Petition for Writ of Certiorari — Augenblick v. United States

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LIBRARY.

‘/PREME COURT, U. &

IN THE

Supreme Court of the Runited States

Nn. %4-1460

RICHARD G. AUGENBLICK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

JOSEPH H. SHARLITT

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Counsel to Richard G. Augenblick

rae FEE DIESE I LIE INL DLA IESE DELL AD

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220

(i)

INDEX

Page

SCT eee. 6 8 es ere hae ie 8 1

SPRATT VOUT 6 ek ea ew ee we ees 3

CONSTITUTIONAL PROVISIONS ......+.+: 5

QUESTIONS PRESENTED ......+-+-++ +: 5

STATEMENT OF THECASE ......-+-+-+ +: 6

SUMMARY OF ARGUMENT ..........-.- 16

ME Fh so ae ce ee. aoe ee

I. Section 134 (UCMJ) was unconstitutionally applied

to the Petitioner as a “lesser included crime” within

Section 125, the Petitioner having been — of

violating Section 125 ..... . ‘ eigen

A. This is a Benchmark Decision on ThisPoint. . . . 16

B. The constitutional problems of using the

General Article as a “lesser included crime”;

Failure of notice, proof, and specificity; the

view of theCourtofClaims . .......-.- %JI7

(a) The requirement of “necessary” inclusion

and notice to the Defendant in both civil-

ianand militarylaw......-.-.-+.+-.-. =&@J9

(b)Failure of Notice in Augenblick; What the

Manualdidmotsay ....- .- Aaa eoraee eee”

broad license to military prosecutors . . . . . 22

(d)What isnot being arguedherein. . . -. . . - 25

(ii)

: Page

RE Cee og ge Ss Sk ee ee

(a)The Court of Claims formulation ...... 26

(b)The military formulation . . . .... =.=. «27

(c)The casés in the Court of Military Appeals . . . 31

(d)What happened in Augenblick . . . .. . . 3)

I Wael ag oe og 6 eck, eke ey

IEE, ras, ea pe eee a ee

Il. The record as a whole in Augenblick reflects basic _

unfairness: This Court should review it either under

O'Callahan or on independent grounds ...... 36

A. The Jencks Act violations and the a

withHodgess ...... OR OTE

B. Section 134 asa“‘lesser included crime” . . . . . 38

C.TheBoardofReview .....-.-.-.+-. 8

D. The extracurricular activity of the ia ae of the

Court of Military Appeals. . . . toe eee

hee ee ee ; a eee

EE a eg oe ee ek = la

I Nase a ee ee hw eae os ee

(iii)

AUTHORITIES CITED

Cases: Page

Augenblick v. United States,

Peels SOPEANR ee ea ee es a eee

Augenblick v. United States,

aE gS Su pas SS ety 4: or i ee

Davis v. Clifford,

i aa CEE 5s ew ak ke

Gelling v. Texas,

TOD 5 ae ee a ee Ee ee

Gosa v. Mayden,

Porgy © ss rier terre

Herndon v. Lowry,

RE Te ee. one ek ok aie a ee ee Oe

Kelly v. United States,

|. Ee a eee ee

Lanzetta v. New Jersey,

POON: oa psc Se ee ee

O’Callahan v. Parker,

Ck. ET

Parker v. Levy,

ie: TOU Bees se SE ae

Secretary of the Navy v. Avrech,

OU Sen eae 6 hore a bow oe eee

United States v. Frantz

BU ee eee Seo! Se RE a ee

(iv)

United States v. Holiday,

4US.CMA. 454, 16C.MR. 28.

United States v. Sadinsky,

14US.C.M.A. 563 (1964)

Constitutional Provisions:

United States Constitution, Amendment V_.

United States Constitution, Amendment VI .

Statutes:

Uniform Code of Military Justice:

Section32 . .

Section 79 .

Section 125

Section 134

Miscellaneous:

Rule 31(c), Federal Rules of Criminal Procedure

a) fi :

bigs

RICHARD G. AUGENBLICK,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

INTRODUCTION

This is the second occasion on which this Court has scru-

tinized the Augenblick court martial. Six years ago this same

court martial came to this Court for review after the Court

of Claims found violations of this naval commander’s rights

under the Jencks Act so egregious that constitutional due

process had been denied him. This Court disagreed.’ But it

1 Augenblick v. U.S., 393 US. 384 (1969).

disagreed (and reversed the Court of Claims) on the sole

ground that the Navy’s violations of the Jencks Act did

not constitute constitutional injury. Along with other ir-

regularities, the Jencks Act violations remain unexcused in

the record of this court martial.

In the litany of misdeeds perpetrated in this military

prosecution, the Jencks Act violations are but one exam-

ple. They are joined by the conviction of this officer of

a crime for which he was never charged nor tried, follow-

ing his acquittal of the crime for which he was charged

and tried. And, indeed these combined irregularities are

not alone. Perhaps the most striking of the additional

meanderings of military justice in this case is the out-and-

out lobbying of the judges of the Court of Military Ap-

peals withir the military establishment and within the De-

partment o: Justice, urging extrajudicially that the original

Court of Claims judgment in favor of this officer be re-

viewed by the Supreme Court. Thereafter that same Court

(the Court of Military Appeals) again sat in judgment on

this man, without so much as a thought of its earlier role

as his adversary in the extrajudicial cloakrooms of mili-

tary justice.

We bring to this Court three specific points for review,

raised by the most recent opinion of the Court of Claims,

dated January 22, 1975 in this case. The first is convic-

tion of this officer under Section 134 (UCMJ) as a “lesser

included crime”; the second is the application of O’Calla-

han v. Parker, 395 U.S. 258 (1969) to this case. The

third is plenary review of the constitutional errors in this

military prosecution. These errors were simply a part of

a pattern of persistent irregularity at each level of mili-

tary justice, all aimed at purging the Navy of this officer.

That is why, six years after this case first appeared be-

fore this Court, Augenblick has not and will not simply

disappear. Too many consciences remain deeply troubled

to permit the Navy to bury this court martial. And, in a

larger sense, if the Navy is permitted to inter the record

of this prosecution it will then have license to do promis-

cuously what it did in its major aberration in this case:

utilize Article 134 to pin ‘guilt — any kind of guilt — on

a military defendant when its properly constituted prose-

cution failed.

STATUTES INVOLVED |

Article 134 (10 U.S.C. 934) of the Uniform Code of

Military Justice provides:

“Though not specifically mentioned in this

chapter, all disorders and neglects to the prej-

udice of good order and discipline in the

Armed Force, all conduct of nature to bring

discredit upon the Armed Forces, and crimes

and offenses not capital, of which persons sub-

ject to this chapter may be guilty, shall be

taken cognizance of by a general, special or ©

summary court-martial, according to the na-

ture and degree of the offense, and shall be

punished at the discretion of the Court.”

Article 125 of the Uniform Code of Military Justice

(10 U.S.C. 925) provides:

“(a) Any person subject to this chapter

who engages in unnatural carnal copulation

with another person of the same or opposite —

sex or with an animal is guilty of sodomy.

Penetration, however slight, is sufficient’ to

complete the offense.

(b) ‘Any person found guilty of sodomy

shall be punished as a court-martial may

- direct.” ; | |

Article 80 of the Uniform Code of Military Justice (10

U.S.C. 880) provides:

“(a) An act, done with specific intent to

commit an offense under this code, amount-

ing to more than mere. preparation and tend-

ing but failing to effect its commission, 'is an

attempt to commit that offense.

(b) Any person subject to this code who

attempts to commit any offense punishable

by this code shall be punished as a court-

martial may direct, unless otherwise specific-

ally prescribed.

_(c) Any person subject to this code may

be convicted of an attempt to commit an of-

fense although it appears on the trial that the

offense was consummated.” |

Article 79 of the Uniform Code of Military Justice (10

U.S.C. 879) provides:

“An accused may be found guilty of an |

offense necessarily included in the offense

charged or an attempt to commit either the

offense charged or an offense necessarily in-

cluded therein.”

CONSTITUTIONAL PROVISIONS

AMENDMENT V.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual serv-

ice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeo-

pardy of life or limb; nor shall be compelled in any crim-

inal case to be a witness against himself, nor be deprived

of Sife, liberty, or property, without due process of law;

nor shall private property be taken for public use, with-

out just compensation.

AMENDMENT VI.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for his de-

fence.

QUESTIONS PRESENTED

(1) Was Section 134 (Uniform Code of Military Justice)

constitutionally applied to the Petitioner as a “‘lesser in-

cluded crime” within Section 125 (UCMJ), in a court mar-

tial in which Petitioner was never charged or tried for a

violation of Section 134 and was acquitted of a vioiation

of Section 125?

(2) Should O'Callahan v. Parker, 395 U.S. 258 (1969)

be applied retroactively to the Petitioner’s court martial?

(3) Should this Court review the entire record of the

Augenblick prosecution for cun:ulative constitutional de-

privations suffered by this Defendant?

STATEMENT OF THE CASE

The following facts bear on the issues before the Court:

(1) Events of January 12, 1961?

In the early morning hours of January 12, Commander

Augenblick was having a cup of coffee in an all-night

diner in downtown Washington. Conversation com-

menced between Commander Augenblick and Hodges, an

airman stationed at Andrews Air Force Base. Both men

were on liberty. Hodges was in uniform (R-VI-52),? but

Commander Augenblick was in civilian clothes (R-VI-55).

The two had not known each other before this time, and

Hodges did not know of Commander Augenblick’s associ-

ation with the military until after the two were arrested

(R-III-83, R-IV, Govt. Ex. C, R-V-18).

Commander Augenblick and Hodges left the restaurant

when the Commander offered to give Hodges a ride back to

2 Prior to January 11-12, 1961 Commander Augenblick has

served the Navy with distinction for the 18 years he had been in

service. His duty had included combat and destroyer command ex-

perience, schooling at the Naval War College, service in the office of

the Secretary of Defense and the Strategic Plans Division of the

Office of Naval Operations. His record was without blemish, and

he had been selected for promotion to a Captaincy.

3 All record citations are to the volumes of the record of the

military prosecution on file in the Court of Claims.

Andrews Air Force Base (R-Vii-257). After driving for a

short while, the Commander parked his car on West

Basin Drive, near the Tidal Basin. The Commander testi-

fied at both court martials that he had drunk some Scotch

and beer and intended to go to sleep (R-Vii-249); Hodges

claimed that Commander Augenblick, rather than dozing

off, committed an act of oral sodomy on him (R-VII-260;

263).

At this point, a civilian policeman approached the car,

opened the door, and asked the occupants to step outside,

took identification from each separately and instructed the

two men to proceed in Commander Augenblick’s car to

the Third Precinct Station (-VI-567). There both men

were formally booked and charged with disorderly con-

duct, a misdemeanor under the District of Columbia Code

(R-VI-157). Both men at this point denied any miscon-

duct (R-VI-57).

The arresting officers immediately contacted the Naval

authorities. Commander Augenblick and Hodges were then

driven directly to the Naval Weapons Plant in Southeast

Washington, and turned over to Navy personnel at that

installation (R-VI-157).

After a pre-trial hearing and one abortive court martial,

the second Augenblick Court Martial convened approxi-

mately eight months after the above events. The follow-

ing deals with that Court martial and its review within the

military courts.

(2) The Jencks Act Violations

Although the Jencks Act violations have already been

reviewed by this Court, the facts of these infringements

are relevant to the present controvery. These facts which

are described fully in the original Court of Claims opinion

(377 F2d 586 at 588), have never been refuted, nor has

this Court (or any other Court) modified the determina-

tion that this officer’s statutory rights were repetitively

viclated. These facts bear on the uniformity of irregular-

ity meted out to Augenblick in his Naval prosecution:

“The challenged rulings involve the early-

morning interrogation of Airman Hodges im-

mediately after the arrest. At the civilian po

lice station, both the commander and the air-

man denied that ‘anything’ had happened. Af-

ter being turned over to the Armed Services

’ Polic, they were brought to the headquarters

of the Potomac River Naval Command at the

Naval Weapons Plant in Washington for inter-

rogation. It was then about three o’clock in

the morning of January 12, 1961. The air-

man and the accused were questioned sepa-

rately in a room designed for the monitoring

and recording of conversation. Agent Connor

of the Office of Naval Intelligence (ONI), ob-

served, asked some questions, and took notes.

After twenty to twenty-five minutes Connor

accompanied the twenty-year old Hodges to

the separate Air Force OSI headquarters in

Maryland where Hodges swore to a five-page

written statement describing the evening’s

events. After the Hodges’ session at the |

naval station, Mendeison interrogated the ac-

cused for about two hours. During both in-

terviews at the naval station, Agent James,

the duty officer at that post, was in the ad-

jacent room. He testified unequivocally that

he had made tape recordings of both sessions

—one reel of the Hodges and two reels of ©

the Augenblick interrogation.

