Respondents Brief — Noyd v. Bond

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Opinions below------ - aa saieienies ak Ee aeapomea eco

Ee RN ce tee a ee a De EP

Questions presented _ <_------ od fea. ©

Statute and regulations involved________-_.--.--

ne ee wenn aaaenen

Summary of oa Formal aaa pitas

Argument: \ 3

I. The case may be at 3. RID EES

II. The court. of appeals properly .deter-

mined that the district court should —

not have exercised jurisdiction over the.

present action because petitioner failed.

to exhaust his military remedies ____-

'- III. Fhe Uniform, Code of Military Justice

and the Manual for Courts-Martial

authorized imposition of restraint-upon -

petitioner pending appellate review of

his.court-martial conviction _-_- -- ak

A. The proposed transfer to Fort

Leavenworth was legal_____- )

B. Military superiors have authority

to place a person convicted by

‘court-martial under restraint

pending appellate r review of his

conviction - _ SRS OP ey Nod OR

338-797—69——_1 . o

-i

| * Crrarions

Cases: :Y ; a

Beard v. Stahr, 370 U.S. 41_-_-- ibieg USE 33

Burns v. Wilson, 346 U.S. 137__--------2-- .29, 55

Bus Employees v. Missouri, 374 U.S. 74_---- . 23

. Carafas v. LeVallee, 391 U.S. 234_____-__._-_- ae

Carbo v. United States; 82 S. Ct. 662, review |

- ‘y “Gaeed, gee Ue. OOO... 55.22. -s....-.- 54°

» . Carlson v. Landon, 342 U.S. 524..--.------- 54

Carroll vy. President -and Commissioners of

; Princess Anne, 393 U. EE See . 23

- Clark v. Gabriel, 393 U.S. 256___.._------_- 34.

) ‘Dawkins v. Crevasse, 391 F. 2d 921___.------ ee

Eagles v. Samuels, 329 U.S. 304__.2--_------ 27:

: Fay v. Nowa, 372 U.S: 391-_---_--- Pie suemase 24

: _ Gallagher v. Quinn, 363 F. 2d 301, certiorari. -

‘ denied, 385 U.S. 881. ..2......---..---. i

Golden. v. Zwickler; No. 370, O.T., “1968, ens

decided March 4, 1969____---------- bine 23

Gorko v. Commanding Oficer, 314 F. 2d 858_- 34

. oe Gusik y. Schilder, 340 U.S. 128__-.--------- 8,

. 25, 28, 33, 34, 36, 45

_ International Longshoremen’ s Ass'n, Local 1291

. v. Philadelphia Marine Trade Ass’n, 389°

8 SEA a ae

Jackson v. Taylor, 353 U.S. 569. .__------- 46

Johnson v. Zerbst, 304 U.S. 458_--_.-------- 26 :

Kahn'v..Andersgn, 255 US. aS 18 i

Levy v. Dillon, 286 F. Supp. 593 _ -_--- 35, 42, 44, 50°

Levy v. ‘Resor, 17 U.S.C.M.A. 135, 37 C.M.R. j

SS Sian 5, 12, 31, 32, 33, 35, 50, 51, 54, 57, 58

Levy v. Resor, 384 F. 2d 689, certiorari denied,

389 U.S. 1049__.__ 12, 17, 32, 35, 41, 42, 50, 57, 58:

Noyd v. McNamara, 267 F. Supp. 701, ‘affirmed,

378 F. 2d 538, certiorari denied, ‘389 US.

Cicuee:

Oestéreich v. cae Service Board, 393 US. Seen

Sa os nasa aleiigcenth aided devi asaidl peace eee 27, 34

Orloff v. Willoughby, 345 US. 83_.--- 29,33, 34, 59 .

Peyton v. Rowe, 391 U.S. ESTO.

‘Reid v. Covert, 354 U.S. 1...------.-------+ 26

Stack v. Boyle, 342 U.S. 1__--------------- (33, 54

Sweet v. Taylor, 178 F. Supp: 456----------- 38, 44

Toth v. Quarles, an 26

Udall v. Tallman, 380 U.S. 1_.------------- 39

United States v. Augenblick, 399 U.S. 348.--- 20, |

29, 32,46 “

United ‘States: . Bevilacqua, 18 U.S.C.M.A.

10, 39 C.M.R. 10.....---- eeidatne te mae 31, 33

United. States v. Brown, 13 U.S.C.M.A. 333,

Ee Kn bednrsdbacswnanbeunenes 14

United States v. ‘Bryant, 12 U.S.C.M.A. 133,

30 C.M.R.:133- Pe aie cee biti 14, 18, 21, 22, 41, 50 .

United States v. Lucero, 18 C.M.R. 942... 31 -

United States v. May, 10.U.S.C.M.A: 358--. 17

United States:v. McElroy, 259 F. 2d 927, af-

firmed. sub nom. McElroy v. Guagliardo,

— 361 US. 281 selbih g-ck as slid at boise bens bach bea lace 26

United States v. Nelson, USCMA. No. .

_ 21,512, decided March 14, 1969_.---..-- 44,54

United States v. ‘Petroff-Tachomakoff, 5 US.-

C.M.A. 824, 19 C.M.R. 120__. _-- a. & = ae

- United States-v. Teague, .3 U.S.C.M.A. 317,

1 it © A, Siete eeeeree rn |

Whelchel v. McDonald, 340 U.S: 122___...-. 29, 46

Constitution, statutes and regulations: mu

United States Constitution, Article IIT_____- 11

Military, Justice Act of 1968 (82 Stat. 1335)_. 18, 54

Constitution; statutes and regulations—Continued . ;

- Uniform Code of Military Justice: ; ints

Article 9,10 U.S.C. 809______________- 2, 61

- . Article 9(a), 10 U.S.C. 809(a)_______- "_ 16,48

; Article 10, 10 U.8.C. 810.__-...__._._- . ° i

Article 13, 10 U.S.C. 813_________ 2, 50, 52, 53

->. Article 14, 10 U.S.C.-814_____........- 17

Article 36, t0 U.S.C. 836_____.-_____-- 20

Article 57, 10 U.S.C. 857__._---____-__- 2, 62

Article 57(b), 10 U.S.C. 857(b)__._____- - 6,

| 7, 12, 14, 16, 18, 19, 20, 21, 22, 24,.39, 50

““~. ° Article.58, 10 U.S.C. 858... 2 _..-....- 43

ae Article 71, 10 U.S.C. 871_____..--_-- 2,.17, 63 °

. ~~ Article 71(c), 10 U.S.C. 871(c)__---_-_- 4,

pee Ss 6, 9, 38, 42, 54, 55

Article 72, 10 US:C. 872......-...-... 17

Article 74, 10 U.S.C. 874___<_________- 17

RP ay | Ce meneece nen Sak geese 54

3 UBC. B108@)..-.>.......-.- E SN Tene 54

RN Ss ea isis ene Redunucnnws - 15

Apprehension and Confinement: , Military

Sentences to Confinement,: AR- 633-30;

AFR 125-80... ..427-..-....- 2, 15, 21, 70

Air Force-Manual 35-13: + Seo :

Pam, 200)... Sit. -.-<..-..5 13°

Air Force Manual 125-2: ; Pian

Porm. 2-16. -.5..2.4---- pls vine ehagicmnn 44, 55

elt tet hentcs eaween 45

te ace ie 3B 37, 41, 69 »

Bp cneneneenaer ye ene . 2, 40, 41, 69 .

FE Rick este naddnmneneee ebketicme 44

eR wi cbc pinta lien teenies em wie aiek 16

RE CRS, Fei a nti nccncdacncinemnicon: | |

_ Constitution, statutes and regulations-—Continued |

Manual for Courts-Martial, United. States,

1951: | oe a

+ ES ONE a snes ne etcin at aed alder = ee

Sonics hc i

PG Stans cannbews Bicdacvnsckax oo? ae

ak he eee

cS LN RENE eR

le ae ae Eee AO Meee, te

WOM ES vaniccus eens 55, 58

Paes. 28... 5. ree Aorta 6 1 a Fe Bt art a

ce ne, Ne I wns +39, 43

Para. 93._..-. Oe PORT ee _. 40, 43

Para. 97a___-_- pice tat g whiies aka ediaes mice ee

PG BO cbanwchedlencinse sapere NL

Para. O7e_...:-. een tesa aii ak es kc

| Shee:

Pe Cech andue was Ci ecenenae 39

MN aia nok kanaed anes aout 39

Miscellaneous: — | .

Manual for the Guidance of Prisoners, United.

States Disciplinary Barracks, Fort Leaven- 3

worth, Kansas (1967 ed.)____.----_--____- 45

F. R. Crim. P. 46(a)(2)_____- ena iy aeacdc ih 64

Hearings on H.R. 2498 Before a Subcom-

mittee of the House Armed: Services Com-

mittee, 8lst Cong., Ist Sess__________-___ 17, 18

H. Rep. No. 491, 81st Cong., Ist Sess_____—- 17

_§. Rep. No. 1601, 90th Cong., 2d Sess_____- a 18

i In the eine Gout of the Brited Se

OCTOBER TERM, 1968

No. 830

CAPTAIN DALE E. Noyp, PETITIONER

Masor QENERAL CHARLES R. Bann, J JR, Cosrntaviindes,

‘TWELFTH AIR FORCE, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

_ APPHALS FOR THE TENTH as al

a a

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of abhi: (A. 22-26)

is’ reported at 402 F. 2d 441. The opinion of the

: district court (A. 16-21) is reported at 285 F. Supp.

"185. ;

| . JURISDICTION

The | judgment of the court of appeals -was entered

on October 30, 1968. A petition for a “writ of certio-

pari was filed on December 13, 1968, and was granted

on January 20, 1969-(A. 29). The jurisdiction of this

Court rests on 28 .U.S. C. 1254(1).

ti;

f it: 2

P / ‘ Pe io vs

| QUESTIONS PRESENTED |

Bee ; .

1. Whether petitioner’s. present habeas corpus ac-.

tion, contending that post-conviction restraint ‘con-

stituted unlawful “execution” of his sentence to con-

_finement prior to completion / of military review of

his court-martial ‘conviction, has been rendered moot -

by the expiration of the sentence to confinement.

2. Whether the court of appeals correctly deter-

mined, in light of petitioner’s failure to exhaust his

available remedies within the military review system,

that the district court should not have entertained his

challenge to the restraint iniposed upon him.

3. Whether trae § of petitioner pending comple-

_ tion of military re a of his court-martial convi®tion

constituted “execu

the Uniform Code of Military Justice, or was other-

Wise unlawful.

STATUTES AND REGULATIONS INVOLVED

- The peftinent portions of the Uniform Code of

Military Justice (Arts. 9, 10, 13, 57, and 71, 10 U.S.C.

809, 810, 813, 857, and 871); the Manual for Courts-

Martial, United States, 1951. (paras. 18, 20, 21, an ‘.

97) ; Air Force Manual 125-2 (paras. 6-8 and );

5) are

and Air Force Regulation 125-30 éparas. 4

set forth in the Appendix, infra, pp. 61-70.

STATEMENT

1, After completing ‘an Air Force ROTC progra

as a distinguished military graduate in 1955, péti-

’’ of his sehtence i in violation of -

—e

1B rae 3

/ |

tioner accepted a commission as a regular officer in the

Air Force and has served on active duty since that

time. In return for Air: Force. financing of his gradu-

ate study for master’s and doctoral degrees, he

agreed to serve until June 1969. In 1966, while teach-

‘ing at the Air Force Academy, ‘he developed a belief

that the conflict i in Vietnam is immoral, and he sought,

# unsuccessfully, to be separated from the service or re-

assigned as a conscientious objector.’

\ Following his transfer to Cannon Air Force Base,

New Mexico, petitioner was ordered by his superior

officer to fly as an instructor with a student pilot, but -

he b wigs to do so (A. 37-38). On March 8, 1968,

he was convicted by a general court-martial of willful

disobedience of a lawful order (A. 4), anid on

March 9, 1968, he was sentenced to one year’s con- .

finement at hard labor, forfeiture of all pay ‘and

allowances, and dismissal from the Air Force. The

convening authority approved the sentence on May 10,

1968, and directed that, “ [plending completion of

appellate review, the accused will be confined in the -

' United States Disciplinary Barracks at Fort Leaven-

worth, Kansas” (A; 31). On September 3, 1968, the

Air Force Boagd of Review affirmed the conviction

(A. 35-47). A petition for review was granted, by the

United States Court of Military Appeals on Janu-

.* Petitioner’s challenge to the Air Force’s denial of his appli- ;

cations, and his request for an injunction against assigning him

to duties in connection. with the conflict in Vietnani, were de-

nied. Noyd v. MeNaniara, 267 F. Supp. 701.(D. Colo.). affirm

878 F. 2d 538 (C.A. 10), certigrari denied, 389 US. 1022 o

/ ae a \ Qi

. i ° - '

e 2 3 4 : . . :

| ary 23, 1969, and the merits of the court-martial con-

viction are presently pending before that court.’ 3

_. 2. Petitioner makes no challenge in this proceeding

\ to the validity of his conviction (see Pet. Brief pp.

. 22-23, 27-28). The present case involves only a dis-

: pute about the nature of the restraint which the mili-

tary imposed on petitioner pending final aaa re-

view of his conviction. ,

Following the order of the convening ‘weenie

designating Fort Leavenworth as the place of con-

finement pending appellate review, petitioner filed a

‘ petition for a writ of habeas corpus in the United

States District Court for the District of New México _

(A. 3-15), challenging his proposed transfer. té the

Leavenworth Barracks and seeking to be released

from the restraint of arrest in quarters, which had

been ordered immediately following his conviction.

