Petitioners Brief — Noyd v. Bond

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F euprems COURE 0. 6”

| Supreme Court of the United Spaittnps i Us.

Octoser TERM, 1968 es

- No. 830 _ MAR 5 1969

"Capra Date E.Novp, ‘ | HN F. BAVIS, CLERK

, . }

° a

VY.

Mayor GENERAL CHARLES R. Bonn, Jz., Commander, Twelfth Air

. Force, United States Air Force; COLONEL GEORGE R. Doerr,

: Commander, 832nd Combat Support Group, and Commander, |

Cannon Air’ Force Base, New Mexico; COLONEL Rosert R. t

. . Storr, Commander, 832nd Air Division, Cannon Air Force -

; , _ Base, New Mexico; Cotone Jimmy J. JUMPER, Commander,

a _27th Tactical Fighter Wing, Cannon Air Force Base, New

- Mexico; LIEUTENANT COLONEL James L, GLESSNER, JR., Com-

| mander, 524th Tactical Fighter Squadron, Cannon Air Force ;

Base, New Mexico; Captain CHARLES THOMPSON, Commander,

‘ $32nd Security Poli¢é Squadron, Cannon Air Force Base, New

Mexico,

E. Respondents.

. - ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

¥ FOR THE TENTH CIRCUIT

ss BRIEF FOR. PETITIONER |

‘Marvin M. KarPatKIN =e a,

660 Madison Avenue he i :

New York, New York 10021

a Metvin L. WouuF aa

Burt NEUBORNE ¢

A ; Peer: 156 Fifth Avenue ;

if eaten: New York, New York 10010. |

‘ we Pauu A: PHrLurs |

: ae | 520 Simms Building : id

a Albuquerque, New Mexico 87101

i Attorneys for Petitioner F

é Of Counsel: ' a f

-” JOHN DEJ. PEMBERTON, JR. ' ¥ ;

‘ oe fe Winriam F'. ReyNarp *, b

, Aurrep H. McRAE een) a

} Wiiarp F.*KitTs ie 7

Os _ALAN H. LEVINE ; ,

r = Ruopa H. KagpaTKIN | | J:

f MicHaEu N. POLLET .

—_—_ ——_— eS

a canneieeneniienimene ccndinmmammmenaeieeimnntl

—

i cee

eee Oe

PAGE

- Opinions Below .... gets -§

- Jurisdiction ..... i ein 2

Constitutional Provisions, Statutes and Regulations

Involved . 3

_— Questions Posevnind dapovvecnvanevsnusonsesesconenaqees i

“Statement of the ies 9

- Summary of Argument | | | 15

— I | _ |

The Court of Appeals improperly denied relief on

the grounds of failure to exhaust military reme-

_ dies, although ‘such doctrine, of dubious validity

in any event, has no application where the mili-

tary authority acts outside its jurisdigtion. Ex-

haustion is likewise not required since the as-

serted military remedies in this case would be

inadequate, ineffective and impractical. The ~*

Court of Appeals’ constricted jurisdictional hold-

ing is in conflict with decisions of other Courts

of Appeals ; . : 22

-(a) Questionable applicability of exhaustion doc-

trine 23

(1) “J urisdiction” and the éxhaustion of mili-

tary remedies ....... , 23

(2) Exhaustion of remedies generally ....:....... 28

PAGE

(b) Inadequacy and ineffectiveness of suggested

military remedies .

(1) Inadequacy of normal appellate process ..

(2) Inadequacy of extraordinary writ appli- —

cation to Court.of Military Appeals ........

. (3) Hesitant quality of Court of Military Ap-

’ peals practice on’ extraordinary writ ap-

_ plication

(4) No bar, by way of comity or otherwise,

to concurrent habeas corpus jurisdiction

Port II

“General Court Martial Order #13 ordering. Cap-

tain Noyd confined i in the United States Discipli-

nary Barracks at Fort Leavenworth . “pending

completion of appellate review” .violated the

Uniform Code of Military: Justice ..!

A.. Development of the Military Appellate Process

B. Article 71(c) and Its Consistent Interpretation

-C. The Meaning of “Execution” - Under Federal |

Law

D. The Effect of = of the Manual for Ciarte- =

Martial

Poder Til

‘The confinement of Captain Noyd at Cannon Air

Force Base “pending appeal” violated the Uni-

form Code of Mil'tary Justice.

- 56

PAGE

Pom IV

The continued incarceration imposed upon Cap-

tain Noyd pending completion of the military ap-’

_ pellate process deprived him of his liberty with-

out due process of law since no tribtinal—civilian

or military—has accepted the responsibility of

- passing upon the merits of his defense . 64

Pornt V

This case is not moot ....; . 69

ConcLusion ....- : | wh)

TABLE OF AUTHORITIES

Cases:

sopbaadtian of - Btancdy, 246 F. Supp. 316 (D. ‘Utah

. 1965) 36

Ashe .v. McNamara, 355 F. 2d 277 (1st Cir. 1960) ....... 36

Augenblick v. U. S., 377 F. 2d 586 (Ct. Clms. 1967), _

rev’d on other grounds, 80 S. Ct. 528 (1969) ............ , se.

_ Brown v. MeNamara, 387 F. 2d 150 (3d Cir. 1967),

cert. denied 390 U. S. 1005 (1968) 37, 41

Bus Employees v. Missouri, 374 U. S. 74 (1963) ..21, 73, 74

-Carafas v. LaVallee, 391 U. S. 234 (1968) . BSke: ue i

Carroll v. President and Commissioners of Princess

Anne, 89 S. Ct. 347 (1968) , seus 23, 74

Cooper v. Aaron, 358 U. S. 1 (1958) . ie 70

Crane v. en 284 F. Supp. 250 - D. Cal. 1968) 41

“

PAGE .

‘Damico v. California, 389 D. S. 416 (1967) .............16, 29

Eagles v. U. S. ex rel. Samuels, 329 U. S. 304 (1946) ° 43

Fay v. Noia, 372 U. S. 391 (1963) .............-..--1, 38, 39, 42

Fiswick v. U. S., 329 U.S. 211 (1946) .. , 74

Gale v, U. S., 17 USCMA 40, 37 CMR 304 (1967) ...... 33

Gallagher v. Quinn, 363 F. 2d 301 (D. C.. Cir. 1966),

cert. denied 385 U. S. 881 (1966) ....16, 23, 26

Gibbs v. Blackwell, 354 F. 2d 469 (5th Cir. 1965) ........ 42

Gibson v. U. S., 329 U. 8. 338 (1946) -:..... 43

Green v. Schilder, 162 F. 2d 803: (10th Cir. 1947) ....... 42

Gusik v. Schilder, 540 U. S. 128 (1950) .....1..........15, 22, 23,

24, 27, 43

Hammond v. Lenfest, 398 F. 2d 705 = Cir. 1968) ....17, 18,

an 30, 37, 40, .

41, 43, 66

Hillsborough v. Cromwell, 326 U. S. 620 vases ati at * 30

In re Bart, 82 S. Ct: 675 (1962) | |

In re Kelly, —— F..2d —, 37 U.S. L. W: 2165 (5th

Cir., Aug. 30, 1968) ............ 18,41

In re Yokoyama, 170 F. Supp. 467 (S. D. Cal., Cent.

Div. 1959)

Johnson v. Avery, 37 U.S. L..W. 4128 (Feb. 24, 1969) 36,

J ohnson v. re 339 U. S. 763 (1950) -.. 17, 34, 35

~ v. . Hunter, 80 F. Supp. 851 (D. Kans. 1959) .-... 42

| . ae PAGE

Leedom v. Kyne, 358 U. S. 184 (1958) ... 16, 29

Levers v. Anderson, 326 U. S. 219. (1945) .....0..2...-.-- 17, 30

Levy v. Dillon, —— F. Supp. , (L-543, D. Kans.,

July 29, 1968, #78-68, 10th Cir., argued Jan. 21,

rr eaaenieite 36, 42, 55

. Levy v. Resor, 17 USCMA 135, 37 CMR 399 (1967) 33, 36,

60, 74 -

Levy v. Resor, —— F. Supp. om, to, & ¢

aff'd 384 F..2d 689 (4th Cir. 1967), cert. denied 389

STL S. 1049 (1968) nee eeecteceeeecenneees RL MIRI Me me OEE 42, 54

Lockhart v. U. S., —— F. 2d ——, 37 U. S. L. W.

2269 (9th Cir. Oct.-23, 1968) ... 28-29

MeCullouch v. ‘Sociedad Nacional, 372 U. 8. 10 (1963)

' 16, 29

-MeNeese v. Ba. of Education, 373 U. S. 668 (1963) ..: 29

Monroe v. Pape, 365 U. 8S. 167 (1961) _......... 29, 37

Natural Gas Pipeline Co. v. Slattery, 302 U. S. 300

(1937) Schiele li ems Dik scad a alece 28

Neary v. Greenough, 120 F Supp. 833 (D. Me. 1954)

23, 27, 28

i NLRB v. Marine Workers, 391 U. S.. 418 (1968) ..16, 28, 29

Noyd v. Bond, 285 F: Supp. 785 (D. N. Mex. 1968),

reversed 402 F. 2d 441 (20th Cir. beige 89 S. Ct. 478

(Dec, 24, 1968) sicvoingpneie £ 12, 13, 14, 21, 23, 39, |

; | ® 40, 44, 54, 64, 68,69 ©

Noyd v. McNamara, —— F. Supp. —— (D. Colo., Mar. |

29, 1967) “cesseeseecneDy 10, 65

Noyd v. McNamara, 267 F. Supp. 701 (D. Colo. 1967)

378 F. 2d 538 (10th Cir..1967), cert. denied 389 U. S.

1022 (1967) ie ..2, 9, 11, 20, 40, 43, 64, 65, 66 .

Ve ORT a

mee

ichishi lien) Gaia bias oat ca taka inde een’ ”

eniee,

= % —* > %

siontacietaeen 7 sacl tak ed alia

PCr wea

PAGE ~

Oestereich v. Selective Service System Local Bd. No.

11, 89 S. Ct. 414 (1968) _. 16, 17, 29, 30, 53

* Orloff v. Willoughby, 345 U. S. 83 (1953) . 68-69

Peck v. Carpenter, 120 F. Supp. 560 (N. D. Cal., S. Div.

1954) . 27

_ Peyton v. Rowe, 391 .U. S. 54 (1968) : 55, 73

Powers v. Powers, 400 F. 2d 438 (Sth Cir. 1968) -........... 41 -

Public Utilities Comm. ve United Fuel Gas Co., 317

U. S. 456. (1943) ..... . ; 29

Reid v. Covert, 354 U.S. 1 (1957) .. ...16, 24

School Bd. of Charlottesville v. ——, 240 F. 2d 59 (4th

Cir. 1956) .. . 30

Skinner & Eddy Corp. v. U. S., 249 U. s. 557 (1919) . 29

Smith v. Illinois Bell Tel. Co., 270 U. S. 587 (1926)..... 99, 30

| South Pacific Terminal Co. v. L- a C., 219 U. S. 498

(1911) ....... ) 73

Speiser v. Randall, 357 U. S. 513 (1958) icesiaat 56

Sweet v. Taylor, 178 F. Supp. 456 (D.- Kans. 1959). ..19, 42,

oa BB

Thompson v. Louisville, 362 U. S. 199 (1960) ................ 71

_ U.S. v. Affronti, 350 U. S. 79 (1955) 20, 55

U.S. v. Ansell, 16 CMR 450 (1954) : 53

U. S. v. Augenblick, 89 S. Ct. 528 (1969) 36

U. S. v.. Lysine 18 USCMA 10, 39 CMR 10 (1968) 33,

36, 39

U. S. v. Bryant, 30 CMR 133 (1961) wisi aaee 21, 63, 64, 71

PAGE

q SUSU i abana censy asks

sae dddad Sistet

. S. v. Doyle, 17 CMR 542 (1954) . 53

. S. v. Duggins, 1 CMR 439 (1951) 53

. S. v. Emerson, 20 CMR 434 (1955) .... - os

.S. v. Frisehholz, 16 USCMA 190, 36 CMR/306 (1966) 33°

. S. v. Garcia, 17 CMR 88 (1954) .......... i

. S..v. Hayman, 342 U.S. 205 (1952) , _ 35

. S. v. Hightower, 14 CMR 908 (1954) 52

. S. v. Johnson, 15 CMR 583 (1954) 52

. S. v. Johnston, 2 CMR 759: (1952) .......,. 53

. S. v. Lock, 36 CMR 72 (1965) at 53

. S. v. Lucero, 8 CMR 942 (TBBD) nnconnccicccove 19, 22, 51, 52,54 -

. S. v. Mason, 16 CMR 795 (1954) 53

. S.-v. May, 27-CMR 432 (1959) ss ‘63

. S. v. Moyer, 3 CMR 667 (1952) ....... toon . 51

. S. v. Murray, 275 U. S. 347 (1928) ..................19-20, 55

.S. v. McLaughlin, 18 an 61, 39 CMR 61 (1968) 32

. S. v. Noyd, ACM 20121, - — CMR — ............ 9, 10, 21,

- re 37, 67, 68

S. v. O’Malley, 1 CMR 469 (1951) 53

. S. v. Petroff-Tachomakoff, 19 CMR 121 (1955) ~....58, 59

..S. v. Ranes, 3 CMR 550 (1952) pet. for rev. denied

3 CMR 150 (1952) -.... 19, 22, 31, 50, 51,54 ~

. 8. v. Rowe, 18 USCMA 54, 39 CMR 54 (1968) _...... 32.

-S. v. Sarae, 9 CMR 633 (1953) asian 51

. S. v. Sheeks, 16 USCMA 430, 37 CMR 50 (1968) .... 32

. S. v. Sigmon, CM 416356, 1 SSLR 3054 (Army Bd. ,

of Review, Jan. 2, 1968) (not yet officially reported) 64

.S. v. Smith, 2 CMR 817 (1952) 02... 19, 22, 31, 50, 54

. S. v. Teague, 12 CMR 73 (1953) . ; 58, 59

..S. v. Tempia, 37 CMR 249 (1967) 37

wee ee

’ 4

o ~ vill ;

; PAGE

v. S. v. United Mine. Workers, 330.U. S. 258 (1947 . .21, 70

U. S. v. Williams, 16 CMR ea) | 53

U. S. ex rel. Guagliardo v, McElroy, 158 F. Supp. 171

(D. D. C. 1958), 259 F. 2d 927 (D. C. Cir. 1958),

aff'd 361 U. S. 281 (1960) r...-..16, 24, 25, 26

U. S. ex rel. Mankiewicz v. Ray, 399 F. ad nd (2d Cir.

1968) ae 40

U.S. ex rel. Toth 1 V: Quarles, 350 U.S. 11 (1955) .. .-16, 24

Witmer v. U. S., 348 U. S. 375. (1955) aeh24Z -

Wolff v. Stiles’ Seryice Local Bd. No. 16, 372 F. 2d

817 (2d Cir. 1967) ones ' ; 30

United States Constitution: | |

Article I, Section 9(2) pieces 3

Fifth Amendment | _ 3

. Statutes and Rules:

28 U.S. C. §1254(1) sea eee ee 2

28 U. S. C. §1346 (a) cpeeccrccerenenent 39,

28 U. S. C. §2241(a) +... ee 3

28 U. 8.0. $2255 eee tee. 35

IRC: §7441 et seq. (1954) Ae.

Articles of War: ;

46 (1916), 39 Stat. 650, 657-8 an A5, 48, 49

47 (1948), 62 Stat. 627 ) 49

48 (1916), 39 Stat. 650, 658 .. sve nen AB, 49

Ahh AAP Alan 6 wt ade yer passe he be a Saihlsdeai eat te ote tla edie ie tiie

er :

50 (1949), Title IT, Selective Service Act of 1948

(June 24, 1948); Pub. L. 759, _ me, -y 62 Stat.

627 46

50% (1921), 41 Stat. 787, 997, 10 U.S.C. 1472-

1593 (1946) 46.

| BL (1921), 41 Stat. 787, 197 cclecwcsericneenennene 49

Act of July 17, 1862, 12 Stat. 598 nececeeetenee 48 |

Uniform Code of Military Justice : . ;

Art. 9(a), 10 U. S.°C. 809(a) ee ieiaal “6l

Art: 13, 10 U.S. C. §813 | passim

Art. 44(b), 10 U. S. C. §844(b) . | mone

Art. 57(b), 10 U. 8. C. $857(b) .. ies 4, 13, 14, 62, 63,

64, 70, 71, 74

Art. 57(d), 10 U. % C. §857(d) 74

Art. 66, 10 U. S. ©. §866 ...... e 10

Art. 67, 10 U. S. C. $867 ...... 10, 33

Art. 71(c), 10. U. S.C. $871 (0) eesiceessneeclneeeeeePassim , @

Pe EE Nice. OF

tines 27, 50 and 51 of the Reales of the U. S. Supreme

Court —

Rule 25, Rules of the Fourth Circuit 54

Other Authorities: © |

Manual for Courts-Martial, United Sistes: . .

te ines 61

Sa Oy Rt Sy ee ah

Bre elk Bie tee

__ = a eee eee ee NE ee ee ee ee ee ed

—— ~

PAGE

" Y18b(3) (1968) ... 4, 20, 57, 58, 60, 61.

MID, 19 (1949) eeeeceeceerenceeenseseenen | \ 61.

120 (1951) Sr .-——__—.'&

- 420 (1968) ee, DARED ween 61

q21d (1968) _nperenedy 56, 58, 59, 74

188d .. ; | aenile 51

OTC (1968) oeeeeecnveene ional 14, 21,71, 72

198 ance a 51

7139a (1929) secession

Headquarters, Twelfth Air * Force: (TAC) General.

Court- -Martial Order No..13 dated 10 May 1968 .. “passin |

Departments of the Army and the Air Force, AR 633-

30, AF 125-30, “Military Sentences to Confinement”

- Nov. 1964) - o 13, 73

Jaffe, Judicial Control of Administrative ' Action.