At the second court-martial, Hodges’ testimony

touched on his interrogation at the Naval Weap-

ons Plant. After trial counsel’s direct examina-

tion, the defense moved, pursuant to the Jencks

Act, for production of the tape recording trans-

cribed by Agent James and for the handwritten

notes taken by Agent Mendelson during the in-

terrogation. The law officer ordered either that

the tape-recording be produced or that the Gov-

ernment produce witnesses at an out-of-court

hearing who ‘can explain’ its non-existence if the

tape were not available, but refused to order pro-

duction of Mendelson’s notes.® The Govern-

ment did not produce the Hodges’ tape-record-

ings, but called as witnesses each of the intelli-

gence officers who had contact with the record-

ing, except Agent Mendelson who was in Nor-

folk at the time of the second trial in Washing-

ton. The upshot of the testimony was that,

though James testified that he had made the

tape, no one then had it or had heard it or

knew what had happened to it. The defense

urged the calling of Mendelson but the law of-

ficer, after reading the record of Mendelson’s

testimony on the tape-recording at a pre-trial

investigation, refused to have him called as a

witness and concluded that no sanction should

be imposed on the prosecution for failing to

produce the recording. The Board of Review

(with dissent on this point) affirmed, holding,

8 The prosecution had proffered Hodges’ written state-

ment made later at Air Force headquarters, but the de-

fense had declined the offer.

among other things, that “It was the responsi-

bility of counsel for defendants [sic], to pur-

sue ascertainment of correctness of the Govern-

ment’s claim that the tape-recording which was

demanded for production is no longer in exist-

ence, and for no reprehensible reason chargea-

ble to the Government.’”

One additional fact should be added to the Court of

Claims summary of the Jencks Act facts:

During the examination of Hodges at the second court

martial it developed that he had been told by his Com-

manding Officer at Andrews Air Force Base that he was

to be given an honorable discharge some two years prior

to the end of his tour of duty. But his discharge was

not given him outright. He was kept in service, in off-

duty status at Andrews and was honorably discharged

shortly after the termination of the second court martial

at which he had persisted in his incriminating testimony

against Commander Augenblick (R-VI-152, 153; the gov-

ernment stipulated as to the date of Hodges’ discharge in

this action).

(3) Acquittal of Sodomy; Section 134 emerges.

The following facts bear on this Petitioner’s contention

that Article 134 of the Uniform Code of Military Justice

(10 U.S.C. 934), the so-called “General Article”, was un-

constitutionally applied under the facts and circumstances

of this case.

No testimony was offered during this court martial as

to any offense except the alleged sodomy. The prosecu-

tion never offered a witness as to whether this private

conduct between Commander Augenblick and Hodges (as-

suming that any sexual activity took place between them)

would have affected “good order and discipline” or would

bring discredit upon the armed forces,” and if so, how.

At the close of testimony when the record was closed, the

law officer indicated to counsel that he would instruct the

court that if it found Commander Augenblick innocent of

the sole charge against him (under Article 125) it could,

notwithstanding, find him guilty of a violation of Article

134 as a lesser included charge, with a specification of

committing lewd and lascivious conduct. This was the

first mention of Article 134 as a lesser included charge,

with a specification of committing lewd and lascivious

conduct. This was the first mention of Article 134 at

this court martial. Counsel for Commander Augenblick

objected to the instruction (R-VII-369; V1-333).

In instructing on Article 134, the law officer went no

further than reading of the Article, instructing simply that

if the members of the court determined that the Com-

mander was innocent of sodomy, they might yet find him

guilty if the conduct they found to have occurred on Jan-

uary 12 was “to the prejudice of good order and disci-

pline” or “of a nature to bring discredit upon the armed

forces.” No instruction containing a further definition of

those phrases, nor any objective standards by which the

conduct in question would be measured against the words

of Article 134 was provided by the law officer (R-VII-369).

After the Court commenced its deliberations, it request-

ed consultation with the law officer and reported it had

voted to acquit Commander Augenblick of the charge un-

der Article 125.

On the record but in the absence of counsel, the pres-

ident of the court then informed the law officer that it

had voted to convict Commander Augenblick under Arti-

cle 134, and requested the law officer for language necessary

to draft a specification under Articje 134, As a result of

this fixing of a specification after afj testimony and argu-

ment had been completed, the court found Commander

Augenblick guilty of a violation of Article 134 and ser

tenced him to dismissal from the service with total for

feitures (R-VII-380-381, 404).

(4) Action of the Navy Board of Review

At the next level of military justice, the Navy Board of

Review, in a 2-1 decision, affirmed the conviction of the

court martial. The <dicceat held that Augenblick’s Jencks

Act rights had been violated to his substantial prejudice,

and disagreed with the affirmance on this score.

The Board of Review majority (and on this point there

was no dissent) also dealt with the question — raised on

appeal by Augenblick’s Counsel — that in light of the law

officer’s instruction that a “lewd and lascivious” act with-

in the purview of Section 134 was a “lesser included of-

fense” to the charge of sodomy originally leveled at the

defendant, “disorderly conduct”, within the same section

should have been made available to the court, The latter

specification, although within the same Article, carries 4

far lesser punishment. The Board of Review rejected this

argument, independently evaluating the evidence and de-

termining that the record supported 4 conviction under

one kind of violation of 134, but did not support the

other.

(5) Action by the Court of Military Appeals

The Court of Military Appeals first rejected considera

tion of Commander Augenblick’s cage on January 11, 1963.

It then denied reconsideration of this action on January 29,

1963. Petitioner was then dismisjeg from the Navy, with

the loss of all pay and allowances

This was not, however, the last action by the Court of

Military Appeals in this case (see subsection 6(a) of this

Statement, Infra),

(6) Proceedings in Civilian Courts

Following the rejection of his appeal by the Court of

Military Appeals, Augenblick filed suit on October 22,

1964 for back pay in the Court of Claims, Since he had

never been incarcerated, this suit represented the proper

vehicle for contesting the constitutionality of what had oc-

curred during his military prosecution, On May 12, 1967

the Court of Claims entered a unanimous opinion in Augen-

blick’s favor, holding that his naval conviction was vitiated

by the Jencks Act errors which tainted his prosecution.

(a) Extrajudicial Intervention by the Court of Mili-

tary Appeals

Immediately after the Court of Claims entered its deci-

sion in favor of Commander Augenblick (in Augenblick v,

United States, 377 ¥2 586), the Court of Military Appeals,

acting entirely extrajudicially, engaged in a direct campaign

to influence the Department of the Navy to urge, and the

Department of Justice to embark on an appeal of this

Court's decision, These moves, recorded by the Clerk of

that Court in the public files of the Court, were made, as

the Clerk states within these records, “on behalf of the

Court”, Personal knowledge and participation in this ex-

trajudicial urging on the part of at least two members of

that Court are reported in these documents, all detailed in

documents from that Court’s records set out in Appendix

A to this Brief. This strange episode is described in fur-

ther detail in Section I1(D) of this Petition, infra.

(b) This Court's Earller Action in Augenblick

With the extrajudicial prod from the Court of Military

Appeals, the Department of Justice filed a petition for a

writ of certiorari ini this case, This Court then granted

the writ, After briefing and argument, this Court re

versed the Court of Claims on January 14, 1969 (Augen-

blick v, U.S, 393 U8, 1969) holding that the Navy's in-

fringement of Augenblick’s Jencks Act rights were viola

tions of statute, but did not constitute constitutional in-

jury,

1969

Since then the procedural history of this cause is com-

plex. In summary, the cause remained alive and undis-

missed in the Court of Claims both before, and following

this Court’s decision in O'Callahan v, Parker, 395 U.S, 258

(1969), rendered less than five months after Augenblick,

Immediately after O'Callahan came down, (again before this

cause had ever been dismissed) Petitioner filed his second

amended petition before the Court of Claims, seeking to

apply the O'Callahan service-connection test to this case,

and questioning the use of Article 134 a6 4 lesser included

crime.’ Action in that Court was then, in effect, stayed

until this Court acted definitely on the retroactive applica

tion of O'Callahan and on the constitutionality of Section

134, On three occasions the Petitioner asked that Court

4 An eatlier Petition for a Wet of Certiorar, seeking review of

the Court of Claims dismissal of Petitioner's first amended Petition

was filed in this Court on September 2, 1966, It is superseded by

this Petition; the Court of Claims dismissal was stayed by action of

that Court dated October 31, 1969. Accordingly Petitioner's orl-

ginal suit in the Court of Claims is the wit before this Court now.

This original action has never been dismissed (and Plaintiff has never

been out of Court) since the filing of this suit in the Court of

Claims.

to schedule argument and reach a disposition of the case,

but that Court refrained while either of these issues were

pending before this Court,

(4) Re-Intervention of the Court of Military Appeals

It was during this period that Petitioner asked the Court

of Military Appeals to review his case in light of O'Calla

han.® This was done to exhaust all remedies before the

military courts while this cause was pending in the Court

of Claims, It was on this occasion that the Court of Mi

litary Appeals, which had labored so assiduously and ex-

trajudicially to convince the military establishment and the

Department of Justice to seek review of the original Court

of Claims judgment in favor of this Petitioner (all unbe-

knownst to Petitioner and Counsel), proceeded to sit in

judgment on this case and, predictably, ruled against the

Petitioner.®

(e) Final Action by the Court of Claims Leading

to This Petition

Finally, after Gosa v, Mayden, 413 U,8, 665 (1973),

Parker v, Levy, (No, 73206, decided June 19, 1974) and

Secretary of the Navy v, Avrech, (No, 721713, decided

July #, 1974) the Court of Claims ordered argument in

this cause, and on January 22,7 1975 issued its opinion

5 pctivity of the judges of this Court (seeking to induce review

of the original Court of Claims judgment in Petitioner's favor) was

unknown to Petitioner and his Counsel until September of 1971,

long after the lobbying of the CMA’s judges (1967-1968) and the

second action of the Court of Military Appeals took place.

6 Described in detail in Section 11(D), infra

7 Stayed, by its own terms, for 30 days (slip opinion p. 8), or

until February 22, 1975.

ruling against the Petitioner on both the O'Callahan and

the Section 134 contentions. That opinion is attached as

Appendix B. It is from that ruling that the present Peti-

tion seeks review by this Court.

ras

SUMMARY OF ARGUMENT

Section 134 (UCMJ) was unconstitutionally applied to

the Petitioner as a “lesser included crime” within Section

125, the Petitioner having been acquitted of violating Sec-

tion 125.

(A) This is a benchmark decision on Section

134.

(B) The constitutional problems of using the

General Article as a “lesser included crime” are:

notice, proof and specificity.

The record as a whole in Augenblick reflects basic un-

fairness; This Court should review it either under O’Calla-

han or on independent grounds.

ARGUMENT

I: Section 134 (UCMJ) was unconstitutionally applied

to the Petitioner as a “lesser included crime” within Sec-

tion 125, the Petitioner having been acquitted of violating

Section 125;

(A) This is a Benchmark Decision on This Point:

Although some form of the General Article has been

present in military jurisprudence since Independence, its

unique breadth and catch-all character was never tested in

civilian courts until Levy and Avrech. The reason for this

is quite simple: until this Court, in the late 1940’s artic-

ulated the rule that servicemen possess substantial consti-

tutional rights protected by the civilian courts, all Article

III courts restricted themselves (in review of military con-

victions) to an inquiry into whether the military court had

jurisdiction over the Defendant. Once the military court’s

basic, in personam, jurisdiction was established, civilian courts

refrained — until thirty years ago — from inquiry into the

merits (constitutional or otherwise) of the military prosecu-

tion. | t

Thus it was that O’Callahan, Levy and Avrech were

the first inquiries made by Article III courts into this unique

statute. O'Callahan made it clear that Section 134 could

not be used to extend the military jurisdiction into non-

service connected offenses. Avrech and Levy held that

the General Article was not unconstitutionally vague (or

overbroad) on its face. The issue posed in the case at

bar, viz., use of the General Article as a “lesser included

crime”, has, therefore, never been adjudicated by this Court

before.

(B) The constitutional problems of using the Gen-

eral Article as a “lesser included crime’’; Fail-

ure of notice, proof,,and specificity; the view

of the Court of Claims:

The most orderly means of examining the litany of |

doubts spawned by modern-day application of the General

Article is to probe its use in this case.® The constitutional

8 The validity and applicability of our arguments regarding the con-

stitutionality of Article 134 as used in this case is, of course, wholly

independent of the issue of the retroactivity of the service-connected

doctrine of O'Callahan v. Parker. +

difficulties raised by the Navy’s recourse to Section 134

against Commander Augenblick are not limited to the Ar

‘ticle’s vagueness. It use here is constitutionally defective

‘on three scores: (1) This defendant had no notice that

the Article would be used against him and palpably could

not defend himself against the charge; (2) The Court

Martial took no evidence whatsoever on two major ele-

ments of the Article, leaving those elements totally un-

. proved; (3) The seven members of the Court were permit-

ted to interpret the Article subjectively, depriving this

crime before them of any objective definition.

Finally, we shall demonstrate that the Court of Claims

‘opinion of January 22 solves none of these problems, but

rather preserves the General Article as a trap for military

Defendants and a catchall used by military prosecutors to

salvage a conviction when all orderly means fail.

(1) Notice

The first difficulty arising from the Navy’s use of the

General Article against Commander Augenblick arises from

the failure of the Navy to charge him of its violation:

Section 134 was never mentioned until all evidence was in |

at the court martial, and defendant was wholly disabled

from defending himself against the charge. It arose at that

point when the law officer (over the objection of defense

counsel) was preparing to instruct the court immediately

' before the case was submitted to its members for their

consideration and verdict. It was made available to the

Court as a “lesser included offense” within the charge? —

actually levied against the defendant.

