Brief for the Petitioner in Reply — Shaw Warehouse Co. v. Southern Railway Co.

| ounce Supreme Courk US.

RIiLED

NO. / CT 15 1989

————— i + foot tee, CLERK

IN THE

Supreme Court of the Ruited States

OcToser Term, 1962

Ree

Wittum Jackson, Jr., Petitioner,

Vv. , }

e /

Unitep States or Amenica, Respondent

BRIEF FOR’ THY PETITIONER

© IN REPLY TO THE

BRIEF FOR THE UNITED STATES

IN OPPOSITION TO THE GRANTING OF THE

PETITION FOR CERTIORARI

Astarp & Harrison Cuarces D. Apiarp, Ese.

930 Federal Bar Building 930 Federal Bat Building

. Washington 6, D. C. Washington 6, D. C.

Granorr, Levy & CralG Bernarp J. Craig, Ese.

Walnut Street Building Walnut Street Building

Kansas City, Missouri Kansas City, Missouri

Of Counsel ~ Attorneys for

William Jackson, Jr.

4

°

TABLE OF CONTENTS

ra)

Page

ARGUMENT E cee,

APPENDIX A Py tas ae

APPENDIX BO” aaa 6

APPENDIX C | 7

; TABLE OF AUTHORITIES

(‘ASES: rons

Reid y..US., 161 F. 469°(S.D. N.Y., 1908) 1

Service v. Dulles, 354 U.S. 363 (1957) 4

Harmon vy. Brucke ‘. 399 US. 579 (1998) 4

US. v. Otley, 34 F. Supp. 182, 188 (D.& Ore. 1940) 4

REGULATIONS:

Air Force Regulatien 89-22 (September 28, 1953) 2

Bureau of Naval Personnel Manual Part (-10312 i)

IlEARINGS: e

“Hearings before the Subcommittee on Constitutional

Rights of the-Committee on the Judiciary, United —

States Senate, pursuant to S. Res. 260, 87th Congress,

Znd Session, -on—-Constitutional Rights of Military

Personnel (Committee Print) 3

°

”

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G

+.

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S

IN THE

* Sanpreme Court uf the United States

Oc TOBER Term, 1962

- ; o

No. ¢ 937 - Mise.

.

2

° a : % .

Wiuniam Jackson, dn Petitioner,

Vv.

Unrrev Staves or Ame nea, Re spoudeit

BRIEF FOR THE PETITIONER

=e IN REPLY TO THE

'- © BRIEF FOR THE UNITED STATES

IN OPPOSITION TO. THE. GRANTING OF THE -

PETITION FOR CERTIORARI

ARGUMENT

The, argument of the Respondént as to whether the Air

Force should Jiave been required to retain Petitioner in the

service after his conviction by the Oklahoma district court

because of some contractual relationship is irrefevant. Peti-

tioner has not contended that this was required.’

a, What Petitioner has contended is that the Air Foree was

under an obligation to reinstate him upon reversal and

wation of con¥iction by the Court of Criminal Appeals

of Oklahoma when he was discharged pursuant To a regu-

lation which authorized discharge only for that one rea-

son criminal conviction by a eivil court.) )

‘Although Petitioner does not contend that there is a contractual

relationship requiring completion of enlistment, it is strang that Re-

spondent would relyoas its only judicial authogity on a 1908 opinion

which has the following language, obviously ase A modified by this

Honorable Court, pertaining to the character of discharges:

“The exact method of this soldier's discharge and the quantufh\

or kind of character that should be given him, not -weing regulated

by statute, must necessarily be left in the discretion of the executive

officer having power to grant some kind of discharge, That it is

beyond the power of the judicial branch to coerce .or review the

discretion of the executive is familiar doctrine, while that a discharge

with a very bad character is not a punishment to the man discharged

. is settled..." Reid v. U'.S., 161 F. 469 (S.D., N.Y., 1908) :

?