(1965) ..... ; 16, 30

Servicemen in Civilian Courts, 76 Yale L. J. 880 (1966) 23

Shapiro, The Supreme Court and Administrative Agen-—

cies (1967) .... | : _...28, 29

3 Davis, Administrative Law Treatise ( 1958) ........ 29, 30.

Annual Report of the U. S.: Court of Military Appeals,

and the Judge Advocates General ete. .: . For the

Period July 1, 1967 to December 31, 1967 ............. .. 34

The Supreme Court, 1967, 82 Harv. L. Rev, 308 ......... 34

Warren, “The Bill of Rights ‘and the Military”, 37

N. Y. U. L. Rev. 181 (1962) ; 37, 42

| Post, What Is a Crime, The Independent and Weeliy

Review, April 5, 1919 45

The Injustice of Military Justice, The caiuiie —

April 12, 1919 2 | aise, OD

New York World, January 19, 1919 ...:... 45

57 Cong. Rec. 877 (1918) eccemecspecenssenteee ae

57 Cong. Ree. 3387, 3809, 4502 (1919) - 45

57 Cong. Rec. App. 279 (1919) 00.000... 45

' 58,Cong. Ree. 3938 (1919) oe

‘War. Department General Order #7

_ Brown, The Crowder-Ansell Dispute—The ea ge

of General Samuel r. Ansell, 3 Mil. L. Rev.’

(1967)... a. A 47

Frachter er, Appellate Review in Military Law 4 Mo. .

L. Rev. 15 (1949) 47

British Articles of War Of 1774:, = , j

Section 14, Articles 3, 5; Section 15, Articles 10,

"12, 13, 14 (Reprinted in Davis, Treatise on the

Militars y Law of the United States (2nd ed.

1909) ) 47°

7 Journals of the Continental Congress .2 5

30 Journals of the Continental Congress. 316 (Article

NUD -sccsuslisepbinshdpueithiliialiadndanidiaisiipece cma aed

PAGE

oe cr So

Manual es the Guidande~et Prisoners: US. Disci-* |

plinary Barracks, Ft: Leavenworth, | Kansas (1967

ed.) :. ‘ Saarasininens IG, BT

Hearings Before House Armed Services Coinmittes” >

on H. R. 2498, 8ist Cong., Ist Sess.; ‘House Rep. ».

No. 491, 8ist Cong,, Ist Sess. ... >

Cong, The Death of the Technical Suspension, - JAG .

J ourn. (Nov. -Dec. 1959) . 7 t * 68

‘

"Supine Court uf the Yuited States

OcrosER Term, 1968

No. 830

° fe] > . °

- Capramn Date’ E. Noy,

| os Petitioner,

Masor Gznekat Cuartes R. Bonn, J B., Commander, Twelfth

Air Force, United States Air Force; Cotonz1 GrorcE

- * ‘R. Dorrr, Commander, 832nd Combat Support Group,

and Commander, Cannon Air Forée Base, N ew Mexico;

~ CoLoneL Rozert R. Scor?, Commander, 832nd Air Divi-

sion, Cannon- Air. Force Base, New Mexico; CoLonEL ts

- Jmmmy J. Jumper, Commander, 27th. Tactical: Fighter

Wing, Cannon Air Force Base, New Mexico; Lirv-

TENANT CoLoNEL JAMES L. GLESSNER, JR., Conaininde,

524th Tactical Fighter Squadron, Cannon Air. Force’ _

Base, New Mexico; Caprain CHARLES THOMPSON, Com-

mander, 832nd Binurity Police ae Cannon Air —

Force Base, New Mexico, ; ia = :

on spe Reewilgonke

on WRIT OF CERTIORARI TO THE UN ITED STATES. couRT OF APPEALS -

. FOR THE TENTH CIRCUIT

——-

BRIEF FOR PETITIONER

Opinions Below |

The dociaida of the United States District Court for the

District of New Mexico, Honorable’ H. Vearle Payne; Chief

Judge, presiding, granting in part and denying in part a

‘petition for a writ of habeas corpus, is ‘reported’ at 285 F..

‘Supp. 785 (D. N. Mex. 1968) and is printed in the Appendix,

p. 16. The decision of ‘the -Court’ of Appeals for the

-Tenth Circuit reversing the District Court on jtrisdictional -

-” , grounds is reported at 402 F. 24441 (10th Cin 1968), App.,

* . . p, 22. .The opinion of Mr. Justice Douglas, ‘ordering peti- —

-tioner. released from incarceration pending certiorari, and —

staying respondents in the interim from certain acts, is re-

ported, at ” S. Ct. 478. _ 24, sca APP» p. 27."

Jurisdiction

“The judgment of the Coutt of Appeals was ; entered on

October 30, 1968. The petition for-certiorari was docketed

on Deceabar 13, 1968. Certiorari was granted on January

20, 1969, 89 S. Ct. 692. Jurisdiction is conferred on this

Court pursuant to 28 U. S.,C. §1254(1).

| _. 1The language quoted by Mr. Justice Douglas in framing the.

2 terms of the stay is from the decision of Hon. William E. Doyle, |

; ; U.S.D.J., granting a preliminary injunction in Noyd v. McNamara,

et al., —— F. Supp. —~ (D. Colo., Mar. 29, 1967) (not yet re-

; eee but printed in the Appendix, p. 48). Judge Doyle sub-

- , sequently dismissed the complaint in Noyd v. McNamara, et al.,

‘on jurisdictional grounds, specifically, that petitioner had failed '

to exhaust his military remedies. 267 F. Supp. 701 (D. Colo. 1967),

“106 378-F. 2d 538 (10th Cir. 1967), cert. den. ed U. 8S. 1022.

1967).

ETAT SS

- Cimailicaniaaal "Ga el Dentetel and.

— Involved *

United. States Constitution, eersals ale

Article I, ‘Section 9(2): 65.5 te: : |

“The Privilege of the Writ of Habeas Corpus shall °

not be suspended, unless when in Cases of Rebellion or - |

* Invasion the public ee: may oiiet bs 7.0

United States Coistination, ir ane es

Fifth Amendment: :

_. “No person shall be held to answer tee a. capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or.in the Militia, when in ac-

tual service in time of War or public danger ; nor shall

‘any person ‘be subject for the same offence to’be twice

. put in jeopardy of life or limb; nor shall be compelled

"in any criminal case to be a witness’ ‘against himself, .

nor be deprived of life, liberty, or property, without.

due process of law; nor shall private property be taken — |

for public use, without just compensation.” -

28 U. S. C. §2241(a):

“(a) Writs of habeas corpus may be sical te the -.

‘Supreme Court, any justice thereof, the district courts ~*

and any circuit judge within their respective jurisdic-

tions. The order of a circuit judge shall be entered in

the records of the district court ofthe district wherein

the, restraint complained of is had.” aay.

ee ee, oo

! Uniform Code of Military Justice, - | , See

Art. 71(c) ; 10 U.S. C. §871(c): ; 2

Ras “(e) No sentence which includes, unsuspended, a dis-

honorable or bad-condugt discharge, or. confinement for,

one year or more, may be executed until affirmed by: a,

board of review and, in cases reviewed o it, the Court » .

of Military Aapeels- “3 : =~

Uniform Code’ of Military Justice, °,

Art. 13; 10 U. S. C. $813: ®

“Subject to section 857 of this title (article 57), no

person, while being held for trial or the result of trial,

‘may be subjected to punishment-or penalty other than

-"*.. arrést or confinement upon the charges pending against

him, nor shall the arrest or confinement imposed upon “

him be any more rigorous than the circumstances re-

| -.. quire to insure his presence, but he may be subjected

| to minor punishment — that, ses for inf ractions

mp as of discipline.”

. y — aaie«s

— 3

Uniform Code of Military Justice, —

Art. 57(b); 10 U. S. C. $857(b):

“(b). Any period of confinement included 3 in a sen;

. . tence. of a court-martial begins to run from the date ‘i

the sentence is adjudged by the court-martial, but pe-

riods during which the sentence to confinement i is sus-

.___ pended ‘shall be-exeluded in computing the se1 service ihe

\\_. the term of confinement.”

_ Magual for Courts-Martial, ‘Ueited States, 1968,

W18b(8) = 5, ae se

“(3) Other than restraint administered as prescribed

in this subparagraph (18b(3)), forfeiture of pay or

allowances due on and after the date of approval of

certain sentences, and minor punishments for infrac-

tions of discipline while confined, no punishment may |

be imposed upon an accused as a result of trial by

» court-martial until the sentence has been approved and

7 ordered executed. No person, while being held for trial

or the result of trial, may be, subjected to punishment

or. penalty other than arrest, restriction, or confinement

upon the charges pending against him, nor shall the

arrest, restriction, or confinement imposed upon him

~ be any more rigorous than the circumstances require to

- insure his presence, but he may be subjected to ‘minor

punishment during that period for infractions of disci- -

pline (Art. 13). Minor punishment’ shall include all-

punishment authorized by regulations of the Secretary

of a Department for violation of the discipline pre-

_seribed for the. ‘Place 1 in which an accused is confined.

offenses upon _subsequent court-martial F peanvedling. -

Prisoners being held for trial or whose sentences .have

not been approved and ordered executed will be ac- —

corded the facilities, accommodations, treatment, and _

training prescribed i in _ipslorarad regulations.”

Manual for Courts-Martial, United States, 1968,

f21d: OF Dee amen

—

&@, Responsibility for rite after trial. Upon,

notification from a trial counsel of the result of a trial

(44e), a commanding officer will take prompt, and ap-

. propriate action with respett to the restraint of the .

person tried.: This action, depending on the circum-

stances, may involve the immediate release of the per-

o - 2 . ‘

gon from any restraint, or the imposition of any neces-

_Sary meuye peeing final ‘action on the case. See

20d(1).” 7 ae 4

Manual La Courts-Martial, United Stats, 1 1968, ‘

197¢: ia os rns +

Pe Ae, | Interruptions a execution of a sentence. al sen- .

/ tence to confinement; hard labor without confinement, ° eae

_ restriction to limits, or deprivation of privileges is is con or

tinuous until the term expires, with certain exceptions.

"These exceptions i include de the following : Aig * te

_“When del livery under Article 14 i is made to any civil

=e authority of a person undergoing sentence*f. ‘@ court-

martial, the delivery, if followed by: conviction in a

civil tribunal, interrupts the exectition of the sentence

of-the court-martial, and:the offender after having an-_— .

eG: -the civil authorities for his offense shall,

_ upon the request of competent military authority, be

returned. to. military custody for the completion of his

sentence (Art, 14(b)). ;

- “When a prisoner serving a initcsiniiiiel sentence .

to confinement i is Yater convicted by a court-martial of

- another offense - ‘for which he is sentenced to confine-

ment, the subsequent sentence interrupts the running of

the prior sentence will be served after the subsequent

sentence has been fully exeeuted.

‘ “Periods during which the person undergoing such a

sentence is absent without. authority, or is absent under

a parole which proper authority has later revoked, or. .

is erroneously released from confinement through mis-

representation or. fraud on the part of the prisoner, or -

is erroneously released from confinement upon his peti-

bad

’ ° .

7 °

- . P i

tion for a writ of Shi corpus under a court order

.. which is later reversed by a competent tribunal shall

be excluded in pmnpeene the ee the term of the

‘punishment. es

“Periods during -which « h a sentence to confinement i is

suspended Shall be excluded in computing the service of

ts term of confinement (Art. 57(b)).”

Question Presented |

-~ Where a RP RCPS prisoner is ordered into confinemérit

to commence serving a court-martial sentence, i in apparent

- violation of a provision of the Uniform Code. of Military

Justice which forbids execution of such sentence until after

the completion of military. appellate review, is a Federal

- court deprived of habeas corpus jurisdiction by the doctrine

of exhaustion of military remedies?

2. May 4 military prisoner be ordered into confinement .

to commence, serving a court-martial sentence of one year’s

" confinement prior to the completion of military appellate

“Teview in the face of Article 71(c). of the UCMJ which for-.,

bids ‘execution of such sentence until after the completion

of military review? Mee

3. Petitioner i is an Air Force officer ito ‘ilies a con-

scientious objector after 11 years of honorable service, and,

whose application for classification as a conscientious, ob-

_jector and either separation or reassignment to duties not

i conflicting with his conscience, was denied by the Secretary

of the Air Force. Judicial review of the denial of his appli-

cation was declined by the United States District Court for

the District of Colorado and by the Tenth Circuit on the

ra &

“we ae B |

- grounds of exhaustion of military remedies, such courts

holding that wrongful denial could be raised as a defense

to any ensuing court-martial for disobedience of an order. |

' This Court denied certiorari. At the. ensuing general court-

._ martial, petitioner was convicted of disobedience and sen-,

~~ tenced. to dismissal, total forfeiture of all pay and allow-

—~ anees,. and confinement for one year- In such court-martial

_ proceeding and » in the review thereof -by“an Air Force |

Board “of Review, jurisdiction to consider petitioner’s de-

fense based on wrongful denial. of conscientious objection

was again declined, the Board of Review holding that only

the Federal courts had jurisdiction to remedy erroneous

‘administrative action by the Secretary of the Air Forée.

Although UCMJ, Article 71(c) forbids execution of any

sentence involving confinement of one year or more prior

to the completion of military appellate review, petitioner

‘was ordered into confinement by respondents “pending corn. ;

pletion Of appellate review.”

(a). Under these slisuuiiilaiaii, has petitioner been é

_ prived of his liberty without due process of law in'that he |

haz been tried, convicted, sentenced, and:ordered into con-

_ finement before, theré nas been ay —— on’ - merits of %

his case?

(b) Is the Tenth ‘Circuit's iiiiaal of the ‘District

Court’s partial. grant of habeas corpus, again on grounds

_ of exhaustion of military remedies, an unconstitutional

suspension of the writ of habeas corpus?

“~

meee Ss

Statement of the Case. |

Petitioner, a Captain .in: the United States Air Force,

was convicted on March <8, 1968 by a General Court- —

“Martial at Cannon Air Force Base, Clovis, New Mexico,

of violating Article 90 of the Uniform Code of Military -

Justice. Article 90 proscribes the willful disobedience of a

a lawfal order. The order which Captain Noyd, a former

fighter pilot, was accused of disobeying was that he fly-an

instructional mission with a student pilot in order to train

him for combat duty‘in Vietnam. ss. !

Petitioner’s principal defense was that, prior to the order

in question, he had made application for separation. or-

reassignment as a conscientious objector, that such appli-

cation‘had been’wrongfully denied’ by- the Secretary of the

_ Air Force pursuant to an error of law, and that such error

of law tainted the subsequent order to train the student

pilot and rendered it illegal. The essential error of law

made by the. Sectetary, and the underlying substantive

question in all of the Noyd litigation® is that Captain Noyd

was deemed disqualified from classification as:a conscien-

_ tious objector because he was a “selective” conscientious

.. objector, a discriminating pacifist rather than a universal

pacifist. : Re tee) Fase, Sie

On March 9, 1968, he was sentertced by the general court-

martial to dismissal from the service, forfeiture of all pay

. *The first case was the unsuccessful effort to secure pre-court ~

. Martial judicial review of the denial of his application, Noyd v. .

McNamara, 267 F. Supp. 70? (D. Colo. 1967), aff'd 378 F. 2d 538

(10th Cir. 1967), cett. den. 389-U. S. 1022 (1967)., Next came the

court-martial proceedings, U: 8. v.:Noyd, ACM 20121; —— CMR

——. See App.; p. 35. This case, Noyd v. Bond, supra, was in-

stitutéd in an effort to prevent-the unlawful execution of Capt. .

Noyd’s sentence of one year’s confinement prior to completion of

‘military appellate review: a te

Hine Ne SPD ites saidhas be sigh ent seis abaote Kimora aes sie ee biker

1a cateaaieagitslls Sateen a -

. P

GODS tiles Falta Gt tt MS apie De Lee a 6 md PBB! GED Net

anil allowances, and one year’ 8 confinement. Teamediately

following his sentence, petitioner was ordered confined’ to

his quarters pending appeal by, order of respondent Colo-

- nel Doerr, tlie Base Commander of Cannon Air Force

Base. On May 10, 1968, the General, Court-Martial con-

‘vening authority,. the respondent General Bond,’ approved |

the. conviction ahd sentence and- ordered petitioner con-

fined at the. Ynited States Disciplinary Barracks, Fort :

fe arya Kansas “pending completion of appellate re-

' view.” . [Headquarters, Twelfth Air Force (TAC) -Gen-

eral Court- Martial Order No. 13 dated 10 May 1968 (here-

inafter “GCMO13”).] GCMO13 is printed at App., PA 30.

Pursuant to military law, petitionér was entitled to ap-

pellate review of his edtiviction’ ‘by an Air Force Board of :

Review and further review, on petition for grant of review,

’ by the United States Court of Military Appeals. 10 U.S. C.

’ §§866, 867. On September. 4s 1968, an Air Force Board of

a Review upheld petitioner’s conviction, ruling ‘that it lacked

jurisdiction to review whether the Secretary had acted un-

lawfully. United States v. Noyd, ACM 20121, —— CMR

-_—.. The opinion of the Air Force Board of Review has

not yet been reported: It is printed in the App., p. 35.

' Captain Noyd’s petition for grant of review to the Court

of Military Appeals was granted on January. 23, 1969.

pan

The only judge thus tar to rule.on-the merits of Captain —

Noyd’s defenses was sufficiently moved to issue a prelimi-

- nary injunction réstraining the Air Force from placing

'* Captain Noyd in a position where he would be compelled:

to disobey an order ‘in violation of his conscientious be-

liefs. Noyd v. McNamara, —— F, Supp. —— (D. Colo.,

' Mar. 29, 1967). per’ Judge Doyle. This decision. by Judge

Doyle has not yet ‘been reported. It is printed in the App.,

11°

“p. 48. Judge Doyle subsequently invoked the doctrine of

exhaustion of military remedies and ruled that the. merits

of Captain Noyd’s legal . defenses must be passed upon ~

. by the military courts prior to consideration by thé Federal

District Court. Noyd y. McNamara, 267 F. Supp. 701 (D.

* Colo. 1967), aff’d 378 F. 2d 538 (10th Cir. 1967), cert. den.

