Petition — Stearsman v. United States

Supreme Court, U. S,

FILED

1 FEB 22 1978

|_MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

MicuarEL R. STEARSMAN,

Petitioner,

—Vi—

Tue Unrrep SratEs,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Jor M. Gora

c/o Amerizan Civil Liberties

Union

22 East 40th Street

New York, New York 10016

Epwarp A. Briti

1185 Avenue of the Americas

New York, New York 10036

Attorneys for Petitioner

ae

Opinion Below ec eccccces ee cccccccccccs ° é.

Jurisdiction coerce cccccccccces eccccce 2

Question Presented coecccccccccces eeece 2

Statutory Provisions Involved __......... ees 2

Statement of the Case cocecccccccos cece 3

Reasons for Granting the Writ ....... . 7

CONCLUSIONS eocccccccccvccccccccocccce bt

Table of Authorities

Cases

Augenblick v. United States, 206 Ct. Cl.

74, 509 F.2d 1157 (1975), cert. denied,

422 U.S. 1007 (1976) eeeeeeeeees Ve 10, 13

Brown v. United States, 508 F.2d 618

(3d Cir. 1974) e*eeexsieee#eestf5e*ee#*ee#ee@ee#ee#e#ee#ee#*#e* 10

Gosa v. Mayden, 413 U.S. 665 (1973) ... passim

Gross v. United States, 209 Ct. Cl. 70,

531 F.2d 482 (1976) eoseeeev eevee ee ee 6, te ee

Hooper v. Laird, 482 F.2d 794

(D.C. Cir. 1973) eeeeneenerteenrteenreeneteeenaeeeeee 13

Lerner v. United States, 168 Ct. Cl. 730,

387 F.2d 390 (1967) ee eeeseeseeenee#ee#ee#e#ee#ee#e#e#es 14

Lichtenstein v. Schlessinger, 495 F.2d

1382 (9th Cir. 1974) eeeenee7nse ee#ee#eee#s8e¢ Khe 13

olie

O'Callahan v. Parker, 395 U.S. 258

(1969) sec cccccccccccscvrcccccees’ PAaSSim

Relford v. Commandant, 401 U.S. 355 |

(1971) eoeeeveeeveeeeeeeeeeeeveeeeeeeeeeneee 8

Robinson v. Neil, 409 U.S. 505 (1973)...... ll

Schlessinger v. Councilman, 420 U.S.

738 (1975)

eeeeneeenseeeeeneeeneeneeeeneeeee 6

Stovall v. Denno, 388 U.S. 293 (1967) ..... 1l

United States v. Henderson, 18 U.S.C.M.A.

601, 40 CMC 313 (1969) oeeeenepetedéess ©

United States v. Shockley, 18 U.S.C.M.A.

610, 40 CMR 322 (1969) eoeeeevneeeeeeeeeee 8

United States v. United States Coin and

Currency, 401 U.S. 715 (1971)........ 11, 15

Williams v. Froehlke, 490 F.2d 998

(2d Cir. 1974) eeeeeseesee#ee#ee#ensee#ee#e#es¢ 10, 13

Constitutional & Statutory Provisions

Fifth Amendment TrTrTrriTT TTT ic.

Uniform Code of Military Justice -

Article 76 (10 USC Section 876)........ 13

Article 130 (10 USC Section 930) ...... 4

Article 134 (10 USC Section 934) ..2, 3, 4

e*eeeeeeeneeeeeeeeeee 6

28 U.S.C. §1491

eeeeeeeeneeeeneeeeee 2

28 U.S.C. §1255

Alaska Statutes, §11.40.010 o0006eeeen.. 00

en

; IN THE .

SUPREME COURT OF THE UNITED STATE

October Term, 1977

No.

MICHAEL R. STEARSMAN,

Petitioner,

Vv.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

Petitioner Michael R. Stearsman respect-

fully prays that a writ of certiorari issue to

review the judgment of the United States Court

of Claims, entered on November 25, 1977, dis-

missing petitioner's action for a declaration

that his 1963 court-martial conviction for

adultery was void and unconstitutional, and

for related relief based on the continuing

effects of that conviction upon petitioner's

military career.

2.

OPINION BELOW

The opinion of the United States Court

of Claims is not yet reported; it is set forth

in the Appendix, infra, at pp. la-4a.

