Something Fishy is Going On Around Here...

What in the world is going on in the Navy? It has been 3 months since my brother passed away on appellate leave and my parents have yet to be assigned a Casualty Case Worker. In fact, today, upon inquiry to the folks at SGLI, my parents were informed that the paperwork for SGLI has not been submitted. This is paperwork that must be submitted by the Casualty office.

With this in mind, my mother contacted the Casualty Assistance Division (5720 Integrity Drive, Millington, TN 38055, 901-874-6672) to discuss the status of my brother's benefits and see if the Lieutenant they had been dealing with had heard anything new.

The Lieutenant, Nathan D. Kaspar, made disparaging comments about my brother and informed my mother that he had other cases to work on. Cases for individuals who had "honorably" served their country.

Now, I have always been fond of LT Kaspar but, I am not so sure the comments he made were appropriate or justified.

I will say this. No matter what turns my brother's life took while on appellate leave for the last few years, his service to his country was honorable. It is reflected in his military records and through the accommodations he received while in the military.

Something odd is happening with this case. Decent people are becoming judgemental. Honorable individuals are leaning towards black or white and going for each other's throats.

What honor was in the service provided to my family today?

A very special person noted yesterday, "I do not know how our military government can possibly think it is right to prosecute a deceased person." How true the words...

New infomation on the case

Well, the court of appeals has made a ruling on the outstanding appeal for my brother. What does this mean and what is next? I'm not sure...

The following was taken from http://www.armfor.uscourts.gov/journal/2009Jrnl/2009Jul.htm

"No. 07-0385/NA. U.S. v. Kenneth E. HARRIS. CCA 200401897. On consideration of Appellee’s motion to deny the petition for grant of review due to the death of the Appellant, which the Court construes as a motion to dismiss the petition due to the death of the Appellant, and Appellant’s motion for leave to file an answer to Appellee’s motion out of time, it is ordered that Appellant’s motion to file an answer out of time is hereby granted, and that Appellee’s motion to dismiss the petition for grant of review due to the death of the Appellant is hereby granted. See United States v. Rorie, 58 M.J. 399 (C.A.A.F. 2003)."

Changes to Court Rules effective September 1, 2009

Looks like there will be some changes to the rules for the UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES as reported in the DAILY JOURNAL No. 09-213 on Wednesday, July 15, 2009

"Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces and thereafter published in the Federal Register for comment, it is ordered that effective September 1, 2009, Rules 19(a)(5), 20(e), 21(c)(2), 37(a), 37(b)(2), and 40(b)(3) are hereby amended as provided in the attachment to this Order."

To see the full verbiage of the changes that will be effective in September, visit http://www.armfor.uscourts.gov/journal/2009Jrnl/2009Jul.htm

A poem from my mother

ODE TO OUR SON by Carol Harris

When you were born it was a glorious day
When I first saw you I had to say
Look what God had done
He gave us a beautiful son.
I knew from the very start
You would hold a special place in my heart
As you grew up and went your own way
I want you to know we’re with you every step every day
The sparkle in your eyes fills my heart with joy and pride
When I see that little impish smile
I know what made life worth while
When life gets rough and your feel you had enough
Always remember what I say because
I am with you every day in every step and in every way
On a clear night when you look at the stars above
Remember they don’t hold a candle to our love
No matter in life what you say or do
Remember we will always be proud of you
You’re our son in every way
And we love you more and more every day

Father's Day

Today is the first Father's Day without my brother. It was hard buying a card for my dad... there were many years that I bought one and signed for both Kenny and me.

Looking at all of the cards that said "From the both of us" really hit a nerve.

You know, the thing about family is that no matter what happens to strain the relationship, in the end, you're family.

There were times when my brother aggravated the heck out of me. Sometimes, I couldn't walk into a room with him without becoming "edgy". .. But, I still loved him.

When he needed us, Mom, Dad and I always tried to do what we felt was best for him.... it didn't mean we always did what he wanted... but it did mean that we cared enough to do the right thing.

Kenny and I have a great father... one who really cares about his family. And although I didn't sign his name to the card this year, it was really hard not to.

Another reference to my brother's case

Here is more information on my brother's case obtained from http://www.armfor.uscourts.gov/Grants.htm

"Monday, December 31, 2007

APPEALS-SUMMARY
DISPOSITIONS

No. 07-0385/NA. U.S. v. Kenneth E. HARRIS. CCA 200401897. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the entire record, including the file of the Administrative Law Division of the Judge Advocate General of the Navy, submitted under seal by Appellee to this Court on October 4, 2007, we conclude that the Court of Criminal Appeals abused its discretion in deciding Appellant’s Motion for Panel and En Banc Reconsideration and Appellant’s Panel and En Banc Motion to Recuse Senior Judge E. E. Geiser, and Judges J. W. Rolph and E. D. Mitchell from Appellant’s Case and to Rescind the Panel Two Opinion Issued in Appellant’s Case, without first considering the file of the Administrative Law Division. Accordingly, it is ordered that said petition is hereby granted as to assigned issue I:

WHETHER A JUDGE ON THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS SHOULD HAVE BEEN RECUSED FROM ACTING ON A CASE IN WHICH HE HAD PREVIOUS OFFICIAL INVOLVEMENT AND KNOWLEDGE OF SALIENT FACTS OUTSIDE THE RECORD OF TRIAL.

The case is returned to the Judge Advocate General of the Navy for remand to the United States Navy-Marine Corps Court of Criminal Appeals to reconsider Appellant’s Motion for Panel and En Banc Reconsideration and Appellant’s Panel and En Banc Motion to Recuse Senior Judge E. E. Geiser, and Judges J. W. Rolph and E. D. Mitchell from Appellant’s Case, in light of the entire file of the Administrative Law Division of the Judge Advocate General of the Navy that is now attached to the record. This reconsideration will be before judges who have not previously participated in this case. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply. This is without prejudice to raising the other issues assigned in the instant petition for grant of review"

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What Command Do Appellates Belong To?