389 U. S. 1022 (1967): Unfortunately, the military courts

have, thus far, declined to. pass bean those defenses. See

App., pp. 40-41.

oN evertheless, Captain N oyd was in physical confinement

_ from March 9, 1968, pending military appellate review of

his conviction, until December 24, 1968, when he was re-

leased from incarceration pursuant to order of Mr. Justice

Douglas, 89 S. Ct. 478, App., p. 27. The conditions of Cap-

_ tain Noyd’s confinement at Cannon Air Force Base a are set

forth at App. i i i

Not content with Captain Noyd’s jneilieaiat at Cannon’.

Air Force Base, the respondent General Bond, ordered

Captain N oyd confined to the United States Disciplinary,

Barracks at Fort Leavenworth, Kansas pending the results,

of his* appeal (GCMO13). The order of confinement q

Leavenworth led to the filing of a petition for a writ 0

habeas corpus in the United States Disttict Court for the

District of New Mexico. Only the order of the Federal

District Court, entered on May 24, 1968, prevented the

execution of the Leavenworth confinement order.®

Chief Judge Payne, in his decision in the District Court,

oo recognized that any attempt to ead Captain N oyd prior to

3 Although the Tenth Circuit reversed the District Court thereby

freeing respondents from the--restraint imposed’. by the District

Court’s order, and thereby permitting the Leavenworth confine-

ment order to be executed, the Tenth Circuit subsequently, on

December 6, 1968, granted a stay of its mandate pending certiorari.

the completion ‘of military appellate review would consti- -

tute a clear violation of Article 71(c) of the Uniform Code

- of Military J ustice, since Article 71(c) forbids execution of

a sentence which includes confinement of one year or more,

prior to the completion of appellate review. Accordingly,

. he invalidated the attempt to incarcerate. Captain Noyd at

_ Fort Leavenworth pending’ the completion of appellate re-

- view, 285 F. Supp: 785. See App., p. 16. a

Both sides appealed Judge Payne’s decision to the Court

of Appeals. Petitioner appealed from so much of Judge

Payne’s decision as declined to order his complete release

- from confinement pending completion of military appeals. -

Respondents appealed from so much of the decision of the —

District Court as partially granted the writ.

The Court of Appeals ruled below, however, that the

District Court lacked the power to relieve petitioner from —

. premature confinement at Leavenworth pending appeal

because petitioner had. “failed to exhaust his military

remedies.” The District Court was reversed. 402 F. 2d 441,

443, App., p. 22. | whe

Simultaneously with the, filing of a petition for certiorari,

petitioner’s «vunsel made application to Mr. Justice White,

_in his capacity as Circuit Justice, for release from con-_

finement pending certiorari.‘ Mr. Justice White denied the

application on December ‘18, 1968.

With time credited for good behavior, Captain Noyd’s —

sentence of one year’s confinement, which had commenced }

‘4In accordance with Rules 27, 50 and 51 of this Court, before

making such application to the Circuit Justice, petitioner’s counsel -

made a similar application to the Tenth Circuit. The Tenth Cir-

cuit denied the application for release from confinement pending

certiorari on December 6, 1968. - nara

: running on Maieh 9, 1968, was due to expire on Decem-

‘ber 26, 1968. See Departments of the Army and the Air.

- Foree, AR 633-30, AF 125-30, “Military Sentences to Con-

finement”. (Nov. 1964). Petitioner’s concern that mootness

problems might arise if the running .of the sentence were

not interrupted was expressed i in the application.

Petitioner’s counsel subsequently made application to Mr.

Justice Douglas for release from confinement pending cer-

| tiorari. On December 24, 1968, Mr. Justice Douglas granted

the relief set forth\in his opinion, 89 S. Ct. 478, App., p.

27, commenting specifically, that two substantial ques- .

tions were raised: (1) whether the doctrine of exhaustion

of military remedies applies where the question at issue is.

whether the court-martial convening authority acted beyond

jurisdiction; and (2) the respective scope of review of the

Court of Military:Appeals and the Federal courts: on mili-

tary habeas corpus applications of this nature.

N oting that the application had been made to ites during

recess, and that the Court would. not reconyene until, Janu-

ary 10, em Mr. Justice Douglas directed that petitioner

be placed “in a non-incarcerated status,” and otherwise pro- .

tected, until the entire Court could ewmsider the petition for

certiorari, 89 S. Ct. at'479. |

In response to the ssititine for certiorari, and Mr. J litte

Douglas’ release order, the’Government filed a “Memoran- _

dum for the Respondents Suggesting Mootness.” This |

memorandum took the position that the matter was moot,

notwithstanding the order of Mr. J ustice Douglas, since

pursuant to Article 57(b) of the UCMJ, i0 U. S. Cc.

_ §857(b), petitioner’s confinement, which commenced to run ©

on the date it’ was adjudged, could not be interrupted “un-

a Dit i Ad itn i te lip a Ne

less. the sentence is ‘suspended’.” (Memo, pp. 3-4, fn. 2.).

. Petitioner filed a reply memorandum in opposition to re-

spondents’ memorandum suggesting mootness, citing para-

graph | Q7¢ of the Manual for Courts-Martial, supra, p. 6,

_ two. decisions of thé Court of Military Appeals, as well as.

the legislative history of UCMJ 57(b), all of which in-

dicate that “probationary. suspension” of a sentence is.

not the only occasion when the running of a sentence is

interrupted. — as :

_ The Government then submitted a “Supplemental Memo-

yandum for the Respondents.” On January 20, 1969, the

' petition for a writ of certiorari was granted. The order

granting certiorari stated further that the stay there-

tofore granted. by Mr. Justice Douglas “shall remain “in

effect pending the issuance of the judgment of this Cow:

" or until further order of this Court.” “89 S. Ct. 692, App.,

p. 29.

Following ‘Judge Payne’s decision, on June 6, 1968,. the | |

respondent Doerr ordered petitioner moved from his family

quarters, to which he had previously been confined, to a

room in a bachelor officers’ quarters. The conditions of his

incarceration remained substantially the same until beti-

cember 24, 1968. They included shoclate restriction to his

room except for authorized-exits, at specific hours, in each

case with prior notification to Security «Police, to.obtain

meals and to take care of personal needs; restriction of ex:

ercise to one weekly period of 11% hours; restriction of visit-

ing-by his wife and two infant children to two weekly visits

-. of two hours each ; all non-family visiting restricted to-one

15 : | \ »

weekly one-hour period;.a large sign affixed to his door

which read “Off Limits to Military Personnel.”. App., p. 32.

- Pursuant ‘to Mr. J ustice Douglas’ order, petitioner ‘was

released from confinement on December 24, 1968 and re-

stored to duty. He is presently assigned as Special As-

‘sistant:to the Wing Commander of the 27th Tactical Fighter

Wing at Cannon Air Force Base, New Mexico. Pursuant

to the protective provision included in Mr. Justice Douglas’

order, and continued by the order of thi Court, prior to

receiving his various assignments, petitioner was asked if

these assignments were of a nature which would interfere

with his conscientious beliefs and thereby perhaps subject

him to another court-martial or other proceedings that

might injure him. In response thereto petitioner assured

_ his superiors that the various administrative and personnel

duties assigned to him were in no way in conflict with his

beliefs and he has procéeded to perform these duties.

Summary of Argument

I. The Court of Appeals Improperly Denied Relief on the. .

Grounds of Failure'to Exhaust Military Remedies. .

The doctrine of “exhaustion of military remedies”, inso--

far as it retains any validity at all, applies only to attempts .

‘to secure review of errors allegedly committed by a-court

martial. Gusik v. Schilder, 340 U. S. 128 (1950). ‘It has no

application to an atfack upon the bare legality of military

) confinement—unconnected with any attack upon the under-

lying court-martial proceeding.

i ry Mf A Ne cng .

16 .

(a) Questionable applicability of exhaustion doctrine.

(1) “Jurisdiction” and the Exhaustion of Military

Remedies. — ’

When the jurisdiction of the military to impose restaniats

is questioned, a petitioner need not exhaust his: military |

remedies prior to seeking relief in the Federal Courts.

U. S. ex re. Guagliardo v. McElroy, 158 F. Supp. 171

(D. D. C. 1958), 259 F. 2d 927 (D. C. Cir. 1968), aff’d 361

-U,S. 281 (1960) ; Reid y. Covert, 354 U. S. 1 (1957); U. 8.

ex rel. Toth v. Quarles, 350 U. 8..11. (1955) ; Gallagher: v.

Quinn, 363 F. 2d 301 (D. C. Cir. 1966), cert. den. 385 U. S.

881 (1966). Since Captain Noyd contended that the Uni-

* form: Code of Military Justice totally removed the mili-

tary’s jurisdiction to jail him pending appeal, he was under

‘no obligation to exhaust his military remedies prior to

seeking relief in a Federal Court.. Oestereich.v. Selective

Service System Local _—- No. 11, 89'S. Ct. 414 (1968).

(2) Exhaustion of inauilia generally.

Cleurte have refrained from invoking the “exhaustion”

doctrine:

(a) where the i imposer of sanctions acted plainly beyond

its -jurisdiction or contrary to law. Oecestereich v..

Selective Service System Local Board No. 11, supra;

McCullouch v. Sociedad Nacional, 372 U. S. 10

(1963).; Leedom v. Kyne, 358 U. S. 184 (1958).

(b) where the administrative remedies are inadequate.

NLRB v. Marine Workers, 391 U. S. 418 (1968);

Damico v. California, 389 U. S. 416 (1967).

irreparable injury. Jaffe, Judicial Control of Ad- -

ministrative Aetion 429 (1965).

- walls .

ee ER

(a) where the attempted exhaustion wou rove, ‘a fu-

tility. Levers v. Anderson, 326 U. 8. 219 (1945) ; :

Hammond v. Lenfest, 398 F.*2d 705: ‘(2nd Cir. 1968).

Since respondents acted plainly Sinpuail their statutory

, power, in violation of a right provided by Congress, there —

is no requirement of exhaustion. Oecestereich v. Selective’

Service System Local Board No. 11, abil eayuke

(b) Inadequacy y, and_ineffectiveness of suggested mili-

A _ tary remedies.

> Inadequacy of ‘sia appellate process

i 4 _ Because of the unique nature of right to minimal

restraint pending appeal, it cannot bé urged via

the normal —_ channels, without destroy-

ing it. °

. (2) ‘cali of extraordinary writ application to

_ Court of Military Appeals.

A ecules of very serious practical difficulties wed be

created if all military habeas corpus petitions. were ini-:

tially funnelled through the Court of Military Appeals:

(a) an extraordinary strain would. be placed upon the

Court, inhibiting its ability to fulfill its primary

role as an appellate tribunal.

(b) extraordinary practical difficulties would be encoun- -

tered in transporting petitioners and witnesses to

Washington, D. C. to take part in habeas corpus

hearings. Johnson v. Hisentrager, 339° U. S. 763

(1950).. .

-eivilian counsel hs prosecute a habeas corpus peti-

‘tion in Washington, D. C. on behalf of military pris-_

oners in custody in distant —— installations. °

(3) Hesitant quality of Court of Military Appeals’ .

practice on extraordinary writ applications.

| ti is scarcely two years since the Court of Military Ap-

peals ruled that it possessed habeas corpus jurisdiction.

To date, however, no extraordinary writ has been issued

by the Court. Although habeas practice may develop in

_ the future, the inherent limitations in the process of juris-

dictional evolution render the present status of habeas prac-

tice in the Court of Military Appeals ineffective to provide

pa eee effective and or relief. i

(4) yi bar exists, by way. of comity or reas.

- to concurrent’ habeas corpus jurisdiction.

, Habeas corpus jurisdiction over military personnel may

exist concurrently between the Court of Military Appeals

and the Federal, courts. Since only one sovereignty is in-

volved—the United States of America—no principle: of

comity bars concurrent 5 aera Fay v. Noia, 372 U. 8.

391 (1963).

(e) Conflict between the circuits.

This Court should reject the narrow jurisdictional posi-

tion of the 10th Circuit below and adopt’ the practical -

jurisdictional position enunciated by the Second Circuit in -

' Hammond v. Lenfest, supra and by the Fifth Circuit in

_ Inre Kelly, —— F. - , 37 :UzS. L. W. 2165 (5th Cir.

_ 1968).

‘ 19 .

II. General. Court Martial Order #13 Ordering Captain

Noyd Confined to. the United States Disciplinary Bar-

racks at Forth Leavenworth “Pending Completion of

Appellate Review” Violated the Uniform Code of Mili-

tary Justice.* * ate \ ieugt |

If it is possible for, a commanding officer to effect the

de facto exécution of a one year prison sentence prior

to the completion of the military appellate process, the

integrity of that process is seriously compromised.

A. Development of the Military Appellate Process

During the past 40 years, appellate jurisdiction has

passed from a field officer to a three judge civilian court.

As long as there has been an American military estab-

‘lishment, it has provided that court- martial. sentences, .

especially those irivolving heavy penalties, may not be

carried into execution until the appropriate appellate pro-

_ eedures have been. completed.

B. Artie a (c) and Its Consistent litenpedeitin

_ Whenever the issue has. arisen, military courts have

conderned the “execution” of a sentence to confinement of.

one year or more prior to the completion of appellate re-

view as a.violation of Article 71(¢c) of the Uniform Code

of Military Justice. U. S. v. Smith, 2 CMR 817 (1952) ;

-U. 8. v.. Ranes, 3 CMR 550 (R62) U. S. v. Incero, 8

aaa 942 (1955). :

C: The Meaning of pen Se Federal Law

| “Execution” of a sentence to confinement occurs upon

_ the initiation of penal incarceration. Sweet v. ‘Taylor, 178

F. Sypp. 456 (D. Kans. 1959) ; United States v. Murray,

. @

275 U. &. 347. (1928) ; United States v. Affronti, 350 U. 8.

79 (1955). Confinement at Forth Leavenworth is wae ad

“penal incarceration”. _* “

Ill. The ‘Confinement of Captain Noyd at Cannon ‘Air

Force Base “Pending’Appeal” Violated the. Uniform

Code of Military Justice.

Military law provides that post conviction. military

personnel may not be subjected to any restraint pending

appeal more vigorous than is necessary to ‘insure their

physical presence. “Article 13 UCMJ, 10 U. S. C.:813;

1118b(3) MCM. ‘ei aa .

Any restraint more vigorous is, by definition, punitive |

_ and constitutes _ the premature execution of a sentence

to confinement. Articlé 71(¢) UCMJ, 10 U. S. C. 871(e)..

" Since no one has ever intimated the slightest fear that

Captain Noyd would refuse to obey the mandate of. an

appellate: tribunal, his confinement at Cannon’ Air Force

Base could not be labelled as anything other than punitive.

" As such, it was illegal.

IV. The Continued Incarceration Imposed ee Captain

Noyd Pending Completion of ‘the Military Appellate

Process Deprived Him of His Liberty Without Due

_ . Process of Law Since No Tribunal—Civilian or Mili-

tary—Has Accepted the Responsibility of Passing

Upon the Merits of His Defense.

_ In Noyd v. McNamara, 373 F. 2d 538 (10th Cir. 1967),

cert. den. 389._U. S. 1022 (1967), the 10th Circuit directed

Captain Noyd to present his defenses to a court martial

before seeking relief in a ons court.

In U. S. v. Noyd, —— ~ CMR le ACM 20121, see App.

_ p. 35, Captain Noyd’s court martial- disclaimed jurisdic- |

tion over his defenses ‘and directed him to the Federal —

ee Oe 7 )

, Despite the failure of either the 10th Circuit or the mili-

tary court to pass on‘the merits of. his defense, Captain

_, Noyd was imprisoned pending appeal.

In Noyd v. Bond, 402 F. 2d-441 (10th Cif. 1968), the

10th Circuit refused to order ae? N oyd freed pend- .

pa ing appeal,

. The cumulative effect of the. reciprocal solicitude which

the 10th Circuit and the Military-courts have entertained

_for each others’ jurisdictional purity has been the uncon-.

_ Stitutional incarceration of Captain Noyd for over nine ‘

months without ¢ ever having afforded him a we on his

defense, ?

Vz. This: ties Is Not Moot.

Captain Noyd’s sentence to confinement has not expired

because it was tolled by Mr. Justice Dougtas’ order releas-

ing him from. confinement on, December 24, 1968. This

_Lourt has inherent power to toll the. running of a sentenge

‘in aid of its jurisdiction. | United States TWnited Mine

Workers of America, 330 U. S. 258 (1947). Under mili-

tary law, a sentence to confinement is tolled when"a mili-

tary prisoner is free of: restraint. 97e MCM; United

' States v. Bryant, 30 CMR 133 (1961). . :

Even-if Captain Noyd’s sentence had expired, the “ton-

tinuing circumstances” doctrine would prevent this appeal _.

from becoming moot. Bus Employees v. Missouri, ott

U. S. 74 (1963). : |

’ ¥ ~

‘

° x ®

. ad .

F 4

. aa ;

», om

grounds of failure to exhaust military remedies, al- 7

‘though such doctrine, of dubious validity in any event,

has no application where the military authority acts

POINT I. rae

The Court of Appeals improperly denied relief on the

outsidé its jurisdiction. Exhaustion is likewise not re-

nee quired since the asserted military. remedies in this case

would be inadequate, ineffective and impractical. The

Court of Appeals’ constricted jurisdictional holding is

-in conflict with decisions of other Courts of Appeals.

The Court of Appeals did not rule on the merits of peti- _

tioner’s claim that he was ordered incarcerated in violation .

of niilitary law.® Citing one Supreme Court decision,

Gusik v. Schilder, 340 U. S. 128 (1950), and a number of -

its own prior decisions, it declined jurisdiction on the

grounds that.petitioner had not exhausted all possible mili-

' tary remedies. The Tenth Circuit stated it to be “well

established . . . that habeas corpus is not available to

review military confinement until after all remedies af-

forded by the UCMJ have first been exhausted.” 402 F.

2d at 442, App., p. 25. But in Gusik v. Schilder, supra,

this Court’s declination of jurisdiction on grounds of non- ~

exhaustion was’ in a seapenes to a petition which ‘sought

review of various’errors in the court-martial proceedings.

