The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff David P. Christian, proceeding pro se, brings this action against the Secretary of the Army and the Army Board for the Correction of Military Records (the "ABCMR") challenging the ABCMR's decision*fn1 that rejected his application for relief from a dishonorable discharge pursuant to a general court-martial. He seeks, as he did before the ABCMR, voidance of his dishonorable discharge, reinstatement to active duty, and promotion in accordance with his peers or, in the alternative, to upgrade his dishonorable discharge to honorable. Defendants have moved to dismiss or, in the alternative, for summary judgment. (See Defs.' Mot. to Dismiss, or in the Alternative, Mot. for Summary Judgment, July 7, 2011 [Dkt. No. 12].) For the reasons stated herein, defendants' motion is granted.
Article 125 of the Uniform Code of Military Justice ("UCMJ") defines
the crime of "sodomy" and provides that "any person found guilty of
sodomy shall be punished as a court-martial may direct." 10 U.S.C. §
925. Article 56 of the UCMJ further provides that "[t]he punishment
which a court-martial may direct for an offense may not exceed such
limits as the President may prescribe for that offense." 10 U.S.C. §
856; see also 10 U.S.C. § 818 (general courts-martial may adjudge any
punishment not forbidden by the UCMJ "under such limitations as the
President may prescribe"). The President has executed this delegated
authority*fn2 by establishing maximum punishments for
certain offenses, which are set forth in Part IV (the "Punitive
Articles") of the Manual for Courts--Martial ("MCM").*fn3
In the 1995 edition of the MCM, the "maximum punishment" for
sodomy "with a child under the age of 12 years at the time of the
offense" was "[d]ishonorable discharge, forfeiture of all pay and
allowances, and confinement for life." MCM ¶ 51e(3) (1995 ed.).
In 1997, Congress added Article 56a to the UCMJ to "establish [the] sentence of confinement for life without eligibility for parole." National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105--85, § 581, 111 Stat. 1629, 1759 (1997). Article 56a, which took effect on November 18, 1997, provides that "[f]or any sentence for which a sentence of confinement for life may be adjudged, a court-martial may adjudge a sentence of confinement for life without eligibility for parole." 10 U.S.C. § 856a. In its 2002 edition, the MCM was amended to provide that the "maximum punishment" for sodomy "[w]ith a child under the age of 12 years at the time of the offense" was "[d]ishonorable discharge, forfeiture of all pay and allowances, and confinement for life without eligibility for parole." Exec. Order No. 13,262, 67 Fed. Reg. 18,773 (April 17, 2002); MCM ¶ 51e(3) (2002 ed.) At the same time, MCM Rule 1003(b)(7) was amended to provide that "[w]hen confinement for life is authorized, it may be with or without eligibility for parole," and that this amended Rule applied to offenses "committed after November 18, 1997." Exec. Order No. 13,262, 67 Fed. Reg. 18,773 (April 17, 2002).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Court-Martial
Plaintiff is a former enlisted member of the United States Army. (Defs.' Facts ¶ 1.) On July 23, 2001, while on active duty, he was charged with multiple acts of sexual misconduct with underaged females, who were his stepdaughters, in violation of several articles of the Uniform Code of Military Justice ("UCMJ"). (Id. ¶ 2.) The charges were referred to trial by General Court-Martial, which convened before a military judge on November 13, 2001. (Id. ¶¶ 3, 5.) Pursuant to a pretrial agreement, plaintiff pleaded guilty to sodomy with a child, in violation of Article 125, UCMJ, 10 U.S.C. § 925, two counts of indecent acts with a female under the age of 16, and committing indecent acts with a 16-year-old female, in violation of Article 134, UCMJ, 10 U.S.C. § 934. (Id. ¶¶ 7, 9.) Before the judge accepted plaintiff's plea, he informed plaintiff that the maximum possible sentence for the sodomy offense included confinement for life without eligibility for parole ("LWOP"). (Id. ¶ 13.) The military judge sentenced plaintiff to a dishonorable discharge, confinement for sixteen years, forfeiture of all pay and allowances, and reduction to Private, E-1. (Id. ¶ 16.) On May 3, 2002, the "convening authority" approved the findings and the sentence which had been imposed, except that it reduced plaintiff's confinement to fifteen years in accordance with the pretrial agreement and waived the automatic forfeiture of pay. (Id. ¶ 17.)
Pursuant to Article 66, UCMJ, 10 U.S.C. § 866(b), plaintiff's case was subject to mandatory review by the Army Court of Criminal Appeals ("ACCA"). (Id. ¶ 18.) Before that court, plaintiff argued for the first time that LWOP was not an authorized punishment at the time he committed his sodomy offense and, therefore, that his guilty plea was "improvident." (Id. ¶ 19; AR 54.) Plaintiff based his argument on the fact that although the statute authorizing LWOP as punishment for "any offense for which a sentence of confinement for life may be adjudged" was enacted on November 18, 1997, 10 U.S.C. § 856a(a), it was not incorporated into the MCM until April 11, 2002, after the date of plaintiff's offense. Thus, plaintiff argued, LWOP was not an authorized punishment for his offense, and his pretrial agreement, plea, conviction and sentence were based on a mistake and should be set aside.
On July 27, 2004, the Army Court of Criminal Appeals summarily affirmed "the findings of guilty and the sentence as approved by the convening authority." (AR 33.) Plaintiff then appealed to the Court of Appeals for the Armed Forces ("CAAF"), the military's highest appellate court. (AR 34.) The Court of Appeals for the Armed Forces granted review and affirmed. United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006). On the issue of "whether life without eligibility for parole (LWOP) was an authorized punishment at the time [plaintiff] committed the offense of forcible sodomy of a child under twelve years of age," the court held that "LWOP was an authorized sentence" as of November 18, 1997, the date Section 56a of the UCMJ was enacted, and, therefore, that it was an authorized punishment at the time of plaintiff's offense and plaintiff's guilty plea was "provident." Id. at 206. The Supreme Court denied plaintiff's petition for a writ of certiorari on February 22, 2007. Christian v. United States, 549 U.S. 1214 (2007).
On February 5, 2008, after his direct appeals were concluded, plaintiff was dishonorably discharged pursuant ...