Unitéd States Court of Appeals for the Armed Forces Washington, D.C USCA Dkt. No. -0541/AR Crim.App. No. 20100513 UNITED STATES, Appellee ORDER DENYING PETITION Mack J MILLER, ) ) ) ) ) ) ) ) ) Appellant ) on consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is by the Court this 1st day of July, 2011, ORDERED: That said petition be, and the same is hereby denied. /s/ William A. DeCicco Clerk of the Court cc: The Judge Advocate General of the Army Appellate Defense Counsel (POIRIER) Appellate Government Counsel (WILLIAMS)IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES Appellee SUPPLEMENT TO PETITION FOR GRANT OF REVIEW Crim. App. Dkt. No. 20100513 Private First Class (E-3) Mack J. Miller, II United States Army ) ) ) ) ) ) USCA Dkt. No ) ) ) Appellant) 70 THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Statement of Statutory Jurisdiction The Army Court of Criminal Appeals (Army Court) had jurisdiction over this matter pursuant to Article 66, Uniform Code of Military Justice /UCMJ); 10 U.S.C. § 866 (2008). This Honorable Court has jurisdiction over this matter under Article 67 (a) (3), UCMI; 10 U.S.C. § 867(a) (3) (2008). Statement of the Case On April 30 and gune 11, 2010, Private First Class Mack J. Miller (appellant) was tried at Vilseck, Germany, before a military judge sitting as a general court-martial. Contrary to his plea, appellant was found guilty of desertion (one specification), in violation of Article 85, UCMJ; 10 U.S.C. § 885 (2008). The adjudged sentence was eighteen months of confinement, reduction to the grade of E-1, and a bad conductdischarge. The convening authority approved the sentence as adjudged. The Army Court affirmed the findings of guilty and the sentence on May 16, 2011. (Appendix A.) Appellant was subsequently notified of the Army Court's decision. In accordance with Rule 19 of this Court’s Rules of Practice and Procedure, appellate defense counsel filed a Petition for Grant of Review contemporaneously herewith. The undersigned military counsel have been designated by The Judge Advocate General of the Army to represent appellant, hereby enter their appearance, and file a Supplement to the Petition for Grant of Review under Rule 22 ‘The undersigned counsel have carefully examined the record of trial in the case, do not admit that the findings and the sentence are correct in law and fact, and submit the case upon its merits to this Court.” * Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A 1982), appellant personally asserts the matters in Appendix B.Conclusion WHEREFORE, appellant respectfully requests this Honorable Court grant his petition for review. MEGHAN M. POIRIER Captain, Judge Advocate Appellate Defense Counsel Defense Appellate Division U.S Army Legal Services Agency 901 N. Stuart Street, #340 Arlington, 6) 22203 JENNIFER A. PARKER Captain, Judge Advocate Acting Branch Chief TMOGENE M. JAMISON Lieutenant Colonel, Judge Advocate Deputy, Defense Appellate Division Chief, Defense Appellate DivisionCERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing in the case of United States v. Miller, Crim App Dkt No. 20100513, USCA Dkt No _/AR, was electronically filed with both the Court and Government Appellate Division on May 31, 2011. Paralegal Specialist OomsAPPENDIX A“UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Private First Class MACK J. MILLER IT United States Army, Appellant ARMY 20100513 Seventh U.S. Army Joint Multinational Training Command Christopher Fredrikson, Military Judge Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate For Appellant: Major Laura R. Kesler, JA; Captain Meghan M. Poirier, JA. For Appellee: Major Amber J, Williams, JA. 16 May 2011 DECISION Per Curiam: On consideration of the entire record, including consideration of the issues personally specified by the appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED. FOR THE COURT: MAX.COLM H. SQUIRES, JR. Clerk of Court JALS-DAAPPENDIX BPursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A 1982), appellant, through communication with counsel, personally requests that the Court consider the following: ‘The appellant honestly and reasonably believed that he had been released from military duty after his arrest on 23 December 2007 by the Los Angeles Police Department. After the appellant informed the arresting officers that he was a member of the military, a representative of the police department attempted to confirm his status. (R. at 209.) Officer Meredith Swisher, a police detective, learned that the appellant was not in an AWOL status. (R. at 209.) When the appellant was subsequently released by the police, he believed that he had been discharged from the military. 2. The appellant’s chain of command subjected him to unlawful pretrial punishment in violation of Article 13 of the Uniform Code of Military Justice (UCMJ). After the appellant returned to duty with his unit in Germany, he found that his immediate chain of command considered his alleged misconduct tantamount to mutiny, He was ostracized, mocked, and harassed, despite his practice of volunteering for difficult assignments and his determination to soldier on. For a period of four months, from August to December of 2009, the appellant was not paid. Not! g was done to rectify the situation until thebeginning of Christmas holiday. During that four month period, the appellant's pregnant wife was deprived of his support The appellant met with his entire chain of command, to include his Sergeant Major and Squadron Commander, to stress his desire to deploy with the unit and continue to serve. Instead of allowing the appellant to deploy, his chain of command elected to transfer him to the Rear Detachment. The appellant was assigned to a “legal” platoon with all the other Soldiers who were pending legal action, from extra duty and Article 15s to courts-martial. The appellant was presumed to be guilty from the outset. 