Gusik was not, as is this case, an attack on the lawfulness

.s)

5 However, the citation by the Court of Appeals of three decisions

‘of military Boards of Review, U. 8. v. Smith, 2 CMR 817 (1952) ;

. U. 8: v. Ranes, 3 CMR 550 (1952) ; and JU. 8. v. Eucero, 18 CMR -

942 (1955), all of which uphold petitioner’ s contention that such

confinement is unlawful, strongly suggests that the Court ‘of Ap-

peals agreed with the District Court on the merits, See ® discumion

of merits in Point,II, infra,

23_

of the confinement, unconnected with any possible trial |

- errors.

_ It may indeed be “well established” that habeas corpus

is not available to review miljtary trials until after ex-

haustion.’ However, petitioner respectfully suggests that it

is not at all well established that the bare question of mili-

tary confinement itself—uncoupled with a collateral attack

on the court-martial proceedings resulting in the confine-

ment—is not amenable to Federal habeas corpus. - See

Gallagher v. Quinn, 363 F. 2d 301, 303 (D. C. Cir. 1966),

cert. den. 385 U. S. 881 (1966); Neary v. Greenough, 120 __

F. Supp. 833, 838 (D. Me. 1954). In any event, this Court

has never so held in. Gusik or in any other decision. More-

over, the decision below that a Federal court is powerless,

pre-exhaustion, to redress a blatant violation of / ticle.

71(c) of the UCMJ is'a case of “first impression.” 89 S. Ct.

478 (per Mr. Justice Douglas).

(a) Questionable applicability of exhaustion doctrine.

-° (1) “Jurisdiction” and the exhaustion of

military remedies. ae

The only justification offered by the Tenth Circuit for

. its holding is the reinvocation of the doctrine of exhaus-

tion of military remedies. It is questionable, however, if

the doctrine is as monolithic and ubiquitous as the Court

below suggests. The doctrine as asserted .in’ Gusik v.

. Schilder, 340 U. S. 128 (1950)* does not appear to have -

* Gusik may very well be explained by the extraordinary condi-

tions of military justice revealed in many of the early post-World

War II cases. See Servicemen in Civilian Courts, 76 Yale L. J.

880, 383-385 (1966). A great public outcry against large-scale

abuses led ultimately to the enactment of the Uniform Code of

Military Justice. in 1950. But one of the stopgap measures enacted

by Congress was an amendment to the Articles of War which gave

Pies

_ been reaffirmed by this Court. in the succeeding eighteen

_ years, notwithstanding many opportunities to do so.

The case of U. S. ex rel. Guagliardo v. McElroy, 158 F.

Supp. 171, 173 (D. D. C. 1958), 259 F. 2d 927°(D. C. Cir.

1958), aff’d 361 U. S.281 (1960) is of particular signif-

“ jeance. A civilian employee of the Air Force was charged

. with a violation of the UCMJ, tried by a general court-

martial, found guilty and sentenced. Appéllant admittedly

did not exhaust the judicial processes available to him un-

. der the UCMJ prior to petitioning the United States Dis-

trict Court for the District, of Columbia for a writ of:

habeas corpus. His substantive contention was that inas-

much as he was a civilian the military authorities lacked

jurisdiction to try him and that accordingly, his confine-

ment was unlawful. | 7

Tlie threshold question, however, was whether or not the |

decision of-this Court in Gusik, supra, compelled a denial of

. Telief because of the failure to exhaust military remedigs.

The District Court and the Court of Appeals for the Dis-

trict of Columbia both noted that the Gusik doctrine was

- substantially undercut, if not completely overruled "by this

Court’s decisions in Reid v. Cevert, 354 U. S. 1 (1957) and

U. 8. ex rel. Toth v. Quarles, 350 U. S. 11 (1955), since ‘in

those cases this Court had not raised ‘Gusik as a bar to

determining lack of military jurisdiction. Accordingly, the

District Court held in Guagliardo:

“This court ‘cannot reasonably reach any conclusion

other than that the ae case has been overruled sub

’ the J wiieo Advocate General of each service vast power to colle

new trials and grant other relief. Faced with this specific recent -

expression of congressional intent, it.is not difficult to understand ~

a judicial reluctance to disregard ‘the new remedy.

silentio by the Toth and Reid cases, insofar as it ap-

plies to the -necessity of exhausting other available

remedies in a-ease in which the jurisdiction of a court

‘ martial is challenged on constitutional grounds. Con-

. sequently the objection that the petitioner has failed

- to exhaust all of his remedies within the military ‘sys-

tem is. overruled.” 158 F. Supp. at 173. '

The Court of Appeals for the District of Columbia af-

firmed, holding: | ik been eves

“Appellees contend that the- jurisdictional question is

prematurely raised because appellant has not exhausted

the judicial Processes available to him under the Uni-

- form Code of Military Justice. They rely upon Gusik.

v. Schilder, 340 U. S. 128, 71 S. Ct. 149, 95 L. Ed. 146.

But that case we think is inapposite, for there court-

martial jurisdiction over the accused unquestionably

existed since he was a member of the United States

Army. He sought to attack collaterally a court-martial

judgment because of alleged errors in the court-martial

proceedings, without exhausting’the administrative’

remedies available for their correction. Here, in con-

trast, the question is whether appellant is subject to

court-martial jurisdiction at all. Habeas corpus pro-

" ceedings were used to determine sich a question in

Reid v. Covert, 354 U. S. 1, 77S. Ct. 1222, 1 L. Ed. 2d.

1148, and United States ex rel. Toth v. Quarles, 350

U. 8. 11, 76 8. Ct. 1, 100 L. Ed. 8 The point was not

' discussed, but in view of Gusik v. Schilder, supra,

could not have been overlooked*by the Supreme Court,

especially as the Court in Reid v. Covert specifically

noted that the petition was brought ‘while Mrs, Covert

26-

was being held * * * pending a proposed retrial by —

court-martial * * *.’ 354 U. S: at page 4, 77 S. Ct.

at page 1124, 1 L. Ed, 2d 148. If appellees have no

court-martial jurisdiction whatever over appellant the

great Writ is available to release him from their cus-

tody.” 259 F. 2d at 928-929.

- This Court affirmed without any mention of exhatistion as

a problem. 361 U. S. 281 (1960).

Other decisions of Federal Courts, both pre- end post-

Guagliardo, are in accord with the doctrine that the rule -

of exhaustion of military remedies does not apply where

military jurisdiction is attacked. Perhaps the strongest

ease is Gallagher v. Quinn, 363 F. 2d 301 (D. C. Cir. 1966),

cert. den. 385 U. S. 881 (1966). In this action in the

District Court for the District of Columbia, appellant

sought a Federal Court order directing the Court of

Military Appeals to grant review in.a case where, pur-

suant to its discretionary authority, it had not granted -

review. The court expressly noted that’ appellant “is not

‘ without other though partial remedies within the military

establishment.” 363 F. 2d at 304. But it affirmed federal »

jurisdiction, notwithstanding the failure to- exhaust, be-

cause “appellant does not challenge the trial itself”, 363

F, 2d at 303, but only the constitutional ‘validity of the

UCMJ provision which denied him review as of cna by

the Court of Military Appeals.

Appellant’s attack in Gallagher v. Quinn was thus di- ©

rected at the jurisdiction of the military to hold him in

alleged violation of ‘his constitutional right to have review

in the Court of Military Appeals. In this case, Captain

Noyd’s challenge to the jurisdiction of respondents to in- -

earcerate him prior to the completion of his unquestioned |

(27

military appellate rights, and prior to any hearing on his

principal defense, is so much clearer, a fortiori: See Points

_ ILIV, infra, for a discussion of respondents’ manifest lack

of power to confine Captain Noyd pending appeal.

As Chief J udge Yankwich observed, whenever a military

prisoner attacks jurisdiction “no question can be raised as

to whether he has exhausted his remedies through chan-

nels”, In Re Y okoyama, 170 F. Supp. 467, 468-(S. D. Calif,,

Cent. Div. 1959). In Neary v. Greenough, 120 F. Supp. 833

(D. Me. 1954) a marine sought habeas corpus, arguing .

that he had been previously discharged. The response to ©

_ the writ alleged failure to exhaust military remedies under

- Gusik.. The court pointed out, at p. 838: -

“Neary’s habeas corpus application is directed against ~

his detention in the service and not any detention. un-

der a.court-martial conviction. Gusik v. Schilder . . ‘

and related: cases. are limited. to where the habeas

- Corpus petitioner was attacking the court-martial pro-

ceedings without more, ... Neary is not attacking the

court-martial proceedings in this action.”

_ Plainly, Captain Noyd is not attacking the court-martial

proceedings in this action; his habeas corpus. application is

, directed against the fact and the timing of his detention

‘and not the proceedings of the court-martial which con-

victed him and ordered him detained. As Judge Harris

- observed in Peck v: Carpenter, 120 F. Supp. 560, 562'(N. D.

Calif., S. Div. 1954), likewise rejecting a Gusik v. Schilder

exhaustion claim, compelling the serviceman under such

_ circumstances to use a pending administrative remedy

“would result in a suspension of the writ of habeas corpus”

(emphasis in original). | eres

eS at oe

— Sy

. +,

Obviously outlilonee in this ‘case ‘does not seek habeas

_corpus.to. attack the many errors which. he believes. oc-

curred in. his court-martial proceedings. ‘See Ne eary Vv.

Greenough, supra. He is content to exhaust all: his mili-

tary remedies for the redress of those errors. Habeas

corpus is sought so that if these errors are redressed on

appeal, he will not have been deprived of this redress by

intervening confinement.

(2) Exhaustion of remedies generally

There is little difference conceptually if the remedy

which one is told he must exhaust prior to judicial review

is an “administrative” remedy; or a “state court” remedy,

or a “military” remedy.. The wooden application of the

doctrine can often have the effect, as in this case, of ren-

dering a right remediless ; the litigant “becomes exhausted

instead of the remedies”: NLBB v. Marine iis 391

U.S. 418, 425 (1968).

’ Indeed, it is-now universally piieaiited that the doctrine

_ that administrative remedies must be exhausted before re-

sorting to the courts is not a rule of constitutional or even |

of statutory dimension. It came into being simply as a

- device of judicial policy and convenience adopted by the

courts and will not be applied in a hidebound fashion.

Since it is a judge-made rule, it will be disregarded by

courts whenever there is a good reason to do so. “The re-

quirement of exhaustion is a matter within the sound dis-

cretion. of the courts.” NLRB v. Marine Workers, supra

at 426. See Natural Gas Pipeline Co. v. Slattery, 302 U.S.

300 (1937) ; Lockhart -v. U. S., —— F. 2d ——, 37 U. S.

7™“Exhaustion .. . is -— without certain overtones of Kafka.”

Shapiro, The Supreme Court: and Admimstrative Agenctes 116 |

(1967).

Law W. 2269 (9th Cir!, Oct. 23, 1968). “The statenfent

that courts so often repeat in their opinionsthat judicial

relief must be denied until administrative remedies have

been exhausted—is seriously at variance with the holdings.”

3 Davis, Administrative Law Treatise, §20.01; at 56 (1958).*

This Court and lower Federal courts have not required

exhaustion: |

(a) where the agency, tribunal, or other imposer of

-Sanctions acted plainly beyond its jurisdiction or

contrary to law, Oesteréich v. Selective Service Sys-

tem Local Board No. 11, 89 S. Ct. 414, 416 (1968) ;

McCullouch v. Sociedad Nacional, 372 U. S. 10, 16-17

- (1963); Leedom v. Kyne, 358 U..S. 184, 188-189

(1958) ; Public Utilities Commission vy. United. Fuel

Gas Co., 317 U. S. 456, 469 (1943) ( - . . the’ orders

- + are on their’ facé plainly invalid); Smith vy.

Illinois Bell Telephone Co., 270 U. §, 587, 591 (1926)

(“... an entire lack of that acute appreciation of

justice which should characterize a tribunal... .” 4

_ Skinner & Eddy Corp. v. United States, 249 UL S.

- 557, 562 (1919) (contention that “the Commission

(b)

has exceeded its. statutory powers”);

where “the administrative remedies are inadequate”,

NLRB v. Marine Workers, 391 U. §. 418, 426 (1968) ;_

Damico v. California, 389 U.S. 416 (1967) ( reversing

dismissal of complaint, on grounds of non-exhaustion,

by three-judge court); McNeese v. Board of Educa-

tion, 373 U. S. 668, 676 (1963 ) (state retnedy pro-

vided only “tenuous” protection); Monroe v. Pape,

365. U. 8. 167, 183 (1961) (“The federal remedy is

® Por a discussion of the “flexibility” of the exhaustion doctrine

see Shapiro, supra, at 112-116, —. .

