Victorino Refre, Jr., Appellant, v. the United States, Appellee, 833 F.2d 1022 (Fed. Cir. 1987)

DECISION

The decision of the United States Claims Court, denying appellant's motion for summary judgment, granting the government's cross-motion for summary judgment, and dismissing appellant's complaint, is affirmed.

OPINION

The Claims Court dismissed appellant's complaint for lack of jurisdiction because it determined that appellant's cause of action amounted to a collateral attack upon a court-martial conviction that was entitled to finality under 10 U.S.C. § 876 (1982) and, further, that appellant failed to make any showing that he had been subjected to a Constitutional unfairness of the type described in United States v. Augenblick, 393 U.S. 348 (1969). See Bowling v. United States, 713 F.2d 1558, 1560-61 (Fed. Cir. 1983).^* 

With respect to clemency, this Court's predecessor held that such relief is 'of a discretionary certiorari type,' that appellants had 'no legal right to demand that the Board correct errors, not amounting to Constitutional violations,' and that, therefore, a refusal of clemency such as here occurred would not vest the Court with jurisdiction even if it agreed that such non-Constitutional errors had occurred. Flute v. United States 210 Ct. Cl. 34, 45, 535 F.2d 624, 630 (1976).

Accordingly, while we agree with the result, we are of the opinion that dismissal for lack of jurisdiction would have been more appropriately based on the absence of a legal right to insist that the board grant clemency given appellant's admission that his conviction was not being challenged on Constitutional grounds.