The district judge held that a transfer to the Bar-

. tacks at Fort Leavenworth “would, in effect, ammount

to execution of the sentence” (A. 19). prior to com-

_ pletion of appellate review, in violation of Article

_ T1(e) ,of, the Uniform Code of Military Justice, 10

*The issues on which review was granted are (1) whether

the lower military tribunals properly held that it would not be:

_ @ defense to a charge of wilfully disobeying orders to show

_ that the Secretary of the Air Force had erroneously denied

petitioner’s application for separation from, the service or re-

ee assignment: on grounds of conscientious objection to the conflict

in Vietnam, and (2). whether, if such a showing woyld have -

made out a defense, the Secretary of the Air Force had prop-

erly ruled that petitioner was disqualified from conscientious

objector status because he has no, conscientious objection to par-

ticipation in war in general but only to the — hostili-

salam

Uz. g, 0. B71(c), and issued 2 judgment relieving peti-

tioner “from. the transfer order. The court refused, °

however, to order petitioner’s release from arrest in —

quarters, ruling that this was a matter for the exer-, y

cise of discretion by the appropriate military authori- «.

ties (A. 16-21). Thereafter, thé Air Force rescinded _

the transfér order and directed that petitioner be :

placed under arrest in quarters in a room in the Visit-

ing Officers Quarters at Cannon Air Force’ Base,

under restrictions permitting him to leave the room,

without escort, for certain routine activities (A. 32-34).

Cross-appeals were then taken from the unfavorable

portions of the district court’s order. The court of

appeals held (A. 22-26) that the district court shoyld

not have efitertained the adtion, since petitioner had

not exhausted his available military remedies—inter .. -

alia, by challenging the’ restraint before a Board of

- Review, or filing a petition for habeas corpus in the

.. United States Court of Military Appeals, pursuant

_ to that court’s recent decision in Levy v. Resor, 17

U.S.C.M.A. 135, 37 C.M.R. 399. ‘The court of appeals -

accordingly reversed the district court’s judgment

A granting partial relief to petitioner. This Court then -

granted certiorari to review that decision (A. 29).

{0 SUMMARY OF ARGUMENT

This case may have become moot by operation

‘ of law. “Petitioner’s principal contention in applying

for relief in the civilian courts was that his proposed

6 .

transfer to Fort Leavenworth would have consti-

tuted ‘*execution”’ of his sentence to confinement at

hard labor, forbidden by Article 71(c) of the Uni-

form Code * ‘of Military Justice until completion of

_ appellate rewew of the underlying ‘conviction. But

it is doubtful whether there remains any live contro-:

versy ‘between the parties on this-question since peti-

tioner’s sentence to confinement at hard labor has now

expired by operation of law, thus relieving him of any

risk of premature “execution” of that sentence.

Article 57(b) of: the. Code. directs that “a any period

of confinement ineluded in a sentence of a court-

‘martial begins. to run. from the date the sentence is |

adjudged * * *, ” As’ consistently interpreted by the.

as courts and as implemented’ by military regulations,

this. Article means: what it says: that a sentence to —

confinement begins to run from the. date it is pro-

nounced, ‘Trespectiv ‘eof whether the accused is placed

in confinement ‘or Js subjected to no restraint what-

soever. Petitioner SO. >. acknowledged in the district.

court. ,

Under the Code and the Yegulations, the deta

then runs continuously unless “suspended’’ or inter-

rupted by culpable absence from confinement. As

used in the Code, ‘‘suspension’’ of sentence refers

only to the determination of a reviewing authority to’ —

place the accused in a formal probationary status,

and’ the “sugpension”’ can be revoked only for cause

after a hearing. The. decision in: this gase not to con-

fine petitioner thus cannot be equated with suspension _

of his sentence for these asian :

RTO Ge Ee ee at ee ‘ aut > Seine

. ’ _

While the Manual for Courts-Martial and the regu-

lations contemplate other situations in which the run-

ning .of a sentence to confinement will be considered

interrupted, these ‘exceptions to the general rule pre- -

scribed by Congress purport to apply only when the

accused secures his release from confinement by. some

misconduct or culpable error, like escape or fraud. This

case presents no factors of this type which would sus-

tain a conclusion that petitioner should not receive the

credit generally required by Article 57(b).

et no time have we argued that the Court, or a

Justice, or other federal judge is without authority to

preserve judicial jurisdiction by tolling the running of

a military sentence in order to avoid mootness. But

respondents are uncertain whether such power was ex-

ercised in this case. The ofder entered by Mr. Justice

Douglas two days before~petitioner’ S sentence was to

expire made no reference to the mootness problem; it

. dealt only with insuring petitioner’s non-incarceration :

and his freedom from duties which might conflict with

_ his conscience. The order, in form and substance, ap-

‘peared to intend no more than to release petitioner on —

personal recognizance. In the absence of any express

indicatien that respondents were authorized -to treat

petitioner’ Ss sentence as an exception to the general.

rule éstablished by the Congress and Executive: regu-

lations, there may be no alternative to coneluding that

by force of law. petitioner’s sentence continued to run

until it expired shortly thereafter. We emphasize,

however, that the mootness of this case—which in- .

volves a collateral inquiry into whether certain re-

| ag? ‘ wnen ie URL TIE SS KS hx

Sod Ushi cage!

wi tl a Di es Denial efi Melle ey sai

‘straint was unauthorized “execution” of a sentence

now expired—would not. affect petitioner’s separate

proceedings in the Court of Military Appeals. to

Yeview his conviction. But when the underlying basis

‘for this. lawsuit ended, so in practical terms did the

“case’’ or ‘‘controversy’’ between the parties.

The court of appeals properly held that the district

court should’ have declined to entertain petitioner’s

action because he had failed to exhaust. his military

remedies. The exhaustion of remedies doctrine, which

this Court in Gustk. v. Schilder, 340 U.S. 128, held °

applicable to federal habeas Corpus review of military

poo courts-martial convictions, is equally appropriate

_ where, as in this case,- petitioner challenges only the

typé of restraint imposed upon him pending review of

his conviction. Application of the exhaustion doctrine

in the circumstances of this case not only serves to

avoid unnecessary litigation in the federal courts to

correct an alleged error which can be corrected by a

military tribunal, but it also ensures that prior to dis-

position by civilian judges, who are unfamiliar with

military discipline and the system of military justice,

claims raising difficult and important problems. of

military law have been given the fullest opportunity

for consideration and analysis by the tribunals which -

have been established exclusively to deal with them.

Petitioner’s opportunity in this case to test the le-

gality of the type of restraint in a habeas corpus ac-

tion in the Court of Military Justice was a prompt

28 Nee eC SB Pia Bir : |

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Bath Stents. Ahn @ tne Las te ssiatechtiinleiieiadiniestnne nea hii cpereete ata aa Oe

| ) 9

and fully effective remedy. His failure to pursue that

remedy before seeking federal habeas corpus relief

justified the dismissal of the application. ee

ae ae

If the.Court decides to reach the underlying ques-

_tions involved in the case, affirmance is nevertheless in

order. The Code and the Manual for Courts-Martial

contain clear authority for the order that would have

transferred petitioner to Fort Leavenworth penne

‘appellate review of his conviction.

The prohibition in Article 71(c) against “execu-.

tion”’ of certain sentences to confinement prior to

final appellate approval relates only to “carrying out’’

such sentences. But contemporaneous administrative.

construction, in the form of the Manual promulgated

by the President and the, regulations issued by the

' Service Secretaries, supported by judicial approval,

demonstrates that this provision does not forbid all

post-conviction restraint, including confinement, be- |

fore the sentence may be “executed.”’ Rather, military

authorities are authorized to take. appropriate steps _

to provide for the temporary custody of the accused

during the interim, and this temporary custody may

extend to a transfer to a United States Disciplinary

Barracks. The critical circumstance underscoring the .

conclusion that such a transfer is not ‘‘execution”’ of a .

sentence to: conftnement at hard labor is that military

regulations expressly direct that a person in confine-

ment pending review may not be required to perform .

hard labor. In addition, — at Leavenworth pend- .

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ing review, petitioner would have retained his rank

- with the privileges and respect attendant to it.

Insofar as petitioner seeks to protest the propriety

of the determination as to which form of restraint to

impose, a long line of cases in this Court establishes

that the civilian courts on habeas corpus are without

jurisdiction to review an’ exercise of discretion in

choosing among authorized alternatives as part of the ©

court-martial process. Petitioner has at various times

in this litigation conceded the key proposition that —

some post-conviction restraint is permissible, and thus

there would appear to be nothing left to litigate in

this proceeding. His concession is well founded, for ~

the Code evidently contemplates such restraint, rea-

sonable military regulations sanction it, and the Court -~

of Military Appeals and the Court of Appeals for the

Fourth Circuit have sustained it. Nothing in the Code

requires that the: sole criterion for post-conviction re-

_ straint be probable cause to believe the accused might —

flee. That standard would be narrower than that con-

stitutionally applied after conviction in the civilian’

courts, and there is no basis for coneluding that Con-

gress intended to reduce the. authority: of military

commanders to impose _post- -conviction restraints

' deemed appropriate under all. the circumstances. .

of a choiceymade within the court-martial process is ‘

not collaterally reviewable, we point out in any event

that there is evidently ample justification for the im-

position of restraint in this case. Petitioner’s superi- .

ors were entitled to consider the nature of the offense,

_ While this Court’s decisions hold that the wisdom \

AHA _ a |

the cmv for it, petitioner’s status as an officer, the

location of the air base, and the effect of unrestrained

movement on the efficiency and morale of the unit.

ARGUMENT

coe

THE CASE MAY BE oor :

Shor tly before certiorari was granted, we filed a

memorandum suggesting . mootness. Although the

Court did not direct that the issue be briefed, we,

like petitioner (Brief pp. 69-74), believe that full

discussion of the question at this stage is in order.

"While the Court may well conclude that our Sugges-

tion of Mootness turned: on an unduly teéhnical in-

terpretation of the release order issued by Mr. Justice

: Douglas, the following discussion is submittéd to set

forth, as part of the adversary process, the relevant

factors relating to the existence and exercise’ of this,

~ Court’s appellate jurisdietion under Article III of

the Constitution. 3

1. Petitioner’s sentence, including the pon of con-

finement, . was adjudged on March 9, 1968 (A.-31).

Prior to filing his petition for a writ of certiorari in

December 1968, petitioner applied to the Circuit Jus-

tice for release pending the disposition of the pro-

posed petition. He indicated that the relief requested

was necessary to prevent his challenge to restraint’

pending military review from ‘becoming moot, in view

of the fact that-his one-year sentence, taking into

_ account the time credited for good behavior, was due

to expire on December 26, 1968. The government, re-

OS Ba) Boe Bl ae wR a eT Vein é ny

sponding to the application, acknowledged that, by _

virtue of the. provisions of Article 57(b) of the Uni-.

form Code of Military Justice, 10 U.S.C. 857(b), peti- rn

‘ tioner’s sentence to confinement would indeed expire

on December: 26, 1968, thus rendering this action

.. moot. We nonetheless ‘opposed the granting of relief

on the dual grounds that, under established law as

settled by the Court of Military Appeals and the.

- Fourth Circuit, petitioner was not entitled to be re-

leased. : from arrest in quarters pending appellate re-

view, and. that, in any event, the underlying issue

sought to be posed had little significance for the

. future in light of the intervening passage of amend-

ments to the Uniform Code of Military Justice (ef-

fective August 1, 1969) providing for a procedure

similar to bail for persons awaiting review of their

court-martial convictions.

- On December 18, 1968, the Circuit J ustice denied

the application. On December 24, 1968, Mr. Justice

Douglas, to whom tlie.application had then been re-

ferred, entered an order providing that, until the full

Court had an opportunity to pass on the petition, “peti-

tioner should be. placed in a non-inearcerated status,

_ which as the District Court said,.should prevent his

superiors .from ‘assigning the plaintiff to combat ac-

tivity or requiring him to perform duties whereby he ©

will be perhaps faced with the necessity of a General .

Court Martial or other proceedings that might injure

3’ Levy v. Resor, 17 U.S.C.M.A. 135, 37 C.M.LR. 399: Levy

v. Resor, 384 F. 2d 689 (C.A. 4), certiorari denied, 389 U.S.

1049.

“n

him as a practical matter’” (A. 28). The Court, in

granting certiorari on January 20,1969, contmued the

stay granted by Mr. Justice Douglas.

2. The contention decided in petitioner’s favor in

the district court, which the court of appeals then held —

should not have been entertained, was his assertion

that the proposed transfer to Fort Leavenworth would

constitute unlawful premature “execution” of his sen-

tence to confinement. Thus, the linchpin of this issue |

is what constitutes ‘execution” of a sentence as that

term is used -in the Uniform Code of Military J ustice.

It would seem to follow that once the sentence to con-

finement has expired, the question of what forms of ~

restraint may he considered ‘‘execution” of the sen-

tence becomes academic. The possibility that the pres-

‘ent case may have become moot, in the sense that the

basis for the underlying dispute has disappeared,

arises from Congress’s provision in military law for a

unigue principle ‘for computing the commencement

*The language quoted by Mr. Justice Douglas appeared in a

temporary restraining order, Jater vacated for want of jurisdic-

tion, issued. by a district judge in petitioner’s prior action seek-

ing review ‘of the Air Force’s refusal] to release or reassign him -

‘-as a conscientious objector (A. 48-50). In the present context,

' petitioner would not have been assigned to duties inconsistent |

with his claimed conscientious objection even had Mr. Justice -

Douglas not so ordered. Under military, law, a person in arrest .

status, as petitioner was at the time of the release order, cannot

be assigned military duties involving command or the bearing

of arms. Manual For Courts-Martial, United States, 1951 [here-

inafter Manual], para. 20a.- ‘Furthermore, under Air Force regu-

lations, an officer sentenced to ‘dismissal by court-martial is

automatically disqualified from flying status. Air Force Manual

35- 13, para, 2-29(h).

and = duration of a’ court-martjal sentence - to

‘confinement. .

Article 57(b) of the Unifor m Code of Military J us-

tice (10 U.S.C. 857(b)), provides:

Any period of confinement included in a sen-

tence of court-martial - begins to run from the

date the sentence is adjudged by the court-

martial, but periods during which the sen-

tence to confinement is suspended shall he. ex-

¢luded in computing the service of the term of

confinement.

This statute has consistently, been interprefed as re-

‘quiring ‘‘that an accused receive credit against a sen- —

tence to confinement for time’ served from the date

the court-martial adjudged sentence instead of some

- later date when punishment was approved by review-

ing authority.”. United States v. Bryant, 12 U.S.C.

