Imposing this transformation in status upon him, he argued, breached his enlistment contract and, as a result of the breach, restored him to civilian status, making him no longer subject to court martial. Specialist New also contended that the order deploying him to the Republic of Macedonia was illegal because the United Nations Participation Act of 1945, as amended, 22 U.S.C. § 287, does not permit the President of the United States to deploy troops to serve under foreign command without the consent of Congress. In addition to his motion for an emergency stay of the court martial, Specialist New petitioned the Court for a writ of habeas corpus and an honorable discharge from the Army. The Court refused to interrupt the court martial proceeding and denied the motion for a stay. It now considers Specialist New's petition for a writ of habeas corpus.

I. BACKGROUND

Michael G. New reported for active duty on February 18, 1993. Pet.'s Ex. A. He received basic training at Fort Leonard Wood, Missouri, and Medical Specialist training at Fort Sam Houston in Houston, Texas. Thereafter, Specialist New was assigned to Fort Bliss, Texas, and deployed for two months to Kuwait. In July 1995, Specialist New was assigned to the Federal Republic of Germany as a Medical Specialist.

On August 21, 1995, Specialist New was informed that his unit was to be deployed in October 1995 to the Republic of Macedonia as part of a United Nations Peacekeeping Force. Members of his unit were told that they would be required to wear the shoulder patch and headgear of the United Nations throughout the deployment. Specialist New, believing the order was unlawful, informed his squad leader and platoon leader that he would not wear U.N. insignia until he was provided with constitutional authority for the order.

Specialist New was ordered to examine the United Nations Charter, its history and objectives and to rethink his position. On September 6, 1995, he was counseled by three non-commissioned officers in his chain of command. He was informed that the U.N. arm patch and headgear served to distinguish United States soldiers from warring factions in the Republic of Macedonia and that he would be subject to discipline if he disobeyed the order to wear such accouterments. Resp.'s Exs. 1-4, Counseling Reports. On September 19, 1995, Specialist New submitted a statement to superior officers in his chain of command indicating that he viewed the U.N. Charter to be inconsistent with the United States Constitution and his oath of enlistment. He wrote in relevant part:

2. ... I interpret the wearing of a uniform, or the accouterments of a uniform, as a sign of allegiance and faithfulness to the authority or power so signified or which issues that uniform. I am an American who was recruited for and voluntarily joined the U.S. Army to serve as an American soldier. I am not a citizen of the United Nations. I am not a United Nations Fighting Person. I have never taken an oath to the United Nations, but I have taken the required oath to support and defend the Constitution of the United States of America.

3. I am not trying to avoid a difficult or dangerous assignment or to get out of the Army. I served in Kuwait last year and have offered to serve anywhere in the world, in my American uniform, in the capacity as a U.S. Army medic under American command and U.S. Constitutional protections. I have worked diligently to be a good soldier, and have received early promotion and recognition for my efforts. ... In order to avoid controversy or to avoid placing the Army in a bad light, I have requested a transfer to a unit that is not required to wear the U.N. uniform. I was told that such was not possible and I was even reluctantly willing to accept an honorable discharge, and I was willing to sadly and reluctantly withdraw from the U.S. Army quietly. That request was also denied. However, I will not wear a UN sic uniform or serve under UN sic Command, and I will strongly contest any discharge that is less than honorable.

Pet.'s Ex. C, Statement of Michael New.

On October 2, 1995, Specialist New and the rest of his battalion attended an "Information Briefing" on the legal bases for the deployment of American troops to the former Yugoslav Republic of Macedonia as part of the United Nations Peacekeeping Force. The soldiers who were being deployed to the Republic of Macedonia were ordered to appear in formation on October 10, 1995, in the uniform specified for the deployment, i.e., bearing U.N. arm patches and headgear. Resp.'s Ex. 5, Statement of Stephen Layfield. That order was repeated at a military company formation on October 4, 1995. Resp.'s Ex. 6, Statement of Roger H. Palmateer.

Specialist New appeared in formation on October 10, 1995, but did not wear the prescribed uniform. He was charged with failing to obey a direct, lawful order, a violation of Article 92 of the Uniform Code of Military Justice. Pet.'s Ex. E, Charge Sheet. Specialist New was arraigned on November 17, 1995. He moved to dismiss the charges against him, arguing that the order was unlawful and raising many of the same arguments contained in his petition for a writ of habeas corpus. See Pet.'s Exs. H and J, Memoranda in Support of Motion to Dismiss. On January 16, 1996, he moved in this Court for an emergency stay of the court martial and petitioned for a writ of habeas corpus. The Court heard oral argument and denied the motion for a stay because the novelty of Specialist New's arguments led the Court to conclude that Michael New was unable to demonstrate a likelihood of success on the merits of his petition, because he was unable to demonstrate any risk of irreparable harm and because the public interest clearly lay in permitting the court martial proceeding to go forward. Memorandum Opinion and Order of January 16, 1996.

After a court martial proceeding on the merits, Specialist New was sentenced to a bad-conduct discharge. Resp.'s Exs. 8 and 9, Findings and Sentence Worksheets. Review of the court martial decision by the Army Court of Criminal Appeals has not yet occurred. After that appeal, Specialist New may seek discretionary review in the Court of Appeals for the Armed Forces, which is composed of civilian judges, and, possibly, in the United States Supreme Court (although the Supreme Court will not consider a petition for certiorari if the Court of Appeals for the Armed Forces denies the petition to review). In the meantime, Specialist New remains on active duty, is not incarcerated and continues to receive his standard pay. Resp.'s Ex. 10, Declaration of Gregory T. Baldwin; Resp.'s Ex. 11, Affidavit of Chris Cassin. He is working, however, as a file clerk rather than as a Medical Specialist.

Specialist New seeks dismissal of the charges against him on the grounds that the unlawful orders changed his status such that he is a civilian and not subject to court martial. He seeks a release from the remaining five years of his term of enlistment by way of an honorable discharge from the Army. The United States insists that Specialist New is a member of the Armed Forces until the Army releases him from his commitment and that the Court therefore should refrain from dealing with the merits of petitioner's arguments and let the military justice system proceed unhindered.

II. JURISDICTION

Article I of the Constitution authorizes Congress to subject persons in the military to trial by court martial for military offenses. Toth v. Quarles, 350 U.S. 11, 14, 76 S.Ct. 1, 3, 100 L.Ed. 8 (1955). Military courts "have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights." Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953). Civilians, however, are entitled to have the benefit of additional safeguards afforded those tried in civil courts authorized by Article III of the Constitution. Civilians may not be subjected to trial by court martial. Toth v. Quarles, 350 U.S. at 23, 76 S.Ct. at 8; McElroy v. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4...