supplementary to the state remedy and the latter

need not: be first sought and refused before the fed-

eral one is invoked.”) ; Hillsborough v. Cromwell, -

326 U. S. 620, 625-626 (1945) (“There is such un- -

certainty concerning. the New Jersey remedy as to —

~~~ make it speculative . . . whether the State affords

. * full protection to the _—— rights.”); 3 Davis,

supra, §20.07; / :

irreparable injury, Smith v. Illinois Bell Telephoné

Co., supra; Jaffe, Judicial Control of Administra-

tive Action 429 (1965) (“Irreparable injury in its

strictest, sense is the probable loss, if exhaustion is

| required, of the value. . . of an asserted right: or

-, defense.”) ; and : | \

(d)\ where attempted exhaustion would be a futility,

Levers v. Anderson, 326 U. S. 219, 223-224 (1945);

Hammond v. Lenfest, 398 .F. 2d 705, 713 (2d Cir.

1968) ; Wolff v. Selective Service Local Board No. 16,

372 F. 2d°817 (2d Cir. 1967) ; School Board of Char-

lottesville v. Allen, 240 F. 2d 59, 63-64 (4th Cir.

1956) ; Jaffe, supra, at 449. saeae

: x °

As shall be demonstrated, infra, in thie case the pur-

portedly unexhausted remedies would be totally inadequate,

dilatory, and futile. But even if these factors were nét

’ present, since the respondent convening —— acted

plainly beyond -his jurisdiction and in clear violation of a

statutory right provided by Congress, there is no require-

ment of exhaustion in any case. “The case we decide today

involves a clear departure}... from... statutory mandate.”

Oestereich v. Selective Service Ductew Local Board No. 11,

89 S. Ct. 414, 416 (1968).

(b) Inadequacy and ineffectiveness of suggested

military remedies, : . |

The possible military remedies which the Court below

_ noted included review by an’ Air Force Board of Review 2

further review, upon grant of petition therefor, by the Court

of Military Appeals; and application for an extraordinary

writ to the Court of Military Appeals. None of these

suggested remedies can provide the adequate, éffective and

practical relief which is available through Federal habeas

“corpus. ae : > eae

(1) Inadequacy of normal appellate process, -

. In the Board of Review decisions cited by the Court

below, relief was indee granted, but only after varying

periods of unlawful inca ceration while awaiting decision.

In U. 8. v. Smith, 2 CMR 817 (1952), the intervening

. period was .5¥% months; in U. §. vy. Ranes, 3 CMR 550.

(1952), it was 214 months; in this case, had the Board of

Review reversed, it would have meant that petitioner would

- have nonetheless been illegally confined from March: 9,

1968 to September 3, 1968, almost-six m nths of a one-year

sentence, oe

‘\

‘Federal habeas corpus relief, on the other hand, can be

and in this case was, instantaneous and effective. GCMO

- 13, the Leavenworth confinement order, was issued May

. ' : :

* The observation of the Court below that the Board of Review

had heard oral argument but not yet rendered its decision is inaccu-

rate. Oral argument before the Boar of Review was on August —

22, 1968; its decision was handed down on September 3, 1968.

Argument before the Court below was on October 2, 1968, and

' . its decision was filed on October 30, 1968. ;

*° The Court of Military Appeals granted review on two of the

four questions presented. a e

.. and the technical proble:

10, 1968. Petitioner promptly obtained a show cause order.

from the District Court, which contained a stay. Briefs

were presented, the matter was heard, and the Cou ren-

dered its decision.on May 24, 1968, fourteen days after the

- Leavenworth confinement order was issued. ~

The length of the record, the complexity of ‘the issues,

of preparing for a full -appel- ©

late review.on the merits are all factors which will bear

on the length: of illegal/ incarceration, if this were to be

the only remedy. Utilization of this remedy would tend to

pressure counsel for an unlawfully incarcerated accused to

press for speedy review on the question of confinement and

not take the time to adequately review, pesenren and pre-

pare for the other questions.

For obvious reasons, awaiting review on the merits by

“the Court of Military Appeals could not possibly produce

relief, in most cases, until approximately a year after

conviction. ”

~The inherent delay in the normal military appellate proc-

ess.is vividly demonstrated by the recurring phenomena -

of the Court of Military Appeals reversing a court-martial

conviction, and then, noting that the total confinement has

already been. served, stating that a new trial would be.

pointless. See, e.g., United States v: McLaughlin, 18

-USCMA 61, 39 CMR 61 (1968); United States v. Rowe,

18 USCMA 54, 39: CMR 54 (1968) (6 months’ confinement) ;

United States v: Sheeks, 16 USCMA 430, 37 CMR 50 (1968)

11 The court-martial record of the five-day trial in this case con-

sists of 402 pages, plus several hundred unnumbered pages of

exhibits. Petitioner filed his petition for grant of review. on No-

vember 22, 1968. Review was granted on January 23, 1969. It is

unlikely that the case will be set for oral _—— prior to May

1969.

(2 years’ confinement teduced by convening authority to

one year, and by Board of Review to nine months). See

generally any volume of Teported decisions of Court of

Military Appeals, passim.

(2) linndlomnicey of extraordinary writ application

_ to Court of Military Appeals,

The third suggested military remedy is ‘the application .

for an extraordinary writ to the Court of Military Ap- |

peals in the. light: of ‘its holding in Levy v. Resor, 17

_, USCMA 135, 37 CMR 399 (1967), and other cases," that

it has jurisdiction to hea? such writs. But the Court below,

we respectfully contend, overlooked a number of serious

_ practical difficulties which would be created by establish-

ing the Court of Military Appeals as the exclusive forum

within which a military prisoner may challenge the lawful-

ness of his detention pending appeal:

(1) A jurisdictional requirement which funnels virtually

all military habeas corpus applications through the Court

of Military Appeals would place an extraordinary strain

upon the facilities of that Court. The. Court of Military

Appeals is a three judge appellate tribunal. It lacks both -

the facilities and the manpower to accommodate the vast in-

crease in eVidentiary hearings which such a jurisdictional

rule would entail. At the present time, the Court is obliged

by the pressure of cases to regulate its appellate caseload

by the judicious use of its discretionary power to grant

review “upon petition of the acctised and on good cause

shown” UCMJ, Art. 67(b) (3) ;. 10 U. S. C. $867(b) (3). To

the extent that the Court is burdened as the exclusive forum

* See United States v. Bevilacqua, 18 USCMA 10, 39 CMR 10

(1968) ; Gale v. United States, 17 USCMA 40, 37 CMR 304 (1967) ;

_ United States v. Frischholz, 16 USCMA 150, 36 CMR 306 (1966).

a ty EE OR VET BS ban nnn FIRS ioe

“

from. which ell

primary role of ppellate tribunal.”

(2) The very nature of a habeas corpus writ requires the

presence of the pefitioner at his hearing. However, it would

be’extremely impracticable for military authorities to trans-

port prisoners great distances to Washington, D. C. to ap-

; pear before the Court of Military Appeals. Cf. Johnson

¥. er, 339 U. S. 763 (1950) :

MA basic consideration i in habeas ‘eorpus practice is that

the prisoner will be produced before the court. This

is the vi of the statutory scheme established by

Congress; indeed, it is inherent in the very term

‘habeas corpus’.” And though production of the pris-

i8 During the fiscal” year 1967, 794 cases were presented to the

Court of Military Appeals for review. Of that number, 30 were

forwarded on certificates ofsa Judge Advocate General. Of the

remaining 764 cases, the Coyrt granted review-in 102 cases. Annual

Report of the U. 8. Court of Milstary Appeals, and the Judge

- ' Advocates General ... etc. . For ‘the period July 1, 1967 to.

December 31, 1967, p. "5. Thus, ‘the Court of Military Appeals was

able to review only 13% of the cases presented to it. If it were

. burdened, in addition to its appellate caseload, witli the inevitable

’ avalanche of habeas corpus cases which would result front-a deter-

mination: that all military habeas petitions must originate in the

Court of Military Appeals, its primary appellate function would

be seriously undercut. -

‘During the 1967 Term, this Court disposed of 2946 eases. Of

that number, 455 were disposed of on the merits and ‘the remainder

were disposed of by the denial or dismissal of a petition for cer-

tiorari. The Supreme Court, 1967, 82 Harv. L. Rev. 303 (Table 1):

Therefore, this Court was able to review approximately 15% of the

cases presented to if. If, suddenly, this Court were burdened with

_a spate of cases requiring it to hold evidentiary hearings, in addi-

tion to its appellate caseload, it would, of course, be severely taxed

beyond its physical capability. Yet that is precisely the impact<

which a decision. requiring all military habeas corpus petitions to

originate in the Court of er Appeals would have upon that .

court. — s

® eee:

ilitary habeas corpus petitions must be .

launched, it will\be correspondingly less abte to fulfill its -

ean Ba TRS <2: 9

oner may be dispensed with where it appears on the

face of the application that no cause for granting the

writ exists [citing cases] we have consistently adhered

to and recognized the general rule.” 339 U. S. at 778."*

(3) It will be virtually impossible for military prisoners

to secure civilian counsel to initiate a writ in the Court of

M ‘itary Appeals. It would be prohibitively expensive for

a military prisoner detained in New Mexico or Hawaii, for

_ example, to secure civilign counsel willing to travel to

3 Washington, D..C. in order to initiate a habeas corpus

proceeding.

_ (4) The Court of Military Appeals does- not sit during

the summer months. The very fact that the Court of Mili-

tary Appeals recesses for the summer indicates that it does

not view itself as the exclusive forum within which.to ini-

tiate a habeas corpus writ challenging ‘the legality of mili-

tary detention. | , ie 1

(3) Hesitani quality of Court of Military Appeals

practice on extraordinary rit application.

Moreover, even if these practical obstacles did not exist,.

there would be a serious question as to whether. the Court.

of Military Appeals ‘could he expected: to grant habeas

' ™ Even under motions pursuant to 28 U. S. ¢. §2255, in lieu of

habeas corpus, this has ruled that a defendant’s presence at a .

§2255 hearing is required whenever an issue of fact is to be deter- - wz

mined. United States v. Hayman, 342 U. S.-205 (1952). In Hay- Psi

man, this Court noted that a major purpose underlying the enact-

ment of §2255:was to alleviate the congestion caused by the prior ©

practice of requiring post-conviction applications to be heard: in

the district of confinement by effecting a decentralization of habeas

corpus applications. Requiring all military habeas corpus applica-

- tions to be centrally heard by the Court of Military Appeals would

4 pri the same kind of evil which Congress sought to remedy via

2259...

: corpus relief with the same “solicitude for the vigor of

the Great Writ,” Johnson v. Averyj37 U. S. Law .W. 4128,

4129 (Feb. 24, 1969), as is regularly demonstrated by Fed-

eral courts.

The Court of Military Appeals has ahagted that it

“can exercise habeas corpus jurisdiction,** and this Court

has: noted such assertion, see United States v. Augenblick,

89 S. Ct. 528, 531 (1969). But the history of the Court

‘of Military Appeals’ performance on applications for a

habeas corpus writ does not yet show a single instance of

the writ being sustained.’* It is one thing to assert that

“an accused who has been deprived of his rights need not

go outside the military justice system to find.relief in the

. civilian courts of the Federal judiciary”; United States v. .

Bevilacqua, 18 USCMA 10, 12, 39 CMR 10, 12 (1968) ;””

see United States y. Augenblick, supra. It is another thing

to actually demonstrate that it is disposed to grant the

relief. Saying so doesn’t make it so.’ 7

18 See hon v. Resor, supra, and cases cited in fn. 12 supra.

Ibid. %

17 In Bevilacqua, the Court of Military Appeals, after making this

- broad assertion, and citing two Federal court decisions which

severely criticized military justice; Application of iy og 246

F. Supp. 316 (D. Utah, 1965), and Ashe v. McNamara, 355 F. 2d

277 (1st Cir. 1965), proceeded to deny relief. _—_.

After the decision of the Court below, counsel for Dr. ( Captain)

Howard. Levy filed a petitionw for a writ of habeas corpus with the ° .

Court of Military Appeals challenging the legality of Dr. Levy’s

_ incarceration at Fort Leavenworth during the pendency of his

- military appeal. The petition alleged that such incarceration was

_ a clear violation of Article 71(c). The Court denied the writ five

days after the petition was filed without permitting either briefs

or oral argument: No opinion was rendered. Dr. Levy’s challenge

to his incarceration at Fort Leavenworth is currently pending in

the Tenth Circuit. See Levy v. Dillon, #78-68 ee before

Tenth Cir.).

18 At least two Federal Courts of Appeals as noted the silence

of the Court of Military Appeals on the crucial question of whether

Petitioner has no reason to doubt that, in good time, the

Court of Military Appeals will, in practice, entertdin and

grant habeas corpus applications with the same vigor as

that exhibited by Federal courts. The Court of Military

Appeals. has certainly ‘shown that, in the exercise of its

regular appellate jurisdiction, it stands ready to guarantee

and enforce the constitutional rights of servicemen. See

United States v. Tempia, 37 CMR 249 (1967); ef. Warren,

“The Bill of Rights and the Military”, 37 N. Y. U. L. Rev.

181, 189 (1962). But the development of a new jurisdic-

tional head is always a slow process. See Monroe v. Pape,

365 U. S. 167 (1961). It is therefore no criticism of.

the Court of Military Appeals, but merely a recognition

of the inherent limitations in the process of jurisdictional

evolution, to contend, as petitioner does, that at this time

in history, the Court of Military Appeals is not a tribunal

which can provide adequate, effective and practical relief.

(4) No bar, by way of comity or otherwise, to

concurrent habeas corpus jurisdiction.

Finally, even'if the Court of Military Appeals should

eventually fulfill the promise it made in the Bevilacqua

case, and relieve the frustration caused ‘by its failure. to

act heretofore, it has never claimed, in Bevilacqua or else-

where, that it should have exclusive habeas corpus juris-

diction in cases involving military prisoners. As the’ Court

-@ wrongful denial of conscientious objector classification can be

asserted as a defense to a court-martial proSecution for disobedience

of an order: Brown v. McNamara, 387 F. 2d 150, n. 5 (3d Cir. -

1967), cert. den. 390 U. S. 1005 (1968) ; Hammond v. Lenfest,

398 F. 2d 705, 713 (2d Cir. 1968). In United States v. Noyd, —

petitioner’s direct appeal from his court-marti*! conviction, the

Court of Military Appeals has indeed granted revicw, and ‘specified

this very question as one on which review was granted. But whether.

_ the grant of review will result in a grant of relief is yet to be seen.

of Claims has aptly siaeaiolid: “ .. the existence of. the

. Court of. Military Appeals does not onselinile consideration

~ by this court. ...” Augenblick v. United States, 377 F. 2d

586, 593 (Ct. Chee. 1967), rev’d on other grounds, 80 S. Ct.

528 (1969). :

_ There is no reason, in law or judicial policy, why habeas

corpus jurisdiction over military prisoners cannot exist

concurrently in the Court of Military Appeals and the Fed-

eral District Courts, just as concurrent jurisdiction has.

been recognized over state prisoners as between this Court —

and Federal District Courts. Fay v. Noia, 372 U. “ 391

. (1963).

It may be eee that since, as‘a matter of comity, Fed-

eral District Courts have refrained from exercising habeas

corpus jurisdiction until the state appellate processes have

been exhausted, a similar notion of comity — apply to

’ military situations.

_ However, it is well settled that the decision of the Fed-

eral courts to refraim from exercising habeas corpus juris-

dietion prior to the completion of state appellate remedies:

is based upon the intrinsic respect which the Federal Gov-

- ernment rhust accord to the sovereignty of the states of the

union. In our Federal system, the states are supreme in

their proper spheres of action. Therefore, it would be an.

affront to the federalist concept of mutual sovereignties -

for the Federal courts to presume to review the act of a

sister sovereignty. until that sovereignty has fully acted.

In the case of the Court of Military Appeals, however,

_ there is but one sovereignty—the United States of America.

Since comity, by definition, is the respect which one sov-

ereign entity entertains for the acts of another, no principle

of comity requires a Federal District Court to refrain from

exercising its traditional function as guardian of the liberty

_of any person unlawfully detained by an arm:of the gov- -

ernment of the United States. In fact, in Fay v. Noia, 372

U.S. 391 (1963), this Court ruled that it was not neces-

sary for a state prisoner to unsuccessfully petition this

Court for a writ of certiorari to the highest state appel-

‘late ‘tribunal prior to, seeking habeas corpus relief in a

__ Federal District Court. Fay v. Noia, supra, is particularly

instructive because it illustrates that the existence of one

. Federal remedy (appeal to the. Supreme Court of the

United States) does not prevent a Federal District Court

from exercising concurrent habeas corpus jurisdiction.

Since Fay v. Noia, supra, held that a parallel Federal

- “remedy: in the Supreme Court would not bar: concurrent

habeas corpus jurisdiction: in the Federal District Court,

it follows, a fortiori, that the existence of a parallel Fed-

eral remedy in the Court of Military Appeals cannot’bar _

concurrent habeas corpus jurisdiction in a Federal] Dis-

trict Court.”

The issue here is not whether the Court of Military Ap-

peals might have had jurisdiction to grant relief in this

case. It is rather whether the Federal Court in New

Mexico was denied jurisdiction. The history of this case,

as well as the preceding discussion, amply supports the

conclusion of Chief J udge Payne that:

ve ae circumstances present here are such as to

render the military remedy process ineffective to pro-

tect the petitioner’s rights.” 285 F. Supp. at 788, App.,

p. 20.

7° Another example of parallel Federal remedies is the concurrent

jurisdiction which the Tax Court and the Federal District Court

Possess in the area of Federal taxation. Compare, 28 USC 1346 (a)

with IRC. §7441, et seq. (1954). .

. eee

; (c) Conflict between the circuits,

In the light of the marginal residual validity of the ex-

haustion doctrine, especially in situations where the chal-

lenged action is clearly beyond the power of the agency in

question, and the plain inadequacy and ineffectiveness of

the purported military remedies, it is not surprising that

a conflict has developed between the Court below, and other

courts of appeals on the question of whether the doctrine -

of exhaustion precludes Federal habeas corpus for Amer-

ican military personnel.

In Noyd v. McNamara, 378 F. 2d 538 (10th Cir. 1967),

cert. den. 389 U. S. 1022 (1967), and again in Noyd v.

Bond, 402 F. 2.441, the Court below adopted an extraor-

dinarily restrictive view of the power and duty of the

Federal courts in this area. The Tenth Circuit, in Noyd

-y. McNamara, supra, declined to rule on the merits of

Captain Noyd’s substantive defenses prior to his. court-

martial, and now in Noyd v. Bond, has prevented: a Federal

District Court from enjoining petitioner’ Ss premature in-

carceration pending appeal.

In Hammond v. Lenfest, 398 F. 2d 705 5 (2d Cir. 1968),

however, the Second Circuit adopted a jurisdictional posi-

tion squarely at variance with that of the Tenth Circuit.

In Hammond v. Lenfest, supra, the Second Circuit ruled