M.A. 133, 138. Indeed, in a case in which the conven-

ing authority reduced a sentence of a bad conduct —

discharge to confinement for four months, the Court -

--of Miligary Appeals’ riled. that by operation of law °

under Article 57(b) the new confinement tern had to

be deemed to. have begun to run on the date the ac-

cused had been sentenced by the court-martial to a

punitive discharge, United States v. Brown, 13 U.S.C.

M.A. 333, 32 C.M.R. 333.

| Military courts and the military authorities have

- thus understood , Article 57(b) as commanding the

general rule that an aceused be considered ‘‘serying”’

a sentence to confinement. irrespective of whether he

is, or can be, ordered to execute the confinement por-

OP ROR INEE OK. Ses erstey Bre

ao OTD WR AU a On

tion of his sentence or/ whether he is subject to any |

restraint; credit accrues even where he is assigned to |

normal duties pending review. Indeed, respondents are |

governed by interpretive regulations jointly. promul-|

. Zated by the Secretaries of the a and the Air

Force which direct: | -

_ 4, OPERATION or SENTENCES. a. Beginning date.

The date the sentence of a court-martial is ad- |

| judged: will mark the beginning of a sentence

to confinement whether or not the accused had | 7

then been placed in confinement [emphasis —

added ].

Thus, correctly. understanding the, eiihiaihailen of

a military sentence under the code, petitioner’s coun-

sel’ stated to the district court at the hearing on the:

habeas corpus application: ‘‘Captain N oyd’s one-year

sentence hegan to be served on March the 9th’’ (Tr.

25), the date it was adjudged.

“This is, of course, contrary to the rule which pre-

vails with respect to criminal sentences in the federal

courts, see 18 U.S.C. 3568.° It is this less-lenient rule

that seme argues (Pet. Br. pp. 62-64, 71-72)

should here be. adopted, so that-periods not spent in

confinement will not count toward the service of a

military sentence anfl that release from any restraint

will automatically eperate to toll the running of a

5 Apprehension and Confinement : Militar y Senténces to Con-

finement, AR 633-30; AFR 125-30.

°Congress has expressly provided in this’ section that the ©

traditional federa] rule does not apply to sentences for oiienses,

tried by court “martial.

sentence under Article 57(b).’ But the legislative his-

tory cited: by petitioner precludes such an interpreta-

tion, requiring instead the interpretation given to it

by the military authorities. Thus, it was mpecitically

explained that: ee

Subdivision (b) requires a sentence of con-

finement to begin to run on the date that it is

adjudged even though the accused is not ac-

tually in confinement, unless nn sonra is

suspended. 1’ pe i

*This contention can only be a remarkable, since its

acceptance would mean that petitioner would be liable to serve |

not. just the two days the. Air Force considered unexpired } when

the release order was entered, but the entire one- “year, prrigon

sentence. This is so because petitioner has never been in “con-—

finement” as that term is defined in the Code and the Manual.

‘Rather, as he averred in thie district court (A. 4; Tr. 14, 16), .

he has been subject to the lesser restrairit of “arrest in quar-

ters”, the status that continued until- the entry of Mr. fustice

Douglas’ order (see A. 32-34): As used and’ ‘understood in

military law, the concept of’ “arrest” differs critically from

“confinement” in that arrest is simply the moral.restraint flow-

ing from a Serviceman’s duty to obey an order restricting his

conduct, while confinement -is the physical deprivation of his

freedom. See Code Art. 9(a), 10 U.S.C, 809(a) ; Manual, paras.

18, 20. Petitioner has at no time been in “confinement.”

He is also in error in contending that the absence of confine- .

~ ment precluded his accumulation of, good-conduct abatement of

. part of his sentence. The Judge Advocate General of the Air

Force ruled ° that under “Department of Defense Instruction

No. 1325.4 on ‘Uniform Policies and Procedures Affecting Mili-

tary Prisoners and Places of Confinement”, AF Manual*125-2 _

_ (Attachment 2, pp. 16-17 do persons in a stattis like petitioner’s

- should bé considered accruing good time credit. This advice did

_, nothing more than confirm what petitioner already knew, since

his counsel, during the hearing on his habeas corpus application

barely two, months after the conviction, advised the court that

. good time credit was being accumulated (Tr. 25). It was on

that~understanding that petitioner raised the mootness possibility

before this Court.

——

ly ; :

‘Hearings on. H.R. 2498 Before a Subcommittee of the

House Armed Services Committee, 8ist, Cong., 1st

Sess., pp. 1089-1090; H. Rep. No..491, 81st Cong., Ist ~

Sess., p. 27. a , : :

° Nor ean these express disclaimers be‘deprived of

meaning: by giving the exception for a “suspended

sentence” the expanded scope petitioner suggests (Br.

p. 59). A suspended sentence in military law, as in

civil, refers to a determination placing a defendant

- on probation—a status which may be revoked only

for cause after a formal. hearing. Code Arts. 71, 72, 74,

10 U.8.C.-871, 872, 874; Manual, paras, 88e, 97a, 97b;

United States v. May, 10 U.S.C.M.A. 358; Release

from some’ form of restraint pending completion of

_military review no-more constitutes “suspension” of’

the sentence as the term is used in the Code than

does the decision not to impose any restraint during

‘that period. Hence, the stay granted’-in this case,

whatever its effect, did not serve to “suspend” peti- -

* tioner’s sentence.’ : eS _2:

—-& (At first blush, allowing credit on-a military sen-

. tence from the date the sentence is adjudged may

seem. overly generous in the situation where the con-

victed aceused is not placed in any ‘Sconfinement?’ —

(or ever, arrest) pending appeal. Apart from the fact |

The Uniform Code expressly provides only one other way. -

‘in which a sentence to confingpent may be tolled. That occurs

under Article 14, 10 U.S.C. 814; whenever a prisoner serving

a@ sentence imposed by a court-martial is delivered to civilian

authorities and is’ thereafter convicted of a crime in a civil:

court. The interruption of the’ military sentence persists until

“the prisoner is returned to military custody to complete his

sentence. . : |

sp? -

wh a Ae ates 4

“

‘18

that this isa judgment that Congress itself has conclu- -

sively. made, however, this aspect of the statute lias ©

4 demonstrably rational basis. First, the military has ~

a substantial ‘interest in the rapid rehabilitation of

-its members and their réstoration to duty, See Hear-

ings, supra, p. 1093. Second, such a prov ision for

maximizing credit also serves to ameliorate somewhat

the fact that, under. the Uniform Code of Military

Justice, all sentences must be served consecutively.

See United States v. Bryant, ‘12 U.S.C.M.A. 133, 30

C.M.R. 133. Third, Congress may have , taken into

account the fact that persons sentenced to ‘Short terms

_ of - confine: sent could, unless given credit on their’

sentences from the date of adjudication, be made’ to

‘remain in the armed forces pending the outcome of

aie review periods, and thus be compelled to serve”

‘their senténces after expiration of their normal term

of service in the armed forces. See Kahn v. Anderson,

@ 255 US. 1; Manual, “para. 11(d).’ :

‘© Ags we. noted in our responses to ‘the application for a stay

and the petition for ‘certiorari, the Military Justice Act of

1968 (82.Stat. 1335) inter alia amends Article 57(b), effective

-August 1, 1969, so as.to provide for a system whereby the

officer heving juriadictlan over a person convicted by general

court-martial will. have the power “in his sole discretion [to]

defer: service of the sentence. to confinement”, in which event.

the sentence will net run until it is ordered executed (82 Stat.

1341). This change was rather clearly, based on the -congres-

sional understanding that “a sentence to confinement begins to.

es from the date it is adjudged” and that the requirement that

a “suspension” of sentence can be vacated only after a hearing

for cause means this procedure “cannot, therefore, be used effec-

tively as a means of release pending appeal.” S. Rep. No. 1691,

90th Cong., .2 2d Sess., p. 13. Under the new provision, the “de.

peewee hs Sian ath ati an i

4, Our view that this proceeding became moot was

‘not predicated on any disagreement with petitioner

- (see Pet. Br. pp. 70-71) over this Court’s power ‘to

preserve the status quo pending review. Our sugges-

tion of mootness rested merely on: our belief that the

: order actually entered in this case by Mr. Justice

. Douglas did not toll the cohgressionally prescribed _ ee

running of- petitioner’s sentence so as to preserve a

live controversy between the parties over whether re-

straint. constituted “execution” of the sentence. We

have seen that Article 57(b). of the Code provides. as

a general rule for the running of a sentence to con-

finement from the date it is adjudged, irrespective of.

‘execution of the sentence or other restraint, and of.

course, in the: absence. of - supervening authority, | re-

-spondents must follow that command and the imple-

menting regulations of the Secretary of the Air Force.

‘The order entered i in this case two days before the con-

finement sentence was to expire merely quoted - from

an order entered in another litigation with different

issues, directing only that petitioner not be incarcer-

ated or assigned’ to duties uncongenial to his con-

science. Mr. Justice Douglas opinion and order (A.

27-8) nowhere referred to. the prospective moot-

ness of the case, but seemed concerned on its. face

ferment. would be terminated and the. sentence: would begin to

run automatically when’ the sentence is approved upon review

and ordered’ executed.” Td., p. 14. This amendment would’ be

superfluous if petitioner is correct. in contending that Article

57(b) currently regards a sentence to confinement as tolled

whenever the*convicted: accused is allowed to remain free from

arrest or confinement pending appeal or is at some point dur-

ing review released from restraint.

solely with, in effect, enlarging petitioner on personal °

recognizance pending action by the full Court: We re-

gard it as questionable whether, under the system of

military law ordained by Congress, that this “order of

release’ automatically .operated to stay the sentence.

under Article 57(b) of the Code.

Nor does paragraph 97c¢ of the Manual for Courts-

Marital warrant that result. That ee provides

‘in pertinent part:

‘Interruptions of ianisiitiis of a sentence.—A

sentence to confinement * * * is continuous

until the term expires, with certain exceptions.

These exceptions include the following:

+ » 7 # ;-: .@

Periods during which the person undergoing

such a sentence is absent without authority, or .

- is absent under a parole which. proper author-

ity lias suspended ‘and r revoked, or is er-

roneously released Mfr Ae onfinement through

misyepresentation or fraud on the part of the

prisoner, or is erroneously released from con-

finement upon his petition for a writ of habeas

+ corpus under a eourt order which is later re-

versed by a competent tribunal, shall be ex-

cluded in computing the service of the term of

the punishment.

_ Accord, ‘AR 633-30, AFR 125-30, 15. As petitioner

states, th provisions of paragraph 97c are ‘eae to

supplement the basic principles of Article 57(b), 1

the Code’s authority to pix fig implementing rules and pro-

cedures. See Art. 36, 10 U.S.C. 836; United States v. Augen-

blick, 393 U.S. 847, 352.

. .

6 Nal ills Renal ~ et aes ev, hg ge se > ae ctaas Werte cet tela aS eats Deeley “

"light, of the fact that “Congress did not mention all

contingencies which would prevent an accused from

being credited with time served.” United States v.

Bryant, 12 U.S.C.M.A. 133, 137, 30 C.M.R. 133, 137.,

Petitioner contends that the instances enumerated ‘in

paragraph 97e, supra, show “that the rationale of 97c

is that a military prisoner who has been freed from -

confinement may not receive credit for time served |

during the period of his release’’ (Pet. Br. p. 72). ;

Neither respondents nor other military authorities,

" however, have ever pressed for such a sweeping re-

' striction on the policy established by Congress in.

Article 57(b) of thé Code. Paragraph 97¢ simply re-

‘flects a recognition of the type of circumstances,

deemed implicit in- Article 57(b), in which a military

prisoner does not deserve to be credited with service

. of his sentence. Because ‘these situations are excep-

tions to the general rule provided by Congress, they

are necessarily limitéd in scope. Furthermore, they

. differ qualitatively ‘from the circumstances of this

case. The focus of the paragraph is, as its caption in-

dicates, interruptions in the “execution” of a sentence, |

and as we show in Point ITI, infra, petitioner has not”

been ordered into the execution of his sentence. But

more importantly, while we agree with: petitioner that

the examples may not be exhaustive, they demonstrate

_ that the.present situation is not ejusdem generis. The

examples cited in‘ the paragraph—which include es- ©

cape, securing of freedom. through fraud, and the

obtaining of release from physiéal custody pursuant

to an erroneous, subsequently reversed, court order on

a petition for habeas corpus—clearly indicate that. the

PA Sina he RRs

- running of a, military sentence should be deemed tolled:

only when the prisoner’s freedom is secured by some

wrongful or erronedus. action.: Indeed, in Bryant,

swpra, on which petitioner relies, the Court of Military

Appeals went only so far as to say that Article 5 (b).

‘does not state that a sentence once started may not be

interrupted by the misdeeds of the accused.” 12

U.S.C.M.A. at 138, 30 C.M.R. at 138. Although we op-

posed petitioner’s release ‘from restraint pending re-

view of his certiorari petition, the granting of his re-

_ quest cannot in any relevant sense be said to have been

either culpably wrongful 6r legally erroneous.

Paragraph 97c thus does not support an interpreta-

tion of Article 57(b) as depriving a prisoner of the

automatic running of his sentence whenever he is or- |

dered released from restraint by a court or is allowed -

by his commanding officer to remain under no re-

straint pending appeal.. - | |

5. If we are correct in believing that petitioner’s

sentence to confinement continued to run until it ex-

- pired on December 26, 1968, and petitioner is thus no

longer amenable to any confinement under his court-

martial conviction, it is clear there is no, longer any

live dispute over whether the degrees of restraint to

which he was subjected constituted premature ‘ ‘execu-.

tion’’ of his sentence." In the practical, concrete terms

11 The question whether similar restraints would or would not:

be authorized for a person who no longer faces any prison

. - , Sentence is not presented by the facts of this case. ‘As petitioner

states (Pet. Br. p. 73), he has now been restored to duty as

’ Special Assistant to the Wing Commander.

\ Se ies arose

| .

Ei IG RBIs hie air eta ta heiBinatinn Blopeam ae ee La TE a wr EES)

pe a Sere en

which are the essence of a “¢ase”’ or “controversy,”

_heither that issue nor the exhaustion question has any .

