CAAFlog » Veterans Law

In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.

The appellant’s misconduct primarily involved this gruesome incident:

On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:

I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.

The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.

The appellant and his wife then took CW to the hospital. . .

Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:

The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.

After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.

After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”

Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.

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A year ago, in a post titled: A service member facing involuntary administrative separation is entitled to “qualified counsel,” not the “effective assistance of counsel,” I wrote about a decision of the Court of Federal Claims in Helferty v. United States, No. 11-358C, __ Fed.Cl. __ (Nov. 15, 2013) (link to slip op.).

Mr. Helferty has appealed to the Court of Appeals for the Federal Circuit, and that court recently heard oral argument in the case. Audio of the oral argument is available here.

Update (December 9, 2014): The Federal Circuit has summarily affirmed the decision of the Court of Federal Claims. The decision is available here.

On Monday the Court of Appeals for the Federal Circuit rejected a claim for veterans’ benefits by a petitioner who twice went UA from the Army during the Vietnam era, leading first to a special court-martial, and then to a general court-martial where he received a bad-conduct discharge. Prior to his discharge he suffered hearing loss while working with artillery, was hospitalized, and was issued a hearing aid. After his discharge he sought veterans’ benefits for his hearing loss, but the VA denied the claim due to the circumstances of his discharge. The petitioner then participated in President Ford’s clemency program, leading to a clemency discharge and a full pardon, and reapplied for benefits. But the VA again denied the claim, and the Court of Appeals for Veterans Claims affirmed, based on the underlying misconduct. The Federal Circuit affirms the Veterans Court.

The case is Robertson v. Gibson, No. 2013–7103, __ F.3d. __ (Fed. Cir. Jul. 21, 2014) (link to slip op.).

The opinion begins with a history lesson about the clemency program:

On September 16, 1974, six weeks after taking office, President Ford announced “a Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” Proclamation 4313, 39 Fed. Reg. 33,293, 33,293–95 (Sept. 17, 1974). Its stated purpose was “to bind the Nation’s wounds and to heal the scars of divisiveness” inflicted upon American society during the Vietnam War. Id. at 33,293. Accordingly, President Ford declared that Vietnam-era military deserters and draft evaders would be given “the opportunity to earn return to their country, their communities, and their families, upon their agreement to a period of alternate service in the national interest, together with an acknowledgment of their allegiance to the country and its Constitution.” Id. The President’s program was carefully crafted, recognizing that “[u]nconditional amnesty would have created more ill feeling than it would have eased. Reconciliation was what was needed, and reconciliation could only [have] come from a reasoned middle ground.” PCB Report 1.

Slip op. at 3. The petitioner participated in the program and received “full pardon pursuant to an executive grant of conditional clemency.” Slip op. at 8. He “relies heavily on the fact that the document [he recieved] contains the phrase ‘full pardon.'” Slip op. at 11. But the court finds that “when read in context, there can be little doubt that Mr. Robertson’s pardon was intended to have limited effect with respect to his entitlement to veterans’ benefits.” Slip op. at 13. It notes that the petitioner “had not previously acquired any right to veterans’ benefits at the time of his pardon. In fact, whether Mr. Robertson might have been eligible for veterans’ benefits absent his 1967 AWOL conviction is entirely speculative because he had nearly a year remaining on his term of service at the time of his discharge.” Slip op. at 14. And it finds that under President Ford’s clemency program, “entitlement to veterans’ benefits under the program was meant to be the exception, not the rule.” Slip op. at 14.

The court concludes:

Nevertheless, pardoned individuals, like Mr. Robertson, remained eligible to apply for benefits from the VA and to appeal if the VA denied their applications. PCB Report 13. Similarly, applicants remained eligible to seek further upgrades to their discharge statuses from the appropriate military review boards. Id.; see also 10 U.S.C. § 1552 (1970). In fact, Mr. Robertson sought such an upgrade, but the ABCMR noted that “his record of service . . . did not meet the standards of acceptable conduct and performance of duty for Army personnel for the Board to grant his current request.” J.A. 574.

Slip op. at 15.

In a published opinion written by Judge Floyd in United States v. Grant, No. 13-4302, 753 F.3d 480 (4th. Cir. Jun 3. 2014) (link to slip op.), the Fourth Circuit affirms the decision of a federal district court in South Carolina to use a court-martial conviction to classify a defendant under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

The appellant – Freddie Grant – pleaded guilty in South Carolina state court to the kidnapping and murder of Gabrielle Swainson, receiving concurrent 30-year sentences without parole, after leading investigators to the site of the girl’s body (link to local media report of the plea deal). But before the plea, Grant’s home was searched and police found two boxes of ammunition. A federal grand jury then indicted Grant as a felon in possession of ammunition (see 18 U.S.C.  § 922(g)), and he was convicted by a federal district court after a jury in January 15, 2013. 