JURISDICTION

The judgment of the Court of Claims was

entered on November 25, 1977; this Court's

jurisdiction is invoked under 28 U.S.C. §1255.

QUESTION PRESENTED

Whether the exercise of court-martial

jurisdiction over petitioner in 1963, resulting

in a conviction for adultery, was void and

unconstitutional where the alleged offense was

not “service connected," O'Callahan v. Parker,

395 U.S. 258 (1969), and where petitioner has

served continuously in the military since that

conviction?

STATUTORY PROVISIONS INVOLVED

Article 134, Uniform Code of Military

Justice, 10 U.S.C. §934:

§ 934. Art. 134. General Article

Though not specifically mentioned

in this chapter, all disorders and

neglects to the prejudice of good

order and discipline in the armed

3.

forces, all conduct of a nature to

bring discredit upon the armed

forces, and crimes and offenses not

capital, of which persons subject

to this chapter may be guilty,

shall be taken cognizance of by a

general, special, or summary court-

martial, according to the nature

and degree of the offense, and

shall be punished at the discretion

of that court. (Aug. 10, 1956, ch.

1041, 7OA Stat. 76)

STATEMENT OF THE CASE

Petitioner is a non-commissioned officer

with the United States Air Force, and has been

continuously in the Service since 1956. Early

in 1963, then a Staff Sergeant stationed at

Eielson Air Force Base in Alaska, petitioner

was convicted by court-martial of violating

Article 134 of the Uniform Code of Military

Justice by "having had sexual intercourse with

a married woman not his wife." (App., infra,

p. la).

The alleged offense occurred some 25

miles from the military base, in a home in a

regular civilian residential section of

Fairbanks, Alaska. Petitioner was lawfully

off-duty at the time, properly away from the

base, and wearing civilian clothes. The woman

4.

involved in the alleged offense was a friend

of petitioner's. She was not employed at Eielson

AFB in a military or civilian capacity and had

no connection with the military base, except she

was married to an Air Force sergeant also sta-

tioned at Eielson, but assigned to a different

unit than petitioner.

The specification of charges against peti-

tioner under UCMJ Article 134 contained no

allegation that the alleged conduct was connected

to plaintiff's military service or otherwise had

1/

military significance. — At the court-martial,

the prosecution called as a witness the woman

with whom petitioner allegedly had sexual rela-

tions. The defense attorney's objection that

she was entitled to be informed of her Fifth

Amendment rights prior to any questioning con-

cerning the offense was overruled by the pre-

siding military law officer, although defense

counsel properly pointed out that the alleged

offense was also a violation in the State of

L/ Petitioner was tried at the same time on

a charge of violating UCMJ Article 130 for an

unrelated offense. His conviction for that

offense was subsequently disapproved and set

aside on review by the Headquarters, Alaskan

Air Command.

S.

Alaska and that the military proceedings could

subsequently be subpoenaed by civilian courts.

It was stipulated at the trial that the woman's

consent to sexual relations with petitioner was

not an issue in the case. Both petitioner and

the woman were over the age of 21 at the time.

The court-martial found petitioner guilty

of all charges and specifications. He was sen-

tenced to dishonorable discharge, forfeiture:

of pay and allowances, and three years' con-

finement at hard labor with reduction in rank

to Airman Basic, althorgh in seven previous

years of Air Force service he had been reg-

ularly promoted and was never subjected to

any court-martial charges.

As a result of the conviction, petitioner

was (as finally determined after command appel-

late review) stripped of his sergeant's rank,

reduced to the rank of Airman Basic, confined

for five months and fourteen days, and com-

pelled to forfeit pay and allowances during

his confinement. Petitioner returned to duty

in late 1963, and again rose through the ranks

to his present position of Master Sergeant.

On or about August 3, 1969, petitioner

applied to the Air Force Board for Correction

of Military Records on the basis of O'Callahan

v. Parker, 395 U.S. 258 (1969), for correction

6.

of his military records to have them show the

overturning of his court-martial conviction and

his entitlement to promotions and payment of

amounts found to be due as a result of such

correction. The application was denied without

hearing on September 4, 1969; a further applic-

ation was similarly denied without hearing on

October 9, 1969.

Petitioner filed this suit in the Court

of Claims in May 1975, seeking a declaration

that his conviction was unconstitutional and

void, expungment of the conviction from his

military records, restoration of his proper

grade and rank, and collection of back pay and

other monetary relief. 2/ Upon cross-motions

for summary judgment, the Court of Claims

granted the defendant's motion and ordered the

action dismissed on November 25, 1977.