that a serviceman was not obliged to submit, to a court-

' martial prior to raising his defense ‘of conscientious ob-

jection in a Federal court. In so holding, the majority

explicitly rejected the reasoning of the Tenth Circuit in

Noyd v. MoNamara. See also, U. S. ex rel, Mankiewics

vy. Ray, 399 F; 2d 900 (2d Cir. 1968).

In In re Kelly, —~ F. 24 —~, 37 U. S. Law W. 2165

(5th Cir., Aug. 30, 1968), the Fifth Circuit also explicitly

rejected the reasoning of the Tenth Circuit in Noyd and’

chose to adopt the reasoning of the. Second Circuit in

Hammond. The Fifth Circuit stated: |

“In Noyd v. McNamara, . . . the Tenth Circuit consid-

. ered the courts were without jurisdiction to entertain

the suit pending exhaustion of military justice pro-

cedures. In Hammond v. Lenfest, 36 U. S. Law W.

2765 (2d Cir., Juné 10,1968), the Second Circuit, in

a 2-1 decision, rejected Noyd and went the other

way...

“We view the requirement of exhaustion as did the ma-.

jority in Hammond. eee pee

See also Powers v. Powers, 400 F. 24 438 (5th Cir. 1968) ;

Brown v. McNamara, 387 F. 2d 150, 153, n. 5 (3d Cir. 1967),

cert, den:"390 U. S. 1005 (1968) ; Crane v. Hedrick, 284 F.

_ Supp. 250 (N. D. Calif. 1968). . |

Thus, a sharp conflict between the circuits exists as to

the nature and extent of the duty of Federal courts to

entertain applications for writs of habeas corpus challeng-

ing the lawfulness of~military detention. In view of the |

extraordinary ‘importance of the writ of habeas corpus,” =

20“This Court has constantly emphasized the fundamental im-' .

portance of the writ of habeas corpus in our constitutional scheme

+...” Johnson v. Avery, 37 U.S. Law W. 4128, 4129 (Feb. 24,

1969). “... . its history is inextricably intertwined. with the. growth

of fundamental rights of personal liberty. For its finection has

been. to provide a prompt and efficacious remedy for whatever

. Society deems to be intolerable restraints. Its root principle is that

in a civilized society, government must always be accountable to

the judiciary for a man’s imprisonment: if the imprisonment can-

petitioner respectfully urges that this Court should declare

that the Tenth Circuit is wrong, and that the Second, Third

and Fifth Circuits are right.”

In addition, the restrictive jurisdictional position of the

‘Tenth Circuit ignores a well-established body of, case law

which upholds Federal habeas corpus jurisdiction to ‘Te-

view the prapriety of military post-conviction restraint.

Gibbs v. Blackwell, 354 F. 2d 469 (5th Cir. 1965); Levy v.

Resor, —— F. Supp. —— (D. S. C. 1967), aff’d 384 F. 2d

689 (4th Cir. 1967), cert. den. 389 U. S. 1049 (1968); Levy

v. Dillon, —— F. Supp. “~— (L-543, D. Kans., July 29,

1968, 478-68, 10th Cir., argued Jan. 21, 1969) ; see Green

v. Schilder, 162 F. 2d 803 (10th Cir, 1947) ; Kelly v. Hunter,

80 F. Supp. 851 (D. Kans. 1948); Sweet v. Taylor, 178 F.

Supp. 456 (D. Kans. 1959). In all of-these casés, regard-

less of the ultimate decision on the merits, Federal.courts —

accepted jurisdiction notwithstanding the absence of total

exhaustion of ‘all military remedies. =:

Finally, the Tenth Circuit’s jurisdictional position casts

doubt upon the established procedure of submitting to in-

duction and challenging the validity of the induction order

_by an application fpr a writ of habeas corpus to the ap-

propriate Federal District Court. See Witmer v. United

* “not ‘be shown to conform with ‘the fundamental srequirements of

law, the individual is entitled to his. immediate release.” Fay v.

Noia, 372 U.S. 391, 401-402 (1963). :

ey Chief Justice has observed that:

.“‘When the authority of: the military has such a sweeping capac-

ity for affecting the lives of our citizenry, the wisdom of treat-

ing the military establishment as an enclave beyond the reach

of civilian courts almost inevitably is drawn into question.”

Warren, The Bill of Rights and the wie lati 37 ” . 3 U. L.

Rev. 181, 188 (1962).

States, 348 U. §.-375 (1955); Eagles v. United States ex

rel. Samuels, 329 U. S. 304 (1946) ; Gibson v. United States,

829 U. S. 338, 359 (1946). According to. the rationale of

the Tenth Circuit, such applications may not be heard in

a Federal Court until the applicants have exhausted every

conceivable military forum, including court-martial pro-

ceedings. See Noyd v. McNamara, supra. Such a result

would be an unconstitutional suspension of the writ of

habeas corpus. See Gusik vy. Schilder, supra, 340 U. S. at ;

132; Hammond v. Lenfest, supra, 398 F. 2d at 713-714.

POINT II

. General Court Martial Order #13 ordering Captain

Noyd confined in the United States Disciplinary Bar-

racks at Fort Leavenworth “pending completion of ap-

pellate review’’ violated the Uniform Code of Military

Justice. ‘ | 4

mites

_ Article 71(e) of thé Uniform Code of Military Justice, —

10 U. S.C. §871(c): provides: ae

“No sentence which includes, suspended, a dishonor- .

able or. bad-conduct discharge, or confinement for one

year or more, may be executed until : affirmed by a

board of review and, in cases reviewed by it, the

Court of Military Appeals.”

Sinces Captain Noyd was. sentenced to one year’s con-

finement and dismissal from the service, he clearly falls -

within the protection of Article 71(¢). Insofar as the “dis-

missal” aspects of Captain N oyd’s sentence are concerned,

the Air Force authorities have fully complied with Article

71 and have made no attempt to execute the dismissal, Un-.

fortunately, they have not shown as scrupulous a regard

for the impact of Article 71 upon the confinement aspects

of his sentence. In disregard of: the wording of Article

71(c), appellees confined Captain Noyd at Cannon Air

Force Base since March 9, 1968; and, on May 10, 1968, at-

‘tempted to intensify that incarceration by ordering him

imprisoned in the United States Disciplinary Barracks at

Fort Leavenworth, Kansas, “pending the completion of.

appellate review.” GCMO #13, App:, p. 30. Only the inter-

vention of the Federal District Court for the District of

New Mexico, in response to Captain, Noyd’s petition for

a writ of -habeas corpus, prevented the incarceration of

Captain Noyd in Fort Leavenworth. \Noyd v. Bond, 285

F. Supp. 785 (D. N. Mex. 1968). The propriety and cor-

rectness’ of that Court’s act is now at\ issue before this

Court. ,

Often, when civilian courts become embroiled in military”

matters, an argument may be advanced that the unique

character of the military establishment requires that civil- °

ian courts abstain from interference whenever possible. ~

_ See, Noyd v. Bond, 402 F. 2d 441, 443, n. 6 (10th Cir. 1968)

(App., p.. 22), Such an argument is particularly inap-

propriate in this ease because the power of the civilian

judiciary has been invoked, not in derogation of military

law, but rather in support of the integrity of the military

- appellate process as provided by the Uniform Code of

Military Justice: 10 U. S. C. 800 et seg. If it is-possible,:

‘as was attempted here, for a commanding officer to effect.

the de facto execution of a one year prison sentence prior |

to the completion of the military ‘appellate process, in

‘direct violation of the Uniform Code of Military Justice,

the integrity: of that appellate process is seriously com-

promised, if not destroyed. ..

A. Development of the Military Pee Process

The adoption of the Uniform Code of Military Justice

in 1951 climaxed a 40-year period in the evolution ef ‘mili-

tary justice, during which appellate jurisdiction passed

from a commanding officer in the field to an independent,

civilian court in Washington, D. C.

Prior to World War I, appellate review of military court

martial proceedings was generally confined to the field of-

- ficer who convened the court. Articles of War, 46 (1916); ,

39 Stat. 650, 657-8, - ee .

During the summer of 1917, a group of Negro soldiers

_ were tried at.Fort Sam Houston, ‘Texas, on charges arising

out of a disturbance on the military base. The field officer

“who convened the court’ martial reviewed the daily tran-

scripts of the trial and, after a finding of guilty and a sen-

tence of death, ordered the soldiers executed two days after

the court martial ended. Upon subsequent review, the

Army’s Judge Advocate General found that grave doubt

. | existed concerning the legality of the entire proceeding. The |

public outery was enormous. See, e.g. Post, What Is a

Crime, The Independent and Weekly Review, April 5, 1919,

Pp: 13; The Injustice of Military Justice, The: Literary: Di-

gest, April 12, 1919; New York World, January 19, 1919;

57 Cong: Ree. 877-78 (1918) +57 Cong. Ree. 3387-92, 3809, .

4502-08 (1919); 57 Poneto te App. 279-281 (1919) ; 58

_ Cong. Ree. 3938-40 (1919),. g

The “Houston Massacre,” as the incident came to be

known, coupled with a comparable occurrence at Fort Bliss, .

Texas, involving long prison terms precipitated @ torrent

of criticism which impelled the War Department to issue

General Order #7, providing that after February . 1918,

all court martials resulting in either death or dishonorable

~ Be ho ae

and

discharge would be wilidect to appellate review by a . mili- nS

-tary Board of\ Review — by the Judge Advocate —

General.

The experience of World War I rexaited i in geuaeed: agree- :

. ment that statutory provision for appellate review of

court. martial cases was desirable. ‘See generally, Brown,

- The Crowder-Ansell Dispute—The Emergence of General

Samuel T.Ansell,.35 Mil. L. Rev. 1 (1967). Consequently,

d ' the 1921 re-codification of the Articles of War provided

eee aie that in cases involving a general officer, dismissal, death,

or sentence to a penitentiary *he court martial record was

ED OG GOL LY IIe OIC

. PO Ee Sea

ieee

to be reviewed by.a Board: of Review appointed by the |

Judge Advocate General. -Articles of War 50% (1921), :

41 Stat. 787, 797; 10 USC 1472-1593 (1946).

Rs. Early in 1948, responding to widespread criticism of the

; operation ‘of the military appellate system during the

Second World War, Congress established a Judicial Coun-

- cil, comprised of senior military legal officials, to hear ap- .

peals from fie Boards of- Review. Articles of War 50

— (1949); Title II, Selective Service Act of 1948 (June 24,”

_ 1948); Pub. L. 759, 80th Cong. ; 62 Stat. 627. | |

Finally, with the adoption of the Uniform Code’ of “Mili- ©

tary Justice in 1951, Congress abolished the Judicial Coun-:

ceil and, in its place, created the Court of Military Appeals,

a three judge civilian appellate tribunal with jurisdiction

to review the findings of a Board of Review.

‘Thus, during 40. years and two world wars, appellate ju-

risdiction over serious court martial offenses has been

_ transferred from a‘field commander without legal training

- to an independent’ civilian court.. The establishment of a

: on

ae ee

' civilian court to oversee military justice has rightfully been

‘hailed as among the. most significant steps in the history of

military jurisprudence. Brown, The Crowder-Ansell Dis-

- pute, supra. At issue herein is whether this newly evolved

civilian appellate procedure is to be reduced, in many cases,

to a meaningless exercise in futility. For, if a military

prisoner may be compelled ‘to serve virtually his entire sen-

tence in a maximum security military prison before his

conviction may be reviewed by the civilian court, what mean-

ingful purpose does that review serve? _

The codifiers of American military law have recognized

.that if appellate review is to be meaningful, the execution

of the sentence being appealed must be deferred until the

completion of appellate review. Thus, since the Continental

Congress of 1776, whenever a court martial sentence has -

been subject to review by some higher authority, be it a

convening field officer, a Board. of Review, the* Court of

Military Appeals, Congress, or the President, military law

has provided that execution of that sentence must be de-

ferred until-completion of the appropriate review. Frachter,

.Appellate Review in Military Law, 14 Mo. L. Rev. 15

(aa. . j . ;

Sentences paralleled the‘evolution of the military appellate proce

The British Articles of War of 1774 provided that no sentence

of a general-court martial could be executed until reviewed by t

King or his designees. British Articles of War of 1774, Section 15,

Articles 10, 12, 13, 14. [Reprinted in Davis, Treatise on the Military

Law of the United States (2nd ed. 1909).] "4 |

‘On September 20, 1776, on the advice of General George Wash-

22 The prohibition upon the premature execution of court =

. ington, the Continental Congress adopted an almost literal version

of the British Articles of War. Section XIV, Articles 3, 5 provided: |

- : no sentence of a general court martial should be put into

execution until confirmed by Congress or the general or com- :

As long: as there has been’ an American military estab-

lishment, it has provided that coftrt martial sentences,

especially those involving heavy penalties, may not be car-

mander-in-chief of the forces of the United States.” 7 Journals

of Continental Congress 265.

In 1786, the Congress of the Confederation. repealed the 1776

Articles of War and adopted the following provision :

“But no sentence of a court martial -shall be carried into execu-

tion until after [review by field commander], neither shall

any sentence of a general court martial in time of peace, ex-

tending to the loss of life, the dismission of a commissioned

officer, or which shall in time of peace or war respect a general

officer, be carried into execution [until after review by Con-

gress}. All other sentences may. be confirmed and executed by

the officer ordering the court to, assemble . . . ” 30 Journals of

the Continental Congress, 316-322 (Article II).

Apart from substituting Presidential for Congressional review in

1796, no substantial change was made in the “non-execution” pro-

visions of military law until the Act of July 17, 1862, which pro-

vided: §« nt. ,

_ “And no sentence of death, or imprisonment.in the penitentiary,

shall be carried into execution until the same sh ave been

approved by.the President.” 12 Stat. 598. > \ te

In 1916, the re-codification of military law provided ;

“No sentence of a court martial shall be carried iato execution

until the same shall have been approved by the officer appoint- .

ing the court...” Articles of War 46 (1916) ; 39 Stat. 650,

657-8.. . .

“In addition to the approval required by article forty-six,

"*. confirmation by the President is required’ in the following

elasses of cases before the sentence of a court martial is carried

-into execution, namely «

{(a) sentences affecting general officers]

[(b) dismissals of officers]

[(c) dismissals of cadets] - ;

[(d) death ‘Sentences]” Articles of War 48 (1916). 39

‘Stat. 650,658. - :

’ The requirement of Presidential review of death sentences was

inapplicable during time of war. Th’; unfortunate omission per-

’~ mitted the occurrence of the “Houston Massacre.” See p. 45 supra.

(continued on next page)

pair stereasieme ae

49 .

ried into execution until the appropriate appellate proce-

dures have been. exhausted. As we have seen, those appel-

late procedures have expanded during the first half of this

- century to include review by a legally trained civilian. tri-

bunal. to

If military authorities are permitted to incarcerate mili-

tary prisoners at Fort Leavenworth prior to the completion

of appellate review, this painfully evolved appellate proce-

dure will have been dealt a crippling blow. If respondents’?

position is sustained it will, in effect; negate 40 years of

legal evolution. Once again, just as before World War I,

meaningful review in most cases will be confined to the field

officer who convenes the court martial, for his decision to

“temporarily” imprisén a military prisoner in a maximum

_ Security prison “pending appeal” will have the practical .

effect of forcing that prisoner to serve his sentence de facto

prior to any decision on-his appeal.

-— .

General Order #7, promulgated by the War Department in

February, 1918, prohibited the execution:-of sentences extending

to death, dismissal or dishonorable discharge until review by the

Board of Review. Thus, General Order #7, for the first time,

stayed the execution of serious court martial sentences pending.

review by a legally trained appellate-tribunal. |

In 1921, Congress once again re-codified military law incorporat-

ing the substance of General Order #7. See, generally, Articles

of War 46, 48 and 51 (1921) ; 41 Stat. 787, 797. “Sa ae

In 1948, Congress provided that life sentences ‘could not be

executed prior to review by the Judicial Council. Sentences in-

volving a dishonorable discharge or imprisonment in a penitentiary

could not be executed until affirmed. by a Board of Review. . See,

generally, Articles of War 47 and 48: (1948) ; 62 Stat. 627.

Finally, in 1951, Congress adopted the Uniform Code of Military |

Justice, which expressly barred the execution of death sentences,

_ dismissals, dishonorable discharges and jail sentenees of one year or

more until the completion of military appellate review. Article 71,

UCMJ ; 10 USE §871. ~ . :

B. Article 71(c) and Its Consistent Interpretation '

Given the importance of Article 71 in protecting the in-

“tegrity of the painfully evolved military appellate process,

it is not surprising that whenever the issue has arisen, mili-

tary appellate tribunals have ruled that Article 71(c) pro-

hibits the imposition of penal incarceration until the com-

pletion of military appellate review. :

In United States v. Smith, 2 CMR 817 (1952), the defen-

dant was seritenced by a Court Martial to one year’s im-

prisonment and a bad conduct discharge. The convening

authority approved the sentence and ordered the defendant

to the United States Disciplinary Barracks at Cumberland,

Pa., suspending only the bad conduct discharge pending

- appellate review. The Board of Review stated:

“The action of the convening authgrity insofar as it

purports to order into execution that portion of the ap-

proved sentence involving confinement, unsuspended,

, for: twelve (12) months is void:” Id. at 822.

In United States v. Ranes, 3 CMR 550 (1952), pet for

rev den 3 CMR 150 (1952), the Air Force Board of Re-

view was faced with a defendant who had been sentenced

to a dishonorable discharge and confinement to fhe Base _

Guardhouse at Reese Air Force Base for one year.’ The.

convening authority approved the confinement and ordered.

it executed. The Air Force Board of Review stated: .

“ _. the sentence ‘of the court j

_ order this sentence into execution, suspending only the

execution of the dishonorable discharge. The Uniform

Code of Military Justice, Article 71(¢) provides that.

cluded confinement for ~* .

one year, and the convening} authority purported to

Ciapdepinadhaes eBer e oeee in

— “ ‘AttaSii toe

_ ‘ & .

cea Mv ink Bok hart ” ca eth: Hsp Satiilen LBS

ane wt aren arin oh ee i SRN nl Set A ThA een Sec BE ct RL KAT eA tals a BL A: 61a meena hy bal 7 e

‘ 5 é

| 51

no sentence ‘which includes, unsuspended, a dishonor-

able or bad-epndiiet discharge, or confinement for one

year or more shall be executed until affirmed by the

. Board of Review and, in cases reviewed by it, the

Court of Military Appeals.’ The same prohibition is

contained in 98 of the Manual for Courts Martial

and is implicit in 188(d) of the Manual for Courts Mar-.

tial .. . Therefore, ‘that part of the action of the con-

Stalin authority purporting to direct risen of the

- Sentence is illegal.” Jd. at 581.

In United States: v. Moyer, 3 CMR 667 (1952), the a

fendant was. ‘sentenced to one year’s confinement. - The

Board of Review, citing Article 71(¢) of the UCMJ, and

88(d) and 498 of the MCM stated:

' “It is clear that the purported action of thé convening

authority ordering execution .was invalid.” - d. pp.

673-674.

The cases of United States v. Sarae, 9 CMR 633. (1953)

and United States v. Lucero, 18 CMR 942 (1955) provide

an excellent insight into the operation of Article 71(c) upon

sentences of one year or more. In both cases, the defen-

dants were convicted by court martial and sentenced to a.

Substantial fine, or, imprisonment of one year. In Sarae,