9 Sodomy, under Article 125, U.C.M.J. Article 134 was not

charged at the outse, or during the proceeding except at its close.

(a) The requirement of “‘necessary”’ inclusion

and notice to the Defendant in both civil-

ian and military law.

The concept of a “lesser included charge” is one that

has frequently troubled courts because of the inherent

problem of notice to the defendant that he may be con-

victed of a crime which, at least in haec verba, is not

charged against him. Civilian courts dealing with this prob-

lem have developed simple safeguards against abuse. Rule

31(c), Federal Rules of Criminal Procedure embodies one

such safeguard:

“The defendant may be found guilty of an of-

fense necessarily included in the offense charged

or of an attempt to commit either the offense

charged or an offense necessarily included

therein if the attempt is an offense.” (Em-

phasis supplied.)

The use of “necessarily” imparts definite standards, both

legally and as a matter of factual guarantee that the de-

fendant be given some inkling that hidden beneath the

language of his indictment there exist other accusations

of which he is in jeopardy. In the many cases where a

conviction of a “lesser included offense” is reached, no

one could doubt either its validity or the palpable notice

given the defendant of the plural charges against him (viz.,

2nd degree murder, manslaughter and assault in Ist degree

murder cases; all attempts to commit crimes, where the at-

tempt itself is criminal). The rule has sense and some con-

siderable fairness based on the reasonableness of notice.

Where, however, this notice is less than fair and clear,

the civilian courts have balked. Perhaps the most cogent

formulation of this is found in Kelly v. United States. 370

F2d 227, a 1966 opinion in the District of Columbia cir-

cuit. The defendant, charged with sale-facilitation in the

indictment, asked the court to instruct on the lesser in-

cluded offense of possession of narcotics. Possession was

not included in the indictment, but proof of possession

was adduced at trial. Judge Leventhal wrote, in language

notably applicable to the case at bar:

“Although the doctrine may also be invoked

by defendant, his right to invoke it does not

extend beyond the right of the prosecutor.

The right of the prosecutor is limited to the

offense of which the defendant has been given

notice by the indictment and the defendant is

not subject to conviction for other offenses be-

cause of the nature of the proof. What is con-

trolling is the offense charged in the indictment,

not the offense established by the trial proof.

whether it is the prosecutor or the defendant

who is seeking extension from the offense

charged to another offense as “‘necessarily in-

cluded.” (Emphasis supplied.) 370 F2d Ct.

229.

If “notice by the indictment” is the standard in civilian

courts, the same rule — at least nominally — applies to the

military. The requirement of Article 32(b) of the Uniform

Code that “The accused shall be advised of the charges

against him” can be met in no other way. Section 79 of

the Uniform Code defines a “‘lesser included offense” in

terms undistinguishable from its civilian counterpart:

“An accused may be found guilty of an of-

fense necessarily included in the offense

charged or an attempt to commit either the

offense charged or an offense necessarily in-

cluded therein.”” (emphasis supplied)

The test, then, is whether Commander Augenblick had

“been given notice” that the statute! finally relied on by

the Navy court for its conviction was available to it to

convict him, and whether this notice necessarily arose from

the charge placed against him at the outset.

(b) Failure of Notice in Augenblick;

What the Manual did not say;

The only specific information that a serviceman might

have of the range of charges not appearing on the face of

his indictment but nonetheless available for use by the

Court is the notice provided by the Manual for Courts

Martial. The Code itself requires that each serviceman be

read the Code and that its punitive sections be explained

to him.!! The regulations which supplement the Code

(and their explanation) comprise the Manual, which by

statute must be made readily availabie to each serviceman.

Indeed, the prescribed availability of the Manual has been

looked to as satisfaction of the notice requirement for

servicemen explicitly charged in advance of trial under Ar-

ticle 134, United States v. Frantz, 2 U.S.C.M.A. 161 (1953).

Appendix 12 of the Mnual lists “commonly included of-

fenses”. The 1951 Manual, which with its 1959 Supple-

ment, was in effect in 1961 when Commander Augen-

blick’s alleged offense and trial took place, lists no offenses

as included within Section 125. It was not until the is-

suance of the 1968 Manual that Section 134 was listed as

an included offense within a Section 125 charge. Thus,

the commonest form of notice to all servicemen of the

10 Article 134 (10 U.S.C. 934).

11 Article 137, (10 U.S.C. 937).

multiplicity of offenses he is in peril of, though not charged

with, could not be given in Commander Augenblick’s case.

its broad license to military prosecutors.

It is clear, thus, that both civilian and military law per

mit the application of a “lesser included crime” to a de-

fendant only if it is thoroughly clear to that defendant at

the outset of his prosecution that he is in jeopardy of a

conviction for this included crime. Any other use of the

“lesser included crime” would clearly violate the Defend-

ant’s rights to constitutional due process and the fair op-

portunity to defend himself, be he civilian or serviceman.

The Court of Claims defends what occurred in the Au-

genblick court martial by pointing to a “specification”

under Section 134 existent in 1961 when the court mar-

tial took place, proscribing “lewd and lascivious conduct.”

The Court states:

“Particularly in view of Article 134’s specific

coverage of indecent and lewd acts, the ac-

cused must have known that in those circum-

stances he could be found guilty of the re-

lated, lesser offense of lewd and lascivious

conduct. That would be the reasonable ex-

pectation, borne out by prior holdings of the

military tribunals included in an offense such

as sodomy under Article 125 or rape under

Article 120. . .”

-“In the constitutional sense — that a Defend-

ant must not be convicted of a charge. of

which he has inadequate notice . . . there

was here sufficient notice that the offense of

indecent, lewd and lascivious conduct under

Article 134 could and might well be impli-

cated.” (slip opinion p. 6)

There are three insuperable constitutional flaws in the

Court of Claims rationale. The first is the most obvious

one: the Navy, in 1961, did not consider any of the spe-

cifications under Article 134 as “lesser included crimes”

within Article 125, and said so in the Manual for Courts

martial, albeit with the caveat that the Manual’s list of

included crimes was to be used with caution. Regardless

of this caveat, this omission is fatal to the proposition

that the inclusion of 134 within 125 is necessary, as re-

quired by Article 79 (UCM3J) and by all criminal law —

in order to preserve the right of the Defendant to know

of what he is charged.

The second difficulty is the fact that the specification

“lewd and lascivious conduct”, relied on so heavily by the

Court of Claims as giving notice to this Defendant of what

he might be charged with, is — as are all “specifications”

of misconduct in military law — found nowhere in the

statute passed by Congress, the Uniform Code. “Specific-

ations” are merely guides for the use of prosecutors in

drafting charges, so that Defendants will understand the

precise facts to be proved against them. The listing of

specifications within the Manual has no sanctity of law.

It is, indeed, a moveable feast which the military author-

ities can change unilaterally at will. Examination of vari-

ous authorities can change unilaterally at will. Examina-

tion of various editions of the Manual make it totally clear

that the military authorities can create or abandon these

“specifications” any time they wish. Indeed, “specifica-

tions” cannot be definitions of new crimes because Con-

gress has never delegated to the military authorities the

power to create and define new crimes.

“Specifications” (such as “lewd and lascivious conduct”)

are therefore included within Section 134 — or not in-

cluded therein — not as definitions of crimes of which a

military Defendant might be in jeopardy of, but merely

as examples of the verbiage necessary to put Defendants

on notice of charged facts in those cases in which Sec-

tion 13412 is being charged at the outset.

The Court of Claims has tumed this laudable function

of “specifications” completely backwards. Far from in-

surance that military defendants are fully apprised of the

exact facts to be proved against them, the Court of Claims

notion of a “specification” seems to be that it constitutes

a definition of a crime not found in the statute (or in the

indictment) but nonetheless available to prosecutors if, at

the close of trial, their cases under the statute have failed.

To begin with, Congress intended no such legislation of new

crimes by military prosecutors. But in the special case of

Section 134, “specifications are particularly essential to a

fair trial because the language of the statute tells the De-

fendant little or nothing of what he is being charged. And

the whole point of providing “specifications” at the outset

for military defendants charged with Section 134 runs

exactly counter to the strange use of a “specification” by

the Court of Claims, in a case where that Section was

never charged at all.

This case illustrates a distortion of the use of both “spe-

cifications” and the General Article, itself. The problem of

notice under the General Article is well known to military

authorities, which avoids its use when more specific provi-

sions of the Code can be used:

12 of any other article of the Code.

“When an offense is specifically defined in a

particular punitive article, it ordinarily should

be charged under that article rather than under

Article 134, the general article.” Manual for

Courts martial, 1951 Edition, p. 30*

The reason is obvious. Notice to the Defendant suffers

when the precise sections of the Code are abandoned for

the sweeping phrases of the General Article. That preju-

dice is often unremedied by the specifications under the

General Article which, themselves, are often uninforma-

tive. But when a military prosecutor goes one step fur-

ther, as in Augenblick, and charges under a substantive ar-

ticle of the Code, fails in his proof, and then, at the end

of trial interjects the General Article with a “specification”

drawn from the closed record, notice to the defendant be-

comes a mockery.

(d) What is not being argued herein

Certainly a serviceman who engaged in sexual irregulari-

ties can and should expect punishment. That is not the

point here. We must concede, after Levy, that notice of

the criminality of such acts is chargeabie to all servicemen.

That is also not the point here. Notice that conduct is

criminal is a very different thing from notice of the charges

against you. The former goes to overbreadth and vague-

ness of the statute and is not being argued in this Peti-

tion. The latter goes to the ability to defend one’s self

at court martial. It is being argued here. It is being ar-

gued here because Augenblick wes not and could not have

been aware that Section 134 was necessarily embraced by

Section 125.

No substantial revision of legal practices within the mi-

litary establishment is being urged herein. Augenblick could

just as easily have been charged in the first instance with

a violation of Section 134. Or he could have been charged

with an attempted sodomy under Section 79. In either

case he would have been put on notice of what the pro-

secution intended to prove against him. He then could

have defended. It could have been as simple as that.

(2) Proof

The second constitutional defect in the use of the Gen-

eral Article in this case is that its elements were not proved.

The complaint here is not a simple lack of evidence; it is

failure of any attempt to prove two elements of a crime.

What transpired after the law officer made the General

Article available to the court was —abject silence on the

question of proof. There is no other way to characterize

the conduct of the law officer than to state that he sim-

ply assumed that evidence demonstrating prejudics to good

order and discipline and discredit to the armed forces was

in the record and of sufficient weight to permit the Court

to find guilt.

What was this evidence? There was not a word of evi-

dence that went to any point in this case except the phys-

ical conduct of the defendant. The impact of the law

officer's conduct was an assumption that all of this testi-

mony went also to the issues of whether this conduct was

prejudicial to good order and discipline and discrediting

to the service.

(a) The Court of Claims formulation

The Court of Claims finds evidentiary support for guilt

under the General Article in the following:

“The answer is that the Court of Military Ap-

peals was certainly not out of bounds when in

effect it held that (a) as charged here, the crime

acquitted sodomy, in and of itself, necessarily

embodied those same elements, and (b) that in

this case the court-martial could find those same

elements, with respect to the lewd and lascivi-

. ous conduct, from the nature of the acts and

~ circumstances themselves, it being unnecessary

to have extraneous or independent proof of

those factors.” (slip opinion, p. 7)

To begin with, neither the Court of Military Appeals

nor the Court of Claims could base guilt of any kind of

any accusation of sodomy which resulted in an acquittal.

More importantly, military use of the general article

clearly requires proof under the two explicitly stated re-

quirements of the statute, beyond that of the physical

conduct alone. The statute proscribes only conduct that

is “to the prejudice of good order and discipline in the

armed forces” or “of a nature to bring discredit upon the

armed forces.” The statute says nothing of “lewd and

lascivious conduct.” If the statutory phrases are not to

be written out of the statute by a parade of military pro-

secutions aimed at reducing this statutory language to

pure surplusage, more than physical conduct must be

shown. Some form of nexus between that conduct and

good order, discipline, or the repute of the service is part

of the burdes of the prosectuion.

And so hold the military inithaneliies: themselves:

(b) The military formulation

Aware of the legal warts appearing on the surface of

the General Article in contemporary jurisprudence, military

tribunals have taken pains to point out that some nexus

between the defendant’s conduct and the controversial

clauses of the General Article must be made out by the

prosecution:

“ | The General Article is not such a catch-

all as to make every irregular, mischievous, or

improper act a court-martial offense. Rather,

as this Court stated in United States v. Holi-

day, 4 U.S.C.M.A. 454, 16 C.M.R. 28:

“|. The Article contemplates only the

punishment of that type of misconduct which

is directly and palpably — as distinguished from

indirectly and remotely — prejudicial to good

order and discipline.” United States v, Sadin-

sky, 14 U.S.C.M.A. 563, 564-565 (1964).

If a direct and palpable connection between conduct and

good order and discipline must be shown, some one must

show it; to do so, evidence of some kind must be offered

by the prosecution probative of this direct relationship.