3. The appellant has been subjected to impermissible conditions of confinement in violation of the Eighth Amendment and Article 55, UCMI. (a) Upon in-processing to the Mannheim Regional Correctional Facility, the appellant was assigned to a general population bay and housed with an inmate who suffered from genital warts (herpes). The appellant's roommate bled from his rectum onto the seats in the bay and in the dining facility The appellant lived in constant fear of contracting this disease and complained about his unsanitary living conditions in several DD Form 510’s currently on record with the facility.(b) After being transferred to the Regional Correctional Facility at Fort Lewis, the appellant was housed in general population with an inmate who had contracted ringworm. (c) The appellant was not provided an initial telephone call until well after ten days into his arrival and was not afforded an opportunity to make contact with Trial Defense Services for approximately a month. (a) When the appellant entered confinement, he asked to keep an extra copy of his daughter's birth certificate and his marriage certificate. He needed those documents to establish a bank account in the United States for the benefit of his wife and infant daughter. This request was denied. On 9 September 2010, the appellant completed two emergency DD Form 510s notifying the facility that he needed to establish the bank account in support of his request for waiver of forfeitures. on 19 September 2010, the appellant submitted a third DD Form 510 requesting the same documents and notifying the facility that his mother needed a power of attorney. The appellant’s request was denied. Although one of the appellant's requests was ultimately granted, the Property and Funds department failed to comply with the approval for another week. It was only after the appellant submitted a fourth DD Form $10 that he was able to obtain the documents he needed to establish a bank account. Unfortunately, due to the month long delay on the part of theconfinement facility, the deadline for establishing a bank account had expired. As a result, the appellant’s dependents were denied the benefit of six months of pay and allowances. (e) On 6 October 2010, the appellant was verbally assaulted by another inmate while a guard stood by and did nothing. Almost immediately thereafter, the same inmate physically attacked the appellant, causing a deep gash in the appellant’s left wrist. (£) On 23 November 2010, the appellant was physically assaulted by a different inmate. As a result of these assaults, the appellant is on the verge of a nervous breakdown and lives in constant fear of attacks from other prisoners. (g) In early March 2010, the appellant asked for fish during one of the meals. He was asked if he was Catholic. When the appellant replied that he was not, he was told that only Catholics were allowed to have fish. When the appellant complained to the Watch Commander about this religious discrimination, he was simply told that “we’re not refusing to feed you, you just can’t have fish.” The appellant’s Equal Opportunity complaint was subsequently denied. (h) When the appellant filed a supposedly confidential Inspector General complaint, he learned that his request had been assigned a control number. The control number was writtenon the outside of his complaint, in a clear attempt to circumvent the anonymity to which the appellant was entitled. (4) In late March 2010, the appellant asked for authorization to mail a letter to the trustee of his family trust authorizing the donation of a sum of money to the Red Cross. The appellant intended the donation to go to relief efforts in China and Japan following the earthquakes and tsunami, The appellant's request was denied by the facility on the basis that it involved “business” and “didn’t qualify as an emergency involving U.S. citizens.” (3) The appellant's confinement facility failed to “promptly forward” his Article 138 complaint to General court- Martial Convening Authority as required by Army Regulation 27- 10, para. 20-9. When appellant asked to submit his Article 138 complaint, he was told to mail it himself. The appellant was not informed of the identity of his GCMCA or of the appropriate address. (k) When appellant asked for copies of various items from his corrections file at the Mannheim correctional facility to substantiate his claims of assault and impermissible conditions of confinement, the Chief of the PSB office refused to provide them. She explained that she “didn’t feel compelled to do so.” As a result, appellant was unable to present thismaterial to Parole and Clemency Board or to include it in his Article 138 complaint. (1) The appellant has been pulled from his detail in the supply room, presumably in an effort to retaliate against him for his repeated complaints. The supply detail was the only available duty that did not violate appellant's medical profile. During his time on the supply detail, the appellant's reviews were uniformly stellar. After being pulled from his position, the appellant was reassigned to perform manual labor. Since he is physically incapable of performing this work, the appellant is left sitting on a bench for several hours each day. Appellant suspects that his supervisor plans to produce a negative report