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COTHRAN v. DALTON

December 20, 1999

JOHN R. COTHRAN, PLAINTIFF,
v.
JOHN H. DALTON, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Flannery, District Judge.

MEMORANDUM OPINION

I. Introduction

As relief, plaintiff asks the Court to (1) declare defendant's actions to have been arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, and otherwise not in accordance with law, regulations and policy; and (2) order the Navy to set aside the conviction and expunge from plaintiff's files all documents relating to and resulting from the court-martial and conviction, "including adverse fitness reports, voidance of his military specialty, and other appropriate records." Compl. at 12.

Pending before the Court are defendant's motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6), or in the alternative for summary judgment, and plaintiff's cross-motion for summary judgment. For the reasons discussed below, defendant's motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied. The action is therefore dismissed.*fn1

II. Background and Procedural History

On June 30, 1992, plaintiff was tried by summary court-martial on the charge of wrongful failure to report evidence of recruit abuse to a Company Officer in violation of a standing general order. The charge arose out of events in March and April of 1992, at which time plaintiff was assigned as a senior drill instructor ("SDI") for platoon 3048 at the rank of Staff Sergeant, Grade E-6.

At some time in March, 1992, plaintiff received a report from the platoon's scribe, Recruit Smith ("Smith") that Sergeant Williams ("Williams"), one of plaintiff's two subordinate drill instructors, had struck a recruit named Norton across the nose with the leg of a bed. Plaintiff alleges that, after questioning Norton and speaking with the platoon, he reported the incident to his direct supervisor, Staff Sergeant Fleuter ("Fleuter") in the presence of Smith, and brought Fleuter to observe Norton's injury.

In mid-April, plaintiff received orders reassigning him for non-disciplinary reasons to temporary duty involving seven weeks of training. The day before he was to leave, plaintiff met with the members of his platoon, informed them of his departure and requested letters regarding how training was proceeding. He received numerous letters from recruits in the platoon alleging physical or verbal abuse by Williams. Responding to the letters, plaintiff reassigned Williams out of training duty and then, according to plaintiff, informed Fleuter, as well as plaintiff's replacement, Sergeant Gridley ("Gridley"), of these new reports of abuse.

Subsequently, another recruit from platoon 3048 reported abuse by Williams to an officer. After an investigation, Williams was tried by summary court-martial for recruit abuse and convicted. As punishment, Williams was permanently relieved of his duties and reduced one step in rank.

When plaintiff returned on June 17, 1992, he was informed by his Company Commander, Captain DeForest, that he was under investigation for possible violations of Depot Order P1513.1A, which defines recruit training procedures and states in part that "allegations that surface during recruit interviews must be reported to a company officer in the recruits [sic] chain of command if possible, or otherwise made known to proper authorities." Pl. App.Ex. C at Ex. 4, ¶ 2. A preliminary investigation by Major Bruce T. Kowalski ("Kowalski"), the same individual who investigated Williams, looked into plaintiff's knowledge of recruit abuse. The investigation was completed on June 25, 1992 and forwarded to the Commanding Officer. Kowalski's report recommended that plaintiff be referred to a summary court-martial.

On June 30, 1992, plaintiff was charged with failing to obey a general order in violation of Article 92, specifically, failing to report evidence of recruit abuse to a Company Officer.*fn2 A charge may be brought and referred to a summary court-martial by various military officers specified in 10 U.S.C. § 822-24 (1994). The referring officer is called the "convening authority." In this case, a summary court-martial was convened by Lieutenant Colonel Stewart ("Stewart"), with Major Daley ("Daley") as the officer presiding.*fn3 At trial, plaintiff represented himself without counsel. According to plaintiff, Daley required that all of plaintiff's questions had to be asked through Daley, refused to question several of plaintiff's requested witnesses at all and did not allow him to cross-examine the witnesses. In particular, Cothran was allegedly not allowed to cross-examine Norton, the recruit who suffered the abuse.

On July 1, 1992, the court-martial found plaintiff guilty and sentenced him to reduction of rank from pay grade E-6 to pay grade E-5, forfeiture of $1,043.40 of his salary for one month, and restriction of movement for sixty days.

Under procedure established in the Uniform Code of Military Justice, the judgment and sentence given by the court-martial are referred back to the "convening authority" (Stewart) pursuant to 10 U.S.C. § 860 (1994). Section 860(c)(2) mandates that the convening authority take action on the sentence, either approving, disapproving, commuting or suspending the sentence, in whole or in part. The particular action chosen is in the sole discretion of the convening authority. 10 U.S.C. § 860(c)(2) (1994). Section 860(c)(3) permits but does not require the convening authority to take action on the findings of the court-martial.

At this stage, the accused has the right to submit further matters to the convening authority which related to the disposition or sentence of the charge within seven days after the sentence is announced. 10 U.S.C. § 860(b)(1) (1994). This provision is implemented in the Manual for Courts Martial by Court-Martial Rule (hereinafter "R.C.M.") 1105.*fn4 On July 10, 1992, plaintiff made a R.C.M. 1105 submission to Stewart raising various arguments for setting aside the conviction. According to the subsequent JAG review, plaintiff asserted in his 1105 submission that Fleuter and Gridley had lied at the court-martial when they testified that plaintiff had not informed them of the abuse, and that plaintiff had been unable to show that they were lying because he did not have access to platoon members as witnesses. With his R.C.M. 1105 papers, he submitted a statement from one recruit supporting his assertion that Gridley was aware of a problem with Williams.

On the same day that plaintiff made his 1105 submission, he invoked his right to "request mast" before Major General Deegan, the Commanding General. "Request mast" is a procedure which provides the right to communicate with one's commanding officers in the chain of command up to and including the Commanding General. Pl.Ex. C-8. As a result of plaintiff's 1105 submission and his "request mast," Stewart ordered Major Kowalski to conduct a third investigation, this time "into the allegation made by Staff Sergeant Cothran concerning physical abuse reports to Sergeant Gridley and Staff Sergeant Fleuter. . . ." Pl.Ex. C-11.

Kowalski conducted his investigation through private interviews without providing plaintiff with an opportunity to participate. He completed his investigation on July 28, 1992 and submitted various findings and recommendations to Stewart. Pl. Ex. C-11. Most significantly, Kowalski found that plaintiff had informed Fleuter that there was a problem with Williams but did not specify the nature of the problem, and that plaintiff's assertion that Fleuter and Gridley had been told that the problem was specifically physical abuse was unsubstantiated. He therefore recommended that the conviction stand and that no action be taken against Fleuter and Gridley. On July 29, 1992, Stewart as convening authority approved the conviction but suspended all punishment for six months.

In August of 1992, plaintiff was issued an adverse fitness report based on the contention that plaintiff had failed to property report recruit abuse. Subsequently, his Military Occupational Specialty ("MOS") as a drill instructor was voided.

On September 22, 1992, Stewart amended his July 22 action, reducing the amount forfeited to $953.00 and also indicating that following the six month suspension, "unless sooner vacated, the remaining portion of the sentence will be remitted without further action." P.Ex. A at 3.

On March 10, 1994, plaintiff sought to have his conviction reviewed by the Judge Advocate General's Office ("JAG") pursuant to Article 69(b), 10 U.S.C. § 869 (1994).*fn5 At least two members of the JAG staff issued detailed recommendations that the application be denied, reasoning primarily that even if plaintiff had reported to Fleuter, he had not satisfied the general order which required immediate reporting to a "Company Officer" because Fleuter, a Staff Sergeant, was not a "Company Officer." In the recommendation, the JAG found that the intention of the order was that the issue be "removed from the Drill ...


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