The Manual of Courts Martial repeats this requirement:

“An irregular or improper act on the part of

a member of the military service can scarcely

be conceived which may not be regarded as in

some indirect or remote sense prejudicing dis

cipline, but the Article does not contemplate

such distant effects and is confined to cases

in which the prejudice is reasonably direct

and palpable.” (Para. 213a, Manual for Courts

Martial (1951))

No law officer may, therefore, properly make the simple as-

sumption that the “disorder or neglect”, (viz., the physical

conduct involved) ipso facto and necessarily violates Sec-

tion 134, The prejudice to good order and discipline, a

well as the discredit to the armed forces must be proved.

Moreover, the Manual enumerates the separate elements

of proof under Section 134 that form the burden of the

prosecution:

“Para. 213d. The proof required for conviction

of an offense under Article 134 depends on the

nature of the misconduct charged . . . One ele-

ment of proof common to every case tried un-

der Article 134, except one tried as a crime or

offense not capital, is that the conduct of the

accused, under the circumstances, was to the

prejudice of good order and discipline in the

armed forces or was of a nature to bring dis-

credit upon the armed forces, This element is

common to all the offenses discussed in 213(f)

and should be included in instructions as to the

elements of these offenses, in addition to their

specific elements. Subject to the foregoing, an

offense under either of the first two clauses of

Article 134 requires the following proof:

(1) That the accused did or failed to do the

act, as alleged, and

(2) That under the circumstances his conduct

was to the prejudice of good order and

discipline in the armed forces or was of

a nature to bring discredit upon the armed

forces. (Emphasis supplied.) Manual for

Courts Martial, 1968, pp. 28-73.

These directions in the Manual make it quite clear that

proof of the impact of defendant’s conduct on order and

discipline (or on the public repute of the service) is sepa-

rate from proof of the opprobriouvs conduct itself. The

bootstrapping of proof in Augenblick into sufficiency for

conviction under the general article becomes even more

dramatic when another singular aspect of this case is re-

called: when proof of physical activity was being put into

the Augenblick record the defendant was not charged with

conduct bearing in any way on discipline, order, or the re-

putation of the Navy. None of these elements are present

in Section 125.

The Court of Claims would tell us, however, that (1) af-

ter the Manual informed Augenblick (and all other service-

men) in 1961 that, if and when he was charged with sodo-

my, no other “lesser included crime” could be proved simul-

taneously against him, and (2) after a trial in which not

one word of evidence supporting Section 134’s special ele-

ments was put into the record by the prosecution, — that

this defendant was nonetheless “‘free to introduce”!* evidence

of his own under the general article. He certainly was.

But if he did, he ran as strong a chance in 1961 of having

the evidence excluded as beyond the issues in the case! as

he did of helping himself. And if that is so, notice, proof

and due process become moves in a game rather than guar-

antees of basic fairness.

Picture the situation of a defendant “free to introduce”

evidence under Section 134 when no charge under that

statute, no specification under that statute, and no proof

under that statute had surfaced against him. There were

no less than 58 different specifications under the general

article in 1961, ranging from “‘abusing a public animal” to

128 ship opinion, p. 8.

13 Since this evidence is wholly immaterial in a prosecution un-

der Section 125.

“breaking a medical quarantine”. Among these, there are

at least three which can, conceivably, cover sexual activity.

The Court of Claims would require this defendant to can-

vass the entire record for any and all evidence of each of

the 58 different possible specifications, and then, on his

own initiative (again in a 180-degree reversal of where this

burden should fall) sua sponte offer exculpatory evidence

on any conceivable specification that the proof had strayed

into. And this without a charge or specification to tell

him what the prosecution really had in mind. The military

defendant cannot constitutionally be put under that burden.

The earlier cases in the Court of Military Appeals in

which Section 125 was held to include Section 134 do

not cure the constitutional problems herein. These cases

hold, rightly or wrongly (and none contains any reference

to the constitutional problems involved) that certain forms

of sexual aberration did, under the various circumstances

of those cases, rise to the level of a violation of Section

134. But how can any serviceman guess that one form

of un-sodomy or near-sodomy within the unnumbered vari-

ations of sexual behavior necessarily constitutes a violation

of the general article because another variant, under differ-

ent circumstances, was held to violate the statute years be-

fore? He simply cannot. Again, the certitude on which

notice and, therefore, the constitutionality of the “lesser

included” crime must rest, is missing here. That is, unless

all sexual irregularities violate Section 134. But the Man-

_ual’s strictures on proof make it clear that the military

prosecutors, themselves, reject that notion.

(d) What happened in Augenblick

The mischief in permitting this is compounded by the

special facts in Augenblick. If the prosecution offered

not a shred of evidence going to these points, the Defense,

certainly, had no opportunity whatsoever to demonstrate

_ that this defendant’s conduct (even if he had performed

the “lesser included” lewd and lascivious” act) was private

in nature, did not bear on discipline or good order at the

time or in this officer’s reasonably foreseeable future, and

had consequences sufficiently cloistered to preclude any

substantial public opprobrium from falling on his service.

Yet that is the exercise in proof that the Article and the

Manual for Courts Martial require of the prosecution and

permit of the Defense. '

. All evidence was in and the record closed. Thereupon

the law officer proceeded to ignore the requirements of

proof incumbent on the prosecution on two elements of

the charge newly before him. He ignored the manifest

inequity of foreclosing defense evidence on these elements.

He assumed sufficiency of proof of impact on discipline

and order, he assumed sufficiency of proof on discredit,

he proceeded oblivious of defendant’s right of proof on

these same points:'— and authorized the Court to return

a conviction under Section 134. This was the first men-

tion of the General Article in the entire sees eaiaeti of

this offense.

(3) Vagueness

We accept the Court of Claims statement of the hold-

ing in Levy and Avrech:

“In Parker v. Levy, supra and Secretary of the

Navy v. Avrech, supra, the Supreme Court held

that Article 134 of the Uniform Code of Mili-

tary Justice . . . (the so-called “General Arti-

cle”), is not unconstitutionally vague under

‘the Due Process clause of the Fifth Amendment

where the accused has fair notice that his con-

duct is punishable under that provision, nor is

the article facially invalid because of over-

breadth.”"*

None of these points is being argued here. Vagueness in

Augenblick is a quite different problem: the vagueness of

the instruction given to the Court when it was authorized

by the law officer to return a conviction under the Gen-

eral Article. That instruction was:

“If you are satisfied by legal and competent

evidence before you beyond a reasonable doubt

only, one, that at the time and place alleged

and in the manner indicated by the evidence

the accused wrongfully committed an indecent,

lewd and lascivious act with James O. Hodges,

Jr., airmen third class, United States Air Force

but which act fell short of sodomy; and, two,

that under the circumstances, the conduct of

the accused was to the prejudice of good or-

der and discipline in the Armed Forces or war

of the nature to bring discredit upon the Armed

Forces, then you may, by exceptions and sub-

stitutions to the charge and specification, find the

accused guilty of an indecent, lewd and lascivi-

ous act as violation of Article 134 of the Code.

You will notice that he is charged with a viola-

tion of 125 of the Code.” (R VII-369)

The Court then retired, recalied the law officer to re-

port an acquittal of sodomy but a finding of guilt on the

lesser included charge. The law officer then zssisted the

Court in drafting a specification on this charge, which the

Court completed and returned. The Court made no find-

ings, comments or reference to Section 134, except to find

guilt under it.

138 Slip opinion, p. 4.

If this Court is to believe the directions of the Manual

for Courts Martial that guilt under the General Article

must be proved by a direct and palpable connection be-

tween physical conduct and good order, discipline (or dis-

credit to the service) the Augenblick court martial should

have been instructed in those terms. If there are separate ele-

ments of proof for which the prosecution had the burden of

under Section 134, proof of physical conduct being the first,

and proof of impact on good order, discipline or service dis-

credit being the second, a court martial such as Augenblick’s

should have been instructed in those terms.

It was not. The court was simply given a “specifica-

tion” drawn from the 58 found in the Manual under Sec-

tion 134 (“an indecent, lewd and lascivious act”) provided

with three words of direction (“under the circumstances”)

and then read the language of the General Article. This

instruction was far too vague to provide the objective

standard by which all criminal courts, military or civilian,

must measure guilt.

Levy and Avrech may well have put servicemen on no-

tice that certain forms of conduct are criminal. But nei-

ther holding went the considerable additional distance to

hold that a simple reading of the general article provided

a sufficiently precise and objective standard by which any

court (military or civilian) could measure guilt. Neither

military custom nor “an actual knowledge of experience

14 See Scott, Constitutional Limitations on Substantive Criminal

Law, 29 Rocky Mt.L.Rev. 275 (1957), Lanzetta v. New Jersey, 306

US. 451, 453 (1939); Herndon v. Lowry, 301 U.S. 242 (1937), among

the dozen of contemporary decisions invalidating criminal statutes lack-

ing objeetive standards for determining guilt; e.g., “Any attempt, by

persuasion otherwise to induce others to join in any combined resist-

ance to the lawful authority of the state” (Herndom, supra, with the

of military law” can constitutionally be substituted for a

yardstick found outside the whims and predilections of

the judges themselves.

Yet private whim and predilection was the measuring

rod for guilt in Augenblick. This was so because the

General Article’s terms have never, in the history of mili-

tary law, been reduced to objective terms. In consequence,

seven judges sitting on a court martial in 1961 were forced

to speculate as to what would prejudice good order and

discipline since that phrase is without judicial or lay defi-

nition. One may search the literature of military reports

in vain; the concept has no written metes or bounds. It

is totally within the mind of the individual enforcer of

order and discipline, and therefore infinitely variable.

Can words more capable of an infinity of private defi-

nition be found? Can words more given to one meaning

in the mores of 1949 and another in the society of 1971,

be found? Regional predilections and prejudices, personal

distates either normal or neurotic, private encounters wholly

unrelated to military experience, are all set in motion if a

man’s judgment is to be made guided only by those words.

To say they are subjective words is to describe them most

moderately. They are more than subjective: they are in-

vitations to the free exercise of whatever private bias the

judgment-maker feels most strongly. They are the sole

place in the law, civilian or military, when personal whim,

caprice and prejudice are beckoned openly to dispose of

the essence of a human life.

Court noting the infinite array of cause and effect relationship cov-

ered by the prohibition, holding that “The Law, as thus construed,

licenses the jury to create its own standard in each case”’); being

“known to be a member of any gang consisting of two or more per-

sons” (Lanzetta, supra); a ban on films deemed to be “of such charac-

ter as to be prejudicial to the best interests of the people” (Gelling v.

Texas, 343 U.S. 960 (1925).

(4) Conclusion

The Navy used Section 134 in this case to rid itself of

Commander Augenblick and disgrace him when more or-

derly means seemed to fail. The private morality poll

conducted by the seven members of the Navy court was

light years removed from due process as it is today.

This is not to say that the General Article cannot be

used properly by the military authorities. If it is charged

in the first instance if its ele:ients are proved by probative

evidence, and if the Court is given some practical defini-

tions of its terms, a definition that will, with objectivity,

place certain conduct within the Article and other conduct

beyond it, the General Article can certainly go on in its

place in military justice. But none of these things were

done in this case.

Il. THE RECORD AS A WHOLE IN AUGENBLICK

REFLECTS BASIC UNFAIRNESS: THIS COURT

SHOULD REVIEW IT EITHER UNDER O’CAL-

LAHAN OR ON INDEPENDENT GROUNDS;

The specific constitutional problem of the last minute

interjection of Section 134 as a “lesser included crime”

within Section 125 is just one part of the strange story

of the Augenblick court martial. Beginning with the vio-

lations of this officer’s rights under the Jencks Act, in-

volving next the conviction under Section 134 when it was

neve: charged, proceeding to the curious re-evaluation of

evidence by the Navy Board of Review, and finally to the

open off-the-bench campaigning against this officer by the

judges of the Court of Military Appeals, this prosecution

took the form of vigilantism from the day this officer was

charged until the day his final appeal was rejected by his

adversaries sitting on the Court of Military Appeals.

We ask the Supreme Court to review this record to de-

termine if, in fact, the totality of these errors do not con-

stitute an abandonment of due process. If this is so. as

we submit it is, it makes no difference under what formu-

lation the Court wishes to conduct its review. Review can

proceed on the basis that basic fairness and objectivity in

fact-finding was absent here, permitting a retroactive appli-

cation of the jurisdictional rule of O’Callahan. Or this

Court may simply say that the total record of this prose-

cution requires scrutiny by it to determine if constitutional

injury was suffered by this military defendant, thereby avoid-

ing the niceties of “‘service-connection”’ under O’Caliahan

and going straight to the heart of the constitutional lapses

in Augenblick.

To recount these lapses:

(A) The Jencks Act violations and the Arrange-

ment with Hodges

Viewing the Jencks Act facts (supra, p. 7), it is impor-

tant to note that the following conclusions, drawn fron

these facts by the Court of Claims, remain untouched:

(1) “The first is that Hodges was the all-important

prosecution witness.”” Augenblick v. United

States, 377 F.2d at 605

(2) “Since Hodges during the trial apparently ex-

pected to receive an honorable discharge and

subsequent to the Plaintiff's conviction was in

fact honorably discharged from the Service, it

was also very relevant for the accused to as-

certain whether any inducement was offered or

suggested, or other improper dealings had, dur-

ing this first interrogation session.” (ibid)

(3) “He” (the defendant) “‘was denied a necessary

step toward obtaining, or discovering, the sta-

tus of, materials or first-rank for his defense.”

