Opinion of the Court
The petitioner, formerly a Private First Class in the United States Army, has petitioned this Court for review of the Army Court of Military Review’s decision on his petition for a certificate of innocence.1 Forrest v. United States, CM 425279, 2 M.J. 870 (A.C.M.R.1976). We have grant
The petitioner was convicted of willful disobedience of a lawful command of a superior commissioned officer “to board the vehicle that was to transport him to the Overseas Replacement Station,” in violation of Article 90, Uniform Code of Military Justice, 10 U.S.C. § 890. The finding and his sentence to a dishonorable discharge, total forfeitures, confinement at hard labor for 2 years, and reduction to the grade of Private E-l were approved by the convening authority. The Army Court of Military Review, upon review of the case pursuant to Article 66, UCMJ, set aside the findings and sentence, and dismissed the charge. United States v. Forrest, 44 C.M.R. 692 (A.C.M.R.1971). Subsequently, he petitioned for a certificate of innocence. That court properly determined that the unjust conviction statute encompassed an unjust conviction by courts-martial,2 and that under the facts of this case, it was an appropriate forum to issue the certificate within the terms of 28 U.S.C. § 2513.3
A majority of the court concluded that although the petitioner’s conviction had been set aside on the ground that he was not guilty,4 he did not satisfy all the statutory conditions imposed as a prerequisite for the issuance of the certificate. The court5 observed that the standard for the issuance of a certificate of innocence differs from that employed by a court in its determination of innocence or guilt of an accused, and that the intent of Congress had been for only those “truly innocent” to be accorded relief under the statute. Osborn v. United States, 322 F.2d 835, 840 (5th Cir. 1963).6 The majority determined that the basis for the initial reversal had been that as the commanding general failed to properly process the petitioner’s second application for a discharge as a conscientious objector under the provisions of AR 635-20, the evidence was insufficient to establish the legality of the order to Forrest beyond a reasonable doubt. Upon review of the record, it concluded the petitioner was not “truly innocent” simply because the question of whether he qualified as a conscientious objector under the provisions of the regulation had not been properly determined,7 and, therefore, the record did not contain the proper basis for the issuance of a certificate of innocence.
The decision of the United States Army Court of Military Review is affirmed.
1.
Such a certificate may be issued only under the precise guidelines set forth in 28 U.S.C. § 2513, which provides:
Unjust conviction and imprisonment.
(a) Any person suing under section 1495 of this title must allege and prove that:
(1) His conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he had been pardoned upon the stated ground of innocence and unjust conviction and
(2) He did not commit any of the acts charged or his acts, deeds, or omissions in connection with such charge constituted no offense against the United States, or any State, Territory or the District of Columbia, and he did not by misconduct or neglect cause or bring about his own prosecution.
(b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein such facts are alleged to appear, and other evidence thereof shall not be received.
(c) No pardon or certified copy of a pardon shall be considered by the Court of Claims unless it contains recitals that the pardon was granted after applicant had exhausted all recourse to the courts and that the time for any court to exercise its jurisdiction had expired.
Page 174id) The Court may permit the plaintiff to prosecute such action in forma pauperis.
(e) The amount of damages awarded shall not exceed the sum of $5,000.
The certificate is a requisite for filing a claim against the United States for damages pursuant to 28 U.S.C. § 1495.
2.
Osborn v. United States, 322 F.2d 835 (5th Cir. 1963); Roberson v. United States, 124 F.Supp. 857, 129 Ct.Cl. 581 (1954); Cox v. United States, 112 F.Supp. 494 (N.D.Cal.1953).
3.
McLean v. United States, 73 F.Supp. 775 (W.D.S.C.1947).
4.
See 28 U.S.C. § 2513(a)(l)-(2).
5.
The dissenting judge shared the conclusion of the majority that a reversal based upon procedural defects or a failure of proof would not satisfy the requirements of the act.
6.
See Osborn v. United States, supra (lack of jurisdiction); United States v. Brunner, 200 F.2d 276 (6th Cir. 1952) (improper use of privileged testimony); Cratty v. United States, 83 F.Supp. 897 (S.D.Ohio 1949) (statute of limitations). In each instance the court involved denied the relief sought.
7.
The dissenting judge opined that the evidence indicated that the order was, in fact, illegal and, hence, Forrest’s actions were not an offense against the United States, nor was the prosecution brought upon by “his own misconduct.” See Weiss v. United States, 95 F.Supp. 176 (S.D.N.Y.1951); United States v. Keegan, 71 F.Supp. 623 (S.D.N.Y.1947). For the reasons enunciated in later portions of this opinion, although we can appreciate the validity of this position, we cannot accept it as determinative.
8.
The court in Osborn noted that the statute mandates that proof of the requisite facts shall be by a certificate of the issuing court, Hadley v. United States, 66 F.Supp. 140, 106 Ct.Cl. 819 (1946), and the facts found are intended to be conclusive on the issue of the claimant’s innocence. See Andolschek v. United States, 77 F.Supp. 950, 111 Ct.Cl. 567 (1948).