on his performance, citing his "unwillingness" to work. In light of appellant's diligence and efficiency, the only purpose of such a report would be to retaliate against the appellant for addressing the facility’s shortcomings.United States Court of Appéals for the Armed Forces Washington, D.C. UNITED STATES, USCA Dkt. No. 11-0541/AR Crim.App. No. 20100513 Appellee Mack J. ) ) ) ) v. ) DOCKETING NOTICE ) ) ) MILLER, II, ) Appellant Notice is hereby given that a petition for grant of review of the decision of the United States Army Court of Criminal Appeals and a supplement to said petition were filed under Rules 20 and 22 on this 31st day of May, 2011. Appellee may file an answer under Rule 21{c) on or before the 20th day of June, 2011. For the Court, /s/ William A, DeCicco Clerk of the Court cc: The Judge Advocate General of the Army Appellate Defense Counsel (POIRIER) Appellate Government CounselIN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES Appellee PETITION FOR GRANT OF REVIEW crim. App. Dkt. No. 20100513 ) ) ) ) , ) USCA Dkt. No Private First Class (8-3) ) Mack J. Mille, IT ) United States Army ) Appellant) TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: The undersigned counsel, on behalf of Private Firet Class Mack J. Miller, TI, hereby petitions the United States Court of Appeals for the Armed Forces for a grant of review of the decision of the United States Army Court of Criminal appeals, pursuant to the provisions of Article 67(a) (3), Uniform Code of Military Justice. Appellants supplement to the petition has been filed contemporaneously herewith in accordance with Rule 19 of this Court's Rules of Practice and Procedure. MEGHAN M. POIRIER Captain, Judge Advocate Appellate Defense Counsel Defense Appellate Division U.S, Army Legal Services Agency 901 North Stuart Street, #340 Arlington, Virginia 22203CERTIFICATE OF FILING AND SERVICE I certify that a copy of the foregoing in the case of United States v. Miller, Crim.App.Dkt.No. 20100513, USCA Dkt. No _/ek, was electronically filed with both the Court and Government Appellate Division on May 31, 2011 Paralegal Specialist OOM _UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD ‘Appellate Military Judges UNITED STATES, Appellee Private First Class MACK J. MILLER It United States Army, Appellant ARMY 20100513 Seventh U.S. Army Joint Multinational Training Command Christopher Fredrikson, Military Judge Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate For Appellant: Major Laura R. Kesler, JA; Captain Meghan M. Poirier, JA. For Appellee: Major Amber J. Williams, JA 16 May 2011 “DECISION Per Curiam On consideration of the entire record, including consideration of the issues personally specified by the appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED. MA‘COLM H. SQUIRES, JR. Clerk of CourtIN THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS UNITED STATES Appellee v Private First Class (B-3 Mack J. Miller, IT United States Army Appellant BRIEF ON BEHALF OF APPELLANT Case No. ARMY 20100513 Tried at Vilseck, Germany on 30 April and 11 June 2010, by general court- martial, convened by the Commander, Headquarters, 7” Army Joint Multi-National Training Command, Lieutenant Colonel Christopher 1 Fredrikson, military judge, presiding. TO THE HONORABLE JUDGES OF THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS: The undersigned have carefully examined the record of trial in this case, do not admit that the findings and sentence are correct in law and fact, and submit the case upon its merits MEGHAN M. POIRIER cpr, JA Appellate Defense Counsel * pursuant to United States v. URA R. KESLER MAT, JA Branch Chief Defense Appellate Division Grostefon, 12 M.J. 431 (C.M.A 1982), appellant personally asserts the matters in the Appendix. Panel 2APPENDIXPursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant, through communication with counsel, personally requests that the Court consider the following 1. The appellant honestly and reasonably believed that he had been released from military duty after his arrest on 23 December 2007 by the Los Angeles Police Department. After the appellant informed the arresting officers that he was a member of the military, a representative of the police department. attempted to confirm his status. (R. at 209.) Officer Meredith Swisher, a police detective, learned that the appellant was not in an AWOL status. (R. at 209.) When the appellant was subsequently released by the police, he believed that he had been discharged from the military 2. The appellant’s chain of command subjected him to unlawful pretrial punishment in violation of Article 13 of the Uniform Code of Military Justice (UCMJ). After the appellant returned to duty with his unit in Germany, he found that his immediate chain of command considered his alleged misconduct tantamount to mutiny. He was ostracized, mocked, and harassed despite his practice of volunteering for difficult assignments and his determination to soldier on. For a period of four months, from August to December of 2009, the appellant was not paid, Nothing was done to rectify the situation until thebeginning of Christmas holiday. During that four month period, the appellant’s pregnant wife was deprived of his support. The appellant met with his entire chain of command, to include his Sergeant Major and Squadron Commander, to stress his desire to deploy with the unit and continue to serve. Instead of allowing the appellant to deploy, his chain of command elected to transfer him to the Rear Detachment. The appellant was assigned to a “legal” platoon with all the other Soldiers who were pending legal action, from extra duty and Article 15s to courts-martial. The appellant was presumed to be guilty from the outset. 