377 F.2d at 606.

Regardless of whether Jencks Act rights are tantamount

to, or approximate constitutional guarantees in this case

or any other, the facts cited by this Court in its opinion

remain as true today as they were when this case was first

decided. What the quoted facts do reflect is another mani-

festation of the basic unfairness meted out to the defend-

ant at a key point in his defense.

(B) Section 134 as a “lesser included crime”

The manifest unfairness of the interjection of the Gen-

eral Article at the close of trial was discussed in Section

I of this Petition. ,

Put simply, the Board of Review sifted the evidence in

the case and determined that of the two “specifications”

under 134 that were conceivably “‘lesser” and “included”

within Section 125, the much “lesser” specification “dis-

orderly conduct” was not supported by the record while

the far more punitive specification “lewd and lascivious

conduct” was. Since neither was charged and since no

evidence under either specification was offered at court

martial, the Board was engaged in an exercise of finding

distinctions where none existed in the record.

(D) The extracurricular activity of the Judges

of the Court of Military Appeals

The next level of Navy justice was ihe Court of Mili-

tary Appeals. As noted, its first action in the case was

to deny without opinion, Commander Augenblick’s Peti-

tion for Review.

But the military court’s intervention into this matter

did not end there by any means. It persisted in a singular

manner at a time when the case was not before it and

following this Court’s decision (on May 12, 1967) in favor

of Commander Augenblick. The Court of Military Appeals,

acting entirely extrajudicially, took affirmative and strenuous

steps to urge the Department of Justice to take this case to

the Supreme Court and have it reviewed and reversed. It is

a rather illuminating chronicle of judicial pressure brought

to bear on an adversary so recently before it and, unfortu-

nately (for Commander Augenblick) on an adversary who

was to reappear before that Court again in this same case.

This chronicle of extrajudicial activity by members of

this Court is delineated in the Appendix to this Brief. The

Appendix is taken in its entirety from the public records

of the Augenblick case on file in the Court of Military Ap-

peals. The record of this tale begins on May 23, 1967, 11

days after this Court’s decision in Augenblick. The Clerk

of the Court reports on that date that:

“Chief Judge Quinn, after reading the Court of

Claims decision in the Augenblick case, de-

cided on May 12, 1967, was disturbed to see

the latter Court in effect overrule the decision

ot this Court. He stated a hope that the Navy

Department would seek to have the Supreme

Court entertain an appeal in the instant case”.

(Appendix, p. 2)

Not strangely, Chief Judge Quinn’s hope was Mr. Proulx’s

(the Clerk of the Court) mandate for action:

“In that regard, I contacted today Admiral

Hearn, the Judge Advocate General of the Navy.

The Admiral, having just returned from a Euro-

pean trip was not familiar with the decision.

As soon as he has a chance to read it and discuss

it among his staff members, I asked him if he

would let me know his reaction.” (Appendix,

p. 2)

That same day, as the memorandum records, Mr. Proulx

contacted the Department of Justice, heard its predictable

reaction to this Court’s opinion. He reported that the De-

partment expressed a hope that “the Navy Department will

come forward with a strong memorandum to the Depart-

ment of Justice to have it taken up to the Supreme Court”.

The Clerk was also briefed on a probable procedural course

to be followed by Justice.

Four days later (May 31, 1967) Mr. Proulx records a

conversation with the Navy’s Director of Military Justice

— the latter reporting that the General Counsel of the De-

fense Department was to be requested “to carry the ball”

in this matter — the “ball” being the Augenblick decision

whose determination in favor of the Defendant-officer had

precipitated the curious maneuvering of the military court.

Proulx told the Navy’s Director of Military Justice:

“I told him I would express to Mr. Warnke, the

General Counsel, the Court’s vital interest in

the appeal.” (Emphasis Supplied) (Appendix,

p. 3)

That the Court was indeed “vitally interested” is quite

clear from Mr. Proulx’s report of the following day’s con-

versation with Mr. Paul Warnke, General Counsel of the

Department of Defense. The Court’s interest was quite

specific:

“On behalf of the Court, 1 sought his support

to have the Department of Justice, in particu-

lar, the Solicitor General, appeal this decision

to the Supreme Court . . . I impressed on him

RE emcee taba Us i ee eile

that if the Court of Claims decision were to

stand, then the door was open for allcourt-

martial convictions, passed on by this Court,

to be appealed from this Court to the Court

of Claims”. (Emphasis Supplied) (Appendix,

p. 4) .

There is just enous’: irony in Mr. Warnke’s reported re-

sponse to mak. it quite clear that he fully understood the

spectacle before him, with all of its ramifications:

“He” (Mr. Warnke) “felt that if the reference

that I called his attention to, that the Court of

Claims as a constitutional court could review de-

cisions of this Court despite Article 76 of the

Uniform Code of Military Appeals binding on

all courts, agencies, etc., should probably fur-

nish the wedge to have the Congress give this

Court its much needed stature of life tenure,

something which we have been asking since the

Court’s establishment”. é

Perhaps this point was driven home to the General Coun-

sel by the conduct he was observing; more graphic evidence

that the military court was not a constitutional court can-

not be imagined. This exchange (the Proulx-Warnke con-

versation) was then “reported this date to Judge Kilday

and will be reported to Chief Judge Quinn tomorrow over

the phone”.

Ten months later, Mr. Proulx was able to report results.

His March 6, 1968 memorandum of conversation with Mr.

Leonard Niederlehner of the Department of Defense dis-

closes that:

“While in his office we discussed the Augenblick

case and upon making a call to the Department

of Justice, Mr. Charles Munnecke, we learned

that on that very morning the petition for cer-

teriorari in the case had been filed by the Soli-

citor General with the Supreme Court.”” (Ap

pendix, p. 11)

Nonetheless, the Court stayed close to its mission. The

Solicitor General’s letter to Chief Judge Quinn of May 20,

1968 noted the most recent contribution of the Chief

Judge to the cause:

“Thank you very much for your kindness in

sending me, so promptly, the opinion in Davis

v. Clifford, decided by the Court of Appeals

for the First Circuit on April 25, 1968.”

“I had not previously heard of this decision.

I have already passed it on to the man who

is working on the Augenblick case.” (Appen-

dix, p. 13)

Following all of this, the very same Court again took

jurisdiction of the Augenblick case and rendered a judi-

cial opinion. In February, 1970, Augenblick petitioned

the Court of Military Appeals to reconsider its earlier ac-

tion rejecting Augenblick’s Petition for Review, basing the

request for reconsideration on the then-recently announced

O’Callahan decision. Without any hesitancy the court which

had engaged recently in a lobbying campaign against Augen-

block within the various governmental legal offices (seeking

reversal of this Court’s decision in his favor) proceeded to

consider this Petition and, most predictably, voted to reject

the Petition for reconsideration.

15 The vote was 2-1, with Judge Ferguson dissenging. Chief Judge

Quinn who played a principal role in the Court’s lobbying was on the

Court during this reconsideration and voted against Augenblick on each

point.

These events unfold an unedifying spectacle. Attempts

by members of a court to influence a litigant before it to

appeal a decision reversing that court is a disturbing mat-

ter itself. This conduct is comparable to a case of a fed-

eral district judge openly exerting pressure on the govern-

ment to appeal from a court of appeals reversal of his

trial decision. It is submitted that this would be unseemly

But when the Government — in the form of the mili-

tary establishment — is before the Court as its only liti-

gant on a continuing basis, extracurricular pressure by

judges is especially conducive to other pressures which do

not ennoble the administration of justice. The direct in-

fluence of the Court of Military Appeals should not be

part of the determination by the Department of Navy to

urge, nor the determination of the Department of Justice

to embark, on a Supreme Court review of any case. Both

departments have other business before the Court of Mili-

tary Appeals. One of the considerations for the Govern-

ment to weigh in deciding whether to appeal a case (when

so urged by the Court of Military Appeals) becomes the

treatment it can expect from that Court in other cases be-

fore it. This is an unfortunate intervention of judicial pol-

itics where it does not belong.

Far more disturbing are two other facets of these judi-

cial peregrinations. The first is the clubby, parochial in-

terplay between judges of the Court of Military Appeals,

the court’s clerk as their agent, and the legal officers of

the military establishment. With this modus operandi, it

is chilling to contemplate the possibilities of understand-

ings and exchanges of information which do not reach the

public files. This closeness between a constant litigant be-

fore a court and its judges is not the judicial conduct

found in Article II] courts.

The second is the willingness of judges of the Court of

Military Appeals to hear and decide this case after strenu-

ous extrajudicial efforts against a litigant before the Court.

It is precisely as if that same District Court judge, after

securing Supreme Court review of his reversal on appeal,

blithely proceeded to sit on the remand ordered by the

High Court. Before October 1970, the Court of Military

Appeals had, itself, become Commander Augenblick’s ad-

versary. Thereafter it should not have sat in judgment on

him.

Viewed in any light, this is fundamentally unfair. Viewed

in any light it entirely vitiates the precision with which

judges who participated in this off-the-bench activity were

able to administer their appellate functions.

This was not an isolated episode in the Augenblick case.

On the contrary, it was typical of the Augenblick case.

We said it once and we say it again with full force. The

Augenblick case was an example of very bad naval justice.

The Court of Claims is correct that Gosa v. Mayden,

413 U.S. 665 (1973) does not require retroactive applica-

tion of O’Callahan v, Parker. Neither does it preclude it.

Gosa v. Mayden provides ample latitude for applying the

constitutional safeguards of a civilian trial to military de-

fendants where the processes of military justice depart so

markedly from objective fact-finding and basic fairness as

they did — at each level of military justice — in Augen-

blick. A civilian trial would not carry with it the genera-

tions of Navy lore that renders a sailor accused of sexual

aberration a pariah well before the court martial convenes.

Gosa v. Mayden further permits a case-by-case determi-

nation as to whether O’Callahan should be applied retro-

actively. It is submitted that this Court’s scrutiny of

Augenblick on its merits will demonstrate that the con-

- stitutional safegaurd of a civilian trial is particularly justi-

fied in this case where the Navy prosecution left nothing

undone, within or without the rules, to pin guilt — any

kind of guilt — on this officer.

In a broader sense this Court, it is submitted, should

review the record of this prosecution beyond the strictures

of O'Callahan. If servicemen are to be protected from the

abuses suffered in this case, this Court must label these

practices for what they are in terms unmistakeably clear.

The use of Section 134 and the antics of the Court of |

Military Appeals in this case are each flagrant departures

from constitutional norms. But they are not alone in this

case. The totality of what occurred justified and requires

review by this Court so that future military prosecutions

will never attempt what happend in Augenblick. i

(e) Conclusion |

The thrust of this section has been to point up depar-

tures from fundamental fairness and justice which occurred

in the military prosecution of an officer accused of sex-

ually deviant conduct. At trial before the Navy court this

defendant suffered injustices, indeed, his conviction itself

was a consummate exercise of the Navy’s ability to snatch

the result it wished out of a finding of fact adverse to it.

The treatment of the Board of Review was no better; it

split non-existent evidentiary hairs to reach a desired re-

sult. Finally, there is the activity of the Court of Mili-

tary Appeals. We make no further comment on its role

in this case. The record speaks eloquently for itself.

“For the reasons set forth hereinabove, Petitioner prays

the Court to enter a writ of cértiorari, accepting this cause

for review on the issues set forth in this Petition.

JOSEPH H. SHARLITT

Counsel to Richard G. Augenbiick

APPENDIX A

May 23, 1967

MEMORANDUM FOR FILE

SUBJECT: United States v. CDR RICHARD G.

AUGENBLICK

Docket No. 16,465

Chief Judge Quinn, after reading the Court of Claims

decision in the AUGENBLICK case, decided on May 12,

1967, was disturbed to see the latter Court in effect over-

rule the decision of this Court. He stated a hope that the

Navy Department would seek to have the Supreme Court

entertain an appeal in the instant case. In that regard, I

contacted today Admiral Hearn, the Judge Advocate Gen-

eral of the Navy. The Admiral, having just returned from

a European trip, was not familiar with the decision. As

soon as he has a chance to read it and discuss it among

his staff members, I asked him if he would let me know

of his reaction.

I then called Mr. Charles Munnecke, a lawyer in the

Department of Justice, who is in the Court of Claims Sec-

tion. While he normally is assigned military justice cases,

he did not argue this particular one. He is very much dis-

turbed by the opinion and hopes that the Navy Depart-

ment will come ferward with a strong memorandum to the

Department of Justice to have it taken up to the Supreme

Court. He tells me that the normal time runs 90 days to

petition the Supreme Court for certiorari and feels that

this may be extended in this particular case if a motion

for reconsideration is filed with the Court of Claims with-

in the next 30 days. He informs me that the author judge

of the opinion, Judge Oscar Davis, was formerly Assistant

- ~-

Solicitor General in the Department of Justice and it ap-

pears that he is the author of probably all of the opinions

involving constitutional issues.

After checking with the.Chief Judge, I arranged to have

Mr. Munnecke meet with him on Thursday in the Chief

Judge’s office at 4:00 p.m.