the convening authority approved the sentence and ordered

the confinement executed until the fine was paid. The Board |

of Review held that since the one year’s confinement. was

not punitive, but merely to compel. ‘payment of a fine, 71(¢c) _

did not prohibit execution of confinement prior to appellate

review. In Lucero, however, the Board reversed its de-

cision in Sarde and, _— Lucero released from confine-

ment, stated:

a — a

> % is inescapable that where there is the sinaitilihan =a

_ that the sentence may extend to a year or more, the.

_ sentence may not be executed by the convening author-

ity until appropriate appellate r review has been.com-

pleted.” Id, at 943.

See, also, United States v. Garcia, 17 CMR 88 (1954). The

import of the Sarae-Lucero decisions is ¢lear: No punitive

incarceration may be imposed upon a military prisoner sen-

military appeals.

‘In United States v. Hightower, 14 CMR 908 (1954), the

defendant was sentenced by a Court Martial to one year’s

confinement and a dishonorable discharge. The convening

authority approved the sentence and eanaren it into execu-

; tion, The Board stated:

“The action of the convening authority in this case

purports to order the sentence into execution. Since

- the sentence extended to a dishonorable discharge,

total forfeitures and confinement at hard labor for one

year, it cannot be ordered into execution until appel-

late review has been completed. Therefore so much

' tenced to one year or more until the completion of his

of the action as purports to order.the sentence into-

execution is illegal, void and a nullity.” Jd. at 911.

‘In United States \ v. Johnson, 15 CMR 583 (1954), the

Court stated:

“So much of the action of the convening authority as :

_ purports to direct execution of the punishment of

confinement and forfeitures is a nullity, since Article

71(c) of the Code forbids an order of execution as

SS Le ee

to any part of a sentence which includes confinement

for one year or more until sentence has been affirmed

« by a board of review and the Court of Military Ap-

_peals,” Id. at 584. |

In United States v. Emerson, 20 CMR 434 (1955), the 4

defendant was sentenced to one year’s confinement. -The

convening authority reduced the sentence to eleven months 3

and twenty-nine days and ordered ,it into execution. The-

Board stated: 7

: - ,

_ “It is evident that the reduction of the one year’s con-

.finement to eleven months and twenty-nine days was

made ir’order to permit execution of the confinement _

portion of the sentence prior to completion of appel-

_ late review.” Id. at 437. Le ied

On numerous other occasions, the military courts have .

recognized that execution of a sentence of one year or

_ More prior to appellate review is prohibited by Article

71(ec) UCMJ. Eg. United States v. O’Malley,.1 CMR 469

(1951); United States v. Duggins, 1 CMR 539° (1951);

United States v. Johnston, 2 CMR’ 759 (1952); United

States v. Ansell, i6 CMR 450 (1954); United States v.

Williams, 16 CMR 717 (1954); United States v. Mason, 16

CMR 795~(1954) ;. United States v. Doyle, 17 CMR 549

(1954) ; United States v. Lock, 36 CMR 72 (1965).

The District, Court below, in ruling that GCMO #13,

purporting to order Captain N oyd into confinement in Fort

*5 ‘We have recited the unanimous military authority ‘condemning

- the premature execution of a sentence to confinement in order to

emphasize that the respondent convening authority clearly exceeded

his statutory mandate when he purported to order Captain Noyd

confined to Leavenworth pending appeal. Cf. Oestercich vi Selective

Service System, 89 S. Ct, 414 (1968). | flee ee

SEE... SE

Re BT See PE RS EE ee ORE EO ESE HV OD

‘ .

Leavenworth “pending appeal” violated Article 71(c) fol-

lowed the holdings of the military courts when Judge Payne

stated: — a |

_ “There is disagreement as to whether petitioner’s in-

carceration at Fort Leavenworth would be-for the sole.

purpose of safekeeping, or whether it would be. con-

the Court that placing the petitioner in Fort Leaven-

worth would, in effect, constitute, in part at least, execu-

tion of the senterice. Petitioner’s sentence includes a

term of confinement for one year, and the Court holds

that the respondents cannot execute such sentence until

-such review procedures as are mentioned in, Article

‘ 71(c) are completed. | | 3

’

It is the Court’s ruling that ... the order confining ~

petitioner to Fort Leavenworth constitutes execution —

of his sentence and is void...” 285 F. Supp. at 787,

788. | :

C. The Meaning of “Execution” Under Federal Law

The interpretation given to Article 71(c) by the military -

_ courts and by Judge Payne below” is in accord with the

meaning which the: Federal Courts have consistently as-

cribed to. the term “execution.” * In each situation when

The Court of Appeals for the Tenth Circuit, below, in’ its

citation of the Smith, Ranes, and Lucero decisions, apparently is

in agreement with this unanimous reading of Article 71(c).

- 28 "The decision of the Fourth Circuit in Levy v. Resor, 384 F. 2d.

689 (1967), granting the Government’s motion under former Rule

>5 of the Rulds of the Fourth Cireuit for permission to transfer

- Dr. Levy to Leavenworth did not address itself to Article 71 (c).

at all, In fact, no argument under Article 71(c) was made to the

— _

—— —_

pe Re ed as Oe Oe ee ee APO SLOT RTT TY Oe bia eB nis Ls

the issue has arisen, Federal Courts have held that a sen-

tence to confinement is “executed” upon the initiation of

penal incarceration.

In Sweet v. Taylor, 178 F. Supp. 456 (D. Kans. 1959),

Judge Huxman was faced with.the problem of defining the

meaning of “execute” in military law: He stated:

“T° execute means to carry. out, to perform. It does

‘not connote to impose or to modify.” Id. at 460.

Thus, if imprisoning Captain _Noyd at Leavenworth is |

the de facto equivalent of “carrying out” any portion of

his sentence to confinement, it -constitutes a premature

“execution” of his sentence.”

In United States v. Murray, 275 U. S. 347 (1928), this -

Court ruled that a sentence to confinement is executed upon

the initiation of penal incarceration. Mr: Chief Justice Taft:

held that even one day’s penal incarceration constituted

_ the “execution” of a sentence to confinement.

In Affronti v. United States, 350 U. S. 79 (1955), this

_ Court expanded the Murray doctrine and ruled that penal

‘incarceration pursuant to the first of two consecutive sen-

'“U. §. Disciplinary Barracks, Fort Leavenwortli, Kansas” as his

tences “executéd” the second sentence as well. Cf. Peyton

v. Rowe, 391 U. S. 54 (1968). . Pass

Fourth Circuit by either party. A proceeding challenging the

lawfulness of Dr. Levy’s confinement to-Fort Leavenworth was

initiated in June, 1968 and is currently pending in the Tenth

Circuit.. Levy v. Dillon, 478-68 (10th Cir. argued Jan. 21, 1969).

26 The transparency of the attempt to “carry out” Captain’ Noyd’s

sentence to confinement is emphasized by the Staff Judge Advo-* —

cate’s Review of his Court Martial which explicitly designates

“Place of Confinement.”

' §6

D. The Effect of 21d of the Manual for Courts-Martial

It may be argued that the incarceration of Captain Noyd

in the Disciplinary Barracks at Fort Leavenworth would \

not constitute an “execution” of his sentence, but merely a

- form of “‘necessary zestraint” authorized by PHragraph 21d

‘of the Mahual for Courts-Martial. Such a subterfuge should

_ not be permitted to succeed. Military authorities, no more

than any other authorities, may not do by indirection what

they have been explicitly barred from doing diréctly. Cf.

Speiser v.. Randall, 357 U. S. 513 (1958).. They cannot

execute Captain ‘Noyd’s sentence in the guise of applying |

“necessary restraint. wf

We do not contend that Article 71(c) prohibits all post-

conviction military restraint pending appeal i in every case.”

We do assert, however, that it does prohibit incarceration

at Fort Leavenworth pending appeal.

The United States Disciplinary Barracks at Fort Leaven-

worth is a maximum security military prison. ‘Manual for

the Guidance of Prisoners: United States Disciplinary. Bar-

racks, Fort Leavenworth, Kansas (1967 ed.) (hereinafter

“Manual”).. Persons. confined to Fort. Leavenworth are

prisoners in the most literal sense of the word. At-Leaven-

worth an officer-prisoner sleeps in a room with bars on his

windows. Manual, Paras. 17; 54.’ He is unable to regulate

his hours of meals or sleep. Manual, Para. 24. He is con-

stantly under surveillance by armed guards. Manual,

Paras. 10;.23. He is required to dress in prison garb. Man-

ual, Para. 58. He is restricted to corresponding with five

27See Point ILI, infra pp. 57-64 for a discussion of the scope

anil nature of post-conviction restraint available under the Uni-

form Code of Military Justice.

‘ semantics, ..

a ~~ ~'s Mahi AAO Sy Ob hte a &. dh

57 Par ii

persons approved by the Prison Commandant. Manual,

Para, 37. All his mail, incoming and outgoing, is-censored.

Manual, Para. 36. His reading matter is closely scrutinized.

and he is unable to subscribe to periodicals of his choice.

Manual, Para. 38(d). He is permitted visitors only if they

appear on his approved list of five correspondents. Manual,

Para. 35. To argue that confinement to such an institution

is merely “necessary restraint” rather than the execution of

a prison sentence is, to Say the least, an exercise in cynical

‘ . POINT II

The confinement of Captain Noyd at Cannon Air Force

Base “pending appeal”. violated. the Uniform Code of

Military Justice. i |

From his sentencing on March 9, 1968 until December

24, 1968, when he was ordered released by Mr. Justice

Douglas, Captain Noyd was confined at Cannon Air Force

Base. From March 9, to early June, he was confined ‘to

his own quarters and forbidden to leave them without per-*

mission. From June 6 to December 24, he was confined

- to a room at: the Visiting Officer’s Quarters. See App., Pp. «

32. To the extent that Captain Noyd’s confinement at Can-

non Air Force Base was not reasonably required to insure

his presence, and was, therefore, punitive, it constituted 5

the ‘premature execution of his sentence to confinement

violation of Article 71(c) and Article 13 of the Uniforth

Code of Military Justice and Paragraph 18b(3) of ‘the

Manual for Courts ‘Martial. ~ ° ;

It may be argued that confining Captain Noyd at Cannon ;

Air Force Base was not punitive, but merely reflected. the

Pe tape a eee”

i eset 8 CARLO LG ae 5 BAS eaten biadeisde

Si PIE Ri ch nt MME Ae NE i ht Dei laine ae ie eat

‘ °

Bs sca TN IY) ate

. “ide

- ~“neces@ary restraint” authorized for post-conviction ‘aa

tary prisoners by Paragraph | ‘21d of the Manual for

visions. of the Uniform Code of Military | Justice, read in

mae conjunction with the facts of this case, indicates that any

_” form of physical’ confinement of Gaptain Noyd ais ap-

peal would be unlawful.

Article 13 of the Uniform Code of Military J Justice, 10° |

USC §813 provides: ,

- “No person, while — held for trial or the result of

trial, may be subjected to punishment or penalty other -

than arrest or confinement upon the charges pending

posed. upon him be any more rigorous than the circum- |

stances require. to insuré his presence. . .” (emphasis

added) Ze ‘

“Th United States v. Seairee, 12 CMR 73. (1953) and United

: States v. Petroff-Tachomakoff, 19 CMR 121 (1955), the

meee of Military Appeals has construed the phrase “held

for . ... the result of\trial” in Article 13 to include post-

conviction military personnel who were awaiting the results.

ae the military appellate process.% The Court held that

| paragraph 21d of the Manual for Courts Martial was the

regulation which authorized. commanders to impose “neces-

28 The Court of Military Appeals’ ‘reading of the phrase tregult ‘

of- such trial” as including persons awaiting the. results of the

appellate process is consistent with the use of the. word “trial”

elsewhere in the UCMJ. Article 44(b) UCM, dealing with double

jeopardy, states :

_ “No proceeding in which an accused hes been found guilty ie

- a eourt martial . ... is a trial in the sense of this article until

the finding of guilty has become final after review - the « case

-has been fully a .

_. the restraint was reasonably necessary to insure the de-

A > a ee

pies 45 outs Swe te as ie Sat,

at pS eres Rete TORR Ae ee RN AH Ci li " ~

sary restraint” upon post-conviction military personnel pur- oo

suant to Article 13 UCMJ. Since Article 13 is the founda-.

tion for the authority under MCM 21d, it follows that any |

“arrest” or “confinement” imposed pursuant to paragraph .

2l@maynot:~ or Ny

“be any more rigorous than the circumstances require : _

to insure [defendant’s] presence.” Article 13, UCMJ.

Therefore, if the confinement to which Captain N oyd has -

been subjected pending the completion ‘of ‘his appeals is

more rigorous than would be reasonably required to secure

his physical presence, such confinement is unauthorized and

illegal, since it is punitive in nature. ;

'. In United States v: Teague, 12.CMR-73 (1953), the de-

fendant had: been convicted of being AWOL. He was

placed under at-large arrest on the military base pending

~ the completion of his appeals. The Court approved the °*

imposition of this minimal post-conviction restraint, stating

that given the defendant’s past history /of AWOL, it was

reasonably necessary to secure his physical presence pend-

ing appeal. In United States. v. Petroff-Tachomakoff, 19 }

CMR 121 (1955), the Court affirmed the imposition of,

“base restraint” upon a defendant awaiting appellate re-

view of.a court martial conviction. The Court found that

fendant’s physical presence. The Court Specifically noted

that the restraint imposed in Petroff-Tachomakoff, supra,

was minimal. ae ree

In.both of these cases, the Court’s holding is based on:

‘the explicit assumption. that if post-conviction restraint

~, Were not necessary to secure the defendant’s presence, it

would be totally unjustifiable and unlawful.

60 : Xt : \

Picapiaue 185(3) of the Méwisl for Courtg-Martial

(1968 ed. ‘og restates the exact: language of Artiele , 13 -of

the Uniforin Code of Military Justice, which prohibits.

the imposition of restraint upon an aceused awaiting ‘the

’ results of hi appeal “more rigorous than the circum-

‘stances. uire to insure his. presence.” ‘Thus, under

paragraph 18b(3): of the MCM, confinemerit may not be -

imposed pending appeal unless reasonably snecestary to.

insure the physical présence of the accused. ‘Tn addition,

paragraph 18b(3) states: | “9 :

“Other than restraint wide as prsseribed ; in. n this met

| subparagraph (18b(3)). (restraint. reasonably required.

to insure physical presence], a ee punishment may

be-imposed upon an accused as a result of trial, by

court-martial until the sentence has been approved and

ordered/ executed.” 2 :

3 fi

It is respectfully submitted that it is. absolutely impos- |

sible to square the confinement imposed upon Captain

_ Noyd pending appeal with the mandatory. provisions of

‘ the UCMJ and the MCM.” The confinement was nothing

2° The 1968 edition of the Manual for Courts-Martial superseded

the 1951 edition, which contained the identical provisions. |

"Ie Levy v. Resor, 37 CMR 399 (1967 ), the Court of Military

‘Appeals held that a prisoner might, under certain circumstances, ~

_be confined |to quarters pending appeal. « However, in Levy confine-

ment .was defended by the military as necessary to insure Levy’s

physical —— It» was alleged, on remote-hearsay, that Levy

planned he country/if freed pending appeal. Unfortunately,

no evidentiary hearing on these allegations was ever afforded, Dr.

Levy, who has vigorously denied them. -~ . /

' No one has ever intimated the ee fear that — Noyd

—_

oan decision on his appeal jn express violation of Article 71(c)

+“ " and Article 13 UCMJ and 718b(3) MCM. f ee

- J

Fm ee

Since the incarceration imposed upon Captain N oyd was

neither “necessary” nor “required to insure. his presence,’’-

process, :

impose some form ‘of. post-conviction restraint pending .

appeal in the appropriate case. If it is reasonably neces-

Sary to insure the physical presence of -a defendant, cer-

tainly restraints may be imposed. In fact, military law pro-

vides a sophisticated array of restraints which may be im- »

posed upon a prisoner whose appeals are pending, A.

military commander may choose between placing a prisoner

$$ S—_ So

in a status of “arrest” or placing him in physical “confine

_ ment.” Article 9(a) UCMJ; Para, 18a MCM. By placing

@ post-conviction prisoner in “arrest” a commander im-

. poses moral restraints upon his freedom of action. Since

has recognized “arrest” or “restriction” 48 a means of im-

posing restraint short of physical confinement, See, para-

graph 139a MCM (1998 ed.): paragraph 19b & 19¢ MCM

- (1949 ed.);. paragraph 20 MCM (1951 ed.) : paragraph 20

_ Testraints at all were necessary, the moral restraint of

MCM ( 1968 ed.). In a ease such as the present one, if any

“Testriction” was certainly sufficient. Anything more oner-

ous, such as the physical confinement to ‘which Captain

We do not contend: that the military lacks the power ‘to -

‘Tess than an attempt to punish Captain Noyd prior to a.\" @

- hs >

initiate Sank 2 a aint

ie eatin a ie,

5 : : i See ‘ . 7 . .

“ ‘ i eg : é a

‘, * e Fs 62: . iia et ‘ a 2)

‘ ;* ‘ : . ° . ‘ ee

eo ¢ é

° ‘ ° - -

Noyd was subjected, is greater than is necessary to insure

‘his: physical presence and is, therefore, illegal.

We zespectfully suggest, therefore, that the proper pro-

cedure in this case would have required respondents to do

the following: - . ene Aa Poke a

a) Make a determination after trial as to_whether any

restraints at all were necessary to insure Captain

Noyd’s presence ‘at the completion of the appellate

as. -* TG el Y

' (p) If restraints were deemed necessary, to detetmine

__ .whether a form of “restriction” would be’ sufficient _

"to-insure Captain Noyd’s presence. = |

ee etic

Ta Only if it were determined that.“restriction” would

~~ pot be suffieient to insure his presence, impose physi--

cal confinement upon. Captain Noyd. |

a fair reading of |Articles 13 and 71(c) requires no less. __—

It may be argued that Article 57(b) ‘requires that Captain

Noyd be confined pending appeal because it provides that

‘periods of confinement.adjudged by a court martial are to |

"yun from the date of conviction. If Captain Noyd is-re-

leased pending appeal, the argument continues, he will, in

effect, serve his sentence while free of restraint because ,

his sentence will continue to-run, If: there is, in-fact, a

conflict between Article 71(c) and Artigle 57(b), as Judge

Payne observed, the conflict should be resolved in favor of

_ the aecused. However, no real conflict exists because this |

argument overlooks both the second portion of Article |

' 57(b) which provides:

N ..but periods during which the sentence to confine:

‘ ment is suspended shall be excluded in computing the

service of the term of confinement.” |

and the purpose of Section 57(b) as revealed by its |

tive history. “ ne

_ It seems clear that to the extent to which Captain Noyd

is free from physical confinement, his “sentence to confine--. + -

ment is suspended” and the running of his sentence is tolled.

In United States v. Bryant, 30 CMR 133 (1961), the Court.

of Military Appeals held that the imposition of 4 new sen- eae

tence by a second court martial suspended the running of -

a prior unexpired sentence. The Court stated: |

“|. itis worthy of note that Congress did not mention

all contingencies which would prevent an accused from _

. being credited with time served.” 30 CMR at 137.

One’ such contingency would ‘vertainly occur when pris-

oner is released from confinement pending apreal.”

_ The legislative history of Article 57(b) indicates that it

- was intended to reverse the practice of confining certain

prisoners pending appeal; but computing their sentences’:

‘to run only from the date the convictions were affirmed on

_appeal. Hearings before House Armed Services Committee

on H. R. 2498, 81st Cong., Ist Sess., pp. 1089-1090; House

Report No. 491, 8ist Cong., Ist Sess.,.p. 27. .Thus, its.

