B-155308, MAR. 11, 1965

B-155308, MAR. 11, 1965

TO MR. ISMAEL RUBERO PEREZ, NO. 10456:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1965, AGAIN PROTESTING THE ACTION OF THE DEPARTMENT OF THE ARMY AND THIS OFFICE IN DENYING YOUR CLAIM FOR LONGEVITY PAY FOR PERIODS PRIOR TO YOUR DISCHARGE FROM THE ARMY ON SEPTEMBER 8, 1955, WHILE YOU WERE ABSENT WITHOUT LEAVE FROM YOUR DUTY STATION OR IN CONFINEMENT. IN OUR LETTER OF NOVEMBER 23, 1964, B-155308, WE EXPLAINED WHY YOU ARE NOT ENTITLED TO THE LONGEVITY PAY CLAIMED.

YOU NOW RAISE A QUESTION AS TO WHETHER YOU WERE GIVEN A FAIR AND IMPARTIAL HEARING DURING COURT-MARTIAL PROCEEDINGS BROUGHT AGAINST YOU AND WHETHER THIS QUESTION SHOULD BE SUBMITTED TO A JURY FOR DETERMINATION.

COURTS-MARTIAL ARE GOVERNED BY THE UNIFORM CODE OF MILITARY JUSTICE WHICH IS, IN PART, AS FOLLOWS (QUOTING FROM CHAPTER 47, TITLE 10, U.S. CODE, SECTION 876):

"THE APPELLATE REVIEW OF RECORDS OF TRIAL PROVIDED BY THIS CHAPTER, THE PROCEEDINGS, FINDINGS, AND SENTENCES OF COURTS-MARTIAL AS APPROVED, REVIEWED, OR AFFIRMED AS REQUIRED BY THIS CHAPTER, AND ALL DISMISSALS AND DISCHARGES CARRIED INTO EXECUTION UNDER SENTENCES BY COURTS-MARTIAL FOLLOWING APPROVAL, REVIEW, OR AFFIRMATION AS REQUIRED BY THIS CHAPTER, ARE FINAL AND CONCLUSIVE. ORDERS PUBLISHING THE PROCEEDINGS OF COURTS- MARTIAL AND ALL ACTION TAKEN PURSUANT TO THOSE PROCEEDINGS ARE BINDING UPON ALL DEPARTMENTS, COURTS, AGENCIES, AND OFFICERS OF THE UNITED STATES, SUBJECT ONLY TO ACTION UPON A PETITION FOR A NEW TRIAL AS PROVIDED IN SECTION 873 OF THIS TITLE (ARTICLE 73) AND TO ACTION BY THE SECRETARY CONCERNED AS PROVIDED IN SECTION 874 OF THIS TITLE (ARTICLE 74) AND THE AUTHORITY OF THE PRESIDENT.'

THE NEW TRIAL UNDER SECTION 873 REFERRED TO ABOVE, IS AUTHORIZED ONLY IN CASES WHERE THE COURT-MARTIAL SENTENCE EXTENDS TO DEATH, DISMISSAL OF AN OFFICER, DISHONORABLE OR BAD CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE. SINCE THE SENTENCE IMPOSED ON YOU BY EACH COURT-MARTIAL WAS LESS THAN ANY OF THOSE ENUMERATED IN SECTION 873, THE AUTHORIZATION FOR PETITION FOR A NEW TRIAL PROVIDED IN THAT SECTION IS NOT APPLICABLE IN YOUR CASE. UNDER SECTION 874, ALSO REFERRED TO IN THE ABOVE-QUOTED SECTION, THE SECRETARY OF THE DEPARTMENT CONCERNED IS AUTHORIZED TO REMIT OR SUSPEND ANY PART OF AN UNEXECUTED SENTENCE OR, FOR GOOD CAUSE, TO SUBSTITUTE AN ADMINISTRATIVE FORM OF DISCHARGE FOR A DISCHARGE OR DISMISSAL EXECUTED IN ACCORDANCE WITH A COURT-MARTIAL SENTENCE. SINCE YOUR COURT-MARTIAL SENTENCES HAVE BEEN EXECUTED AND IT IS NOT SHOWN THAT YOU WERE DISCHARGED PURSUANT TO A COURT-MARTIAL SENTENCE, IT APPEARS THE PROVISION OF SECTION 874 ALSO IS INAPPLICABLE IN YOUR CASE.

THE CIVILIAN COURTS HAVE UNIFORMLY HELD THAT THE JUDGMENT OF A COURT MARTIAL ACTING WITHIN ITS JURISDICTION IS FINAL AND CONCLUSIVE AND MAY NOT BE COLLATERALLY ATTACKED.