ALF2ED C. PROULX

ACP: vbs

MEMORANDUM FOR FILE

SUBJECT: AUGENBLICK v. United States (Court of

Claims)

Captain Joe Ross, the Director of Military Justice in

Navy JAG’s Office (Ext. 44906), at the request of Ad-

miral Hearn, called to let us know that the Navy is very

much interested in seeing to it that the Solicitor General

appeals the Augenblick opinion to the Supreme Court.

He ix seeking the aid of the other services in this endeavor

and will request the General Counsel of the Department

of Defense to carry the ball in this matter. I told him

that I would express to Mr. Warnke, the General Counsel,

the Court’s vital interest in the appeal.

May 31, 1967

On the occasion of my visit to the Office of Mr. Paul

Warnke, the General Counsel of the Department of De-

fense, to take up the matter of the Court building by the

D.C. Government (see letter of May 31st in Court Build-

ing file), I left with him a copy of the Augenblick decision.

On behalf of the Court, I sought his support to have the

Department of Justice, in particular, the Solicitor General,

appeal this decision to the Supreme Court. I told him

that the Navy was vitally interested in doing this very

thing and is seeking the support of the other services,

since it is a problem that runs right across the field of

military justice. The request for an appeal would, un-

doubtedly, land on Mr. Warnke’s desk in the near future,

although as of this date, he was unaware of the decision.

I impressed on him that if the Court of Claims decision

were to stand, then the door was open for all court-mar-

tial convictions, passed on by this Court, to be appealed

from this Court to the Court of Claims. He felt that if

the reference that I called his attenntion to, that the Court

of Claims as a constitutional court could review decisions

of this Court despite Article 76 of the Uniform Code of

Military Justice making decisions of the United States Court

of Military Appeals binding on all courts, agencies, etc.,

should probably furnish the wedge to have the Congress

give this Court its much needed statute of life tenure,

something which we have been asking since the Court’s

establishment.

June 1, 1967

The above was reported this date to Judge Kilday and »@

will be reported to Chief Judge Quinn tomorrow over the

phone.

ls) ACP

ALFRED C. PROULX

ACP: vbs

DRAFT

Honorable Joseph D. Tydings

Chairman, Subcommittee on Improvements

in Judicial Machinery

Committee on the Judiciary

United States Senate

Washington, D.C. 20510

Dear Mr. Chairman:

This is in response to your letter of February 29th con-

cerning S. 1704, a bill to authorize the Court of Claims

to implement its judgments for compensation.

We do not plan to have a representative of this Depart-

ment appear before the Subcommittee at the hearing sched-

uled for March 12th, but submit the following comments

and a proposed amendment for the Subcommittee’s con-

sideration. —

S.1704 would give the Court of Claims power to issue

such orders and grant such relief as the District Courts

may issue and grant in civil cases over which they have

original jurisdiction. This remedial authority may include

the authority to restore to military status persons who

have lost such status as a result of either court-martial or

administrative action and to order reinstatement in security

positions of those individuals who are deemed by the Court

to have been improperly separated. The possible ramifica-

tions of action by the Court of Claims in these two areas

are a matter of significant concern to the Department of

Defense.

The traditional rule that court-martial convictions are

exempt from direct review by the civil courts was by in-

ference recently reaffirmed by the refusal of the US.

Supreme Court to grant certiorari in a decision by the

Court of Military Appeals. United States v. Crawford,

380 U.S. 970 (1965). Collateral review has been limited

to the issue of whether a court-martial has jurisdiction

(i.e., whether it was properly constituted, had jurisdiction

of the person and subject matter, and power to impose

the sentence). In Burns v, Wilson, 346 U.S. 137 (1953),

the Supreme Court interpreted jurisdiction, for civil court

review purposes, as including the traditional aspects of

jurisdiction plus a determination of whether an accused’s

allegations relating to constitutional gurantees had received

full and fair consideration in the military judicial system.

The Federal District and Circuit Courts have adhered to

this standard. Likewise in the review of administrative

actions these Courts have confined themselves to the ad-

ministrative record.

However, the Court of Claims has gone far beyond the

other federal courts in its collateral review of court-martial

proceedings. Thus it has not hestitated to inquire into al-

legations of procedural errors, to go outside the record and

to question the exercise of professional discretion by law

officers. In Augenblick v, United States, 377 F.2d 586

(1967), the Court of Claims refused to regard as final a

court-martial conviction because it disbelieved the testi-

mony of a prosecution witness and thought the rulings of

the law officer constituted an abuse of discretion. In Juhi

v. United States, Ct. Cl. No. 353-65 (1967), the Court of

Claims held a court-martial conviction invalid by going out-

side the record to consider out-of-court statements that con-

flicted with testimony introduced at the trial. Similarly in

reviewing administrative proceedings the Court of Claims

often conducts a trial do novo rather than confining itself

to the administrative record. See, for example, Beckham

v. United States, Ct. Cl. 379-61 (1967).

In view of this propensity of the Court of Claims to ac-

cord an extremely broad review of both court-martial con-

victions and administrative actions that substantially ex-

ceeds the limitations observed by the other federal courts,

it is our view that the additional authority lost such status

through court-martial

authority to reinstate where security is involved.

The most pernicious aspect of granting the remedial au-

thority contemplated by the bill without any limitation as

to its applicability to court-martial proceedings is that such

a grant would tend to place the Court of Claims in conflict

with the Court of Military Appeals, a three-judge civilian

tribunal at the approximate judicial level of the Circuit

Courts of Appeal, whose effectiveness has been cited by

the present Chief Justice of the U.S. Supreme Court in an

article published in a legal periodical in 1962.

“The [Uniform] Code [of Military Justice]

represents a diligent effort by Congress to in-

sure that military justice is administered in ac-

cord with the demands of due process. At- |

testing to its success is the fact that since 1951

the number of habeas corpus petitions alleging

a lack of fairness in courts-martial has been

quite insubstantial. Moreover, I know of no

case since the adoption of the Code in which

a civil court has issued the writ on the basis

of such a claim. This development is undoubt-

edly due in good part to the supervision of mi-

litary justice by the Court of Military Appeals.”

(37 N.Y.U. Law Review 181, 188-89)

Further, any attempt to grant judicial authority to per-

mit the courts to restore individuals to military status or,

a fortiori, to command would raise grave constitutional .

issues with respect to the powers of the President as Com-

mander-in-Chief of the armed forces.

Accordingly, we recommend that the following proviso

be added at the end of section | of the bill.

“Provided, that nothing contained herein shall

be construed to authorize the Court of Claims

to restore or order restored military status to

any person removed from such status pursuant

to sentence of a court-martial or by administra-

tive action under regulations duly prescribed by

the Secretary of Defense or a Secretary of a

military department; or to order a person rein-

stated in a position determined by the President

or by the head of an executive agency or mili-

tary department to be a position requiring knowl-

edge affecting the security of the United States.”

If the bill is so modified, the Department of Defense has

no objection to its enactment.

The Bureau of the Budget has concurred in the submis-

sion of this response to your inquiry.

March 6, 1968

MEMORANDUM FOR FILE

SUBJECT: Bill S. 1704

Mr. Leonard Niederlehner reached me while I was on

temporary active duty with the Navy and asked if I could

get away to visit his office before the end of the day to

discuss the stand of the Departmient of Defense regarding

S. 1704. This bill would enlarge the jurisdiction of the

Court of Claims to go beyond money judgments and direct

the Secretaries of the military departiments to restore men

to duty — something to date they have not been able to

accomplish.

I went to the Pentagon to Mr. Niederiehner’s office and

he gave me a copy of S. 1704 and asked me to read the

attached draft of a letter which he pilans to forward to

Senator Tydings, the Chairman of the Subcommittee con-

sidering S. 1704. Hearings on this biill are due to begin

Tuesday, March 12th. After reading the draft, I told him

I could speak for the Court and state that the position

taken would be one that would receiive the full backing

and sympathy of the Judges of the Court.

While in his office we discussed thie Augenblick case

and upon making a call to the Department of Justice, Mr.

Charles Munnecke, we learned on that very morning the

petition for certioraii in the case hadi been filed by the

Solicitor General with the Supreme Court.

ALFRED C. PROULX

ACP: vbs

File: Augenblick

May 20, 1968

Hon. Robert E. Quinn

United States Court of

Military Appeals

Washington, D.C. 20442

Dear Chief Judge Quinn,

Thank you very much for your kindness in sending me

so promptly, the opinion in Davies v. Clifford, decided by

RE EER INT He AR CROLL ITIL RE me ED

the Court of Appeals for the First Circuit on April 25,

1968.

I had not previously heard of this decision. I have al-

ready passed it on to the man who is working on the

Augenblick case.

It was a great pleasure to see you at the First Circuit

Judicial Conference at Newport last week.

With best wishes,

Cordially yours,

/s/ Erwin N. Griswold

Erwin N. Griswold

Solicitor General

August 13, 1968

MEMORANDUM FOR FILE

SUBJECT: S. 1704

Judge Kilday, who had been given a xerox copy of we

memorandum received from Lt. Colonel James Taylor, Jr.,

USAF, Congressional Legislation Division, Office of Legis-

lative Liaison, regarding S. 1704, called me to his office

to discuss its contents. At the meeting were Bill Sandweg

and Mike Katen.

I recalled to the Judge that I had mentioned to him

about my visit to see the Acting General Counsel Leonard

Niederlehner, who wanted to apprise me of the letter that

he was writing to Senator Tydings opposing the granting

of this additional power to the Court of Claims. The

Judge stated that he did not remember it specifically but

10a

was now concerned as to the status of this legislation

which passed the Senate a short while ago. I told him

that I would contact Bill Foley, the counsel for the House

Judiciary Committee, and report back to him before he

leaves for his trip on Thursday.

When I called Bill Foley, I was informed that he had

recently retired as of June 30th and was also told that

the bill had been referred to Subcommittee 2 and in the

immediate hands of the counsel, Bill Shattuck (Code 180

X5741). In talking to Bill, he seemed ta be well versed

with the bill itself and also was not surprised in our in-

terest here at the Court in the light of the Augenblick

case. In response to my question, he stated that he did

not believe that this particular bill would get through the

House when the Congress reconvenes after Labor Day.

He noted in particular that the letter that the Department

of Defense sent to Tydings had not been included in the

Senate Report. Accordingly, he had requested the Defense

Department to make its views known to the House Judi-

ciary Committee, knowing in advance that a similar letter

opposing the bill will be sent to the same committee. He

also noted that the Court of Claims would have little dif-

ficulty receiving the Judicial Conference approval of this

bill since, in effect, it amounts to saying that they could

wrap up in one package the payment of back pay plus

the relief that today must be sought in the Federal Dis-

trict Court. However, the grant of power is so broad that

there is a very good possibility that the Court of Claims

would not stop at the point now reached by the District

Court — namely, short of ordering the Departments of the

Army, Navy and Air Force from restoring someone to

duty. Therefore, this bill will be very carefully scrutinized

oh his recommendation by the members of the House Ju-

diciary Committee and, as I stated above, with a very good

possibility that it will be a dead issue at least for this

Congress if no action is taken upon the return of Con-

gress.

Mr. Shattuck agreed to keep me informed of any and

all developments.

August 14, 1968

The above was reported to Judge Kilday this date.

The Judge informed me that Mr. Shattuck was well

known to him and, as a matter of fact, had considered

bringing him to the Court when he was appointed as a

Judge, as his principal staff assistant.

ALFRED C. PROULX

ACP: vbs

12a

APPENDIX B

Ju the United States Gourt of Claims

No. 357—64

. *

(Decided January 22, 1975)

RICHARD G. AUGENBLICK v. THE

UNITED STATES

Joseph II. Sharlitt, attorney of record, for plaintiff. Neal

E. Krucoff and Lemuel 2, (reen, of counsel,

Bruno A. listau, with whom was Assistant Attorney Gen-

eral Carla A. J1ills, for defendant.

Before Lanamore, Senior Judge, Davis and Nicuors,

Judges.

ON PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED

PETITION AND FOR RELIEF FROM JUDOMEN’', AND ON DEFEND-

ANT’S MOTION TO LIFT THF STAY OF PROCLLDINOS AND TO DENY

FURTHER RELIEF

Davis, Judge, delivered the opinion of the court:

Our decision in 180 Ct. Cl. 131,377 F.2d 586 (1967), invali-

dating plaintiff’s court-mart in} conviction and dismissal from

the Navy, was reversed by the Supreme Court, 393 U.S. 348

(January 14, 1969). On the coming down of that Court’s

mandate, plaintiff immediately filed here a motion for Jeave

to file a first amended petition. Helieving that this proposed

amendment raised issues, which, if open to judicial scrutiny

should have been presented cnrlier, or merely stated or re-

stated positions which had been rejected by the high court or

were required by its decision to bo refused, we denied (on

666 °96—75

13a

April .4, 1969), 187 Ct. Cl. 727, the motion for leave to file

the first amended petition, and ordered that our previous

judgment be vacated and withdrawn and that the petition

be dismissed.*

On July 14, 1969, plaintiff moved for leave to file a second

amended petition and also to set aside our order of April 4,

1969. That motion and the proffered amendment invoked the

Supreme Court’s intervening ruling in O’Callahan v. Parker.