‘significance for petitioner. The sentence which under- |

lay the legal dispute has now terminated, leaving ~

nothing more than a “speculative possibility” that

petitioner could be adversely affected by dismissal of

this suit as moot. See Carroll vy. President and Com-

missioners of Princess Anne County, 393 U.S. 175, 178;

Bus Employees v. Missouri, 374 US. 74, 78.” Nor is it

pertinent to speculate about restraint after another

court-martial (Pet. Br. pp. 73-74).. Not only would

such theoretical contingencies fail to establish the “‘suf-

ficient immediacy and reality”’ warranting the relief.

now requested, Golden v. Zwickler, No, 370, O.T., 1968,

decided March 4, 1969, but the posstbility that peti-

tioner would, or could, again be assigned to duties he

might find in conflict with ‘his conscience may’ fairly

be termed minute (see note 4, supra).

6. We concede that the “preceding argument is ‘a

_ technical one; that petitioner was seeking an order

that would preserve the issue he sought to present ;

and’ that there is some indication Mr.: Justice Douglas

intended to. prevent mootness and not just -to provide __

interim relief, Since we have not suggested that a

Justice of this Ooiurt, or any federal judge; is power-

less to interrupt the. running of a military sentence,

we do not deny that Mr. Justice Douglas had the,

power to grant the relief requested. We are simply in

2Of course the Separate proceedings to review the court-

martial conviction itself do-not suffer from this defect. See

Carafas v. LaVallee, 391 U.S. 234; Peyton v. Rowe, 391 U.S. 54. -

Soe embetter e

we Or nade We

P .

te ghee hee 1“ es

(24

~ doubt (a) whether he did intend to toll the running

of the sentence, and (b) whether the order entered

authorizes respondents to treat petitioner’s. sentence

as unexpired, notwithstanding Article,57(b) and Air

Force regulations. Cy mpare International Longshore-

men’s Ass’ n,:Local A291 v. Philadelphia Marine Trade

Ass’n, 389, 4, 73-76. Should the Court interpret

the order of December 24, 1968, as sufficiently mani-

__ festing an intention to direct respondents not only

~ to release petitioner and keep him from conscience

conflicts, but also to treat his unexpired sentence as

. tolled, then we would concede that the case has not:

become moot.

| ' @

THE COURT OF APPEALS PROPERLY DETERMINED THAT THE

DISTRICT COURT SHOULD NOT HAVE EXERCISED JURISDIC-.

TION OVER THE PRESENT ACTION. BECAUSE PETITIONER

FAILED TO EXHAUST HIS MILITARY REMEDIES

Although the doctrine of exhaustion of remedies

is not a jurisdictional bar to consideration of a habeas

corpus action (see- Fay v. Nowa, 372 U.S. 391, 426— _

434), the rule serves as a useful procedural safeguard

. in our federal system against the friction which would

result if a federal court were to entertain an action

on the merits or grant relief where adequate remedies

" exist in a local forum. In Gusik v. Schilder, 340 U.S.

_ 128, which involved an attack upon a court-martial.

_ conviction for murder, this Court held that the doe-

trine of exhaustion of military remedies - ‘applies to

habeas corpus actions by military prisoners. The

Court found that the rationale of the exhaustion doc-

et a)

25 ©

trine was as pertinent in cases of collateral attack by:

military prisoners as it was in federal habeas corpus

proceedings by State prisoners (340 U.S. at 132):

If an available procedure has not heen em-

ployed to rectify the alleged error’ which the

federal court is-asked to correct, any interfer-

ence by the federal court may be wholly need-

less. The procedure established to police the |

errors of the tribunal whose judgment is chal-- |

lenged may be adequate for the occasion. If it

._ 1s, ahy friction between the federal court and rh

» the military or state tribunal is saved, * * * ;

Such a principle of judicial administration. is |

_.°. in no sense a suspension of the writ of habeas |

. _° — eorpug. It is merely a deferment of' resort to

, the "i until other corrective procedures are

- shown to be futile. Ah ,

Pétitioner takes the position, through various argu:

ments, that the exhaustion of remedies doctrine is

inapplicable in this case because the instant action,

unlike Gusik, does not challenge the conduct of his -

court-martial proceedings, but the legality ofthe type

of restraint imposed on him pending review of his

conviction. -We ‘Submit, however, ‘that sound policies

of judicial administration support the exhaustion re-

quirement. in cases arising from the military justice

‘system, and those policies fully justify the decision

below. Ae |

* In Gusik, the policy against premature consideration of

military claims by the federal courts was held to warrant —

application of the exhaustion doctrine even though the mijli- -

tary remedy to'which the Court held resort should be had, a

motion for a new trial, did not. exist at the time the habeas’

- corpus action was filed and decided in the district court.

“ us

on ,

; J

EE ee a

NES AE I ERE Ena ae,

; a 263 * rf ay

1. Petitioner argues initially that this case is with-

in the exception to, the exhaustion requirement in

_ eases where the habeas corpus action challenges the

right of. military authorities to exercise’ any court-

martial’ jurisdictioh over ‘the ‘accused. See United . °

, States v. McElroy, 259 F. 24 927 (C.A.D.C.), affirmed

sub nom. McElroy v. Guaghardo, 361 U.S. 281; see

also Toth v. Quarles, 350 U.S. 11; Reid v. Covert, .

354 U.S. 1. We do not understand. petheiones to con-

tend, however, that his court-martial lacked in per-

sonam “jurisdiction” as that concept was applied in

_ those cases.* It may be appropriate . to suspend the.

exhaustion requirement in ‘the relatively few cases

_wheré the petitioner collaterally attacks his confine- _

ment on the ground that he is not subject to any mili-

tary authority and cannot be proceeded against,a si

dery court. But a claim that military authorities have

erred in the .application of military law, which is

involved in this case, is not equivalent to an assertion

4 It is therefore difficult to understand the formulation of the

_ issue involved here, in Mr. Justice Douglas’ memorandum order

granting petitioner’s application for release, as “whether the

doctrine of exhaustion of military remedies applies where the

question is ‘whether the court martial authority acts outside

its jurisdiction” (A. 28). Of course, the concept we are con-

: sidering ag tp respect to the exhaustion doctrine is juris-

diction. “in fhe: traditional sense” (see Brief for thé United

States; pp. 49-54, United “States v. Augenblick, No. 45, this:

Term), and must be distinguished from the expansive “juris-_

diction” ‘concept which served a transitional role in the enlarge-

ment of federal-habeas corpus review of ote convictions, see

Johnson v. Zerbst, 304 U.S. 458. ; ,

‘of lack of any authority over the defendant;** such -

claims should be adjudicated in. the first instance by

the - tribunals which were’ established exclusively to

rule on them. Unless challenges to the type of custody ©

or to the conduct of the coriviction proceedings, which .

are necéssarily present in all: habeas corpus actions,

are tobe treated as equivalent to an assertion of lack

of jurisdiction itself—and the exception to the ex-

haustion requirement thus permitted to devour the

rule—the claim for’ relief in the-present case clearly

doesnot come within the “jurisdiction” exception,”

* 18 Thus there is no conflict, as alleged by petitioner (Pet. Br.

pp. 42-43), between the position taken by the court below and

‘the established procedure permitting challenges to the validity °

of an induction order by bringing habeas corpus in a federal

court immediately ‘after submitting to induction. See, C.95

Eagles v. Samuels, 329 U.S. 304; Ocstereich v.sSelective Service

_ Board, 393 U.S. 233, 235-236 n. 5. ;

*° Nothing in Gallagher v. Quinn, 363 F. 2d 301 (C.A.D.C.),

certiorari denied, 385 U.S. 881,. relied on by petitioner (Pet. -

Br. p. 26), is to.the contrary. That case was not a habeas

attack on military jurisdiction, a$ petitioner’s argument would

. indicate, but rather a civil injunction action brought by a dis-’

charged enlisted man whose petition for review of his court-

. martial conviction had previously. been denied by the C@urt of -

Military Appeals; he claimed that that court had no payer to

refuse to hear his case and sought ani -injunction requiring the

Court of Military Appeals to review his conviction on the

merits. The federal of appeals held that the federal: —

courts had jurisdiction to entertain the contention that the

' Statute granting the Court of. Military Appeals discretion to

deny review to him was unconstitutional, specifically noting that.

all “[o]ther remedies available afford no authority to, anyone

- to grant the only relief he seeks in this litigation.” 363 F. 2d:

at 304 n. 9. The court affirmed the district court’s dismissal of

the complaint. ~~ ,

338-797—69-_3°.

FP EN i Oa ER RO Ne REBT

Indeed, in his habeas corpus petition in the district -

-eourt, petitioner did not make his present contention, . —

but instead asserted that “on information and belief —

[he had] exhausted all effective military remedies”

(A. 12).

etitioner also contendsghat application of the ex-

haustion doctrine by the federal courts is appropriate

- only with respect to State proceedings in the interest |

of comity, but not with respect to military remedies

because both the federal courts and the Armed Forces

are agencies of the same sovereignty. But although

_inter-governmental confrontation is not involved

where military custody is challenged, petitioner’ S ar-

. gument ignores. other policies which justify the rule

in Gusitk v. Schilder, supra, | that military remedies

must be exhausted before the federal courts will exer-

cise their jurisdiction on habeas corpus. In the first

. place, the application of the exhaustion doctrine to

. ‘military proceedings serves the same important prag- -

“matic interest as its application to federal admin-

istrative proceedings: decreasing the volume of litiga-

tion in.the courts by allowing the military to correct

errors through its own internal review processes.

Where full relief may promptly be obtained in the

military courts, it-makes good sense for. the civilian’

court to encourage resort to that remedy, and discour-

age premature habeas corpus litigation, by declining

to entertain the case on its merits.

More importantly, application of the exhaustion _

_ doctrine inscases of this type ensures that the federal .

civilian courts, which have ultimate jurisdiction to

rule on the legal issues presented by. military prison-

ers, will have the fullest advantage of. the: expertise

and the analysis of the military tribunals on. those

issues. This Court has recognized that the exercise

of military. authority and the system of military jus>..

tice involve concepts and practices which differ sig-

nificantly from other governinental functions and —

from the common law traditions of the federal courts .

(see Burns v. Wilson, 346 U.S. 137, 140; Orloff v.

Willoughby, 345 U.S. 83, 94). The fact that. federal |

judges are unlikely to have any significant familiarity. |

with military law and military society’ strongly sup-

"ports this Court’s holding in Burns y. Wilson, supra,

that the federal civilian courts should defer to the.

decisions of: military tribunals’ when it appears that

the military justice system has afforded full and fair

consideration of the issues (see also {Vihelchel v. Mc-

Donald, 340-U.S. 122, 124; United States v. Augen-

blick, 393 U.S. 348, 352). The policies which underlie

this deference, which results in a arrower scope of

review on federal habeas corpus of military courts-

martial than’ of State criminal convictions, similarly

suggest that questioris of military liw which may be

raised in the civilian courts should be presented fully

-in the first instance to the milita tribunals, °

The issues involved in this nn, which challenges

the type of restraint imposed petitioner rather

than the conduct of his court-martial proceedings,

present 4 particularly’ strong ease for application of. -

”- the ‘exhaustion requirement. ‘Although all such chal-

lenges would not: be cognizable in the Civilian courts

(see pp. 49-49, infra), the questions of law which’

? .

woyla me at issue in hae courts iuivolve, as we de-

tal i in Part -III, a number of technical provisions

- of ‘the~Upiform Code of: Military Justice and the

Manual for r Courts-Martial; and, under petitioner’ s

argument, challenges » ‘to--the type of restraint pre-

sumably. could be raiséd at, any time in the process, ©

from before conviction until the sentence is fully

served. The problem of what constitutes an “execu-

tion” of sentence, involved in this case, for example,

presents the federal habeas corpus court with novel |

@ issues arising in an unfamiliar system and frequently -

- requiring the-application of special military considera-

ions to the narrow facts-of a particular case. Sound

judicial administration counsels against the rule urged‘

|. + - by petitioner, which would engage the federal courts .

~ in.such an‘ exercise while there remain adequate mili-

| tary- remedies which, at the least, would provide

es additional opportunity for ‘analysis of the i issues and °

a. further sifting of the facts. _

While petitioner contends that the Court of Military

- Appeals would” be overwhelmed with habeas’ corpus

applications under the- - government’ S. submission, he

‘makes no showing that the court has been in any way

burdened. by such applications in ‘the twenty months

since it announced its willingness to entertain motions _

coh. collateral relief. ‘The short answer to petitioner’s

~ "argument is that any difficulty. which the Court of’

_ Military Appeals might encounter at some future time —

- in handling extraordinary writs may be inquired into,

acs _ in a particular case, on the question whether. the mili-

tary remedy is prompt and adequate. Petitioner’s

. 31 , |

conjecture is not an adequate reason at this time for

inviting the federal courts to become courts of first

resort on questions of military custody.

ae The: court of appeals in the present case found |

that petitioner had not exhausted his military remedies —

through his failure to seek habeas corpus in the“ Court.

of Military Appeals (A. 26). In July 1967, nearly a

year before the instant federal habeas corpus action

was begun, the Court of Military Appéals unani-

mously held that it had the power to issue such a writ

in an appropriate case to relieve a military defendant

of illegal restraint pending review of a court-martial

conviction. Levy v. -Resor, 17 U.S:C.M.A. 135, 37

. CM.R. 399. And more recently, in United States v.

| Bevilacqua, 18 U.S.0.M.A. 10, 12, 39 C.M.R. 10, 12,

-™ The court also found’ that presentation ‘of ‘petitioner’s

habeas corpus contentions in the court-martial appeal proceed-

ing, which the court incorrectly understood was then pending :

before the Air Force Board of Review, was a viable military

remedy (A. 26 and n. 4). While we believe that a habeas e

corpus application in the Court of’ Military Appeals consti- .

tuted petitioner’s most effective and expeditious remedy, and

_ thus confine our discussion to the failue to exhaust that ave-,

“nue, we’ agree with the court below that resort to the Board

of Review would also have afforded . effect: relief. See cases

the conviction would have taken too long (Pet. Br. pp. 27-99).

However, there is no reason: why expedition as to the collateral

issue of petitioner’s restraint could not have been. sought and

granted by the Board of Review. There is. no basis for assum.

. ing, in the absence of any such attempt by petitioner, that the

time consumed by the Air Force Boardwf Review on. this issue

would have been excessive or taken longer than recourse to the

federal courts. See United States v. Lucero, 18 “C.M.LR. 942.

