# Respondents Brief — Noyd v. Bond

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1969
- **Citation:** 395 U.S. 683

## Text

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

Ee RN ce tee a ee a De EP

Questions presented _ . 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___.......-.- 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. -.-. acknowledged in the district.
court. ,

oe

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-

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wi tl a Di es Denial efi Melle ey sai

8

‘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.

Il

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

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| ) 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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10

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

13

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).

ee
14

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-

i

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.

/

Se

16

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

19

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 Manual was promulgated by the President pursuant to
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 “

21

"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

o

- 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

23

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. -

4

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-

eo

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. ; ,

27

‘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
a

28

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.

32

' 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 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

ve

_~ 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

41

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

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

qa

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-.

48
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-

tp

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-

Lo

tian

tl scien

49

~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- —

*

50

_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
purpose manifests an understanding that there could ©
> 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.

%

j-

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

_

a

“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).

Fd

5D

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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56
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.

57
_ 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.

59
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)

62

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.

&

6:

(¢) ‘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.

(c) No sentence which includes, unsuspended,
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.

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_ 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-

65

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

66

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 _——

67

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

A

——-

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:

es

* * 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.

©.S. GOVERNMENT PRINTING OFFICE: i969

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0122%3A07. Public record. Not legal advice.