“A probation officer prepared a Presentence Investigation Report (PSR), which identified Grant as an armed career criminal due to two convictions for violent felonies and one conviction for possession with intent to distribute cocaine.” Slip op. at 3. The Armed Career Criminal Act requires a mandatory minimum sentence of 15 years imprisonment for anyone who violates § 922(g) and “has three previous convictions by any court referred to in section 922 (g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e). According to the PSR, in Grant’s case these three previous convictions included a 1980 general court-martial, where Grant was convicted of assault by inflicting grievous bodily harm in violation of Article 128 and of kidnapping in violation of Article 134 (the drug conviction was unrelated and not at issue in the appeal). “Due to these convictions, Grant was dishonorably discharged from the Army and sentenced to eight years and nine months’ hard labor at the United States Disciplinary Barracks in Fort Leavenworth, Kansas.” Slip op. at 4.

It isn’t clear what the federal sentence guideline range for Grant would have been without classification as an armed career criminal, but with that classification he faced a range of 188-235 months for the offense of being a felon in possession of ammunition. He was sentenced to imprisonment for 212 months. On appeal, he asserted that the court-martial convictions are not predicate convictions under the ACCA.

Grant’s argument was based on the reference to “any court” in  § 924(e). He asserted that this term does not include a general court-martial, analogizing a court-martial to a foreign court. In Small v. United States, 544 U.S. 385 (2005) (Oyez case page), a majority of the Supreme Court determined that Congess’ use of the term “any court” in § 922(g) was not intended to encompass foreign courts. Grant’s argument, as presented by Judge Floyd, is that:

just as there are differences between foreign and domestic courts that justify not precluding individuals from possessing firearms based on their foreign convictions, there are also differences between general courts-martial and civilian courts that warrant not classifying individuals as armed career criminals due to their military convictions. In essence, Grant contends that these differences render courts-martial, like foreign courts, “inconsistent with an American understanding of fairness.” Small, 544 U.S. at 389.

Slip op. at 7. I also pulled Grant’s opening brief from PACER. It is available here.

But in rejecting Grant’s argument and affirming the armed career criminal classification, the Fourth Circuit employs its view of Congress’ intent more than any other factor.

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So finds the Court of Federal Claims in its decision in Helferty v. United States, No. 11-358C, __ Fed.Cl. __ (Nov. 15, 2013) (link to slip op.).

In 2005, Mr. Helferty was a 16-year enlisted member of the Navy who had risen to Aviation Ordnanceman First Class (E-6). In June of that year he was serving as a Substance Abuse Rehabilitation Program Counselor at the Naval Branch Clinic in Key West, FL, when he tested positive for the metabolite of cocaine during a random urinalysis. Mr. Helferty was offered and refused nonjudicial punishment, and was then processed for involuntary administrative separation.

Mr. Helferty was assigned military defense counsel, then-Lieutenant Spencer, JAG Corps, U.S. Navy. LT Spencer represented Mr. Helferty before an administrative discharge board conducted on September 27, 2005. The Government’s case consisted of the positive urinalysis. Mr. Helferty’s case consisted of his performance evaluations, a character statement from Mr. Helferty’s supervisor, evidence about prior errors at the drug testing laboratory, an unsworn statement from Mr. Helferty, and the results of a polygraph examination taken by Mr. Helferty at his own expense. “The proceeding lasted 55 minutes. The board deliberated for 45 minutes and returned a unanimous decision finding that the preponderance of the evidence supported drug abuse. They unanimously recommended separation via a general discharge.” Helferty, slip op. at 5 (citations to record omitted).

A year later, in October 2006, Mr. Helferty petitioned the Board for Correction of Naval Records (BCNR). Mr. Helferty alleged numerous errors, including that he received ineffective assistance of counsel from LT Spencer during the administrative board proceedings. The BCNR considered this assertion, applied the Strickland standard, and denied Mr. Helferty’s claim.

In Strickland v. Washington, 466 U.S. 668, 685-86 (1984), the Supreme Court explained that a person accused of a federal or state crime “is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair,” and that “the right to counsel is the right to the effective assistance of counsel.” The Court then established a two-part test for ineffective assistance of counsel: (1) that the counsel’s performance was so deficient that he was not functioning as counsel guaranteed by the Sixth Amendment (meaning that his performance fell measurably below an objective standard of reasonableness), and (2) that this deficient performance prejudiced the defense (meaning that but for the deficiency, the result would have been different). The client/appellant has the burden to prove both parts of the test.

In the military, administrative discharge boards are serious proceedings with lifelong consequences, and service members are detailed qualified military defense counsel to represent them before such boards. But whether a service member is entitled to “effective assistance of counsel” during such proceedings, and whether such a service member may complain of ineffective assistance under the Strickland standard, is a big question.