The Court rejected petitioner's argument

that the court-martial was without jurisdiction

to try him in 1963 for an offense which was not

service-connected under O'Callahan v. Parker,

2/

= Jurisdiction to grant the requested relief |

was present under 28 U.S.C. §1491. See Schles-

inger v. Councilman, 420 U.S. 738, 747-48, 752

(1975); Gross v. United States, 209 Ct. Cl. 70,

531 F.2d 482 (1978). tii

7.

395 U.S. 258 (1969), relying on its own pre-

vious holdings that O'Callahan was not retro-

active. Augenblick v. United States, 206 Ct.

Cl. 74, 509 F.2d 1157 (1975), cert. denied,

422 U.S. 1007 (1976); Gross v. United States,

209 Ct. Cl. 70, 79-80, 531 F.2d 482, 488

(1976) (App., infra, p. 3a), 3/

REASONS FOR GRANTING THE WRIT

1. The issue presented by this case is

whether the exercise of court-martial juris-

diction over the petitioner, resulting in a

1963 conviction for adultery, was void and

unconstitutional under the principles announced

in O'Callahan v. Parker, supra, limiting trial

3/ In the Court below, the petitioner also

advanced the separate claim that his court-

martial conviction for adultery violated the |

constitutional right of privacy relating to

sexual conduct between consenting adults. Two

judges below rvled that petitioner had waived

this claim by not presenting it as a defense

to the court-martial or on command review from

the conviction. The third member of the panel

took the position that the waiver ruling was

inappropriate, but that on the facts of this

case the sexual privacy claim should be re-

jected on the merits. (App., infra, pp. 3a-4a).

The petitioner does not seek review of these

aspects of the decision below.

by military court-martial to crimes which are

service connected. The Court of Claims held

that O'Callahan had no retroactive applica-

tion to petitioner, and therefore dismissed

4/

his action. —

4/ The Court below did not reach the question

of whether the offense for which petitioner was

convicted by court-martial was service connected

under this Court's decisions in O'Callahan v.

Parker and Relford v. Commandant, 401 U.S. 355

. Since we do not believe there can be

any serious argument that the alleged off-base,

off-duty adultery with the wife of a serviceman

was service-connected, and the government did

not press this point below, we do not raise this

point as a separate question for review. —

The military courts have consistently re-

fused to find service connection present merely

because the victim of an off-base crime of a

sexual nature was a military dependent. See

e.g., United States v. Henderson, 18 U.S.C.M.A.

40 CMR 313 (1969); OUnited States v. Mc-

Gonni al, 19 U.S.C.M.A. 54, 41 CMR 94 (1969);

Oni ted States v. Shockley, 18 U.S.C.M.A. 610,

40 CMR 322 (1969). Of course, this case

involved sexual conduct between consenting

adults, and therefore presented even less

justification for military jurisdiction than

the cited cases where military dependents

were victims of a crime.

9.

The retroactive application of O'Callahan

v. Parker was squarely presented for decision

in Gosa v. Mayden, 413 U.S. 665 (1973), but was

not conclusively resolved by the divided opin-

ions of the Court:

(1) Four justices, the plurality opinion

being written by Mr. Justice Blackmun, held

that O'Callahan was not to be applied retro-

actively;

(2) Three justices joined in a dissent-

ing opinion, written by Mr. Justice Marshall,

that O'Callahan must be applied retroactively

' because O'Callahan had decided that there was

no constitutional jurisdiction in courts-

martial to adjudicate non-service-connected

offenses;

(3) Mr. Justice Rehnquist agreed that

O'Callahan was based on lack of jurisdiction

and, under controlling precedents, O'Callahan

would have retroactive application, but voted

to overrule O'Callahan;

(4) Mr. Justice Douglas did not reach

the merits in Gosa because he believed that

the issue was simply whether appellant's

failure to raise the O'Callahan issue in

the military courts had made the matter res

judicata.

10.