‘Respondent also seems to be arguing that the Air Force

could have proceeded, in some other manner pursuant to

some other regulation to discharge Petitioner with an

honorable discharge. While possibly the Respondent could

have proceeded in' such a manner (although ‘Petitioner's

record was unblemished), the fact is that it did not su pro-

ceed, but instead elected to proceed under AFR 30-22. The

thrust of Petitioner’s argunent is that, notwithstanding

the fact that AFR 39-22 did not then, provide for the con.

tingency of a reversal on appeal and indicated a policy of

immediate discharge of the servic eman upon conviction,

the Air Force was obligated to reinstate him upon vacation -

of this conviction by an appellant court.

The fact that the Respondent has now, at this: late date,

seen the unfairness of its action toward the Petitioner and

will now accord him an honorable discharge does not detract

from the ultimate issue in the case—whether the Air Force

was under an obligation to reinstate the Petitioner. It is.

an admission of weakness in Respondent's position.

Respondent states.at page 6 of its Brief that AFR 39-22

©**does not purport to establish a rigid rule applicable to all

servicemen,’ but that the regulation leaves open the ques-

tion of whether the serviceman might be given an honorable

discharge or reinstated. In fact, the only version of AFR

39-22 which Respondent could have in mind is the inappli-

cable version of AFR 39-22 promulgated i in 1959 since the

1958 regujation under» which Petitioner was discharged

provided either for discharge under less tBan honorable

conditions, retention in the Air Force by waiver, or possi-

ble discharge under honorable cAnditions’ under another

regulation,

This Court should take cognizance of the fact that the

United States Navy still follows essentially the same regu.

lation as was in effect for the Air Force at the time of

the discharge of Petitioner. (Appendix A.) Tn that regu

lation. the Navy states that ‘tan individual shall be con

sidered: as: having been convicted even, though an appear!

is pending or is subsequently filed’. Thus, the problem

is.a continuing one and will be so long as any military

service follows-the same policies as thes Air Foree did) in

the instant case. There is tremendous public interest in this:

case’ because sted alia, Navy personnel are still being de

prived of their constitutional rights pursuant te a com

parable regulation, ; "

Respondent, states at page 2oef its Brief that Petitioner

‘udvised the Air Fores for the test tinwe of his ppreat aad |

of the reversal of his @eonvietion™’ on nme 4. Tos. dr owos

on dune 4. LSs, that Petitioner tirst requested sete Leeonpent

able dischdrge, reinstatement aud baek pay through ties

attorney, Bernard J. Craig, Msq. of Nansal Civ, Missouri,

(Appendix B) The question of timely notice of appeal te

the Air Foree was not raised in the briefs of either party

in the Court of ¢ ‘aims.

Petitioner Haas atfiched to this brief an affidavit: from

Amos 'T. Hall, Esq. of Tulsa, Oklahoma, who was Peti

ices attorney during the proceedings in Jackson ‘County,

Oklahoma. (Appendix ©) Tn Mr. Hall's affidavit of Deeean

ber 1, 1961, he states that On or about November 19. 1956,

he contacted the Office of the Judge Advoeate of the Altus

Air Foree Base at Altus, Oklahoma and advised them that

he.was going to file a motion for a new trial and take an

appeal on behalf of William Jackson, Jr.’ This was ap

* proximately 3 days after the conviction by tie state district

court and 5 days before Petitioner was discharged. Mr.

Hall also states that he asked the Jud@ Advocate at Altus

AFB to witlihold Petitioner's discharge. If Respondent now

contends that the issue of notice is important (whieh Peti

tioner does not concede), then eertainly the notice afforded

hy Counsel for Petitioner at this early s tase of t the pre

coodings shquld have been sufficient to have places the Air 7

Force on notice of Petitioner's intent to appeal trem the

decision of the trial court.

, Petitioner has never gente nde that the Air Faree is

*Hearings before the Subcommittee on Constitutional Rights of the

Committee on the Judiciary, U. S. Senate, pursuant to S. Res.’ 260, &7th

Congress, 2nd Session, on Constitutional Rights of Military Personnel.

