AWOL Military Lawyers Larceny UCMJ Article 32 Uniform Code of Military Justice Civilian Attorneys

AWOL Military Lawyers Larceny UCMJ Article 32 Uniform Code of Military Justice Civilian Attorneys

RICHARD FOWLER, Plaintiff, v. UNITED STATES, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

Rather than face court martial, Fowler resigned for the good of the service and acknowledged that he might lose pay, benefits, etc. The AWOL charges remained part of Fowler's record, and the Army has since sought to collect $ 1,742.53 that Fowler was paid for time that the Army claims he was AWOL.

Fowler claimed that he was not AWOL, and sought to remove the allegations from his military record. He exhausted his administrative remedies; the Army Discharge Review Board (ADRB) and the Army Board for the Correction of Military Records (ABCMR) both denied his request. He then sued in the Court of Claims in June 1987. The government moved for summary judgment on the ground that he had resigned voluntarily and thereby forfeited his right to challenge the merits of the AWOL charges at court martial.

The Court of Claims found the resignation voluntary and granted summary judgment for the government. Fowler did not appeal.

Fowler's claim before this Court is identical to his suit in the Court of Claims, except that he has dropped his claims for monetary relief. Basically, he seeks leave to do what he would have done at a court martial: demonstrate that he was not AWOL.

The government argues that the claim is barred by res judicata, because (1) the Court of Claims found Fowler's resignation voluntary, and (2) that determination disposes of the rest of Fowler's claims, because if he wanted to challenge the AWOL charges he should have faced them at court martial. Fowler does not contest the first prong that his resignation was voluntary, and review of that decision is clearly barred by issue preclusion.

The Court holds that this portion of the government's argument was resolved by the Court of Claims as well, and that claim preclusion bars review of any of the case. In order to grant the government's motion for summary judgment, the Court of Claims necessarily had to answer both questions: not only did it hold Fowler's resignation voluntary, but also that because his resignation was voluntary he could not contest the accuracy of his records but should have stayed in the service long enough to challenge the charges at court martial.

Therefore, since the Court of Claims resolved all the issues currently before the Court, and indeed because the plaintiff's complaint is nearly identical to the complaint filed in the Court of Claims, Fowler's entire claim is barred by claim preclusion. If the Court of Claims erred on either the voluntariness of his resignation or its practical effects, the remedy was appeal of the Court of Claims' decision, not a collateral attack in Federal District Court.

For these reasons, the government's motion to dismiss is GRANTED.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content.

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