AWOL a felony?

[rebornwrongdoer]

What is the name of your state? North Carolina

Hi I have a question:

Is a conviction at a special court martial considered a felony or misdemeanor? I was convicted of AWOL from 21 Aug 1995 to 28 Nov 1995 a period of 3 months 8 days, and unlawful use of a controlled substance. I had a pta for 45 days confinement. When this case was adjudicated I received a sentence of 90 days confinement and a BCD. North Carolina law considers a term of imprisonment of 1 year or more to be "generally considered a felony." Under the new court martial manual a special court martial can impose a sentence of 1 year but was that the case in 1995?

Second, how can I go about getting some relief from this matter? It seems that I could seek clemency from the Naval Clemency and parole board but from what I understand they no longer have jurisdiction over this matter since the punitive discharge has been executed. I do not foresee the possibility of an upgrade in my discharge so is a Presidential Pardon the only avenue left open with this matter?

Thanks to anyone who can help

 

[bipolardeserter]

call gi rights

These guys can help you,

http://www.objector.org/helpingout/military-regulations.html

phone (888) 236-2226

goood luck!

 

[badapple40]

GI rights are idiots, they give bad advice, and they do not understand the clemency process.

Your SPCM is considered a misdemeanor, based on the date of occurrence.

You can have the BCD upgraded through the discharge review board to a other than honorable. Things that might help the process along is what you've done since being discharged and living a good productive life.

In terms of removing the conviction completely, as you've stated, that will take a presidential pardon.

 

[rebornwrongdoer]

thanks for the reply badapple...where did you get your information so that i can cite it... I am in a legal dispute with the attorney of my county who says that my conviction is a felony..I could really use the information in print so i can give the judge that will hear the case the reading. thanks again for the answers.

 

[badapple40]

You've stated the conviction date and North Carolina law. I didn't look either of those up. I am assuming you are correct.

As for the whether AWOL at a SPCM is a felony, I suggest looking at:

The 2000 edition of the Manual for Court Martial:
http://www.jag.navy.mil/documents/mcm2000.pdf

Look at page 61, Rule for Court-Martial 201(f)(2)(B):

(i) Upon a finding of guilty, special courts-martial
may adjudge, under limitations prescribed by
this Manual, any punishment authorized under
R.C.M. 1003 except death, dishonorable discharge,
dismissal, confinement for more than 6 months, hard
labor without confinement for more than 3 months,
forfeiture of pay exceeding two-thirds pay per month,
or any forfeiture of pay for more than 6 months.

RCM is a collection of executive orders, promulgated by the President of the United States.

Tell the lawyer to look at:
2002, 52 A.F. L. Rev. 213, ARTICLE: Civilian Versus Military Justice in the United States: A Comparative Analysis (concluding that a general court-martial is the equivalent of a felony trial)

Army Lawyer, 2003 Army Law. 17 (equating special court-martials with misdemeanor offenses)

Conviction by Special Courts-Martial: A Felony Conviction?, 15 Fed. Sent. R. 220.

 

[mlq]

The special court-martial is a misdemeanor court.

rebornwrongdoer, I am wondering how your legal dispute turned out. A special court-martial is after all only a misdemeanor court. Anyone with information or documentation regarding the special court-martial being a misdemeanor court please reply.

 

[badapple40]

There is currently significant debate about whether a SPCM conviction is considered a misdemeanor in light of the increased penalties with the 2002 MCM changes -- which authorizes longer punishments for SPCM convictions.

In any event, the OP's conviction occurred in 1995, when there was a lesser penalty -- and to the extent the prosecutor makes the allegation that the current manual applies to that conviction, he needs to go back to law school and re-read about the ex post facto clause (plus the president, in promulgating the '02 MCM changes, specifically set the date that the amendments would go into effect -- further proof it is not meant to be read retroactively).

 

[mlq]

The Special Court-Martial is a misdemeanor court.

Badapple40, Thank you for your response. You are absolutely right. Have you read the U.S. Coast Guard document regarding the 2002 amendments to the Manual for Courts-Martial? It states in part that “THE INTENT OF THE STATUTORY AND MCM INCREASE IN MAXIMUM CONFINEMENT AND FORFEITURE AND/OR FINES AT SPCM IS TO ALIGN SPCM PUNISHMENT LIMITS WITH MISDEMEANOR COURTS AND PRESERVE FELONY LEVEL PUNISHMENTS TO GENERAL COURTS-MARTIAL (GCM).” Copy and paste following link to read the whole document:

http://www.uscg.mil/reserve/msg02/coast225-02.htm

I would love to know what the outcome was with rebornwrongdoer. I am looking for positive case law regarding the special court-martial being a misdemeanor court.

 

[fozzy2]

You might want to check out Turner v. Com., 38 Va. App. 851, 568 S.E. 2d 468. It contains a laundry list of cases from various jurisdictions dealing with the issue of military versus civilian categorizations. In Turner the court held that a general court martial conviction counted as a felony against the appellant, but that the military charge of "housebreaking" had different elements than the analagous state charges and thus did not count as a violent felony for sentencing purposes.

 

[chickenwing]

OP followup

Tonight was interesting. I got a request to join my contacts on messenger and had no idea who this person was but he asked about this post and what happened. So I thought i would jump in and finish this thread off.

Ultimately the dispute i was having was not resolved to my liking. The judge who reviewed the case was unwilling to review anything other than what the county attorney presented. I was informed that I did not have the right to meet the judge to present my case in chambers and that she would not argue my case in open court. Request denied. I am sure that had i been an attorney i would have received an opportunity to meet with the judge and present my case.

The SPCM as it applied in 1995 was only considered a misdemeanor, this is clearly stated in the MCM 1994, 1995 thru 1998 editions. The only test for a crime to be considered a felony is the length of time you could have been incarcerated for. Over one year is a felony by any legal measure. the SPCM in 1995 was only able to confine a person for 6 months. Clearly this does not meet the aforementioned criteria for a felony.

My suggestion to anyone having these issues is to hire an attorney to handle the courts for you. Pro Se is a wonderful thing but the doors that are open to you are limited.

 

[fozzy2]

The problem is that the Manual for Courts Martial is not the controlling law in many circumstances. Some states do apply the definitions found in the MCM in most/all cases. However, how a state "treats" a conviction in another jurisdiction is a matter for the state to decided -- the military definition is not controlling.

For example, many state statutes have language along the lines of "a conviction for an offense in another jurisdiction that would be a felony if committed in this state..." In other words, the state might not care what the military called your crime (felony, misdemeanor, whatever), rather they will look at the offense and determine how they would have treated it. For example, you mentioned possession -- the military might have chosen to give you a special court martial, but if the state decides that you could have been charged with a felony if the state had prosecuted you, then the conviction will be 'treated' as a felony. Military/federal definitions notwithstanding.

This issue appears frequently in sentencing. A lot of people are surprised to find that their special court martial conviction gets treated by the sentencing judge as a prior felony. Similarly, in some "administrative" scenarios (like applying for a state concealed weapon permit) the state's interpretation, not the federal one, will control. Once again, the laws vary by state and even statute.

Because a court martial is a "final conviction in a court of law", the states are then free to interpret the offense as they see fit. Thus, the military might show leniency (or just economy) by giving you a special court martial -- but the state can go ahead and treat it as though you were a felon.

Yes, it can be confusing, but that is part of the cost of our federa/state system of jurisdiction. Consulting a local lawyer, as always, is the advised course of action if you have doubts about your circumstances.