895 U.S. 258 (decided June 2, 1969) ; claiming that Augen-

blick’s offense was not service-connected, plaintiff now

asserted that the court-martial was without jurisdiction on

that ground. The motion and the amendment also alleged, as

‘& separate basis, that the general article, Article 134, 10

U.S.C. $934, of the Uniform Code of Military Justice—

under which Augenblick was convicted by the court-

martial—was invalidly applied to his case. On August 20,

1969, plaintiff also moved for a stay of our order of April 4,

1969. Defendant opposed both applications.

At that time, there were pending before the Supreme.

Court, or about to be filed, certiorari petitions presenting

the issue of the retroactivity of O'Callahan. On October 31,

1969, this court ordered that plaintiff’s motion for leave to

file his second amended petition be held in abeyance pending

the Supreme Court’s action on those certiorari petitions.”

That Court did not reach and determine the retroactivity

question until it decided Gosa v. Mayden, 413 U.S. 665, on

June 25, 1973, and we suspended ruling in the present case

during that period, althongh we received some further

briefing and argument.*

Even siicr Gora vy. Mayden, the constitutionality of Article

134 still remained an open question, and since that issue was

then before the Supreme Court we held this ease still further,

_ awaiting an authoritative ruling on that point. The Supreme

“+ Plaintiff songht certiorart trom this decision; that petition te still pend-

ing in the Supreme Court since the parties agreed that it should await

pont srg on the second amended petition. 48 U.8.L.W. 3027 (U.S. Aug. 12,

® In the fame order we granted a stay of our order of April 4. 1 (denying

the motion for leave to file the Gret amended pethion) anti fhirty days

efter our action on the motion for leave to file the second amended petition.

* After Helfjord v, Commandant, 401 U8. 255 (1971), wax decided without

reaching O’Callahan's retronctivity, defendant moved here to lift the stay

order of October 21, 1980 (sce note 2, ewpra). That motion has not been

acted upon and is #till pending.

14a

Court sustained the validity of Article 134 in Parker v. Levy,

No. 73-206,.decided June 19, 1974, 94 S. Ct. 2547 and Scere-

tary of the Navy v. Avrech, No. 72-1713, decided July: 8,

1974, 94 S. Ct. 3039. |

It is now at last appropriate and necessary to act on plain-

tiff’s request to add to his petition the two new issues of the

retroactivity of O’Callahan and of the validity of the appli-

cation to his case of Article 134.* Defendant urges that, in

any event, plaintiff’s efforts to raise those questions came too

late, but we need not and do not reach that argument since

we are persuaded that, on their merits, the two points are

foreclosed by the Supreme Court’s recent rulings.

We think it clear that Gosa v. Mayden, 413 U.S. 665 (1973),

determines authoritatively that the Constitution does not

require that the O’Callahan rule be applied to court-martial

convictions occurring prior to June 2, 1969 (the date O’Calla-

han was decided). Though there was no opinion for the

Court, the Court’s judgment, taken together with the opin-

jons of Mr. Justice Blackmun (for himself and three other

Justices)* and Mr. Justice Rehnquist,’ necessarily add up to

that result. The decision was not ad hoc to the Gosa case

alone. Five justices having voted on general grounds that

the O'Callahan rule should not be applied to pre- O’Callahan

cases, the Court was able to render a decision which, unlike a

four-to-four affirmance, creates a binding precedent con-

trolling the lower courts in comparable cases. It is immaterial

that Jess than a majority of the Court upheld the legal propo-

sition that O’Callahan should not be applied retroactively ;

the important thing is that a majority voted that O'Callahan

should not control cases like the present one. Cf. Glidden Co.

v. Zdanok, 370 U.S. 530 (1962) ; National Mutual Ins. Co. v.

Tidewater Transfer Co., 337 U.S. 582 (1949).

4 We had already received briefs on the bearing of Gora v. Mayden, and the

Article 134 fseue. We have alxo had the benefit of oral argument and ronc

further briefing after Levy and Arrech.

* Molding that O'Callahan showld not be applied retroactively. 413 0.5.

at 685.

Holding that O'Callahan, even if required to be applied retroactively If

valid, rhould not be followed but sliould be overruled becnure wrongly decided.

413 U.K. at 092.

15a

Pigintiff urges that Mr. Justice Blackmun’s opinion would

allow retroactivity if it could be shown thut the fact-finding

in a specific case was particularly unreliable “in direct con-

sequence of s gencric disability within military justice”

(plaintiff's words) ,’ but we do not read the opinion that way.

It ends its discussion of the point by saying flatly and with-

out qualification (413 U.S. at 685: “We conclude that the

purpose to be served by O’Callchan, the reliance on the law

as it stood before that decision, and the effect of a holding

of retroactivity, all require that O'Callahan be accorded

prospective application only. We so hold [footnote omitted].”

The ruling was across the board.

Gosa v. Mayden is sufficient to dispose of plaintiff's claim

that he is entitled to the coverage of O'Callahan v. Parker.

The majority of this court, through Judges Laramore and

Nichals.-holds, in addition, that Augenblick’s offense, involv-

ing two servicemen in a deviant sexual act, was “service-

connected,” and therefore that O’Callahan would be inapplic-

able even if it were to be applied retrouctively. Judge Davis

would not consider this point, since it is unnecessary to do so,

and expresses no opinion on the issue of service-connection.

pai

In Parker v. Levy, supra, and Secretary of the Navy v.

Avrech, supra, the Supreme Court held that Article 134 of

the Uniform Code of Military Justice, 10 U.S.C. § 954 (the

so-called “General Article”), is not unconstitutionally vague

under the Due Process Clause of the Fifth -Amendment

where the accused has fair notice that his conduct is punish-

able ur.der that provision, nor is the article facially invalid

because of overbreadth. 94 S. Ct. at 2562; 94 S. Ct. at 39-40.

Plaintiff denies that these rulings control his case since,

unlike Levy and Avrech, he was not initially charged with a

violation of Article 134, but that section of the Code came

into his trial only after all the evidence had been submitted.

Tho original charge against Augenblick was solely sodomy

under Article 125; at the close of the testimony the law officer

* Plaintiff’ seserte that in trve iu this case and in other military cases of

sexual deviation. Bricf of Iisintif at 6-12 (filed Sept. 16, 1973).

l6a

instructed the court-martial that commission of an “indecent,

lewd and lascivious” act in violation of Article 134 was a

lesser-included offense which they could also find under the

testimony.* The court then found Augenblick not guilty

of sodomy (under Article 125) but guilty (under Article 154)

of committing an indecent, lewd and lascivious act by wil-

fully and knowingly placing his head in the enlisted man’s

lap with his face in close proximity to the latter’s exposed

privates, See 180 Ct. Cl. at 139, 377 F. 2d at 590-91. The

question before us is whether this posture of the case compels

or permits a disposition other than those in Levy and Avrech.

At the very least, those decisions of the high court demon-

strate that plaintiff could not have complained of vagueness

if he had been initially charged with an indecent, lewd and

lascivious act under Article 134, and the proof had been the

same as here in the actual trial. Augenblick could not reason-

ably have had any doubt that (a) the acts found by the court-

maitial were indecent, lewd, and lascivious, and (b) indecent,

lewd and lascivious acts fell within Article 134. The former

goes without saying and needs no elaboration. As for the

latter, Appendix 6 of the 1951 Manual for Courts-Martial set

forth (at p. 492) under Article 134 a form specification for

an indecent, lewd and lascivious act with another (as well

as related offenses such as indecent acts with a child, and

indecent exposure, at p. 491).

The problem thus narrows to the invocation of Article 134

at the close of the case as a lesser-included offense. Plaintiff

® The law officer instructed as follows:

“If you are satisfied by legal and competent evidence before you beyond

@ reasonable doubt only, one, that at the time and piace alleged and in the

manner indicated by the evidence the accused wrongfully committed an in-

decent, lewd and lascivious act with James O. Hodges, Jr., airman third

class, United States Air Force but which act fell short of sodomy; and, two,

that under the circumstances, the conduct of the accused was to the prejudice

of good order and discipline in the Armed Forces or was of the nature to

bring discredit upor the Armed Forces, then you may, by exceptions and

substitutions to the charge and specification, find the accused guilty of an

indecent, lewd and lascivious act as violation of Article 134 of the Code.

You will notice that he is charged with a violation of 125 of the Code.”

Military law recognizes the notiou of lesser-included offenses, and the

right of the law officer to instruct on them (even over defense counsel's

objection). Scc Art. 79, U.C.M.J., 10 U.S.C. § 879; Manual for Courts-Martial

(1951 ed.), pp. 803-04; United States v. Floyd, 2 U.S.C.M.A, 183, 18S. 7

C.M.R. 59, (1953); United States v. Wilson, 7 U.S.C.M.A., 713, 716, 716-17,

23 C.M.R. 177 (1957); United Statca v. Bairos, 18 U.S.C.M.A. 15, 17, 39

C.M.R. 16 (1968).

17a

says he was deprived of due process because he was not on

notice. that Article 134 might be invoked in that fashion after

all the evidence was in, and therefore had no opportunity to

present evidence on, or mold his case as to, the elements of

the Article 134 offense. This claim of lack of due notice

evaporates when one considers the facts of Augenblick’s trial.

Of the elements of the crime of sodomy the one as to which

the proof was weakest was actual penctration. We cannot

believe that an officer accused of this type of sodomy would

or could think he would go scot-free if actual penctration

were not proved beyond a reasonable doubt, but the facts of

the occurrence were as found here by the court-martial. Par-

ticularly in view of Article 134’s specific coverage of indecent

and lewd acts, the accused must have known that in those

’ circumstances he could be found guilty of the related, lesser

offense of lewd and lascivious conduct. That would be the

reasonable expectation, borne out by prior holdings of the

military tribunals that lewd acts under Article 134 could be

lesser offenses included in an offense such as sodomy under

Article 125 or rape under Article 120. United States v. Jones,

13 C.M.R. 420, 422 (Army Bd. Rev., 1953) ; United States v.

Headspeth, 2 U.S.C.M.A. 635, 10 C.M.R. 133 (1953). If plain-

tiff wished to proffer evidence relating to the lesser crime, he

should have known that he had that opportunity. In the con-

stitutional sense—that a defendant must not be convicted of a

charge of which he has inadequate notice (Rabe v. Washing-

ton, 405 U.S. 313 (1972); Cole v. Arkansas, 333 U.S. 196

(1948) )—there was here sufficient notice that the offense of

indecent, lewd and Jascivious conduct under Article 134 could

and might well be implicated.

We have discussed the question in terms of fair notice,

rather than of the concept of “lesser-included offense,” be-

cause the former raises a constitutional issue while the latter

is, in itself, merely a matter of the proper interpretation of

military law. Once it is decided that. the constitutionally re-

quired ‘due notice has been given, the problem of whether

lewd conduct under Article 134 is technically a lesser-

included offense under Article 125 no longer rises to the

constitutional plane but is. rather, a non-constitutional issue

of military law with which the civilian courts cannot nor-

mally deal if the military tribunals have fairly considered

the problem. United States v. Augenblick, 393 U.S. 348

(1969) ; AeDonald v. United States, Ct. Cl. No. 396-73, de-

cided Decethber 18, 1974; Artis v. United States, Ct. Cl. No.

247-73, decided December 18, 1974. In this instance the Court

of Military Appeals has expressly held that the offense for

which plaintiff was convicted was properly found a lesser-

included crime under Article 125 (sodomy).°

We have no reason to think that this view of the Court

of Military Appeals is unreasonable or resulted from a lack

of due and fair consideration. Before plaintiff committed

his offense, that tribunal had already held, as we have pointed

out, that lewd and lascivious conduct under Article 134 could

be found as a lesser-included offense of sodomy or rape. As

we have also suggested, it seems entirely reasonable and

expectable that an incompleted act of sodomy should be

treated and punished as a lewd act.

Plaintiff insists. however, that the Article 134 offense, as

found here, embodies elements absent in the crime of sodomy,

i.e. the finding that the accused’s conduct was to the prejudice

of good order and discipline in the armed forces or was of a

nature to bring discredit on the armed forces (see footnote 8,

supra).*° Those elements, he says, were not proved or can-

vassed at the trial which concentrated solely on sodomy. The

answer is that the Court of Military Appeals was certainly

not out of bounds when in effect it held that (a) as charged

here, the crime of sodomy, in and of itself, necessarily em-

bodied those same elements, and (b) that in this case the

court-martial could find those same elements, with respect to

the lewd and lascivious conduct, from the nature of the acts

and circumstances themselves, it being unnecessary to have

extraneous or independent proof cf those factors. Cf. United

States v. Sanchez, 11 U.S.C.M.A. 216, 217-18, 29 C.M.R. 32

(1960).** We repeat that if defense counsel thought he could.

® After the Supreme Court's reversal of our original ruling, plaintiff applied

to the Court of Military Appeals to reconsider its refusal to hear his case.

Hie raised both the Article 134 point end the contention that O’Callahan

governed and should be retroactively applied. The Court of Military Appeals

rejected both arguments on their merits. 19 U.S.C.M.A, 638 (1970).

2° This case docs not involve the part of Article 134 which refers to “crimes

and offenses not enpital.”