(Committee Print, pp. 158 and 768)

‘

a

fied to reflect an honorable discharge for the pe ‘riod he was °

: s ¢

under any contractual obligation. Petitidher contends only

spe the Air Force is bound by its own regulations. Service

. Dulles, 354 US. S63 (1957). The Air Force elected to

proceed pursuant to APR 39-22 and not another regulation.

As such it is bound by that regulation. AFR 30-22 provided —

that Petitioner could only be discharged for conviction of

a felony. That conviction was reversed and vacated because

Petitioner's constitutional right to counsel was denied him.

Therefore, Petitioner's discharge shonld have been modi-

out of the Air Force ‘and be Should also have been rein-

stated. At that time, the Air Force might have proceeded

¢ . : ° ’ °

to discharge him pursuant to another regulation but this

>

‘from being considered

procedure it did not follow. Responilent has cited io regu-

lation that might have been. applicable.-

To modify the type of discharge at thgs late diate without

affording the Petitioner the other relief to which he is en

titled makes a mockery of the Air Force discharge pro-

cedures pursuant to this regulation. It is a poorly dixeffised

attempt to avoid’ thé typd of issue raised in? Harmon vy.

Brucker, 855 U.S, 979 (199), and to keep this entire matter

n the merits by this Honorable

Court. Petitioner has been stigmatized for six years, be-

ing deprived of veteran benefits and suffering loss of job

opportunities, wages and other losses. These efforts of Re-

spondent are doubtless similar to. the type of lecerdemain

Which caused Lord © hie Justice Mansfield to opine, a8

seems fairly obvious that the quest was not for truth but

for victory."* quoted in U.S. v. Otley, 34 F. Supp 182, 188

(D.C, Ore. 1940). | 7 | &

Respectfully submitted,

Artarp & Harrison, Cartes D. Antarp, Esq.

930 Federal Bar Building 930 Federal Bar Building

Washington 6, D.C. | Wiishineton 6, D. CL

Granorr, Levy & Craic: Berxanp J. Crate, Esa.

Walnut Street Building -Wajnut Street) Brilding

Kiinsas City, Missouri Kaas City, Missouri

OF Counsel Afforne ys for

William Jackson, Jr.

7%) aM

APPENDIX A :

BUREAU OF NAVAL PERSONNEL MAN AL

PART ©

.

Misconduct .

®

a: ewe

(2) The Chief of Naval Personnel may diréet the dis-

charge’of an enfisted person for misconduct in any of the

following cases: f :

(a) Conviction by civil authorities (foreign or domestic)

or action-taken which is tantamount to a finding of guilty

of an offense for which the maximum penalty aunder the

UCMJ is death or confinement in’ excess of®one year; oF

which involves moral turpitude; or where the offender is

adjudged a juvenile delinquent, wayward minor or youth-

‘ful offender as a result of an offense involving moral turpi-

tude. If the offense is not listed in the MCM ‘Table of

Maximum Punisliments -or is not closely related to an -

offense listed therein, the maximum punishments authofized

by the U.S. Code or the District of Columbia Code, which-*

ever is desser, appli®s. For the purpose of this«.subpara-

graph only, an individual shail be considered as’ having

heen convicted even though an appedl is pending cr is

subsequently filed. , ‘*

a a

¥

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C0512. Discharge of Eulist: Jd Personnel by Reason of

>=

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_ APPENDIX B -

June’ 4, 1958

- United States Air Force

‘Altus Air Force Base

Altus, Oklahoma

Attention: Commanding General

Re: a illiam ee Jr. AF 18384 622 A/1C(P)

*

Honorable Sir:

The above was given a discharge under other than honor-

able conditions, DDForm 258AF, on November 24, 1956, by

reason of conviction of Civil Court AFR 39-22(ADN-284).

