The opinion
JONES, Chief Judge,
(concurring).
I concur in the result. Plaintiff contends that his constitutional right to be confronted by the witnesses against him was violated. I believe that because of plaintiff’s repeated failure to raise this issue on previous occasions, we should not grant a money judgment in the light of the facts disclosed by this record. Let us examine plaintiff’s own performance with respect to securing that right which he urges in this court.
The plaintiff was convicted by a general court-martial in 1948. Plaintiff never raised the point that he had been denied the right to confront the witnesses against him in the first instance, the general court-martial itself. That conviction was successively reviewed by the Judge Advocate General of the Navy and by the Commandant of the Marine Corps. Plaintiff failed to participate in these reviews of his conviction within the Department of the Navy. Plaintiff did not assert any constitutional defect in his court-martial trial in the immediate review of his ease by the Navy.
Some five years later, plaintiff bestirred himself for the first time. In a petition to the Judge Advocate General of the Navy on July 24, 1953, plaintiff raised, among other grounds, the issue of whether he had been denied the right of confrontation. The Judge Advocate General refused to consider the petition because the plaintiff had
“ * * * neither petitioned for relief within one year after final disposition upon initial appellate review nor within one year after termination of the war.”
Plaintiff then on November 12, 1953, petitioned the United States Court of Military Appeals to review his conviction and sentence. Plaintiff’s petition was dismissed by that court for lack of jurisdiction. In retrospect, the curious aspect of plaintiff’s petition to the United States Court of Military Appeals was that he nowhere complained of deprivation of his constitutional right of confrontation. On September 3, 1954, plaintiff brought his action in this court.
We have before us then a plaintiff who did not stir at all in his own behalf when his case was first reviewed. For five years he was apparently indifferent to whether or not his court-martial was af•fected with a constitutional defect. By *902 the time he finally did get around to asking the Judge Advocate General to review his case, the Judge Advocate General had no authority to act. Then plaintiff petitioned the United States Court of Military Appeals. Similarly, that body declared it had no jurisdiction to review plaintiff’s case.
Unquestionably courts-martial must afford an accused his constitutional rights. But constitutional rights like all legal rights must be seasonably presented. Here the plaintiff has blown alternately hot and cold on the issue of whether or not he has been denied a constitutional right. Sometimes he has alleged denial. At other times he has made no such allegation. Repeatedly, plaintiff has failed to avail himself at the proper time of the appellate process within the military. In the light of all this, there is hardly sufficient background to permit plaintiff to succeed in his petition to this court for a money judgment.
Plaintiff claims that he was deprived of his constitutional right of confrontation in the general court-martial. I do not think that issue is the decisive one here. I am of the view that the right of the accused to confront the witnesses against him is one of the most fundamental of our freedoms. These freedoms were too dearly bought to be casually exploited. I do not think, however, plaintiff should be permitted to sleep on his rights indefinitely and then, when all else has failed, to invoke the Bill of Rights as an afterthought. See Paraiso v. United States, 207 U.S. 368, 370 , 28 S.Ct. 127 , 52 L.Ed. 249 .
As a civilian court, we must be constantly mindful that we should give due respect to the integrity of the court-martial process. I would underscore the observation of Mr. Justice Jackson in Orloff v. Willoughby, 345 U.S. 83 , at page 94, 73 S.Ct. 534 , at page 541, 97 L.Ed. 842 , in connection with the proper relationship of civil courts to military matters:
“The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.”
There are, of course, occasions where it is proper for us to grant recovery, a court-martial notwithstanding. Our jurisdiction arises where a court-martial has acted with such complete disregard of the constitutional rights of an accused that the court-martial is said to have lost its jurisdiction. Shapiro v. United States, 69 F.Supp. 205 , 107 Ct.Cl. 650 . It would stretch the doctrine set forth in Shapiro far beyond its original and proper bounds to permit all those convicted by courts-martial to secure review in this court merely by uttering a belated claim that the accused has been deprived of a constitutional right at his court-martial.
It would be a disservice to the original purposes of the Shapiro doctrine to permit plaintiff to invoke it here. Particularly is this so where it is by no means clear that in substance plaintiff was actually denied the right of confrontation. It is true that the testimony of Mr. Boell-hoff and Mr. Krinkevitch at the Court of Inquiry was admitted in the court-martial although neither of these gentlemen testified in person at the actual court-martial trial. Their stated reasons for declining to testify are set out in finding 15. Our findings show that the plaintiff had the right of confrontation at the Court of Inquiry where Mr. Boellhoff and Mr. Krinkevitch were both present. It is most significant in determining whether or not plaintiff was in fact denied the benefit of the right of confrontation to his prejudice that he declined to cross-examine Mr. Krinkevitch at the Court of Inquiry.
In summary, after the plaintiff has ignored a possible constitutional point at almost every step of the way through the appellate process of the military justice system, we should not permit him to raise it in this court many years later. Our power to disregard the proceedings of courts-martial must rest on *903 sterner stuff than the mere recitation a formula. of
It is unnecessary to comment on the merits of plaintiff’s constitutional argument since he should not be allowed at this late date to raise that argument here.