' the same court stated 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. ”» See also United States. v.

Are Augenblick, 393 U. S. 348, 350, describing the habeas -

-. ° eorpus jurisdiction of the Court of Military Appeals

as affording. an y “additional: asi ek apparently now ©

available:?? —

.- Petitioner Sean not mana that the*relief available ~

in the Court of Military Appeals would. be any less

comprehensive than the remedy which. he sought in the -

‘district court. Nor is it argued that any delay i in rul-

ing on the application would. render the military rem-

edy significantly less effective than. the civil writ."

Petitioner does suggest, however, with. some.deference

to the good faith of the Court of Military Appeals:

_ (Pet. Br. pp. 35-37 ), that. relief i in that court is pres-

ently inadequate. because, in the few cases on extra- a

ordinary writs presented to it to date, the court ae

not yet granted relief. A’ reading of the cases cited by

ee petitioner, however, does not reveal any hesitancy to

1% In Levy v. Resor, 17 US.CM.A.: 135, the petition was filed

vindicate the rights asserted, -but. rather shows that

on June 20, 1967, and, after hearing oral argument, the Court -

_ of Military Appeals filed: its written opinion on July 7, 1967.

The petition in the present case was filed in the district court |

. on May 16, 1968, and the district court announced its decision

orally on May 23, 1968, after a hearing on that date. Petitioner

also notes (Pet. Br. p. 36 n. 17) that a subsequent habeas corpus

application by Captain Levy challenging his transfer to Fort

Leavenworth after that transfer had been approved by the. _

Fourth Circuit (Zevy.v. Resor, 384 ‘F.2d 689, certiorari denied,

_ 889.U.S. 1049), was ruled on, and denied, by the Court of

- Military Appeals within five days after it was filed. ~

the applications in those cases were properly denied _

on their facts. Although the Court ‘of Military Ap--—

peals, in Levy<v. Resor, 17 U.S.C.M.A. 135, had de-

cided, adversely to petitioner, the basic question of the te

power of. the military to place a convicted defendant c

under some sort of restraint pending review .of his -

_ court-martial, the court there declaxed itself willing

_and. able to review particular claims that the type of

confinement imposed was unlawful. See also United:

States v. Bevilacqua, 18 U.S.C.M.A. 10, 39 O{M.R. 10.

But even if petitioner believed that he had no chance

. of obtaining rélief on the facts of this case, that would, :

not excuse his failure to pursue’ the remedy. Gustk v.

' Schilder, supra, 340 U.S. at 133. |

' Finally, the court: below: correctly held that the ex- |

haustion’ doctrine was. applicable even though the ae

present action did net challenge ‘the underlying con-.

vietion but rather the type of restraint imposed pend;

ing appellate: review (A. 26). Indeed, the fact that .-

this issue is incidental to a court-martial proceeding —

under military jurisdiction would seem to render

resort to military remedies particularly appropriate. -

See Orloff v. Willoughby, 345 U.S. 83, 94; Beard v.

Stahr; 370 U.S. 41. This’ Court has held that the ex-

haustion doctrine is applicable, in the comparable sit-

uation where bail in respett of a pending crjminal -

. prosecution is sought in the federal courts, Stack. v.

Boyle, 342 U.S. 1, 6-7; compare Dawkins v. Crevasse, .

391 F. 2d 921 (C.A. 5) (bail sought in federal court

only after State court: remedies exhausted). Similar-

ly, the Tenth Circuit has held that the failure to ex-

-haust military remedies precluded. federal habeas

34 a

corpus relief to a afititesy prisoner who alleged that

his second: court-martial trial would place him in

. double jeopardy. Gorko -v. Commanding Officer, 314 .

F. 2d. 858 (C.A. 10). The court held that the peti-

tioner had an adequate opportunity to present that

‘claim to. the military courts in the court-martial pro-

ceeding. So also here, the Court of Military Appeals, _

which clearly would have had jurisdictionto entertain

the present action, could have given full and adequate

/ considerajion to. petitioner’s claims of unlawful re-

straint pending appellate review of his conviction.

By: neglecting to pursue that. opportunity | for satis-

factory disposition of his complaint by the military’

courts, petitioner rendered the ‘present habeas corpus

' action premature for federal-court“¢ disposition on. the

merits. Gustk v. Schilder, 340 U.S. 128; see Beard:

v. Stahr, 370 U.S. 41; Orloft v. hall 345 US.

83, 94: 19 je

18 There 1s no =n to petitioner's Ss further eomtention (Pet. Br.

pp. 29-30) that exhaustion was not required, under Oestereich v.

Selective Service Board, 393 U.S. 238, because the action of the

‘ military in seeking to.transfer petitioner pending.completion of ©

- appellate review to the Disciplinary Barracks at Fort Leaven-

worth constituted a “clear departure * * ¢ from * * * statutory

mandate.” As wé shall show in Part IIT, infra, any violation of

the Uniform Code of Military: Justice in this regard was hardly

“clear”. Compare Clark v. Gabriel, 393-U.S. 256. Moreover, Oes-

- tereich did not involve application of the general doctrine of

exhaustion of remedies (see 393 U.S. at 246-250 (dissenting

opinion) ); but rather the interpretation of a particular Con-

" gressional enactment providing that there could be no pre-induc-, - |

~_tion. judicial review of a Selective Service’ classification. The

principles laid down in Oestereich to deal with that special stat-

ute are thus not applicable here. See Brief for the United States,

pp. 13-14 & nn. 6-7, 24-25 n. 14, McKart v. United States, No. .-—

408, this Term.

Tit

THE UNIFORM CODE-OF MILITARY JUSTICE AND THE MAN-.

UAL FOR COURTS-MARTIAL AUTHORIZED IMPOSITION OF |

RESTRAINT UPON PETITIONER. PENDING: ‘APPELLATE BE-

VIEW OF HIS COURT-MARTIAL CONVICTION , ,

If the Court concludes that the case is not moot and _

that attention to petitioner’s claims was’ inappropri- .

- ately declined below for failure to resort first to mili-

tary remedies, the Court could remand the case to the

court of appeals for consideration on the merits. We

believe, however, that final action by this Court would _

be both permissible and proper. In addition to the dis-

trict court below, several other courts have addressed

themselves to the questions that remain in the present

case. £.9., Levy v. Resor, 17 U.S.0.M.A. 135,37 CMR. 2

399; Levy v. Resor, 384 F, 2d 689-(C.A. 4), Wertiorari .

denied, 389 U.S. 1049; Levy v. Dillon; -286.F. Supp. —

993 (D. Kan.), appeal pending (C.A. 10). Further-

more, since the. direct proceedings reviewing. peti-

\tioner’s court-martial conviction have now reached .

their final stages before the Court of Military. Ap-

peals, speedy resolution of the collateral issies here .°

involved: wotild- seem in order. Ree rs

The habeas corpus petition in the district court

’ made two contentions: that the proposed transfer to

Fort Leavenworth pending completion of appellate

_Teview was illegal (A. 11; see A. 18, 20); and that any

EP pes ees

‘

| | continued restrairit’ was improper C: 12-13; see A.

+ 18-19)"

A ™ PROPOSED . TRANSFER TO FORT LEAVENWORTH WAS LEGAL .

The issue of the proposed transfer to Fort Leaven-: ,

worth remains in this case only ipsofartas petitioner

relies on the allegedly. ‘‘clear’’ invalidity of that order —

‘2 This latter contention was based in-part ‘on ‘petitioner’ s

argument (A. 7-10, 13; Pet. By. pp. 64-69) that the re-

straints pending appeal denied him due~ process because at

___-ne- time before or during his court-martial was he permitted

. = to defend on the basis of his theory that the allegedly er-

+. -Yoneous refusal of the Secretary of the Air Force to grant

7 relief on account| of petitionér’s “selective conscientious objec- °

tion” constituted a defense to the charges. Petitioner asserts

| ) that when he attempted to challenge the Secretary’s action in a

' civil proceeding, the Solicitor General represented to this

.. Court that petitioner could raise this claim as a defense to

4: * ‘& court-martial. This is not so. Our response was only that

‘ the contention should first be raised within the military trial

‘|. system ‘to give those courts the initial opportunity to decide

] whether allegedly erroneous action by the--Secretary of the

\: Air Force should be recognized as an excuse for disobeying

‘‘s/certain orders. (See Memorandum for the United States in

| eee " Opposition, pp. 7-8 n. 4, No. 722, O.T. 1967.) That precise

ae question is now before the Court of Military Appeals on re-

view of petitioner’s ‘court-martial conyiction. Review ‘of that ~

question by this: Court at this time is plainly —

Gusik v. Schilder, 340 US. 128. ‘

That military courts have held (thus far, at least) that

R petitioner’ s claim is not a legitimate defense | is quite different

. from. denying him the opportunity to raise and litigate a de-

fense. cognizable in law. Due ,process. is not offended. by im-

posing restraint on a defendant convicted in ‘a: civilian court

while he seeks to convince a reviewing court that his claims

were improperly rejected below. There is even less foundation

for an allegation of denial of due process in the present case.

Ana cauvlal, ere ey en

as justifying his failure to exhaust administrative e

rat

—

- a

_» remedies (Pet. Br. pp. 29-30, 53:m: 93) 2, The argu-

‘Ment is self-defeating, however, for ds the court. below

| noted (A. 26 and-n- 4), claims of illegal, premature

——

—

“execution” “of. military sentences can be speedily .—

passed upon by the military courts, and the more clear. -

the alleged’ violation the less reason, it would appear,

. for carrying the complaint oufside the traditional

_ channels Congress has prescribed for the supervision

‘of military justi¢e. ‘But, as the following discussion

will show, ‘the alleged violation was ‘anything but

“clear”; indeed, we believé an informed understand-

ing of the-terms and concepts of the Uniform Code

will show that there. was ‘no violation at all. At the

very least this discussion will underscore the _pro-

priety—in the military justice field no less than in the

. field of administrative regulation—of resorting first

‘to the expert tribunals eohversant with the entire

complex of statutes and regulations. In the event the

Court concludes that the question shouldbe decided

in the present’ context de novo, without the benefit of

the analysis of the specialized court created by Con-

gress and ‘entrusted with the primary. responsibility

for interpreting the Uniform Code, we shall endeavor

to expose the logical flaw in petitioner’s ‘contention

that, any transfer to Fort Leavenworth must, “in

effect, amount to execution” (A. 19) of his sentence

to hard labor. ‘" be.

- Only prisoners with more than six-months confinement

left to serve may be committed to a disciplinary barracks. See

| AF Manual 125-2,96-8.

“Article tite) ‘of the Uniform od penstiee:

No sentence which inchides, unsuspended, a

dishonorable or bad-conduct. discharge, or con-

fimensent for one year or more, may be exeeuted -

‘until. affirmed by a board of.-.review and, in.

eee ener: te A Hen “Comes: of Mary.

Appeals.

Neither the Code nor the Manual, however, defines

what is meant by “execution” of a sentence. The

board of review cases catalogued by petitioner (Br.

pp. 50-53) do not illuminate the question because in

each of those instances—all arising in the early 1950’s

_ shortly after the enactment of the Code—the conven-

img authorities, unfamiliar with Article 71(c)’s broad-

- ening of the categories of sentences which could not.

be. executed immediately, had actually directed that

lengthy confinement sentences, or punitive discharges

be “‘executed.’’ In no case was there a question

whether restraint pending appellate review consti- .

tutes “execution” of a sentence to confinement.

The. only authority cited -by petitioner (Br. p. 55)

as defining the term ‘‘execution’’ as used in military

. law, Sweet v. Taylor, 178 F. Supp. 456, 460 (D.Kan.),

though arising in a distinguishable context,” states-a

_ workable definition: ‘To execute means to carry out,

to perform,’’ and we agree to its relevance. In this

light, it becomes evident that the proposed transfer

22 Sweet involved a pre-Code offense, trial, and review; the

question was whether under reviewing authorities’ power, pur-

suant to a 1926 Manual, to “execute”-a sentence, they could

alter the type of institution-in which the accused had been

sentenced to be confined ee from

a sneenaites to a penitentiary. ° ;

would not have “carried out’? or forced petitioner to.

_” “perform”? his ‘sentence to be confined at hard labor’

for a year.” tary ee SUS fi) :

~ ‘The consistent interpretation of the officials charged —

- + by Congress with the responsibility for implement¥

_ Ing the statutory scheme belies petitioner’s contention. ;

_ Cf. Udall y. Tallman, 380 U.S, 1, 4. Thus, the Manual |

> for Courts-Martial, promulgated by the President pur-

. suant-to Article 36, 10- U.S.C. 836, recognizes that

the convening authority may provide for confinement

_ in two quite distinct situations: for. exeention of the

_ sentence (when permissible prior to completion of,ap-

'‘pellate review), and simply, for interim. restraint _

pending review. Paragraph 89¢ of ‘the Manual pro-

vides -relevantly : De eae BE, : )

s # % * ‘ ” ; - & or

“+ (8) Place of confinement.—I¢ “the-eonvening

. authority orders a Sentence of confinement at |

' hard labor into ‘execution, the place of confine- -

ment, as prescribed in pertinent departmental

_ ‘Tegulations, wiJl be designated in his action. a

When a sentence of confinement is ordered into ~ ys

execution subsequent ‘to the initial: action of

38 Petitioner argued in the court below that the ‘sentence. to

" para. 126}, Nor may hard labor without confinement be i

- upon an officer by a court-martial. Manual, pare. 126k. Thus, the

Proposed transfer and the type of restraint: to which petitioner

was Subjected in this case did not “execute” (in the senso of

estate etiam nee se eT - ees

_~ the convening authority, the authority ordering

such execution will designate the place of ¢on-

finement in the promulgating order. In this x

‘eonnection, see 98.

(6) Temporary custody—When a record of

trial ‘involving an approved sentence is re-

quired. to be forwarded to the appropriate

Judge Advocate General (Art. 65a, pb), the

- eonvening authority will, unless. he orders any .