Subgequently this case was reviewed by the Supreme

Court of the State of Oklahoma and the conviction set aside

and the case remanded to the District Court for a ew trial.&

Thereafter the case against the above was dismissed far

the reason that the facts and evidence were not sufficient

to prove the defendant guilty and did not form a sufficient

basis for a conviction.

Mr. Jackson now desires to make sissthoution for a revo-

- cation of his discharge and for reinstatement-in the Air

:®Forcée with back pay to be Mlowed him since the date. of

vhis discharge. — , ‘

This letter is being directed to you as the discharge origi-

nated from your command, and-I would appreciate your

forwarding any’ documents necessary for Mr. Jackson to

sign and file with you to petition for a revocation of the

discharge and reinstatement in the Air Force with back pay.

Very truly yours, e

- Bernarp D. Craic °

BDC :fb cae ;

a

© .

o 7 —

7 %

APPENDIX C

“47 AFFIDAVIT

STATE OF OKLAHOMA)

.

COUNTY OF TULSA | ;

‘ >

Amos T. Hall, of lawfnl age; after being duly sworn on

his oath, states that he is jan attorney at law, licensed to

practice in the State of Oklahoma, with offices at 121 Nort

Greenwood in the City of Tulsa, Oklahoma; that he was

attorney for William Jackson, Jr. at the time William

Jackson, Jr. was discharged from the United States Air

Force on or about November 24, 1956, under less than

honorable conditions and givenyan undesirable discharge

certificate for the reason that said William Jackson, Jr.

had been convicted by a civil court of the crime of rape ;

that this affiant appealed said case to the Court of Criminal

Appeals of the State of Oklahoma, which resulted in the

conviction being reversed and vacated for the reason. that

Williams Jackson, Jr. was unconstitutionally deprived of

his right of counsel at the time of thial, which case was

reported as Jackson v. State, 316 P. 2d 213; that at the time

* the trial or purported trial of William Jackson, Jr, took

place in the District Court of Jackson County, Oklahoma,

the case had been set for trial on November 19, 1996, but

for some reason unknown to this afiant, the said William

Jackson, Jr. was brought before’ the court prior thereto on

November 16, 1956, without this afflant being present, and

said William Jackson, Jr. was found guilty and sentenced

to five vears in the penitentiary; that when this affiant did

arrive in Altus, Oklahoma, in the Distriet Court of Jackson

County, Qklahoma, and learned of What had taken place,| -

he Immediately decided to file a nootion for mew trial, ane

oft that tine oon or about November £0, 1956, he contacted -

Sie oMee of Be Jndee Ndveeate of the Altus Sir Force

' . &

babes ant Ahus, ¢ (dk! Pee wedtel nelvised ther that he Was

8

going to file a motion for new,trial and take an appeal on.

behalf of William Jackson, Jr., and upon being advised that

William Jackson, Jr. was going to be discharged, he asked

them to withhold discharging William Jackson, Jr. for the

reason that he was going to file.this motion for new trial

and take this appeal, if necessary; that this affiant does not

recall the name or names of the persons he talked to at the

office of the Judge Advocate at the Altus Air Force Base

at Altus, Oklahoma, but he recalls distinctly that he did

contact them and did talk to one or more men in that oftice

_and stated that he was going to file a motion for new trial

and take an appeal for WNliam Jackson, Jr. and asked

them to hold uyvon any contemplated discharge of William

Jackson, Jr./until after ruling had been obtained on the

motion for new trial or, if it were overruled, on the appeal

which he told them was going to be filed; that the facts set

forth in th ; affidavit are true aad correct to the best know!-

edge, information and belief of this affiant.

Dated at Tulsa, Oklahoma this Ist day of December, 1961.

(signed) Amos T. Hau.

A fiant

Subscribed and sworn to before me this Ist day of De-

cember, 1961.

(signed) Opgssa L. Woops

N@jary Public

&

My Commission — Sept. 23, 1962.

cS