United States v. Williams

HANFT, Judge,

dissenting:

After Williams returned from being absent without leave, administrative elimination proceedings were initiated against him. Williams chose not to waive his right to a hearing, and the general court-martial convening authority chose to convene an administrative discharge board. After hearing the case, that board recommended that Williams be retained in the service and that he not be subjected to punitive action. The convening authority approved the recommendation for retention, but he then turned around and referred the case to a special court-martial authorized to adjudge a Bad Conduct Discharge. Such action, in my mind, clearly raises the specter of prosecutorial vindictiveness. And although such prosecution is not absolutely prohibited, I believe that good cause for taking such action must affirmatively appear, and here it did not. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Ruesaga-Martinez, 534 F.2d 1367 (9th Cir. 1976). I would set aside the findings and the sentence and dismiss the charge.