United States v. Robert E. Brown, Jr., PFC, U. S. Army (CM 420258)

July 9, 1970 No. 22,973 United States v Robert E. Brown, Jr., PFC, U. S. Army (CM 420258). [MAJORITY] On consideration of the Motion to Strike the Petition for Grant of Review filed in the above-entitled action, it appearing that the appellant was notified of the decision of the board of review on May 6, 1969, and did not seek review of the board’s decision until he placed a Petition for Grant of Review in military channels on April 9, 1970, filed in this Court May 7, 1970; and it further appearing that no good cause has been shown sufficient to relieve appellant from the default resulting from his failure to petition this Court within the time fixed by Article 67(c), Uniform Code of Military Justice, 10 USC § 867(c), it is, by the Court, this 9th day of July 1970, ORDERED: That said Motion to Strike the Petition for Grant of Review be, and the same is hereby, granted. [DISSENT — FERGUSON, Judge] FERGUSON, Judge (Dissenting) : I would deny the Motion to Strike the Petition for Grant of Review and allow the Government fifteen days in which to reply to the issue raised. I am of the opinion that notwithstanding that the time for petitioning the Court in the ordinary course of review has elapsed, the petitioner questions the jurisdiction of the court-martial to hear his case within the meaning of O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), and the question of jurisdiction may be raised at anytime. United States v Ferguson, 17 USCMA 200, 37 CMR 464 (1967). Had this accused made a timely request for review (Article 67(c), Uniform Code of Military Justice, 10 USC § 867), he would not have been foreclosed by the determination in Mercer v Dillon, 19 USCMA 264, 41 CMR 264 (1970), that O’Callahan applies only to convictions that were not final before June 2, 1969. But whether his petition is considered as a request for original review, or in the nature of a Petition for Writ of Error Coram Nobis (United States v Frischholz, 16 USCMA 150, 36 CMR 306 (1966), good cause has been shown for the relief requested. Cf. United States v Brant, 19 USCMA 493, 42 CMR 95 (1970); United States v Garcia, 18 USCMA 5, 39 CMR 5 (1968).