Until now.

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In a recent decision, the Court of Appeals for the Federal Circuit considers the factually-similar cases of two female veterans – identified only by their initials: “AZ” and “AY” – seeking disability compensation for post-traumatic stress disorder (PTSD) they assert was the result of in-service sexual assaults that they did not report to authorities. Reversing decisions that denied benefits to the veterans, the Court of Appeals finds that failure to report a sexual assault is not admissible as evidence that the sexual assault did not occur.

AZ served honorably on active duty for just over a year in 1973-74 and was pregnant when she left active duty. In 2004 she was diagnosed with mental health problems including PTSD. AZ claims her PTSD was caused by sexual and physical abuse by the father of her child, a Sergeant, who impregnated her in early-1974. She did not report the sexual assault to military or civilian authorities and her service records contain no evidence of a sexual assault. However, there is evidence that AZ made a contemporaneous report to family members. But there are also records of disciplinary problems predating the alleged assault, and evidence of post-service stressors.

AY served honorably on active duty for three years from 1980-1983. She was diagnosed with PTSD in 2004. AY claims her PTSD was caused by a sexual assault committed by another soldier during her military training. She did not report the sexual assault to military or civilian authorities and her service records contain no evidence of a sexual assault. However, there is evidence that AY made a contemporaneous report to other individuals. But there are also records that contradict certain aspects of her claim (such as dispute over an asserted post-assault change in her demeanor).

Both women filed claims with the Department of Veterans Affairs (“VA”) in 2004. The VA’s Regional Office (“RO”) denied the claims because the women’s service records did not document any sexual assault. Both requested reconsideration, presenting additional evidence, and were again denied. Both appealed to the Board of Veterans’ Claims (“Board”), which denied their claims noting the lack of corroborating service records and the existence of contradictory evidence in each woman’s service record. Both then appealed to the Court of Appeals for Veterans Claims (“Veterans Court”), which denied their appeals and affirmed the decisions of the Board based on the Board’s weighing of the evidence and its consideration of the lack of corroborating service records.

Both women appealed the decisions of the Veterans Court to the Court of Appeals for the Federal Circuit. In a combined opinion authored by Judge Dyk and dated September 30, 2013, a majority of a three judge panel of the Court of Appeals decides that:

the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur. We further hold that the Board and Veterans Court may not rely on a veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur.

AZ v. Shinseki, No 2012-7046, __ F.3d. __, slip op. at 3 (Fed.Cir. Sept. 30, 2013) (slip op. here). One judge dissents, writing:

The majority adopts a general, categorical rule of law that, at least in the military, when a person claims sexual assault years after the alleged incident, the absence of a contemporaneous report to officials able to act against the alleged perpetrator is irrelevant to assessing the credibility of the claim. According to the majority, failure to report a sexual assault is not relevant to whether or not the assault took place. The majority is wrong. AZ and AY are sympathetic claimants, but our jurisdiction prevents us from reviewing fact findings or even applications of law to fact.

Id., Moore, J. dissenting op. at 2.

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We’ve followed the case of former Navy LT Roger House, who — along with two other officers — was convicted at a court-martial based in part on fraudulent DNA analysis by former USACIL analyst Phillip Mills.  Among other things, the case is a justification for judicial review of sub-jurisdictional cases, since an appeal of his conviction would have likely resulted in its reversal while his Article 69 appeal resulted in an unjust affirmance of offenses about which Mills testified.  Only an extraordinary — and legally questionable — decision by the Judge Advocate General of the Navy granting a petition for new trial finally vindicated LT House seven years after his unjust conviction.  But for the dogged work of his tenacious civilian counsel — John B. Wells — that vindication might never have come.

On Friday, the Court of Federal Claims released this published opinion in LT House’s case denying his claim for back pay at the rate to which he would have been promoted (O-4) but for the conviction.  The opinion was written by Judge Francis M. Allegra, a Clinton appointee.  Judge Allegra concluded that LT House’s retirement following his court-martial conviction — upon receiving advice that his career was over as a result of the conviction — was a voluntary termination of his military status, thus precluding relief under the Military Pay Act.

