Articles Posted in US Court of Appeals for the Sixth Circuit

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Bolton petitioned the Board for Correction of Naval Records to expunge the summary-court martial from his military record based on his guilty plea to military charges related to his 2010 arrest for driving while drunk on the Marine Corps Base Camp Lejeune. Bolton completed his active duty service and was honorably discharged; he was eligible to reenlist. The Board held that it lacked the statutory authority to set aside the findings of a summary court-martial. The Sixth Circuit affirmed the dismissal of Bolton’s complaint. The Uniform Code of Military Justice, 10 U.S.C. 815-820, provides that summary court-martial occupies a position between informal nonjudicial disposition and the courtroom-type procedure of the general and special courts-martial “for relatively minor offenses.” Bolton did not state a claim for double jeopardy because neither the summary court-martial nor the base court conviction constituted a “criminal punishment” to which jeopardy attached. The Board lacked authority to grant Bolton’s requested relief. Congress clearly indicated "that the appellate procedures under the UCMJ provide the sole forum ... for a legal review of the legality of courts-martial” and limited the role of the Board, which “primarily involves a determination as to whether the sentences should be reduced as a matter of command prerogative (e.g., as a matter of clemency) rather than a formal appellate review.” View "Bolton v. Department of the Navy Board for Correction of Naval Records" on Justia Law

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The VA determined that West, a Viet Nam veteran, was eligible for a disability pension. Two days later West died. Four days later—without knowing that West had died—the government sent West a check for $8,660--his pension benefit retroactive to June 2013. In March 2014, a Kentucky probate court appointed West’s ex-wife, Brenda, as the Estate's executor. Brenda endorsed the VA check, the estate’s only cash asset, and deposited it into an escrow account. After three months, the VA determined that West’s estate was not entitled to the money, 38 U.S.C. 5121(a), and directed the bank to wire the $8,660 back to the U.S. Treasury. The bank complied. The Estate did not learn until later that its account had been drained of funds. More than 18 months later, the Estate obtained a Kentucky probate court order requiring the government to return the funds. The government removed the matter to the district court, which remanded the matter back because the $8,660 was already subject to the probate court’s jurisdiction. The Estate unsuccessfully sought attorneys’ fees. The Sixth Circuit reversed the remand order; the dispute can be litigated only under the procedure set forth in the Veterans’ Judicial Review Act, 102 Stat 4105. The court noted “concerns about the government’s expropriation of the Estate’s funds without any advance notice or process.” View "Estate of West v. United States Department of Veterans Affairs" on Justia Law

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The Guard Recruiting Assistance Program (G-RAP), designed to increase recruiting to the Air National Guard during the “War on Terror” was run by Docupak, a private corporation. Docupak selected and trained Recruiting Assistants (RAs) to find and direct potential airmen to full-time recruiters. The program paid a $1,000 pre-loaded gift card upon actual enlistment of a potential airman and another $1,000 upon the airman’s completion of training. The RAs were to identify individuals that were not already working with a full-time recruiter and were prohibited from splitting the payment with full-time recruiters. Osborne, a full-time recruiter, was accused of referring names of pre-existing recruits to RA Andolsek so that they could claim the incentive, with kickbacks to Osborne. Osborne was charged with aiding Andolsek in embezzling from the Department of Defense, 18 U.S.C. 641; 18 U.S.C. 2, which “caused” the Department to reimburse Docupak for $9,000. Andolsek pleaded guilty and testified against Osborne. Osborne argued that the funds were stolen from a private contractor, so they only violated Docupak’s internal policy, not a federal regulation. The Sixth Circuit reversed Osborne’s conviction. No reasonable jury could have found that the funds were something of value to the government beyond a reasonable doubt, given the evidence of control. The government did not retain a reversionary interest in the funds and imposed few restrictions. Docupak gave the government access to information, but the government did not retain the right to conduct audits. View "United States v. Osborne" on Justia Law