Thus, on the precise issue presented by this

case, whether O'Callahan is a jurisdictional

decision to be applied retroactively, the opin-

ions of the Court in Gosa v. Mayden resulted

in a 4-4 split. 2/

While the Court of Claims has considered

that Gosa v. Mayden created a "binding prece-

dent" on the issue of O'Callahan retroactivity,

Augenblick v. United States, 206 Ct. Cl. 74,

509 F.2d 1157 (1975), cert. denied, 422 U.S.

1007 (1976), and therefore made no independent

examination of the question here, the courts

of appeals which have considered the question

have uniformly viewed the issue as unresolved

by Gosa. See Brown v. United States, 508 F.2d

618, 623-24, 644-46 (3rd Cir. 1974); Williams

v. Froehlke, 490. F.2d 998 (2d Cir. 1974) ("Since

O'Callahan was not overruled, Mr. Justice

Rehnquist must be counted with the dissenters

3/ It is significant that Mr. Justice

Rehnquist did not limit his concurring opinion

to his belief that O'Callahan should be over-

ruled, but mentioned it only in connection

with one of the two cases before the Court.

As to the other case, he stated that, "even

if O'Callahan were followed," any crime

committed by a member of the armed forces

during a period of declared war was service-

connected and could be tried by court-martial.

413 U.S. at 692.

11, .

in Gosa as believing that O'Callahan is retro-

active," Id. at 1001); Lichtenstein v. Schles-

singer, 495 F.2d 1382 (9th Cir. 1974).

The retroactive application of O'Callahan

is an issue undoubtedly of major constituitonal

importance, an issue which the splintered opin-

ions in Gosa leave without definitive resolu-

tion by this Court. We urge that the Court

accept this case for review in order to resolve

this issue, and respectfully suggest that the

dissenting opinion of Mr. Justice Marshall in

Gosa contains the more persuasive analysis of

the issues, and should be adopted by the Court.

Under that view, O'Callahan involved jurisdic-

tional competency and defined the constitutional

limits of adjudicatory power of the military

courts. As such, O'Callahan must be applied

retroactively. See Robinson v. Neil, 409 U.S.

505 (1973); United States v. United States Coin

and Currency, 401 U.S. 715 (1971).

The Gosa plurality's use of the three-

pronged test developed in Stovall v. Denno,

388 U.S. 293 (1967), to defeat retroactive

application of O'Callahan depends upon its

view that O'Callahan was essentially a pro-

cedural, not a jurisdictional, ruling. This

view misconstrues the holding in O'Callahan,

12.

which was clearly based, "on the constitutional

limits of the military's adjudicatory power

over offenses committed by servicemen," (Gosa

v. Mayden, 413 U.S. at 694, Marshall, J., dis-

senting). We urge that the Court reconsider

this quesiton left unanswered in Gosa, and

definitely resolve it in accordance with the

view of Mr. Justice Marshall.

3

2. Even if Gosa v. Mayden can be read

as precluding the claimants there from relying

on the O'Callahan decision to challenge their

pre-1969 court-martial convictions, however,

that ruling is not necessarily dispositive in

this case. Petitioner here, unlike the claim-

ants in Gosa, is presently on active duty, and

has continuously been so — the time of com-

pletion of his sentence. — As a consequence

&/ In Gosa v. Mayden, the claimants had

= from

each been discharg the military well

before commencing their collateral attacks on

their previous court-martial convictions.

Neither one of them was on active duty at

the time they filed suit. Indeed, so far as

we can tell, in every federal decision sug-

gesting that O'Callahan is not "retroactive,"

the petitioner, Claimant or plaintiff was no

longer in military service at the time the

action was filed, and was mounting a truly

"collateral" attack on the court-martial pro-

(continued next page)

4

13.

of that status, the court-martial conviction

has a continuing and direct impact upon the

petitioner in his present military service.

In that respect, the gravamen of petitioner's

claim is not so much a collateral attack on a

prior deprivation of rights, but a present

attack on the continuing present effects of

such deprivation.

The distinction is crucial in several

respects. First, although petitioner's con-

viction was presumably "final" in the sense

of Article 76, Uniform Code of Military Justice,

10 U.S.C. §876, the consequences of that

military conviction have a direct and contin-

uing daily effect upon petitioner's military

service. Except for that conviction, both his

rank and pay would be different today. If the

assumption of court-martial jurisdiction over

petitioner in 1963 was improper, he should be

entitled to raise that claim presently, just

as he presumably could challenge a present

military decision to deny him some particular

Augenblick v. United States, supra; Wil

v. Froehike, su 3) So Vv. rd,

794 (D.C. Cir. 3); chtenstein v.

Schlessinger, supra. .

ceedings. See Gross v. United States, su ra;

liams

.2da

14.

benefit because of that conviction.

