19 August 2009

U.S. Navy loses ex-sailor's presidential pardon application and it cannot be re-submitted due to Justice Dept policy

[WARNING: This is a personal gripe about my individual case.]

In February 2007 whilst living in San Diego, California I submitted a presidential pardon application directly to the U.S. Secretary of the Navy concerning my 1992 general court-martial. It was submitted to SECNAV as instructed by U.S. Department of Justice, or DOJ, regulations. The application was submitted by registered U.S. Postal Service Priority mail and was in fact received and signed for. In cases where an individual is seeking a pardon from an American court-martial the application or petition for clemency is not submitted directly to DOJ but rather to the service secretary.

The Navy has lost the application and has thus failed to forward it on to DOJ for consideration. Seven months after I submitted the pardon application, in September 2007, I moved home to Sydney, Australia (I hold both American and Australian citizenship). DOJ has a "well-established policy to not process applications for clemency from non-residents of the United States." Here is a link to a letter dated 5 May 2009 from DOJ Pardon Attorney Ronald Rodgers (which I just received yesterday).

This is not the first time the U.S. Navy has lost evidence or documentation in my case. Here is a list of current and past missing items from the record-of-trial despite granted motions to compel, orders to show cause in FOIA cases, Congressional and White House inquiries as well as DoD IG investigations:

1) RCM 401(c)(2)(A) recommendation by special court-martial convening authority for general court-martial is missing from the record-of-trial an no copies exist despite a 2003 granted motion to compel by the Navy Marine Corps Court of Criminal Appeals, an order to show cause from a U.S. District Court judge, and a Congressional inquiry by Congresswoman Susan Davis. To date the RCM 401(c)(2)(A) recommendation remains missing.

2) RCM 406 pretrial advice of the judge advocate to the special court-martial convening authority is missing despite granted motions to compel and no copies exist. The IO at the Article 32 held that "in general the evidence was week or nonexistent." Moreover, she checked the no box where it asked if reasonable grounds existed to believe the accused committed the offenses. The GCMCA RCM 406 advice references both the SPCMCA judge advocate's advice and the RCM 401(c)(2)(A) recommendation. To date the Rule 406 advice to the SPCMC remains missing.

3) UCMJ article 138 complaint of wrongs - November 1992 letter of resolution of my art. 138 complaint by the officer exercising general court-martial jurisdiction over my commanding officer is missing. A May 1993 letter by the Assistant Secretary of the Navy references the November 1992 resolution letter which was in my favor and I was reinstated to CTA3 with all rights and privileges restored. In 2005 a judge on the Court of Federal Claims ordered the Navy to turn over the November 1992 letter but the Navy claimed it could not locate it. Additionally, a U.S. District Court judge issued an order to show cause in a Freedom of Information Act case and a separate Congressional inquiry by Congresswoman Susan Davis for the missing letter. Also a separate motion to compel was granted by the military courts. To date the letter remains missing.

4) Denials of request for individual military counsel, otherwise known as IMC, by the SPCMCA and the GCMCA are missing from the record-of-trial. I had requested IMC of then-Lieutenant Tammy Tideswell (now a Captain) who was the judge advocate general corps officer who assisted me in filing a previous meritorious UCMJ article 138 complaint against the SPCMCA who appointed the IO at the Article 32 hearing and then who recommended my general court-martial over the contrary findings and report of the Art. 32 officer. The SPCMCA in my case denied the IMC (gee maybe the SPCMCA should have disqualified himself since I had already filed a meritorious complaint of wrongs against him with the assisted of the very attorney who he denied my request for IMC.) To date the denial by the SPCMCA and GCMCA of my request for IMC remains missing.

5) Illegal general court-martial subpoenas. Months before my general court-martial was convened and even before the appointment of the UCMJ article 32 officer general court-martial subpoenas were issued by the U.S. Navy to gain private records (talk about putting the cart before the horse). On the record, a military judge, ordered the Navy to turn over copies of the illegal subpoenas. But Navy lawyers went on the record and a told a military judge they could not find copies of any of the subpoenas. Nearly a decade later some of the illegal subpoenas have been recovered and others still remain missing.

6) Military pay records were missing until 2004. In 1992 a military judge, on the record, granted a motion to compel the pay records but the Navy could not be find or locate them. (There are two separate sets of pay records (1) Leave and Earning Statements and (2) internal records to show how and when a direct deposit or allotment is deposited.) The recovered records show that approximately $5,000 in Navy pay was not being deposited into my bank accounts during the time period of the UCMJ article 123a offenses. Routing and account numbers were off by one or two digits and the money was returned to the Navy/DFAS.

The records were found pursuant to a FOIA appeal in Air Force records held by DFAS in Denver, Colorado and were not at DFAS Cleveland, Ohio which is usually where Navy pay records are held. From the outset of my court-martial in 1992 through 2003 DFAS Cleveland had maintained that I never served in the Navy because they had no pay record of me. (I've heard unsubstantiated rumors that the formerly called Naval Investigative Service acquired the pay records from DFAS Cleveland in early 1992 -- prior to the convening of my court-martial -- and then mailed them to Air Force records at DFAS Denver -- the records were effectively buried. It was only due to my attorneys at Heller Ehrman, who handled the FOIA appeal, that the records were found in 2004 in Air Force records. I've sent a FOIA request to NIS (renamed NCIS) for a copy of the investigative file. The entire NIS file on my case is missing as there is no record of it. Yet under cross examination the former special agent testified that an extensive file exists -- but is missing.)

7) RCM 1105 - Manual for Courts-Martial submission missing from the record-of-trial. The RCM 1106 recommendation states that the counsel for the accused failed to submit an RCM 1105. However, the senior defense counsel for Naval District Washington, who was my lead defense attorney, has stated that he did in fact submit an RCM 1105 within the time mandates. To date the RCM 1105 remains missing and no copies have been located. The military courts ignored this issue. No mention of it in any of the opinions.

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