. approved seritence of confinement into execu-

tion. and’ designates a place: of confinement,

_ provide in his action for the temporary custody

of the accused pending final disposition of the

case upon appellate review. If practicable, the .

accused in such a.case should be retained within

‘the command of the officer exercising general

court-martial jurisdiction over the accused until

the sentence has become final after completion

, of any appellate review, See appendix 14 (form.

| 34) for form of action and 96 for action to be

taken in event the place of temporary custody —

(confinement) is changed prior to final dispo-

esa

be sition of the case upon appellate review.

- See, also, para. 93: AF Manual 125-2, 16-16. In the.

present case, the convening authority sought to do no

~ more than exercise his responsibility, under subpara-

graph (6), supra, to provide for petitioner’ s tempo-

rary custody—which the subparagraph recognizes may

extend’ to ‘‘confinement” ——“ [p] ending completion of

appéllate review * *.*” (A. 31), See United States

ve Petroff-Tachomakof, 5 U. S. C. M.A. 824, 826, 19

C.M.R. 120, 122.

_ Although the hiaiamiiile indicates that ont

narily the accused should be retained within tho local

ra.

command, it qualifies this ordinary goal with the: ca-

veat, “If* practicable”. Because special problems —

"are presented by court-martialed officers, the Secre-

tary of the Air Forte has directed that, pending final

action upon appellate review, a-convicted officer will

: __be “assigned to an installation having adequate fa-

cilities for the amount of restraint the commander

. thinks necessary pending final action on the case.”

_ AF Manual 125-2, 1 6-16a.* eek. |

There ‘is clear, judicial authority that what may

be practicable for enlisted men may not suffice for ee

officer prisoners. Thus, in Levy vy. Resor, 384 F. 2d

689 (C.A. 4), certiorari denied, 389 U.S. 1049, the

Army sought permission to trarisfer a court-martialed

captain, -whose sentence to three-years’ confinement at

hard labor and dismissal was being reviewed by a.board

of review, from his post to thé disciplinary barracks at

Fort Leavenworth while his military and civilian

(bail) appeals were being considered. The court upheld

_ the Army’s decision to transfer him, finding that Fort

accordance | wile the. customary ns of

‘such prisoners * * *,

384 F. 2d at 690. See, also, AR 633-5, 1 4b(2). ‘There

. Was no suggestion that this transfer would constitute

premature “execution”? of Levy’s sentence in viola-

- tion of: Article 7i(e) of the Uniform Code. That

_ decision was recently followed in a well-reasoned

~ opinion of the district court in Kansas (Levy v.

Dillon, 286 F. Supp. 593, appeal pending (C.A. 10)),

specifically considering the Article 71(c) contention

and expressly disapproving the decision of the district

court in the instant case that such a transfer would

“amount to”’ (A, 19) a violation of that Article.

These holdings are sound. The district court in this

ease agreed that military authorities have lawful dis- _

_.eretion, consonant with Article 71(c), to impose re- .

straint, including confinement, upon a military ac-

cused while the results of appellate review are

awaited (A. 19, 20). Any other conclusion would have

meant, of course, that the manuals and regulations

issued by the President and the Service Secretaries

to implement the Code hex» misunderstood the scope

of the term “executed”’ in Article 71(c). The district.

judge ruled, however, without any explanation or

factual support, that it seemed to him that trans-

fer to this particular disciplinary barracks would

illegally “execute” the sentence.. The court’s conclusion

apparentiy rested in part on the accurate under-

standing that the Barracks is the type of institution

<“¢ A AR A ten Si A RIN Ni SB 0 ti Pha ite He

at which petitioner’s ‘sentence to confinement could

appropriately be “executed” upon completion of ap-. .

’.pellate review. See Article 58, 10 U.S.C. 858: But the

court also appears to have relied on a clearly errone-

“ous assymption that “the sentence provided he was

going to Leavenworth for a year” (Tr. 08). The dis-

trict judge explained: “I am saying that sending him

to Leavenworth is in effect executing the sentence

because that is where the Sentence says he had to

go to serve the sentence”? (Tr.'62). But this critical

premise in the court’s reasoning is simply wrong. As

in this case, a sentence of a cour‘-martial does not

fix the place for service’ of ‘the sentence but merely

pronounces the punishment. The place of execution of

the sentence is not determined ‘until the sentence is

finally ordered executed and the determination: is

made ‘by the authority promulgating that order. See

Manual, paras. 89(c)(5), 93. In this case, of course,

_ the convening authority’ in approving the - sentence

custody at Fort Leavenworth pending appellate re-

. view. See A. 31; Manual, para. 89(¢) (6), sxpra, p. 40.

In this Court, petitionef’s basic argument on this

issue is similar—that because the Disciplinary Bar-

racks at Fort Leavenworth is a maximum security

military prison, confinement there must be considered

The reférence to .Fort Leavenworth in the ‘Staff Judge

Advocate’s memorandum does not have the sinister meaning

text, this was nothing more than the recommendation, accepted

by the convening authority, that, petitioner be transferred there-

pending review. : : at

338-797—69—_4

as punitive arid thus as “execution” of the sentence

(Pet. Br. pp. 56-57). As noted in Levy v. Dillon, supra,

however, the circumstances under which an “ad-

* judged”’ officer-prisoner is confined. differ signifi-

cantly, under, military regulations, from those of a

“sentenced’’ prisoner, whose sentence has been

ordered executed.” The’ most pertinent distinction

relevant to whether a sentence to hard labor is ©

being ‘‘executed,”’ in the sense of being “carried

out” or “performed,’? Sweet v. Taylor, supra, is

of course whether petitioner could have been com-

pelled to- do hard labor. On this crucial question

Air Force regulations are quite specific, providing

that ‘‘adjudged’’ officers who are in confinement

“are ot required to. perform labor except for

the necessary policing of their own quarters.” AF

Manual 125-2, 12-16d. In addition, even in confine-

ment at Fort Leavenworth, petitioner would-have re- _

tained the privileges of his rank of captain (since his —

dismissal from the Air Force cannot be executed un-

til appellate review has been completed) and could |

shave continued to wear his service uniform, with any

_ decorations and insignia, rather than the work uni-

..26An ‘adjudged’ prisoner is a person who has been tried by

. court-martial and: sentenced tp confinement, but whose sentence

_ has not yet been approved or ordered executed.” “A ‘sen-

‘tenced’ prisoner is a person who has been convicted by court-

martial and whose sentence has been approved and ordered exe-

cuted as required by law.” United States v. Nelson, U.S.C:M.A

No. 21,512, decided March 14, 1969, Slip.Op., nn. 2-3. See, also,

' AF Manual 125-2, Att. 1. | “eee

____-LATE-REVEIW- OF HIS CONVICTION

\ >

form normally worn by sentenced prisoners: subjéet to

hard labor. AF Manual 125-2, 13-5b.” -

We assume the district judge was unaware of these ;

‘ dispositive circumstances when he. ruled from the -

bench that the proposed transfer to Fort Leavenworth

would have amounted to illegal ‘‘execution”’ of peti-

tioner’s sentence. Petitioner’s failure to raisé this

contention, either on appeal to a board of review or ©

_by application to the Court of Military Appeals for

extraordinary relief may, in’ these circumstances, re- ~

flect a belief that the tribunals ‘with expertise in this

area would probably have rejected: the claim—and

properly so. Compare Gusik-v. Schilder, 340 U.S. 128,

- B. MILITARY SUPERIORS HAVE AUTHORITY TO PLACE A PERSON CON-

VICTED’ BY COURT-MARTIAL UN DER RESTRAINT--PENDING “APPEL-

Apart from his allegation that the proposed trans-—

fer to Fort Leavenworth would constitute illegal exe-

cution of -his sentence, petitioner also argued that no

restraint on him was warranted ‘pending review of

_ his conviction and that the district court should order

27 While not strictly relevant, we note that petitioner errs in

his assertion (Pet. Br. p. 57) that “all” of petitioner’s mail would

be “censored.” Outgoing mail to the President, Vice President,

Members of Congress, Attorney General, Judge Advocate Gen-

eral and their representatives, defense counsel, attorneys of rec-

ord, chaplains and clergymen, inter alia, is all privileged.

Other outgoing and incoming mail is inspected, not censored,

as a matter of security. See Manual For the Guidance of Pris-

oners, United States Disciplinary Barracks, Fort Leavenworth,

- Kansas (1967 ed.) pp. 17-18. 7 |

a nd onr7ee

‘

fig

him released. See A. 13-14. On this latter question,

_ Yelief was denied, with the explanation (A. 19):

the right of a person in the military service

to bail pending appeal from conviction is not. —

constitutional, but statutory only, and * *.*, in -

the military, there is no statutory provision der

such‘bail. This Court * * * coneludes that it has

no right to say what bail, if any, should be set ~

‘ for the petitioner, nor to. state what. conditions

of release, if-any, should be imposed. ‘Those

matters are. properly within the discrefion of —

the military ‘authority, and it may be that “the

appropriate officials will. feel that petitioner

Should be confined ee: the: review — 1

dures. + # e

| This holding was sound. The district court lay

_ found itself without’ jurisdiction on habeas corpus to

review the discretionary determination of petitioner’ S.

superior officers to impose post-conviction restraint on —

him. This Court has consistently ruled that habeas

corpus does not lie to review the propriety of a dis-

eretionary determination made as part of the court-

martial process under the Uniform Code and the

Manual for Courts-Martial. E. g., Whelchel v. M c-

Donald, 340 U.S. 122, 124; J ackson v. Taylor, 353 U. S.

_ 969, 578 n. 10; ef. United States v. Augenblick, 393 U.S.

348, 352. Accordingly, the only question conceivably.

-open to review in this proceeding is whether post-

eonvietion restraint on military prisoners is author-

ized by law; if so, under this Court’s settled holdings, —

the choice made by the military commander 3 is not col-

laterally reviewable.

1. Tested by- these standards, aaa peti-

oo mee

eae :

tioner’s position, as significantly modified during this

Jitigation, does not

the habeas corpus

‘courts, fe

establish even a threshold basis for

jurisdiction of the federal civilian

In his’ petition for a writ of habeas corpus, peti-

tioner argued that no restraint upon him pending’

appellate review would be legal In part this conten-

| fon was bas

he erroneous premise that any -

ht “would involve “service” of his sentence,

which would violate due process in the event his con-

_ Vietion were later reversed. See’ A: 11. As we have seen.

above, ‘a military accused receives credit toward the |

““service’’ of his'sentenee whether or not he is in con-

finement and; what is more, confinement does not ?

necessarily constitute “execution” of a sentence, This —

contention, however, was abandoned in the district —

court, and responsibly so, since the argument would

analogously have turned. every dénial of post-convie-

tion bail in the Civilian courts—or even the grant of

bail subject to restrictions—into a due process viola-

- tion because of the

posstbility that the underlying con-_

viction might ‘subsequently be reversed: Thus, this

challenge to the validity of post-conviction restraint

_.._ has been removed from the case. . : 3

Petitioner also argued initially in his pleading in

- the district court that no restraint was necessary in

this case (see A.

modified critically.

expressly conceded

13), but this -argument too was

‘Thus, at the hearing his counsel

that instead of ordering petitioner

transferred to Fort Leavenworth, “the general can

keep him in quarters arrest until—as a fair compro-.

mise pending appeal—even though we urge that. it is

not” (Tr. 53). And petitioner now.admits that some

_ ‘restraint may well have been authorized, arguing only

that “physical confinement’? beyond mere “moral

restraint” was not warranted. See Br. pp. 61-62.

if these concessions are accepted at. face value, how- .

ever, two district grounds justify affirmance without

further study. First, as we have observed, this ‘Court

has consisténtly disclaimed: the existence of jurisdic-

tion in civil courts on habeas corpus to review the

choices made by court-martial authorities from among

' the range of alternatives allowed by law. That salutary

_ principle applies with equal force and policy to the —

_ field commander’s assessment of the type of restraint,

if any, that should be imposed upon one of his sub-

ordinate officers awaiting review of his court-martial

conviction and sentence to dismissal and confinement

at hard labor.

And second, in the terms of his. concession; peti-

tioner has never been under. a form of restraint other

_ than the “moral’’ compulsion involved in being ordered

into arrest. He averred in the district court that from

‘the time his sentenge was adjudged he was placed “in

the status of arrest in quarters” (A. 4). As modified

when the transfer to Fort Leavenworth was cancelled,

this arrest status continued until petitioner was ‘re-

leased pursuant to Mr. Justice Douglay order. Article

9(a) of the’ Code, 10 U.S.C. 809(a), provides:

Arrest is the restraint of a person by an.

order, not. imposed asa punishment for an of-

tian

tl scien

~fense, directing him to remain within certain

| specified. limits. Confinement is the physical re-

straint of a person. 7 ie, ene

The Manual expands upon the difference, explain-

-[a]rrest is moral restraint imposed upom a

person by oral or written orders of ‘competent

authority limiting the person’s personal liberty

pending disposition of charges. The restraint

imposed is binding upon the person arrested,

not by physical force, but’ by virtue of his .

moral and. legal obligation to obey the order

of arrest. * * * EE Te ce

Para. 20a. -As the base commander’s letter modifying

petitioner’s-arrest status shows (A. 32-34), petitioner

was not locked in his room and was not under guard;

he was expressly authorized to visit eight different —

facilities and was advised: “You will not be escorted

on these trips’ (A. 33). Thus, petitioner’s status fits ,

Squarely within the degree of restraint even he seems

to have conceded was appropriate.

| evertheless, since these concessions may have been

unintentionally| dispositive, ‘we shall trace the origin

of a commanding officer’s authority ‘to impose post-

conviction restraint pending appellate review. Our pur--

posé will be to demonstrate that petitioner was law-

‘fully subject to restraint: pending appellate review,

and a civil court on habeas corpus may inquire no

furth \ , ‘ .