Second, petitioner's continuing military

service defines a limited area in which this

Court might permit the retroactive application

of O'Callahan without the potentially disrup-

tive effect upon the military feared by the

Gosa p.urality, should O'Callahan be held

retroactive with respect to all pre-1969

courts-martial’. 413 U.S. at 683-85. Since

few individuals who were subjected to court-

martial jurisdiction for conduct lacking

service connection are likely to have remain-

ed, as has petitioner, on continuous active

duty, the practical impact upon the military

of a decision holding O'Callahan retroactive,

limited to those in petitioner's circumstances,

would be minimal, 2/

7/7

— Distinctions between O'Callahan claims

raised by those whose convictions were final

and claims raised by those who suffer contin-

uing adverse consequences in their military

careers have an analog in the so-called "con-

tinuing ciaim" doctrine of the Court of Claims.

That doctrine has been used to modify statutes

of limitations barriers to suits in the Courts

of Claims where claimant suffers a continuing

wrong due to continuing service. See Lerner

v. United States, 168 Ct. Cl. 247 (1964);

Cosgriff v. United States, 181 Ct. Cl. 730,

387 F.2d 390 (1567). Just as the continuing

consequences of a claimed wrong can override

the interests in repose and finality which

are safeguarded by the statute of limitations,

so too should such continuing consequences override

(continued next page)

15.

3. There is an additional factor which

differentiates this case from Gosa v. Mayden.

The plurality in Gosa carefully distinguished

the situation where conduct was "constitution-

ally immune from punishment in any court,"

quoting from United States v. United States

Coin and Currency, supra at 724, from its view

of the issue presented in O'Callahan:

O'Callahan, on the other hand,

the vot tenes was one for which the

defendant was not so immune in any

court. The question was not whether

O'Callahan could have been prosecuted;

it was, instead, one related to the

forum. 413 u.S. at 677.

In a very real sense, petitioner here was

"constitutionally immune from punishment in

any court" for his conduct. It was alleged

in the petition, and demonstrated below, that

petitioner would not, as a practical matter,

have been prosecuted for any criminal offense

by the state of Alaska for the conduct which

was the basis of his court-martial conviction.

Even if he had been prosecuted, moreover, it

seems plain that the incriminating testimony

the similar interests in finality which

cause courts not to give retroactive effect

to prior decisions.

16.

of the woman supporting his court martial con-

viction would not have been admissible in the

civilian courts, absent a waiver of Fifth Amend-

ment rights. 8/ Finally, the relevant Alaska

provision in effect at that time, Alaska Stat-

utes, Section 11.40.010, treated adultery as

a misdemeanor "punishable by a fine of not more

than $200, or by imprisonment in a jail for not

more than three months. (§65-9-1 ACLA 1949) ."

To the extent that petitiner's military punish-

ment exceeded these limitations, he was subjected

to penalties that could not have been imposed by

the civilian courts at all. In these circum-

stances, if petitioner had not been punished

for such conduct by the military, he would not

have been punished for such conduct at all,

For these reasons, we urge that this Court

consider the extent to which O'Callahan has

retroactive application to the pre-1969 courts-

87 While the Gosa plurality asserts that

the O'Callahan decision "was not based on any

conviction that the court-martial lacks fund-

amental integrity in its truth determining

process," 413 U.S. at 680-81, there is reason

to question such "fundamental integrity” here,

where constitutional safeguards might have

prevented a conviction for the same offense

in civilian courts.

i7.

martial of those who remain in active military

service. Even if the plurality opinion of

Gosa v. Mayden is accepted by a majority of

the Court, we submit that the concerns and

interests expressed in that opinion are less

significant in this case, where peititoner has

remained continuously in active military

service, and where the conduct for which he

was convicted by court-martial in 1963 was,

in a practical sense, “constitutionally immune

from punishment in any court.”

CONCLUSION

For these reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

JOEL M. GORA

c/o American Civil Liberties

Union

22 East 40th Street

New York, New York 10016

EDWARD A. BRILL

1185 Avenue of the Americas

New York, New York 10036

ATTORNEYS FOR PETITIONER

February 21, 1978

APPENDIX

la.

