United States v. Lewis

This case is one of more than three hundred now pending before this Court where an appellant has asserted that the fitness reporting system of 'the Department of the Navy deprived the Navy-Marine Corps Court of Military Review of its independence. We resolved this same issue in favor of the Government in United States v. Mitchell, 39 MJ 131 (CMA 1994). The mandate in that case was issued on May 12, 1994. In accordance with this Court’s practice and in the interest of judicial economy, we will deny all petitions for review based solely on this issue when the petition supplement has been filed after the date of the mandate.

We are aware of the possibility of further review of this issue by the Supreme Court of the United States. See Art. 67a, Uniform Code of Military Justice, 10 USC § 867a. If certiorari is granted by the Supreme Court on this issue and some relief is afforded by the High Court, we will accept out-of-time requests for appropriate relief in cases where the above denial orders have been issued. See United States v. Rice, 36 MJ 264 (CMA 1993); see also United States v. Schneider, 36 MJ 364 (CMA 1993).

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

(concurring in part and dissenting in part):

I agree that most petitions for review raising only the Mitchell issue should be denied, but I believe that those cases covered by footnote 8 of the Mitchell decision, 39 MJ at 145 n. 8, should be individually considered on their merits.