Did you know that when a Navy member goes on Appellate Leave, he or she is no longer attached to their regular military unit?

Once a soldier is placed on Appellate Leave, he or she is then attached to the NAMALA Command Unit:

NAMALA

1325 10th Street SE

Suite 303

Washington Navy Yard, DC 20374-5070

http://hqinet001.hqmc.usmc.mil/namala/mission1.htm lists the missions and functions of NAMALA (Navy and Marine Corps Appellate Leave Activity) as follows:

MISSION
Contribute to public safety and efficient manpower by administering the centralized management and tracking for all Navy and Marine Corps personnel on involuntary appellate leave; and members assigned by the Naval Clemency and Parole Board to parole or supervised release while expediting the discharge process; and to perform such other functions and tasks as directed.

FUNCTIONS
1. Monitors the case status of members on mandatory/involuntary appellate leave and members assigned to the Federal Bureau of Prisons who are awaiting results of appellate review.
2. Validates appellate leave status for renewal of military identification cards.
3. Provides information as necessary about members on appellate leave to:
a. The Court of Military Review b. The Clemency and Parole Board c. Members on appellate leave d. Other interested parties
4. Effects punitive discharges when approved and as directed by the Judge Advocate General.
5. Effects clemency action as decided by the Navy and Marine Corps Clemency and Parole Board.

A Letter From My Mother

The following letter was sent to CNN by my Mother on May 11, 2009 (Mother's Day). Maybe someday the policies and procedures followed during the death of a serviceman on appellate leave will be streamlined so that other families will not need to suffer any more than necessary during the loss of a loved one.

My name is Carol Harris and I need your help. My son Kenneth Harris is on appellant leave from the Navy. My son passed away on May 3, 2009. All agree he is on active duty with all benefits except pay. He has a bad conduct discharge, which has been on appeal for in excess of 4 years. He had already served our country with honor and dignity for one full term and then re-enlisted for a second term of service. He still has a JAG attorney. Since his appeal is still active we know that he has not exhausted all of his appellant appeals. According to everything we have read what should happen is his discharge should be overturned and he should be reinstated back to his rank of E-5 with all benefits reinstated. We have got our Congressman Sanford Bishop involved and they are working on trying to get the issue resolved. All we want to do is Bury our Son in Fort Mitchell National Cemetery and give him what he has earned. As of today’s date May 10, 2009 we still have not been able to lay our son to rest. Today is Mothers day and I spent my morning at the Funeral Home buying a plot for my son and making arrangements to lay him to rest. We received a call from the Navy while in Congressman Sanford Bishop office and the Navy agreed that he is entitled to the Honor Guard. The Navy will not make a decision if Kenny can be buried at Fort Mitchell National Cemetery until they have a certified death certificate. Since the autopsy for Columbus, Georgia are performed by the GBI in Atlanta we can not get a certified death certificate until the toxicology report is done which according to our coroner that could be from 3 to 6 months. The Navy can issue letter of good standing, which will allow our son burial rights Fort Mitchell National Cemetery but will not with out a cause of death or a DD214. A DD214 cannot be issued since he still has an on going appeal. We have a quagmire situation. It is hard enough to lose a child, plan his funeral on Mothers day and fight the Navy for his rights. We just got off the phone with Navy and we are now being told that they have not made a decision on the Honor Guard. We will be laying our son to rest on Wednesday May 13, 2009 with or without the Navy’s Honor Guard. How much more hurt and pain should the Navy be allowed to inflict on our family.

Any help you could give us would be greatly appreciated.

Sincerely,
Carol Harris

More Stories of Soldiers Who Died On Appellate Leave

I love this blog. Check out Paragraph 5 of the blog which reads, "In 2003, 12 individuals on the rolls of NAMALA died while on appellate leave." When such individuals die before the CCA renders its opinion in the case, see generally United States v. Ribaudo, 62 M.J. 286 (C.A.A.F. 2006), "[t]he conviction is null and void, and all rights and privileges must be restored. His beneficiaries will receive the SGLI payment of $400,000; backpay, as adjusted for any earnings or public assistance received; and death gratuity."

More references stating that the case should be thrown out. My brother fought for years to have his bad conduct discharge overturned. Can the military not give him peace in death? It sounds like that is what is supposed to happen.

Ensuring the interest of justice is served

Page 7, paragraph 2 of United States, Appellee v. Brandon T. Ribaudo, Private U.S. Marine Corps, Appellate which can be read when you click here states, "“It is the ‘longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him.’ United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). It is not until that appeal of right is complete that we can rest assured the interests of justice have been served. See United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998).”

This statement reads pretty clearly to me that, if my brother was still on appellate leave and still in the appeals process, the case should be thrown out.

In fact, when you read page 54, paragraph 3 of the noted Marine Corps Gazette article which can be read when you click here you will find that it states, "Marines die while on appellate leave. Here is one example. A Marine who was convicted of drug use in 2003 was still on appellate leave when he died of a drug overdose in 2005. The conviction is null and void, and all rights and privileges must be restored. His beneficiaries will receive the SGLI payment of $400,000; backpay, as adjusted for any earnings or public assistance received; and death gratuity. The Marine’s discharge will be in accord with his service record, absent the conviction for use of drugs."

Now... seems pretty clear to me.... so, why is it taking over a month for the Navy to determine whether or not my brother was in good standing at the time of his death?