Appeal from order of United States District Court for the Northern District of New York, Con. G. Cholakis, J., denying appellant's petition for a writ of habeas corpus, and holding that the Air Force properly exercised court-marital jurisdiction over appellant.
Feinberg, Chief Judge, Newman and Garth,*fn* Circuit Judges.
Marvin J. Machado appeals from an order of the United States District Court for the Northern District of New York, Con. G. Cholakis, J., denying his petition for a writ of habeas corpus. The judge held that Machado had never been discharged from the Air Force, and was therefore subject to court-martial under the Uniform Code of Military Justice. Appellant claims that he was discharged from the Air Force and was therefore not subject to court-martial jurisdiction. Because we believe that the district court did not make sufficient inquiry to determine whether Machado was discharged before his court-martial, we vacate the order of the district court and remand for further proceedings.
Machado enlisted in the United States Air Force in November 1978 and reenlisted in January 1982 for a six-year tour of duty scheduled to end on January 13, 1988. Apparently in anticipation of his separation from service, on September 8, 1987, an order was issued honorably discharging Machado effective January 13, 1988. Upon return from leave in October 1987, Machado submitted to urinalysis and tested positive for cocaine use. On December 22, 1987, Machado was charged with a violation of the Uniform Code of Military Justice, 10 U.S.C. § 912a, for wrongful use of cocaine. Nevertheless, at some time prior to his scheduled date of separation, Machado received his honorable discharge certificate. A revocation of Machado's discharge was ordered on January 28, 1988, and backdated to January 13, contrary to Air Force regulations. Despite a demand thereafter from Machado, the Air Force refused to process his discharge after January 13 because of the pending charge against him.
In February 1988, Machado petitioned the district court for a writ of habeas corpus, and the petition was denied in April 1988. The district judge thereafter denied Machado's motion for a stay of the court-martial proceedings pending appeal, and a panel of this court denied a similar motion on April 27, 1988. We are informed that in June 1988, Machado was tried before a court-martial and sentenced to 2-1/2 years in jail, a bad conduct discharge, reduction in rank, and forfeiture of all pay.
This case turns on the interpretation and application of 10 U.S.C. § 1168(a):
A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.
Both parties appear to agree that if appellant was honorably discharged from the Air Force under this statute before his court-martial, then the court-martial improperly exercised jurisdiction over him; if he was not discharged under the statute, then court-martial jurisdiction was proper. Although the statute requires that the certificate and final pay only be "ready for delivery," it is apparent that the key issues before us are whether they actually were delivered, as appellant claims. Because the district court did not sufficiently explore these issues, we believe that on this record a remand is required.
Appellant Machado argues that he has satisfied the first prong of the statutory test because he has the original discharge certificate in his possession. Possession of the original certificate in apparently proper form is obviously helpful to Machado on the issue of delivery. However, on a petition for the civil remedy of habeas corpus, petitioner bears the burden of proving by a preponderance of evidence that he is entitled to relief. See Johnson v. Zerbst, 304 U.S. 458, 468-69, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938).
In satisfying his burden, appellant must prove proper "delivery" of the certificate. The Court of Military Appeals, the civilian-composed court that reviews military decisions, has said that "discharge is effective upon delivery of the discharge certificate[,]" United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985), citing United States v. Scott, 11 U.S.C.M.A. 646, 29 C.M.R. 462 (1960), and has interpreted "delivery" to have "significant legal meaning. It shows that the transaction is complete, that full rights have been transferred, and that the consideration for the transfer has been fulfilled." Howard, 20 M.J. at 354. The court went on to say that if "delivery of the discharge certificate" is "accomplished by fraud . . . then the delivery loses its legal significance." Id. (citations omitted). Therefore, only if Machado received the discharge certificate by proper means would such receipt qualify as a "delivery" under the statute. Cf. United States v. Brunton, 24 M.J. 566, 569 (N.M.C.M.R. 1987).
Although there has been no allegation that Machado fraudulently procured his certificate, it is not clear how he obtained it. On remand, the district court should determine how, where and when Machado received the certificate. If the Air Force delivered Machado's certificate through the proper channels of delivery by mistake, then it may be that Machado was entitled to rely on such delivery. At least one judge of the Court of Military Appeals -- certainly expert in these matters -- has so characterized the ruling of that court in United States v. Howard, cited above. See United States v. Cole, 24 M.J. 18, 26 (C.M.A. 1987) (Cox, J., concurring), cert. denied, 484 U.S. 828, 108 S. Ct. 97, 98 L. Ed. 2d 58 (1987). It should be noted, however, that if Machado, as petitioner in a civil proceeding such as this, fails to testify on his own behalf regarding his receipt of the ...