The decisional issue in the case was “whether Mr. Mills’ wrongful conduct – and the apparently wrongful conviction triggered by his false (or at least inaccurate) testimony – obliges this court to treat Lieutenant House’s separation as involuntary.”  No, held the court.  Applying the Court of Claims’ landmark decision in Christie v. United States, , 518 F.2d 584, 587 (Ct. Cl. 1975), Judge Allegra observed that “a plaintiff seeking to show that his resignation was the result of duress or coercion must show that: (i) he involuntarily accepted the terms of the government; (ii) circumstances permitted no other alternative; and (iii) said circumstances were the result of the government’s coercive acts.”  Judge Allegra rejected some other cases’ suggestion that that three-part test is inapplicable where the government engaged in misconduct.  In his view, to prevail, a plaintiff must demonstrate that the government’s “wrongful conduct left him with no alternative other than to retire or resign.”  He concluded that LT House had viable options other than to retire, thus foreclosing relief:

Undoubtedly, Lieutenant House’s wrongful conviction left him with unpleasant options and perhaps justified his conclusion that the best route was for him to retire. But, the question here is not whether resignation was the best option, but whether it was the only option. And the record requires the court to answer the latter question in the negative. Indeed, despite the injustice that Lieutenant House suffered, it cannot be overlooked that, at the time he retired, he no longer faced the possibility of imprisonment or expulsion from the service, and had been recommended for promotion. While, for reasons discussed in greater detail below, that promotion was delayed, it remains that, at the time of his retirement, the promotion was still under review and a distinct possibility. Lieutenant House, moreover, hardly went down without a fight – after his retirement, he pursued every avenue for appealing his conviction, culminating in the Supreme Court denying his petition for certiorari in 2006. Lieutenant House could have pursued these appeals while still an active member of the Navy, perhaps forestalling any discharge until all his convictions were overturned. For reasons unexplained, he chose not to do this – a choice that is understandable under the circumstances, but a choice, nevertheless. Accordingly, the court finds that the BCNR properly found that Lieutenant House’s resignation was voluntary, thereby precluding him from being reinstated as of the date of his resignation and receiving back pay.

Judge Allegra added:  “Since plaintiff has not proven he is entitled to reinstatement and back pay, a fortiori, his claim for promotion to Lieutenant Commander also fails, at least to the extent that it is for the period following the effective date of his resignation.”

Judge Allegra concluded his opinion with this philosophical observation:

Undoubtedly, the result here will leave plaintiff dissatisfied. His reputation has largely been restored. The emoluments associated therewith have not. Some might view this seeming incongruency as a blunt metaphor for the limitations of the law; others might see the same results as reflecting the court’s inability to relieve a party of a self-created hardship. Either way, this court is not free to stray from the decisional path here, even to accommodate the perceived equities of a given case, particularly where that path is so well marked by the stanchions of sovereign immunity and the saddle bars of precedent.


On 15 November, Judge Block of the United States Court of Federal Claims rendered a mixed decision on a pro se collateral challenge to a court-martial conviction. Lowe v. United States, No. 06-121C, 2007 U.S. Claims LEXIS 363 (Ct. Fed. Cl. Nov. 15, 2007). (The case produced a published opinion dealing with ineffective assistance of post-trial counsel from the Navy-Marine Corps Court on direct review. United States v. Lowe, 50 M.J. 654 (N-M. Ct. Crim. App. 1999)).

Here’s the most interesting question that the case presents: can a servicemember confined as the result of a court-martial conviction whose punitive discharge has not yet been executed invoke the tolling provisions of the Service members’ Civil Relief Act (SCRA) to file a Tucker Act action collaterally challenging beyond the six-year statute of limitations? Yes, rules Judge Block.

Judge Block frames the decisional issue as whether confinement pursuant to a court-martial conviction is “military service.” If so, then the SCRA tolls the Tucker Act’s statute of limitations until the court-martial convict is actually discharge.

Judge Block concludes that service of confinement in a military facility as the result of a court-martial conviction is military service, reasoning:

[P]laintiff was not absent during the period of his military confinement but instead was present, in military custody, at the bases to which he was assigned by the Marine Corps. Furthermore, . . . plaintiff remained on active duty during his military confinement because he had neither received his final pay nor was his DD Form 214 “ready for delivery.” One can hardly consider plaintiff’s confinement as not being “service connected” 00 which this Court believes is the test for “active duty.” Simply put, plaintiff was convicted and incarcerated for violations of the UCMJ relating to his actions while he served on active duty. For this Court to accept defendant’s argument would be to denigrate the crucial role that law and regulation play in military discipline. Further, there exists a constitutional component to the Court’s position. Failing to recognize that a service member is on active duty, even when incarcerated in the “brig” for violations of military law, until officially separated or discharged, ignores the near-plenary power that the Constitution delegates to Congress “to make Rules for the Government and the Regulation of the land and naval forces . . . .” U.S. Const., art. I, § 8, cl. 14. The Constitution clearly envisioned the promulgation of a special system of military justice, and this system has indeed become an essential part of the American military. See O’Callahan, 395 U.S. at 262-62. It can hardly be said that those service members subject to that system — even when tried, convicted, and incarcerated under military law — are not engaging in activities that are “service connected.”

Lowe v. United States, No. 06-121C, slip op. at 11 (some internal citations omitted).

What do you think? Did Judge Block get it right?