3. The appellant has been subjected to impermissible conditions of confinement in violation of the Eighth Amendment and Article 55, UCMJ. (a) Upon in-processing to the Mannheim Regional Correctional Facility, the appellant was assigned to a general population bay and housed with an inmate who suffered from genital warts (herpes). The appellant's roommate bled from his rectum onto the seats in the bay and in the dining facility The appellant lived in constant fear of contracting this disease and complained about his unsanitary living conditions in several DD Form 510’s currently on record with the facility.(b) After being transferred to the Regional Correctional Facility at Fort Lewis, the appellant was housed in general population with an inmate who had contracted ringworm (c) The appellant was not provided an initial telephone call until well after ten days into his arrival and was not afforded an opportunity to make contact with Trial Defense Services for approximately a month (a) When the appellant entered confinement, he asked to keep an extra copy of his daughter's birth certificate and his marriage certificate. He needed those documents to establish a bank account in the United States for the benefit of his wife and infant daughter. This request was denied. On 9 September 2010, the appellant completed two emergency DD Form 510s notifying the facility that he needed to establish the bank account in support of his request for waiver of forfeitures. On 19 September 2010, the appellant submitted a third DD Form 510 requesting the same documents and notifying the facility that hig mother needed a power of attorney. The appellant's request was denied. Although one of the appellant's requests was ultimately granted, the Property and Funds department failed to comply with the approval for another week. It was only after the appellant submitted a fourth DD Form 510 that he was able to obtain the documents he needed to establish a bank account Unfortunately, due to the month long delay on the part of theconfinement facility, the deadline for establishing a bank account had expired. As a result, the appellant's dependents were denied the benefit of six months of pay and allowances (e) On 6 October 2010, the appellant was verbally assaulted by another inmate while a guard stood by and did nothing. Almost immediately thereafter, the same inmate physically attacked the appellant, causing a deep gash in the appellant's left wrist. (£) On 23 November 2010, the appellant was physically assaulted by a different inmate. As a result of these assaults the appellant is on the verge of a nervous breakdown and lives in constant fear of attacks from other prisoners. (g) In early March 2010, the appellant asked for fish during one of the meals. He was asked if he was Catholic. When the appellant replied that he was not, he was told that only Catholics were allowed to have fish. When the appellant complained to the Watch Commander about this religious discrimination, he was simply told that “we're not refusing to feed you, you just can’t have fish.” The appellant's Equal Opportunity complaint was subsequently denied (h) When the appellant filed a supposedly confidential Inspector General complaint, he learned that his request had been assigned a control number. The control number was writtenon the outside of his complaint, in a clear attempt to circumvent the anonymity to which the appellant was entitled. (i) Im late March 2010, the appellant asked for authorization to mail a letter to the trustee of his family trust authorizing the donation of a sum of money to the Red cross. The appellant intended the donation to go to relief efforts in China and Japan following the earthquakes and tsunami. The appellant’s request was denied hy the facility on the basis that it involved “business” and “didn’t qualify as an emergency involving U.S. citizens.”CERTIFICATE OF SERVICE bey UNITED STATES v. Blin) Army Docket No. AC Brief on Behalf of v Appellant Motion Other I certify that a copy of the foregoing was delivered to the Court and the Government Appellate pivision on AZ (GHC # . MICHELLE L. WASHINGTQN Paralegal Specialist e DivisionIN THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS UNITED STATES, BRIEF ON BEHALF OF APPELLEE Appellee Docket No. ARMY 20100513 v Tried at Vilseck, Germany, on Private First Class (E-3) 30 April and 11 June 2010, by MACK J. MILLER, II a general court-martial United States Army, convened by the Commander, 7°* Appellant Army Joint Multi-National Training Command, Lieutenant Colonel Christopher L Fredrikson, Military Judge, presiding TO THE HONORABLE, THE JUDGES OF THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS: Appellant has assigned no errors and submitted his case upon its merits to this Honorable Court. The Government will file no further pleadings including on those issues raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) The Government submits that the approved findings and the sentence should be affirmed. Governmgnt Appellate Division * appellate defense counsel directs this Court's attention to those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J 431 (C.M.A, 1982). The Government has revieved these matters and submits they lack merit Panel 2CERTIFICATE OF FILING AND SERVICE I certify that the original of the foregoing was delivered by hand to this Honorable Court and a copy served upon Appellate Defense Counsel on |S April 2011. Paralegal Specialist ero late Division