ORDER OF THE UNITED STATES COURT OF CLAIMS

Filed Nov 25 1977

IN THE UNITED STATES COURT OF CLAIMS

No. 179-75

MICHAEL B. STEARSMAN) Military pay; Courts-

- ) martial; Service-

’ ) connection; Exhaustion

THE UNITED STATES ) of Military Remedies;

Right of Privacy

Joel M. Gora, attorney of record, for

plaintiff. Edward Brill and Poletti, Freidin,

Prashker, Feldman & Gartner, Of counsel.

Sandra P. Spooner, with whom was Assistant

Attorney General Barbara Allen Babcock, for

defendant. Julie P. Dubick, of counsel.

Before DAVIS, Judge, Presiding, KUNZIG

and BENNETT, Judges.

ORDER

Plaintiff is a non-commissioned officer

with the Air Force and has been continuously

in the Service since 1956. Early in 1963,

then a Staff Sergeant stationed at Eielson

Air Force Base in Alaska, he was convicted

by court-martial of having had sexual inter-

course with a married woman not his wife. The

woman was the wife of another Air Force ser-

geant stationed at the Base (the sergeant

+

was a friend of plaintiff's), but the offense

occurred at the other sergeant's house a con-

siderable distance off the base. As a result

of this court-martial conviction, plaintiff

was (as finally determined) stripped of his

sergeant's rank, reduced to the rank of Airman

Basic, confined for five months and fourteen

days, and compelled to forfeit pay and allow-

ances during his confinement. After his return

to duty late in 1963 he again rose through the

ranks and at the time this case was submitted

to the court he was either a Technical Ser-

geant or a Master Sergeant. The suit was

brought on May 30, 1975, to collect back pay

and other monies due as a result of the court-

martial which was alleged to have been invalid

and wrongful, and for other relief. Both

parties have moved for summary judgment and

the case has been argued orally.

Plaintiff's first point is that the court-_

martial was without jurisdiction because the

off-the-base offense involving a civilian

dependent of a serviceman was not service-

connected, and therefore under O'Callahan v.

Parker, 395 U.S. 258 (1969), could not have

been tried by court-martial in 1963. This

court has already rejected comparable argu-

ments in Augenblick v. United States, 206 Ct.

3a.

Cl. 74, 509 F.2d 1157 (1975), cert. denied,

422 U.S. 1007 (1976), and Gross v. United

States, 209 Ct. Cl. 70, 79-80, 531 F.2d 482,

488 (1976), and we see no significant differ-

ences here.

Plaintiff's second point is that his

court-martial conviction on the charge of

adultery violated his constitutional right of

privacy which allegedly protects such sexuual

conduct between consenting adults. The major-

ity of the court (Judges Kunzig and Bennett)

hold that plaintiff is barred from raising

this point in this court because he failed to

raise it in the military justice system,

either at the court-martial or on review with-

in the military system. See Schlesinger v.

Councilman, 420 U.S. 738, 756-58 (1975);

McKinney v. Warden, 273 F.2d 643, 644 (10th.

Cir. 1959), cert. denied, 363 U.S. 816 (1960);

Harris v. Ciccone, 417 F.2d 479, 484 (8th Cir.

1969), cert. denied, 397 U.S. 1078 (1970).

Accordingly, those judges do not reach or con-

sider the merits of the issue. Judge Davis,

believing that military counsel could not be

expected in 1963 to raise this right-to-

privacy argument which has only recently been

articulated and developed (cf. Gross v. United

States, supra, 209 Ct. Cl. 70, 75-76, 531 F.2d

4a.

at 486), would reach the merits of the point

and reject it in the circumstances present

here. 2/

IT IS THEREFORE ORDERED AND CONCLUDED that

plaintiff's motion for summary judgment is

denied, defendant's cross-motion for summary

judgment is granted, and the petition is dis-

missed.

BY THE COURT

NOV 25 1977 Oscar H. Davis

Judge, Presiding

i/ The court-martial record shows that

plaintiff and his partner in the adulterous

act committed the act in the other sergeant's

house, very near to his presence (he appeared

to be sleeping on a nearby couch), and had a

post-adultery conversation which was over-

heard by the seryeant. That sergeant worked

on the same base as the plaintiff, and appar-

ently the two were in frequent contact. In

that particular set of circumstances, Judge

Davis is of the view that plaintiff had no

constitutional right-of-privacy protecting

his adulterous act from military punishment.

Cf. Lovisi v. Slayton, 539 F.2d 349 (4th

Cir.), cert. denied, 429 U.S. 977 (1976).

Re EE as