# Brief for the Petitioner in Reply — Shaw Warehouse Co. v. Southern Railway Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0812%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Petitioner in Reply - **Published:** January 1, 1963 - **Citation:** 372 U.S. 950 ## Text | 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 ° ” ov G +. -f 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 ¥ % . C0512. Discharge of Eulist: Jd Personnel by Reason of >= 6 - _ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0812%3A3. Public record. Not legal advice.