4 Pjaintiff says that this is tantamount to a directed verdict of guilty, but

this position fs obviously Incorrect. The court-martial was permitted, but

not required, to find these elements from the proven circumstances. The law

officer's charge was to tbix effect. See footnote 8, supra.

tb amet HS A atm te aS Be

19a

persuade the court-martial that the conduct here did not

embody either of those elements, he was free to introduce

evidence to that effect (if he could).

The result is that the second ground of the second amended

petition which plaintiff proffers—that Article 134 was un-

constitutionally applied to his case—is without merit, along

with his claim that O’Callahan governs his case.

We hold, for these reasons, that plaintiff's motion for leave

to file a second amended petition and for relief from judg-

ment should be denied; that defendant's motion to lift the

stay of proceedings and to deny further relief should be

granted; and that the order of April 4, 1969, dismissing the

petition should go into effect in thirty days.”

NicHoxs, Judge, concurring :

I concur with and join in Judge Davis’s opinion. I would

like to say, however, that there was not at any time any

need to await a decision whether O'Callahan v. Parker, 395

U.S. 258 (1969) was retroactive, because it was almost from

the first apparent that Commander Augenblick’s case was

not one of those excluded from the jurisdiction of military ~

tribunals by that authority. Moreover, the cloud over the

constitutionality of Art. 134, dissipated in Parker v. Levy,

417 U.S. 733 (1974) ; and Secretary of the Navy v. Avrech,

418 U.S. 676 (1974), had not increased to ihe dimensions

of a man’s hand during the earlier part of the long delay

period. In plaintiff’s able brief of September 27, 1971, the

vagueness and possible unconstitutionality of Art. 134 was

urged, but without the support 0% the lower Federal court

decisions, which later accreted to it. We could have disposed

of the O’Callahan problem on the grounds presently to be

submitted, and of Art. 134 on the cogent reasoning of Judge

Davis’s opinion.

Commander Augenblick was not booked on a felony

charge under D.C. law. In Sharkey v. United States, 19

US.C.M.A. 26, 41 C.M.R. 26 (1969), it is held that the

%* He war free, of course, to inquire from the law officer, before the evi-

Gence closed, whether the latter intended to charge the lesser-included offense.

* Our order of October 31, 1969, stayed our order of April 4, 1969, until

thirty days after action on the motion for leave to file the second amended

Petition (sce footnote 2, supra).

20a

O'Callahan doctrine does not deprive the military courts of

jurisdiction.to try offenses that would be dealt with as petty

offenses in the civilian world, not requiring jury trial. I

note that on their arrest, Commander Augenblick and his

companion were booked for “disorderly conduct”. This would

dispose of the “service connection” issue at the threshhold, if

one were certain how the Sharkey doctrine would be applied

to the instant case.

By the D.C. Code, § 22-1112, lewd, indecent or obscene acts

are misdemeanors punishable, where a minor is not involved,

by a fine of not over $300, or not over ninety days imprison-

ment, or both. They come under the ambit of “disorderly

conduct” along with duelling, § 22-1102, and keeping a fierce

dog, § 22-1111. This appears to be the nearest counterpart

to the Art. 134 specification under which Commander Augen-

blick was convicted. For sodomy, by D.C. Code § 22-3502,

the penalty is $1,000 fine or ten years imprisonment. This cor-

responds to the Art. 125 charge upon which Commander

Augenblick was acquitted. I would guess that if left to civil-

jan prosecution, Commander Augenblick would have been

in slight or no jeopardy of ever being charged under § 22-

3502. The booked offense, and the one that could have been

proved, put him in jeopardy of moderate punishment for

which the Constitution does not require indictment or jury

trial. See cases cited in Sharkey, supra. I would, therefore,

on authority of Sharkey, hold the O’Callahan exclusion of

military courts from trying felonies committed in the civilian

world, inapplicable here.

Whether or not the above is accepted as valid, a concerned

and principled application of the “service connection” con-

cept requires the finding that such connection existed in this

case. An article by an able and knowledgeable member of our

bar, Colonel Charles M. Munnecke, O’Callahan Revisited and

Buttoned Up, Bulletin No. 46, The Judge Advocate Journal,

p- 11 (October, 1974), summarizes the decisions of the Court

of Military Appeals, the lower Article III courts, and the

Supreme Court, on the scope of “service connection”. There

is, he says, little relevant conflict among them, and the difi-

culty of determining “service connection” vel non has not

BANDE abs teh DO

Ra ee ee ae ee

(italy Wide se

2la

been néarly as great as anticipated, save in the area of nar-

cotics violations, which is now before the Supreme Court and

may be resolved before our decision appears.

How do you determine “service connection?” The pre-

ferred technique since O'Callahan has been to look at the

facts of O'Callahan and those of the case then at bar, to see

if significant differences, favoring military jurisdiction,

appeared. The military apparently lacked before O'Callahan

a strong or any conviction that O’Callahan’s type of crime

had “service connection.” The order allowing certiorari as-

sumed it had none and the Government briefed and argued

on that basis, 393 U.S. 822 (1968). Mr. Justice Harlan, dis-

senting at 395 U.S. 274 (1969), urged that the military had

a strong interest in deterring rape, assault, mayhem and mur-

der by its members upon the local civilian population. This

has impressed many persons as true, but it might be answered

that interest in deterring an offense and interest in trying it

are two different things. The certainty of being consigned

to the tender mercies of an enraged civilian population and

tried before a jury of the victim’s peers, might be a more

effective deterrent to commission of crimes of O’Callahan’s

type, than trial by court-martial and military punishment

following. Certainly O’Callahan, prospectively applied, does

not protect servicemen against possibly harsher treatment

than the military would afford, and cannot be so construed.

I gather that a military accused cannot even waive a civilian

jury and elect a court-martial if he so desires for his own pro-

tection. It is no wonder the military leaders are now as com-

placent as Colonel Munnecke indicates they are, about the

situation. I should expect that even now, if needed, there could

be a forceful announcement delimiting the scope of “service

connection”, as seen by the Service heads, and it would if

reasonable be entitled to much respect. It would not have to

be ignored because of prior contrary court decisons, made by

civilian judges on the basis of their own unaided perceptions

as to the scope of military necessity. The prevailing silence

on the subject may well reflect satisfaction with “service con-

nection” as judicially determined.

Thus “service connection” has been determined up to now:

by the happenstance circumstances of O’Callahan’s particu-

Jar case, and the absence of any other guido as to the scope

22a

of “service connection”, plus the failure of the service to

define the extent to which denial of the right to try particu-

lar offenses will hamper them in performing their missions.

Nevertheless, when we have a crime to deal with wholly

unlike O’Callahan’s, it appears to me that instead of a

wooden use of the O’Cal/ahan circumstances as tests, we

should endeavor to ascertain from Service sources a concep-

tion of what the denial of their right to try—as distinguished

from the desire to deter—may mean. I do not find anything

in Relford v. Commandant, 401 U.S. 355 (1971), that pro-

hibits this.

Statutes and regulations sometimes announce special serv-

ice interest in offenses of certain types. These must be

regarded as stating a “service connection” by implication.

In this category I would put the regulations on homosexuals

that all three Services now have in force, and have had

for many years, back to a time long prior to Commander

Augenblick’s arrest in 1961. These regulations divide homo-

sexuals into classes I, IT and ITI. (See our decision in Glidden

v. United States, 185 Ct. Ci. 515 (196S)). Class I involves

offenses where the other party was an unwilling partici-

pant, or a minor. The regulations call for these offenses to

be tried by court-martial. Class II are other homosexual

offenses currently punishable. They may be dealt with by

court-martial but more usually by administrative discharge,

which may or may not be under honorable conditions. Class

III are homosexual offenses committed prior to the current

enlistment, and instances of persons with homosexual tend-

encies but no active involvement. These persons must be got

out of the service, though of necessity with honorable

discharges.

We may note the stress on just getting rid of the homo-

sexual. Nothing that corresponds to this occurs in civilian

justice. The military would unload their undesirables on the

civilian world. but the reverse cannot occur. The time when

the offender can be required to purge himself by enlisting in

I suppose that in civilias society the sovereign people

formerly considered they had a right to prohibit and punish -

by law, behavior they considered infamous, without being

required to show the offense had a victim, or in any way

23a

injured the fabric of society. This attitude was the basis of

laws against sodomy, bestiality, acts against nature, etc.,

and continues to be the motive behind their enforcement so

far as they are|still enforced. The old attitude, however, is

eroding, and w4 now are told that society has no right to

punish a victimless crime. Exemptions of “consenting adults”

from laws against sodomy, etc.., are frequently urged and

sometimes enacted. I suppose a person who urged such

exemptions might still, if heterosexual, think twice about

making a long journcy in company with a person he sus-

pected to be homdsexual. There is no real conflict between

these two attitudes. Where the laws remain on paper un-

changed, lack of zéal and enthusiasm by the civilian police

in their enforcement may afford a practical shield) to the

homosexual in his way of life. |

Civilians can chodse their companions, but when you join

the military you embark on an extended voyage with persons

not of your choice. In the Navy, Commander Augenblick’s

branch, it may be six months under water in a submarine. If

persons you regard as undesirables are in the crew, their\com-

panionship is foisted upon you. As concerns officers, the Serv-

ices have the additional problem that those who, by their own

acts, cause themselves to be popularly regarded as pariahs,

can hardly provide efféctive leadership. The reasonableness

of the popular assignment of pariahship hardly matters. |

According to Navy Regulation, 32 C.F.R. § 719.107 (e) (2)

(iii), 38 Fed. Reg. 5997,\March 6, 1973: 39 Fed. Reg. 18436,

719.107 (c) May 28, 1974, cases of homosexuality in which

mild penalties have been imposed by civilian authorities

upon conviction, may still be tried by court-martial. It

continues : |

military society because of the close-contact living and

working conditions of its members.

According to Everhard, Problems Involving The Disposi-

tion of Homoscauals in the\Serrice, 2 Air Force Judge Ad-

vocate General's Bulletin 20\(Nov. °60) another basic concern |

of the Services about homdsexuals is infection of others:

ful, naive, or greedy.” “Cureg”, psychiatric or otherwise, are

24a

not considered because “it is not:primarily a Service responsi-

bility”, and “the prognosis is almost uniformly poor.” This

attitude is in contrast with civilian judges, who frequently

demand psychiatric treatment for convicted homosexuals.

The Service’s first, second and third priority in dealing with

homosexuals are, as stated, to get rid of them. I take it Com-.

mander Augenblick had his court-martial because, as a

regular officer, he was immune to stigma type administrative

discharge. See, Carter v. United States, decided today. All

the court-martial did to him, however, was the stigma type

discharge, which might have been inflicted administratively

on a reservist.

I think the foregoing demonstrates that the Services have

and have expressed a special and peculiar interest in setting

their own course of dealing with their homosexuals, whether

an offense is committed on or off the base, in or out of

uniform, during working or leave time. Effectuating their

policy is seen as a military necessity. Civilian judges could

not possibly achieve the results demanded by the military.

On the other hand, the Services do not desire either to reform

the offender, or to inflict retribution for breach of the Mosaic

law upon him. Except in the aggravated Class I cases, they

are content to get rid of him albeit with a stigma type dis- _

charge in some instances, as here..

Conceding, however, that “service connection” would be

a problem if one of the partners in the unnatural act had

been a civilian (United States v. Shockley, 18 U.S.C.M.A.

610, 40 C.M.R. 322 (1969)) here they were both military,

and one, Commander Augenblick, greatly outranked the

other. As I conceive it—and we do not, I note: again, have

the help we should have from the military—the guilt of

partners in crime or accomplices is never equal if one is an

officer and the other an enlisted man. The former owes a duty

to the latter to guide him into courses of right conduct. A

breach of this duty would be an offense unknown to the

civilian law. Tho latter is conceived to be without capacity

to act on his own volition when in company of an officer and

under his direction. That Commander Augenblick wore

civilian clothes I do not think exonerated him from these

duties, at least. as long as the accomplice was uniformed.

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25a

He could not shed his obligations as an officer by putting on

civilian.clothes and going off the base for his contact; I do

not think a civilian judge or jury could handle this situation

in a satisfactory manner. I note that Colonel Munnecke

enumerates this very case as one where the victim (his word)

was & serviceman. (Ilis fn. 5, p. 12). This is an appropriate

classification of the case from a military point of view. The |

word “victim” is also used in the plaintiff's September 27,

1971, brief, albeit in quotation marks. The Commander would

be regarded as having “preyed” on the enlisted man, in the

word used in the Everhard article, supra. Counsel for Com-

mander Augenblick have complained about. the honorable

discharge given the enlisted man, but the apparent disparity

is fully explained by the considerations stated. He was

“victim”. ; :

Moreover, I would assign at least presumptive correctness

to the decision by the Metropolitan police to turn the arrested

offenders over to military custody. It was, by implication, a

decision that tHe offense had “service connection”, by the

persons having to deal with the problem practically, at the

working level.

In short, the application of the O’Callahan doctrine to this

case is not a logical application of it but its reductio ad

absurdum. : : sa

Laramore, Senior Judge, concurs in the opinion of J udge

Davis and ‘also concurs in the opinion of, Judge Nichols

regarding “service connection.” .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.