2. Phat some restraint, even confinement, may be

imposed even before a sentence ‘can be ordered ex- —

_ectued is at’least implicit in the Uniform Code.” As

préviously discussed, Article 57(b) of the Code directs —

‘that a sentence to copfinement imposed by. a court-

martial commences to run, unless suspended, as of the

date it is adjudged, irrespective of whether any re-

strajnt is imposed on the convicted iceman. The

purpose gf the article was ‘“‘to prevent accused per-

sons from languishing in confinement between sentence

and date of execution without receiving credit ‘there-

for’, United States.v. Bryant, 12 U.S.C.M.A. 133,

138, 30 C.M.R. 133, 138 (emphasis supplied). This

> ee of military prisoners pending “‘execu-

n” of the sentence. Both military and civilian

peas have ruled that, under the statutory and regu-

latory scheme of the Uniform Code as a whole, mili-

tary authorities may lawfully impose restraint upon -

convicted military prisoners pending appellate -re-

view. See, ¢.g., Levy v. Resor, 17 U.S.C.M.A. 135, 37

O.M.R. 399; Levy v. Resor, 384 F. 2d 689 (C.A. 4),

certiorari denied, 389 U.S. 1049; Levy v. Dillon, 286

B. Supp. 593 (D. Kan.), appeal pending (CA. 10).

Article 18, 10 U.S.C. 813, speaks of the allowable forins of

restraint that can be imposed upon a person held for trial “or

the result of trial”. While that Article is captioned only “Pun-

ishment prolifbited before trial” and the Manual (para. 21d)

uses the phrase “result of a crial” only with. reference to the find-

ing of guilty or not guilty; the Court of Military Appeais has

found in Art. 13 authority to impose post-conviction restraint ‘.

pending appellate review. United States v. Teague, 3.

US.CM.A. 317, 324, 12 CMR. 73, 80.

arr

—

This conclusion is borne out by the’ provisions of.

the Manual. Paragraph 21d provides:

Responsibility for restraint after trial. Upon

notification from a trjal counsel of: the result

of a'trial (44e(2)), a commanding officer will

take prompt and appropriate action with re-

_ Spect to the restraint of the person tried. Such

action, depending on the circumstances, may

involve the immediate release of the person

' from any restraint, or the imposition of any

necessary restraint pending final action on the

. case (emphasis added).” aes

In the Levy cases both the Court of Appeals for the

Fourth Circuit. and the Court of Military Appegls.

- Yuled that the restraint *imposed on Captain Levy

_ pending appeal of his court-martial eonviction—i.e., -

| placing him in a@ room in the post hospital unger

_ twenty-four hour guard—was lawful under paragraph

21d. By contrast, in the present case, petitioner was

merely ordered into arrest, but he was allowed to leave

his room in the Visiting Officers’ Quarters to carry on

routine activities without escort, was permitted to

' have maid service and a television, and was wntitled_

to receive regular visits from his family and. friends.

See A. 32-34. Sih .

| ., 9In the. Levy case, supra, the Court of Military Appeals ~

° I 1: v . : .

“While .it seems more likely that. that portion of the

paragraph relating to “the immediate release of the per-

son from any restraint” applies to those accused who have

been acquitted by judgment’ of the court (see paragraph :

22), we will assume that it also applies to convicted’ per-

sons awaiting final action. *-* * - 4

17 U.S.C.M.A. at 140, 37 C.MLR. at 404.

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3. Petitioner argues, however (Pet: Br. pp: 58-59),

that Article 13 of the Code, 10.U.S.C. 813, conditions

the purposes for which post-conviction restraint may

be imposed. That article provides that:

Subj ect 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 arrest or confinement upon

_ the charges-pénding against him, nor shall the

‘arrest 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 Po? for |

infractions of discipline.

- Petitioner contends that the: phrase “while being held -

for * * * the result of trial’? embraces. not only the

. time before verdict, but. the period of appelktte re-

view. From this he concludes that the stricture against

‘imposition of any restraint “more rigorous than the

circumstances require to insure [the accused’s] pres-

ence” establishes the sole justification for post-con-

viction restraint. He points to the decisions in United

States v. Teague, 3 U.S.C.M.A. 317, 12 C.M.R. 73, and

United: States v. Petroff-Tachomakoff, 5 U.S.C.M.A.

824, 19 C.M.R. 120, as interpreting the. phrase “held -

for * * * the result of trial” to “include post-convic-

tion military personnel who were awaiting the results |

‘of the military appellate process” (Pet. Br. p. 58).

While those cases do find express statutory support.

in Article 13 for imposing post-conviction restraint,

ecnmiiginal : 53

” they do not hold that the permissible grounds for pre-

trial restraint are also the only justification for post-

trial restraint: In both cases; the imposition of re-

straint on persons convicted by court-martial was

upheld under the authority of paragraph 21d of the

Manual, as necessary to insure the presence of the ac-

cused throughout. the appellate proceedings. The court

_ did not, however, purport to hold that this.was the

only reason which. could validly be given for sustain-

ing the imposition of post-conviction restraint in any

case. Rather, its opinions were geared to the particu-

dar circumstance that the enlisted men in each of, those’

eases had dubious attendance records, thus making

‘the purpose of insuring continued presence the most

obvious basis for restraint. In analyzing the relation-—

ship between Article 13 of the Code and paragraph —

21d of the Manual, which. is concerned solely ‘with « °

post-conviction restraint, the Teague opinion con-

cludes that the “Manual provision is supplemental,

and not contradictory, to the provisions of the Code.”

3 U.S.C.M.A. at: 324, 12 C.M.R. at 80 (emphasis

added). Indeed, any other interpretation would lead

to the anomalous conclusion that a civilian defendant

would be subject to restraint after conviction which

would not be lawful. for a member of the highly

disciplined military establishment; it has long been

recognized, by Congress and this Court, that civilian

‘defendants may be denied release on bond after con-

viction for reasons other than likelihood of flight. See

“18 U-8.C. 3148; F.R: Crim. P: 46(a)(2); Carlson v:

Landon, 342 U.S. 524, 545 n. 45; Stack v. Boyle, 342 .

U.S. 1, 18 (opinion of Jackson, J.) ; Carbo v. United

States, 82 S. Ct. 662 (Douglas, J.), review denied.

369 U.S. 868. Military law, like civilian, recognizes

a meaningful difference in status between those who

are mere accused and those who have been found

guilty—even though the conviction ‘is not yet final:

See; ¢.9., United ‘States v. Nelson, U.S.C.M.A. No.

21,512, decided March 14, 1969.”

4. The question remains as to. what restraint is |

proper with respect to an “adjudged” prisoner. We —

_agree that what petitioner describes as “penal inear-

ceration” or ‘‘punitive incarceration” (Br. pp. 50, 52,

55) would not be permitted by the Code. It seems evi-

dent that the purpose of the prohibition in Article

T(c) against “execution” of a.sentence to confinement

before appellate approval i is to preclude the imposition ~

_of restraint which amounts to Punishment. The Man-

ual carries through on this policy, mata ee.

—-18b(3)): ‘ .

Other than restraint sll dataidiicid as delta

in this subparagraph * */* no pamenstions may

20 In fact, prior to the deferment-of-sentence provisign of the

. Military Justice Act of 1968, to be effective later this year (82

Stat. 1335, 1341), see note 9, swpra, neither the Congress nor the

President had provided for any analogue to bail for military

prisoners. See Levy v. Resor, supra, 17 U.S.C.M.A. at 137-140,

37 C.M.R. at 401-404. The Bail Reform Act of 1966 was expressly

made inapplicable to offenses triable by conrt-martial. See 18

US. G 3152(2).

be imposed upon an accused as a result of trial

by court-martial until the seritence has been ap-

_ proved and ordered executed. .

This means, of course, as the Manual explains (paras.

18(b)(3), 125) and Air Force regulations specify

(AF Manual 125-2, 12-16d), that pending review, a

person convicted’ by court-martial cannot be put to

hard labor ; it does not mean that restrictions cannot be

‘placed on his liberty in aa ag interest of maintaining

discipline. | Bea

Given the structured nature of the military com-

munity, with. its insistence on respect for authority .

(see Burns v. Wilson, 346 U.S. 187, 140; Orloff v.

Willoughby, 345 U.S. 83, 94), it would seem within —

the ambit of a commander’s. reasonable discretion to

determine that an officer convicted of disobeying or-.

ders and sentenced to be dismissed from the Air Force

should be restrained in the interest of morale and dis-

cipline. Restraints of the sort imposed in this case do

not constitute punishment but would, in the language

of paragraph 21d of the Manual, be deemed “nec-

essary” to the efficiency of the military unit as a

whole: There is no reason to believe that by enacting

in Article 71(¢) a general prohibition against ‘‘execu- .

tion” of a sentence to confinement’at-hard labor prior

to completion of appellate review, Congress implicitly

intended to divest commanders of all power to impose

restraint on convicted officers in the interest of mili-

tary discipline.

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C. RESTRAINT IN THIS CASE WAS PROPER

The preceding Encantion has sought to establish

that petitioner’s commanding officer was authorized to

impose whatever restraint he in his discretion deémed

‘appropriate undcr all the circumstances pending com-

pletion of appellate review of petitioner’s court-mar-

tial eonviction. Under the -Court’s cases, acceptance

of this conclusion should terminate this habeas corpus

proceeding, and so the district court ruled. Because

petitioner .was—properly, we “submit—denied relief

as a threshold matter of law, the basis for his com-

manding officer’s decision was not explored. But to —

illustrate the range of considerations. which may’

legitimately be taken into account, some of which are

evidently appropriate, here, we respectfully refer the

Court to the factors brought to the atigntion of the

Court of Appeals for the Fourth Circuit .in the Levy

ease to explain why confinement. and transfer of an

officer-prisoner were warranted.

In ordering Captain Levy confined. to hospital quar-

ters under guard pending completion of appellate re-

view, his commanding officer indicated that his action

was taken for the following reasons:

_* * * T have considered, among other things,

the impact upon morale.and discipline of mili-

tary personnel stationed at Fort Jackson and |

throughout the Armed Services of any removal

of all restraint as suggested; my obligation to

- insure the safety of Captain Levy as long as he.

remains at Fort Jackson; the fact that under.

_ the system of mititary justice established by

the Uniform Code of Military J ustice, sentences

to confinement begin when the sentence is ad-

judged and are uninterrupted by parole or other

lifting of the restraint, while under the! non-

military system of criminal justice a sentence

to confinement does not begin until the convict-

ed person is incarcerated ; and the very real pos-.

sibility that Captain’ Levy’s release frotn re-

striction ‘would be construed by enlisted per-

sonnel as discriminatory since an enlisted man

convicted of comparable offenses and under sen-

_tences to confinement would not be relieved of

all restraint. [See Brief for the Respondents in

Opposition, No. 860 O.T., 1967, pp. 5-6.] .

Thereafter, the commanding officer stated in an affi- '

davit that he also took account of (1) information re-

ceived from a confidential informant that Captain. .

Levy intended to flee to a foreign jurisdiction if re-

leased, (2) ‘the seriousness of the offenses of which

he was convicted, particularly the offense of wilful

disobedience of the order of his superior, and (3) the

harmful effect upon morale which his release would

have. Brief in Opposition, supra, pp. 6-7. a

Petitioner, in pressing his contention that the sole

reason for which restraint pending appeal may be im: .

_ posed is to insure the presence of the accused, relies

_ on the fact that. in the Levy proceedings there was

reference ‘to the possibility of flight. (Pet. Br. p. 60

n. 30). It is noteworthy, however, that neither the

Court of Military Appeals nor the Fourth Circuit

___ ea

singled out this factor as the sine qua non. Instead,

- as the Court of Military Appeals observed, ‘‘[e]ach

~~ easé must be decided-on.its own merits’; ; finding that

- in “the facts ** * and circumstances. ¥* ofthis.

ne there had been no “abuse of discretion’”’ under

Manual, para. 21d, the restraint there imposed was sus-

' tained. 17 U.S.C.M.A. at 140-141, 37 O.MR. at 404-405.

There can be little question of the reasonableness

of the commanding officer’s action in the present case

- in ordering imposition of the relatively mild restraint

of arrest to quarters pursuant to the directive set

forth at A. 32-34. It surely cannot be regarded as

an. abuse of discretion to order an officer sentenced to

dismissal and imprisonment to remain in his quarters .

except when engaged in routine activities. Compare

the Levy cases." If, therefore, this Court determines |

that it can and should. reach this question, we submit

that the restraint imposed on petitioner pending com-

pletion of. appellate review should be held to have

been lawful. —

” Whether petitioner’s commanding officer actually considered

the possibility of flight does not appear. The following facts

are, however, of record: petitioner is a. senior pilot qualified as

an instructor for the latest military aircraft (A. 37-38); the

- refusal to obey an order which led to his court-martial was.

‘based upon his conscientious belief that this country’s involve-

ment in Vietnam is. unjust and immoral (A. 37); since 1966

. he has been: seeking to resign or be released from the Air Force

(A. 6, 37); at all relevant times petitioner has been stationed

at, Cannon Air Force Base, Clovis, New Mexico (A. 4, 17, 32-

34), ee 250 miles from the Mexican border.

CONCLUSION

If the Court dibintitie that the case re become

moot, the judgment below should be vacated and the

cause remanded with directions to dismiss as moot. |

Otherwise, either for. failure to exhaust his military

remedies or for lack of substance to his contentions,

the judgment denying relief to petitioner should be

affirmed.

- Respectfully submitted,

ERWIN N, GRISWOLD,

Solicitor General: ;

Win WIitson,

Assistant Attorney General.

Pair A: LACOVARA,

JOSEPH J. ConNoLcy, si

Assistants to the Solicitor Teneriid

: a | BEATRICE ROSENBERG,

, | Rocer A: Pautey, )

Attorneys,

338-797—¢9-__5

eee |

+1. The Uniform Code of Military Justice, 10 U.S.C..

80] et seq., provides in pertinent part:

_ Arr. 9. Imposition of restraint.

_ (a) Arrest is the restraint of a person by an

order, not imposed as a punishment for an of-

fense, directing him to remain within certain |

specified limits. Confinement is the physical re-

straint of a person. .

(6) An enlisted member may be ordered into

arrest or confinement by any commissioned: of-

/ ficer by an order, oral or written, delivered in

“person or through other persons subject. to this

chapter. A commanding officer may authorize

. warrant officers, petty offieers, or noncommis- .

' sioned officers to ordér enlisted members of his

command or subject to his authority into arrest '

or confinement. ' Hhe

- (¢) A commissioned officer, a warrant officer,

or a civilian subject to this chapter or to trial —

thereunder may he ordered into arrest. or con- —

finement only by a commanding officer to whose

authority he is subject, by an“order, oral or

written, delivered in person or by another com-

migsioned officer. The authority to order such

persons into arrest or confinement may not be

delegated. | ?