purpose was not to compel all prisoners to be confined

"U. 8. v. May, 27 CMR 432 (1959) held that no’ probationary

» suspensions could be vacated without a hearing pursuant to Article -

72.. However, no reasonable person could contend that a stay of

execution pending appeal, pursuant to Article 71(c), constitutes

a probationary suspension. See, Cone, The Death of the Technical -

Suspension, JAG Journal (Nov.-Dec. 1959), -p. 4.

————

~. pending appeal, but rather to insure that those prisoners

whose activities make confinement necessary pending ap-

peal receive credit for time served. Umited . States” v.,

Bryant, supra, 30 CMR at 138. i |

Thus, Article 57(b) provides no real obstacle: to com-

aa with. Articles 13 and bol Hea higee “4

we... POINT. Ww |

The continued ‘iiiccieinianiah imposed: upon Captain

_———Noyd p pending completion of the military appellate proc-

ess deprived him of his s liberty without due process-of

cepted the or of passing upon the merits of

. his defense. |

Captain Noya was convicted ‘of willfully disobeying a

direct order. to train student. pilots for duty in Vietnam.

His principal defense was that his request, for conscien-

tious objector ‘status or resignation. from the Air Force

= had been wrongfully denied by the. Secretary of the“Air

'YForce as a matter of law and that, therefore, the sub-

~ gequent order with which he was confronted was unlawful.

Cf. United States v. Sigmon, CM 416356, 1 SSLR 3054,

3055 (Army Board of Review, Jan. 2, 1968). (not yet offi-

| cially reported).

However, by an walovteiiadta interaction between (1) the

‘decision of the court below’in Noyd v. McNamara, supra;

(2) a violation of Article 71{c) of the Uniform Code of

_ Military Justice; and (3) the decision of the court below

~ in Noyd v. Bond, supra, petitioner served more than nine

months in confinement, and he is yet to receive a hearing

"on the inerits “of his pemene defense. The imposition of

ee ee eee

| tae penal ‘inearceration prior to permitting any hearing oh

Me Captain Noyd’s ae the most basic notions

of due process 6f Ww. oe ices aed -

, _ Absolutely fundamental to a rational view: of due proc-

—~ess of law is ‘the .concept- that ‘no ‘person may be- com- .

pelled to serve a sentence to confinement prior to a hear- iG

ing on his defense.** — cae 3

—

A brief summary of Captain Noyd’s strange and frus- -

. ', trating odyssey through the courts demonstrates that

‘although he has served more than nine months -of ‘his

.» One year sentence to confinement, no tribunal, civilian or

'. mnilitary; has ruled on the merits of’ his rincipal defense. :

Initially, Captain Noyd approached the United States

‘le was an Assistant Professor of Pgychology ‘at the Air *

Force’ Académy: Captain. Noyd contended that his appli-

cation for conscientious objeetor status ‘had’ been unlaw-

_ fully rejected by the Air Force and that he was in iinmi-

. ° nent danger of receiving an order which would conflict

» With his religious beliefs. Judge Doyle. initially granted a’

. preliminary injunction, staying the Air Force from plac-

ing Captain Noyd in a position where he would be forced _

by his religious beliefs to disobey..an order. ‘Woyd: v. Mc-

Namara, —— F. Supp. ——. (March 29, 1967). See Ap- .

‘ pendix, p. 48. pee ae? 28 ia

ee However, several weeks later, J udge Doyle dissolved

the injunction, ruling that he lacked Jurisdiction to con-

| .

‘- 8? Lewis Carroll ‘in “The Trial of the Knave of Hearts” has

' captured the bizarre quality of Captain Noyd’s dilemma: The Red

’ Queén insists that /the proper procedure is “sentence first, verdict

later.” Unfortunately, that is precisely what has happened to

Captain Noyd. ‘

_ sider the merits of Captain Noyd’s request for equitable

relief. Judge Doyle held that Captain Noyd must present

his claims to a court martial prior to seeking the assist-

ance of.the Federal Courts. Judge Doyle’s decision was .

affirmed by the Tenth Circuit, sed held that —

Noyd: °

“has not exhausted the ats process wad has not .

‘been denied, nor can we anticipate that he will be ~

denied, a full consideration of his constitutional rights

within the complete scope of that process.” 378 F. 2d

, 539-540 (10th nea esdcoids . | *

This Court denied slain 389 U. S$. 1022 (1967).

“In his Memorandum i in Opposition to the petition for cer-

tiorari in Noyd_v. McNamara, = camens General of the «

mae States argued: ‘

. if and when petitioner is ‘shteialty confronted with

an apr: ‘and charged with disobedience of it, he will

have the opportunity to present his defenses’ within

the traditional framework of court-martial proce-

dures, review boards, resort to the Service Secretary,

and request for relief from the Court of Military Ap--

peals.” Memorandum for the United States tn Op-

position, P. 3 > “

~ although petitioner contehded that the fedéral courts

would have been the appropriate forum to determine the

lawfulness of the denial of his claim for conscientious ob-

jector status, prior to.any court martial, -ef. Hammond

v. Lenfest, 398 F. 2d 705. (2d Cir. 1968), he accepted |

the refusal ‘of the courts to acknowledge jurisdiction and

. prepared to present his defenses to a court ae, 5 if

moreanasy.

‘Shortly thereafter, Captain Noyd was indeed con-

fronted with .an order which conflicted. with his religious

‘beliefs and, as was predictable, he found himself before a.

General Court Martial at Cannon Air Foree —_ Clovis, . |

New Mexico.

In keeping with the rulings of Judge Doyle and the 10th -

Cireuit and the authoritative statement of the Solicitor

General, Captain Noyd strenuously attempted to raise his

defense at-his court martial. But the Law. Officer ruled

- that, ‘notwithstanding the assurances of the 10th Cirenif - :

and the Solicitor General, a military court martial lacked —

the power to determine whether Captain N oyd’s: applica-

tion for conscientious objector statys had been| unlawf y

denied. See U. S. v. Noyd, Record of Trial, p. \B27. {. .

; decision of the eourt martial was affirmed, by an

Air Force Board of Review which also disclaimed ‘the

power to determine Captain Noyd’s defense. In its de-

. gision the Air Force’ Board of Review mated:

“Our decision | in ACM 20016, Dunn, a CMR —.,

. decided 1 May, 1968, answers the contention that the

_ Secretary of the Air Force made an: error of law in» |

denying the accused’s applications under AFR 35-24

for classification as a conscientious objector. In

Dunn, the defense likewise demanded .a judicial re-. -

‘ view within the court martial system of a Secre-

_ tarial determination that the accused was not entitled

to an administrative a as a. conscientious ob-

jector. We held:

. ‘The obvious answer is that such judicial review was

not within the jurisdiction of | the court-martial

which tried the accused. The jurisdiction of a court-

martial is a very limited jurisdiction derived from

SE ee eS

OT Ea Te ee

PO ny le SRT ee AS

v*-

- the power of the Congress, in Article I, Section 8, -

Ciguse 14, of the Constitution “To Make Rules for ae

the Government and Regulation of the. land. and

} naval Forces.” ’ [Citation omitted.] oes

ieee the Federal, not ‘the military, courts sidiieds

hae, iarisdiction in a proper case to review proceed-

ings under such military regulations ‘to —

whether there . has been substantive due ° process.”

[Citations omitted. } U. S. v. ‘Noyd. See App. PP. |

* 40-41,

The Air Force officers comprising the Board of Review

—as well as the Air Force Law Officer on the general

3 -eourt-martial—concluded that they lacked jurisdiction to

rule on Captain Noyd’s defense.” But other Air Force

officers, the respondents hereifi, lost no time ‘in confining

. him in spite of Article 71(¢) of the UCMJ.

After Captain Noyd had : ‘suecessfully protested to the

District Court for the’ District of New Mexico that his

imprisonment at Leavenworth pending appeal was unlaw-

_ ful, the Tenth Circuit reversed, holding, once. ‘again, that.

Captain Noyd had not exhausted his military remedies. -

Noyd v. Bond, 402 F.-2d 441 (1968).: Thus, the court be-

~ low ruled that although it had, apparently mistakenly,

‘remitted. Captain Noyd to a defense procedure that ‘did

> not exist, it would refuse to permit a federal. court to

. Save him ion serving his senténce prior to being afforded

_ any opportunity. ” secure a hearing on the merits of his .

defense. ? |

While the Tenth Cirenit and. the Air — Board of .

Review have mutually and respectfully deferred to ‘one

another “as nimbly as if dancing a quadrille,” . — v.

Willoughby, 345 US S. 83, 87 (1953), Captain Noyd has

served more. than nine months in confinement at Cannon

- Air Force Base (but for J udge Payne it would have been

_ at. Fort Leavenworth) before any court accepted the

responsibility of telling him whether his Pre claim

of conscience was valid. |

‘The responsibility of the Federal judiciary to prevent

the occurrence of the bizarre procedural dilemma. into

‘which Captain. N oyd has been thrust is manifest. There

can be no more classic use of the writ of habeas corpus than - ,

. the prevention of “sentence first, verdict later.”

POINT V

\ This case’ is not moot,

Captain Noyd was sentenced. to one year’s confinement on

March 9, 1968. His “minimum release date,” assuming

maximum time*credited for good behavior, was December

26, 1968. On December 24, 1968, ‘Mr. Justice Douglas

- ordered Captain Noyd released from confinement, pend- —

ing this Court’s determination of: his petition for a writ

of certiorari, in orde¥ to prevent the appeal herein’ from

becoming moot. 89 S. Ct. 478. On January 20, 1969, this

Court: granted Captain Noyd’s petition for a writ of

certiorari and continued Mr. Justice Douglas’ order pend-

ing. argument on the merits. 89 S. = 2. eee

88In granting the. petition for a writ of certiorari, this Court :

_ stated: “The petition. for a writ. of certiorari is granted and. the

ease is placed on the summary calendar. The stay heretofore

granted by Mr. Justice Douglas shall remain in effect: pending the

issuance-of the judgment of this Court or until further order of

this Court.” See App., p. 29. |

The Government, ‘in its two. memoranda submitted in

_ > opposition to the grant of certiorari, has suggested’ that,

notwithstanding the action of Mr. J ustice Douglas in

ordering: Captain Noyd released on December 24, 1968,

and’ notwithstanding the action of the entire Court on

January 20, 1969, in granting” certiorari and continuing |

’ Mr. Justice Douglas’ stay, the appéal ‘herein is moot.

The Government contends that Captain N oyd’s sen-

tence continued to run despite the actions of this Court

and, therefore, was fully served on December 26, 1968.

The Government’s mootness argument is premised ‘upon

Article 57(b) of the Uniform Code of. Military Justice,

10 USC §857(b), providing that sentences adjudged by a

court martial shall run continuously from the date of

conviction. Accordingly, so the Government argues, Cap-

tain Noyd’s sentence contintied to run after December 24, —

1968, despite the efforts of this Court to toll it. Petitioner

respectfully maintains. that the ———— of mootness is

erroneous.

First, eaten of any contrary provision of military

law; this Court possesses inherent power to preserve the —-

status quo in order to protect its jurisdictional integrity.

See United ‘States v. United Mine Workers of America,,

330.U. S. 258 (1947). Mr. Justice Douglas and ultimately

the full Court sought, by ordering Captain Noyd released

from confinement, to preserve the status quo as of Decem-

ber 24, 1968, in order. to prevent this appeal from be-

coming moot. This Court’s mandate may not be evaded

by simply pretending that it has no effect, ef. Clooper’ v.

Aaron, 358 U. S. 1 (1958). Certainly, the military estab-

4 See discussion of the tolling problem, supra, pp. 62-64.

lishment cannot shield its actions from judicial siiesilhieg ;

by asserting that sentences imposed by it may not :be:

- tolled, even by this Court in aid of its jurisdiction. See

Thompson v. Louisville, 362°U. S. 199, 202; n. 5 (1960) ; 5

_ In re Bari, 82 Sup. Ct. .675, 676 (1962),

Second, even apart from the ‘inherent power’ of this

Court to maintain the’ status quo in aid of its jurisdiction,

- the action of Mr. Justice Douglas, and ultimately the full:

- Court, in ordering Captain Noyd released effected a toll-

ing of his sentence under military law.

In United States v. Bra yant, 30 CMR -133 (1961), the

Court of. Military Appeals ruled that Article 57(b) could

not be mechanically applied to effect absurd results. The

Court ruled that Congress had not exhaustively enumer-

ated all of the contingencies which ‘would toll the running .

of a sentence. Clearly, one such contingency must occur :

when an accused is | temporarily ordered released by a

court.

- The asensi for Cuts Martial recognizes that a pris-

oner does not earn credit for time served when he is free

from confinement. 197e MCM. In fact, the third ee:

ef graph of Paragraph 97¢ provides:

“Periods during which the petiion undergoing sieh a

sentence ... is erroneously released from confinement

upon his petition ‘for a writ of habeas corpus under a

court order which is later reversed by a competent

tribunal, ‘shall be excluded in computing the service of

the time of punishment. is .

In addition to release | on habeas corpus, paxagraph- 97¢

provides me no credit sl an served may accrue while

Te wey

a prisoner is free after an escape or has secured his free-

dom through misrepresentation or fraud. Thus, it is plain

that the rationale of: 97¢ is that a military priséner who

has. been freed from confinement may not receive credit

. for time served during the period of his- release.*

Finally, the Government has conténded that the inear-

_ eeration to which Captain. Noyd was subjected at: Cannon

Air Force Base. did net actually constitute “confinement”

and was, therefore, not tolled by Mr. Justice Douglas’

order. The Government contends ; that Captain Noyd was

subjected merely to a form. of “arrest in quarters” rather :

~ than “confinement” and‘ that, while it may be possible to

toll a sentence to “confinement”, ” it is impossible to toll

a sentence to “arrest in quarters. m ;

By any objective standard of measurement, Captain

Noyd was subjected to a drastic deprivation of his per-

sonal liberty. He was ordered removed from his family |

quarters where he resided with his wife and two children

and incarcerated in a room in bachelor officer’ Ss. quarters ;

. he was permitted to leave the room only for meals, and

other specfied events such as chapel and a weekly 11%

hour exercise period; he was permitted to see his wife and

children only twice a week; his visitors were rigidly con-

trolled; he was not permitted to associate with any mili-

tary personnel, ev en. during his bi-weekly visiting period; _

he was required to notify base “Security Police Opera-

tions” whenever he left the room for any of the specified

reasoris; and he was subject to surveillance by armed

security police. Merely labeling- Captain Noyd’s incar-

5 ‘ ’

%5The éxamples of ‘ “inoperative time” contained in {97e are

explicitly non-exhaustive. They are merely examples which are

‘designed to illustrate a general principle.

ret 3 ee

_ eeration as “arrest in quarters” cannot obscure the objec-

_ tive reality of his confinement. |

"In fact, the military authorities have consistently viewed

conceded by the Government ‘that Captain Noyd. is en-

_titled to the maximum “good time” abatement from his ~

adjudged sentence. Ds is only by taking such an abatement ~

into consideration that the December 26, 1968, release date

has been computed. However, pursuant to a joint Army-

*Air Force regulation, “good time abatement” is available

only to. prisoners serving sentences to confinement. AR

_ 633-30; AFR 125-30. Therefore, by thé admission of the

~ 89S. Ct. 347 (1968).

military itself, the contention of the Government that Cap-

tian Noyd’s incarceration was not “confinement” is unten-

——

ssioners of Princess Anne,

Captain Noyd’s status as that of “confinement.” It is

—

: ‘

In Bus Employees y. Missouri, 374 U. 8. 74 (1963), this

Court refused to dismiss an appeal as moot when the under- —

lying dispute which had’ precipitated the appeal remained

: unresolved; creating the possibility that the allegedly moot

_ governmental action might be renewed in the future. See

also, South Pacific Terminal Co. v. I. C. C.,.219 U.S. 498

(1911) ; Carroll v. President and Commissioners of Princess

Anne, 89 8. Ct. 347 (1968).

Captain Noyd has been “restored. to duty pending the

outcome of his military appeals, If this Court determines |

‘ ; |

‘ r

ee ee a ee ee

Fe Se ee Te

that this appeal is moot, Captain Noyd would, once again,

be subject to’the very same cycle of order-refusal-court

martial-illegal confinement which brought him. to his pres- ~

ent plight.** Captain Noyd’s religious scruples remain un-

changed. The refusal of the Air Force to grant, him con-.

scientious objector status remains unchanged. Just as in

Bus Employees, supra, the underlying conflict.remains un-

’ resolved, If he is ordered to perform duties in violation .

of his conscientious peliefs, he may once again face a Geh-

eral Court Martial. To argue that Captain N oyd lacks a

“substantial stake”, Fiswick v. United States, 329 U.S. 211, —

222 (1946), in establishing that he may not be incarcerated”

until he has had an opportunity to appeal is. to —— the

reality of his present status. /

The <abinuabiiey of Captain N bat to a repetition of t of the:

illegal eonfinement to which he has already been subjected.’

reinforces the wisdom of the “continuous circumstances”

doctrine enunciated by this Court in Bus Employees, supra,

and Carroll, supra, which permits review of governmental

future, without regard to technical notions of mootness.

86 Any contention that the passage of the Military Justice Act

of 1968 has solved the problem of confinement pending appeal in

the military .is incorrect. The amendment to Article 57 UCMJ

(10 UG, S. C. §857), providing that prisoners may, in the absolute

~ discretion of the convening authority, be released pending appeal,

' does no more than codify the already existing power of a command-

ing officer to release a military prisoner pending appeal. See Levy

_v. Resor, 37 CMR 399 (1967), J21d MCM. There is no attempt to

define the nature and extent of the restraint, if any, which may be

imposed pending appeal if a convening authority chooses not to

+ utilize the new 57d. Thus, the asserted power to impose incar-

ceration pending appeal is not diminished by 574d.

In any event, the statute is of no application at all to petitioner,

to the large number of military prisoners presently in confinement

pending appeal,-and to any- other ‘servicemen who may receive a

court-martial sentence of. one year or more between now and sa ;

effective. scien of the new statute.

aioe a mentee

a, zai

CONCLUSION

The judgment of the Court of , Appeals should be re- -

versed. So much of the judgment of ‘the District Court as.

barred respondents from confining petitioner at the United

States Disciplinary Barracks at Fort Leavenworth, Kan- .

sas should be reinstated._So much of the judgment of the

. District Court “as permitted respondents to incarcerate .

——~ Petitioner at: Cannon Air Force Base, New Mexico should

be reversed. . Bi vata, BESS eo

\—~ Respectfully submitted, ~-

Marviw- M. Karparxry’ :

7 ' 660 Madison Avenue’ . |

pene | New York, New ‘York 10021 °—

. BY Sen Metvin L. Wor

SRA arene ne | Burt NEvsorne :

~~ 156 Fifth Avenue.

: a See ace New York, New York 10010

= ieee - Pav A/ Pamurs

. \ 520 Simms Building

re : x ; Albuquerque, New Mexico 87101

‘ ee ea Attorneys for Petitioner® .

_ Of Counsel: °° des BR ;

Joun DrJ. Pemserron, Jr. ~~ ;

Wim F. Reynarp ee

AuFrep H. McRag

Auan H. Levine |

' Raopa H. Karparxi

Micuar N. Powter e

February 26, 1969

* Attorneys for petitioner express their appreciation for the

valuable research assistance of Mr. Roger Dunwell, third-year stu-

dent at New York University School of Law. j ols

¢)

; , ‘ rd ' athe ‘as

ae | 3. on { ‘ . 3 . 7 / aEeK ; -%

~*~,

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.