(d) No person. shall be ordered nto arrest

or confinement except for probable cause.” :

(¢) Nothing in this article limits the ‘author- .

ity of persons authorized to apprehend offenders

to secure the custody of an alleged offender until °

proper authggity may be notified. —y

| (61)

Antr, 10. Restraint of persons charged -with

offenses.

Any person subject to this chapter charged

with an offense under this chapter shall be

ordered into arrest or confinement, as circum-

stances may require ; but when charged only with |

/ an offense normally tried by 4 summary court-

martial, such person shall not ordinarily be

/ placed i in confinement. When any person subject

t6 this chapter is placed in arrest or confinement

prior to trial, immediate steps shall be taken to —

inform him of the specific wrong of which he is

accused and to try him or to dismiss the char Bes

' - and release him.

Art. 13. Punishment prohibited before trial.

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 arrest or confinement upon

_ the charges pending against him, nor shall the

arrest or confinement imposed upon him be any -

more rigorous than the circumstances require

to insure his presence, but he may be subjected

to minpr punishment during such period for

infractions of discipline.

Art. 57. Effective date of sentences.

_ (a) Whenever a sentence of a court-martial

. -a8 lawfully adjudged and approved includes a

forfeiture of pay or allowances in addition to

. confinement not suspended,-the forfeiture may

_ apply to pay or allowances hecoming due on or

.~ after the date the sentence is approved by the - |

convening authority. No forfeiture may extend

to any pay or allowances accrued before that

(b) Any period of confinement included i in a

sentence of court-martial begins to. run

from the datd the sentence is adjudged by the

court-martial, but periods during which the

sentence to confinement is suspended shall be

excluded in computing the service of the term

of confinement.

(¢) ‘All other sentences of | courts-martial |

are “effective on the date ordered executed. .

Art. 71. Execution of sentence; suspension of

_ sentence.

(a) No court-martial sentence extending to

death or involving a general or flag officer shall

be executed until approved bythe President. .

- He shall approve the sentence er such part,

amount, or commuted form of the sentence as

he sees fit, and may suspend the execution of

the sentence or any part of the sentence, as .

approved by him, except. the death sentence.

(b) No sentence extending to the dismissal of

commissioned officer (other than a general or °

flag officer), cadet, or midshipman may be exe=>>

cuted until approved by the Secretary concerned,

or such Under Secretary or Assistant Secre-

tary as maly be designated -by him.. He shall

approve the sentence or such part, amount,- or

commuted form of the sentence as he sees fit,

and may suspend the execution of any part of

the sentence as approved by him. In time of

_* War or national emensshey he may commute a

' sentence of dismissat-to reduction to any en-

listed grade. A person who is so reduced may

be required to serve for the duration of the

war or emergency and six months thereafter.

a dishonorable 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 Appéals. .

. (d) All other court-martial sentences, unless

suspended, may be ordered executed by the con-

vening authority when approved by him: ‘The

convening authority may suspend the execu-

tion of any sentence, except a death sentence.

Se AoA POO RAN Nae NEES rig oth aha: wine

_ 2. The Manual for Courts-Martial, United States, |

1951, provides in pertinent part: .

18. GENERAL.—a. Dobitiens~deprohension.

_ is the taking into custody of a person (Art. Ta;

see174d).

rrest is the restraint - of ‘a person by an

order not imposed as punishment for an offense

_ directing him to remain within certain specified

limits (Art. 9a).

Confinement is the physical restraint -of a

person (Art. 9a).

- b. Basie covsiderations—(1) Any person

s subject to the code accused of an offense under

the code shall be ordered into arrest or confine-

ment as circumstances. may require; but when

accused only of an offense normally tried by a

summary court-martial, such person ordinarily:

shall not be placed-in confinement (Art. 10).

The foregoing provision is‘not mandatory and.

_ its exercise rests within the discretion of the

person vested with the-power to arrest or con-

ie No, restraint need be imposed in cases

involving minor offenses. A faihire to restrain

does* nat, affect the jurisdiction of the court.

* i * * . we i *

20. RESTRAINT: —tl. 1. Status of per san in arrest.

_—As used in this: chapter, arrest is moral re-

ete straint imposed upon a. person by oral or wr it-

ten orders of competent authority limiting the

person’s personnel liberty pending disposition :

of charges. The restraint imposed is binding

upon the person arrested, not. by physical force,

: but by virtue of his moral and legal obligation:

. to obey the order of: arrest. He is subject to the

restrictions incident to arrest prescribed in ap-

plicable regulations. A person in-the status of

arrest cannot be required « to perform his fulk

military, duty, and if he is ‘placed—by the au-

thority who placed him in arrest or by superior’ -

authority—on duty inconsistent with, such sta-

tus his arrest’ is thereby. terminated. This, how-

ever, does not prevent his being required to do

ordinary cleaning or policing within the speci-

. fied limits of his arrest, or to. take part in rou-

tine training and duties not involving the exer-

‘eise of command or the bearing of arms. _

b. Restriction in liew of arrest.— An officer’

authorized to arrest (21a) may, within his dis- °

cretion and without imposing arrest, restrict

an accused person of: his command,. or*subject

_ to his authority, to specified areas of a military

command with the further provision that he

will participate in all military duties and ac- .

tivities of his organization while under such .

restriction. Thus ‘an accused person may be re-

quired to remain within a specified area at

specified times either because his continued

presence pénding investigation. may. be’ neces-

sary or because it may .be considered a wise

precaution to) restrict him to such an area in

order that he'may not again be exposed to the

temptation of misconduct similar to that for

which he is already under charges. Violations °

of such restrictions are punishable as violations |

of Article 134, as. are breaches of punitive re-

strictions. hate ee

c. Confinement prior to trial.—As used in

this chapter, confinement is physical restraint,

imposed by“ either oral ‘or written orders of

competent authority, depriving a person of

_ freedom pending the disposition of charges,

Confinement. will not be imposed’ pending trial

unless deemed necessary to insure the presence

of the accused at the trial or because of the

Seriousness of the: offense charged:

.d. Procedure for arresting or confining.—(1)

Preliminary inquiry into offense.—No person

. Shall be ordered into arrest or confinement ex-

cept for probable cause (Art. 9d). No authority

- shall order a person into arrest or confinement

unless he has’ personal knowledge of the offense

or has, made inquiry into it. Full inquiry is

not required, but the known or reported facts -

should. be .sufficient to furnish reasonable

grounds for believing that the offense has been

- committed by the person to be restrained. 7

(2) Procedural steps to arrest.—An arrest

is imposed by notifying the person to be ar-

rested that he is under arrest and informing

him ofthe limits of his arrest. The order of

arrest may be either oral or written.

(3) Procedural steps to confine-——A person

to be confined is placed under guard and taken |

to the place of eonfinement. The authority or-

dering the confinement will cause to be de-

livered to the provost marshal, commander of

the guard, prison officer, or master at arms, a

written ‘statement of the name, grade, and or-~

ganization of the prisoner and of the offense

of which he is’ accused. No provost marshal,

commander of the guard, prison officer, or

_ master dt arms shall refuse to receive or keep

any prisoner conimitted to his charge by an

_ officer of the armed forces when the commit-

ting officer furnishes a statement, signed by

him, of the ‘offense charged against the

prisoner (Art. 11a).

(4) Notification to -accused.—When any per-

- son subject to the code is placed in arrest or

confinement prior to trial, immediate steps shall

-be taken to’inform him of the specific wrong of

which he is accused and to try him or to dis-

miss the charges and release him (Art..10).

Concerning the ‘time element between service of

charges and trial, see Article, 35. See Article 98

concerning urnecessary i da in the disposition

of ‘any case.

(5) Report required. —Bvery- commander of

a ‘guard, prison officer, or master at arms to-

whose charge a prisoner has been committed.

shall, within 24 hours after such commitment,

or, in the case of a commander of the guard or

master at arms, as soon as he is relieved from

guard, report in writing to the _——

officer the name of such person, the offense

charged against him, and the name of the person

who ordered or authorized the eommitment

(Art. 11d). ‘ |

e. Unlawful detention.—Any person subject |

to the code who, except as provided by law,

apprehends, arrests, or confines any person is

subject to trial by court-martial (Art. 97)...

21, ARREST AND CONFINEMENT.—a, Who may

arrest or confine.—Persons subject to the pro-

visions of the code or to trial thereunder may

be ordered into arrest or confinement as follows:

- (1) Officer, warrant officer, or civiltan.—Only

a commanding officer to whose authority the

individual is subject may order an officer, war-

rant officer, or civilian into arrest or confine-.

ment. The arrest or confinement must be ef-

fected by an order, oral or written, delivered in

person or by another officer (Art. 9c). The -

authority to order such persons into arrest or

confinement may not be delegated (Art. 9c).

For this particular purpose, the term ‘‘eom-

manding officer” shall be construed to refer to -

an officer commanding a_ post, camp, station,

base, auxiliary airfield, Marine. barracks, naval:

or Coast Guard vessel, shipyard, or other place

where members of the armed forces are on duty,

and the officer commanding or in charge of any

other command who, under Article 24, has

power: to appoint a summary court-martial.

* . * * * *

c. “Authority of courts-martial to restrain.—A

court-martial has no control over the nature of .

the arrest or other status of restraint of ‘a

prisoner except-as regards his custody in. its

presance. |

d. Responsibility for restraint after trial._—

Upon notification from a trial counsel of the

result of a trial (44¢ (2)), a commanding offi-

cer ‘will take prompt and appropriate action

with respect to the restraint of the person tried.

«4

SAMEEREN has ne cua ela eat

Such action, depending on the circumstances, |

may involve the immediate release of the person

_ from any restraint, or the imposition of any .

necessary restraint pending final action on the

case.

97. MISCELLANEOUS Siveeeie.

* * * * *

c. Interruptions of execution of a sentence.—

A: sentence to confinement, hard labor without.

confinement, restriction to limits, deprivation

of privileges, or suspension from rank, com-

-. mand, or duty is continuous until the term ex-

pires, “with certain exceptions. Thesé exceptions

include the following:

When delivery under Article 14 is made to

any civil authority of a person undergoing sen-

tence of a court-martial, such delivery, if fol-

lowed by conviction in a ‘civil tribunal, shall be

held to interrupt the execution of the sentence .

of the court-martial, and the offender after |

‘having answered to the civil authorities for his

offense shall, upon the request of competent

‘military authority, be returned to military cus-

tody for the completion of the said court-

martial sentence (Art. 14b).

Periods during which the person undergoing

.such a sentence is absent without authority, or

is absent under a parole which proper author-

ity has suspended and-later revoked, or is er-

roneously released. from confinement through ~

misrepresentation or fraud on the part of the

prisoner, or is erroneously released from con-

- finement upon his petition for a writ of habeas

- eorpus under a court order which is later

reversed by a competent tribunal, shall be ex-

cluded in computing the service of the term

of the punishment.

Periods during which 4 “gentence to senile:

ment is suspended shall be excluded in com-

puting the service of the term of confinement

— 57 Pa

Mea

| 69 7

3; Air Force Manual: 125-2 (‘‘ Law Enforcement:

_ Operation of Correction Facilities’) ‘provides in

pertinent part: Cone

6-8. Commitment to United States Discipli-

nary Barracks; - , ae

a. Sentenced military personnel who ‘are

initially considered nonrestorable will .be‘com-

mitted: to the nearest United States Diseipli- —

nary Barracks from th lace of trial (or the —

caved from overseas) |

port of debarkation, if 1

if they have the required amount of time re-

maining to serve. Prisoners must have at least

six months confinement left to serve to be com-

mitted. ‘“‘Time left to serve’’ is the time from

the expected date of arrival at the disciplinary

. . barracks to the prisoner’s current minimum

- Telease date. . es

-b. Adjudged military persennél initially con-

sidered| nonrestorable, whose Sentences have _

been promulgated, will ordinarily be committed

to the disciplinary barracks nearest the place

of trial for -confinement pending completion

of appellate review (unless retention within ~

the trial area is thought necessary), and -pro-

vided they meet the “time left to serve’’ re-

- quirements above. | |

+ GNC ha aaa * * * |

6-16. Officers and Warrant Officers Sen-

tenced to Dismissal or Punitive Discharge.

Pending final action of. the case upon appellate

review, the following disposition will he made

of an officer or warrant officer sentenced to dis-

missal or punitive discharge, after the sentence

has been approved by the convening authority :

a. If the trial took place within the CONUS

the officer or wartarit officer wil] ordinarily not

be transferred, but separated from his present

organization. In cases where the Sentence as

_ approved by the convening authority includes a

period of confinement, the officer ‘or warrant

——-

Vitted WOES aR ay

Se ee te eee a eee ey ee een eae

| officer i is saline’ to an installation having ade-

ae!

quate facilities for the amount of the restraint,

the commander thinks necessar TY. pending final

« aetion on the caie.,

ae “Armiy- Reguwiation 633-30, Air Force Regulation

125-30 (“Apprehension and Confinement: Military

Sentences to Confinement”), pr ovides in’ pertinent -

part:

* * agoieds ‘geet *

: 4: Operation of Sentences.—a. Beginning

date. The date the sentence of a court-martial is

adjudged will mark the beginning of a sentence

to confinement whether or not the accused had —-

then been placed in confinement.

5. Operative and inoperative time.—a. Opera-

tive. A sentence to confinement, hard labor

without confinement; restriction to. limits, or

deprivation of privileges i is continuous until: the

_ term expires and is interrupted only by in-

operative time.

b. Inoperative. Inoperative time consists of

any period during which a prisoner is not cred-

ited with serving his sentence. Inoperative time

will include the period while absent without

authority; while absent from confinement on a

parole which proper authority has suspended

and later revoked; while erroneously released .

from confinement thr ough misrepresentation or

fraud on the part of the prisoner; while absent

after delivery to ‘civil: authorities, if subse-

quently convicted by a civil tribunal ; while in a

restored to duty status under. a suspended sen-

tence, the suspension of which is later vacated ;

or whiJe the sentence is interrupted as pre-

scribed in paragraph 4b(1). An escaped pris-

oner who is returned to military authority, but |

whose status as a prisoner is not known to such

authority; and who conceals his status as a pris-

oner, continues to be “absent without author-

ity” within the meaning of this regulation.

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.