On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.
Petitioner, a Lieutenant in the Air Force, was convicted by
court- martial under Art. 92 (Failure to obey order or regulation)
and 134 ( General article) of the Uniform Code of Military
Justice.
Page 419 U.S.
907 , 908
His Offense was 'failure to do monitor duty.' Petitioner's
punishment was a fine of $1500, to be paid in six monthly
installments to be deducted from his paycheck. [
Footnote 1] After exhausting his appeals,
petitioner sought a writ of habeas corpus from the District Court,
28 U.S.C. 2241, on the ground that Art. 92 is unconstitutionally
vague. The writ was denied below on the sole ground that petitioner
was not in 'custody' as required by 2241.
In my view, the District Court should have treated petitioner's
complaint as either one seeking a declaration that his punishment
was not lawfully imposed, 28 U.S.C. 2201, or one to compel
expungement of his conviction, 28 U.S.C. 1361, and reached the
merits. Several courts of appeals have entertained actions to
remove penalties imposed by military tribunals where the aggrieved
plaintiffs were not confined, but presented constitutional
challenges to the imposition of punishment. See Kauffman v.
Secretary of the Air Force, 135 U.S.App.D.C. 1,
415 F.2d
991 (1969) (suit protesting discharge and forfeiture of all pay
and allowances); Ashe v. McNamara,
355 F.2d
277 (CA1 1965) (suit to compel correction of dishonorable
discharge); Smith v. McNamara,
395 F.2d
896 (CA10 1968) ( dishonorable discharge); Mindes v. Seaman,
453 F.2d
197 (CA5 1971) ( protesting involuntary transfer to reserve
status). See also Ragoni v. United States,
424
F.2d 261 (CA3 1970) (bad conduct discharge).2
Page 419 U.S.
907 , 909
Petitioner's lawsuit represents an effort to have his
constitutional challenges to his conviction considered by an Art.
III court. A determination of these claims by a federal court is an
indispensible safeguard of the constitutional rights of an accused
subjected to military process. While the military tribunals have
responded to some constitutional claims of criminal
defendants-self-incrimination for example3-they have been less
sensitive to others. We noted in O'Callahan v. Parker,
395 U.S. 258, 265-266
(1969), that the military justice system has been ill-equipped to
deal with claims of overbreadth and vagueness. The Uniform Code of
Military Justice itself is fraught with opportunity for conflict
between military authority and individual liberties. Articles 88
(Contempt toward officials), 133 ( Conduct unbecoming an officer
and a gentleman), and 134 (General article) permit military
authority to overbear protected individual expression. When this
occurs, it is not surprising that military tribunals, reared in a
setting where obedience and conformity are the watchwords, should
tend to come down on the side of authority.
Servicemen may challenge their confinement by habeas corpus to
insure that constitutional objections to their
Page 419 U.S.
907 , 910
convictions received 'fair consideration' before the military
tribunals. Burns v. Wilson,
346 U.S.
137, 144 (1953). To withhold the same opportunity from
servicemen subjected to nonconfinement penalties raises a
substantial federal question of a denial of equal protection. The
absence of confinement does not render the punishment trivial.
Penalties not involving imprisonment-discharges, forfeitures,
demotions-are frequently employed by military authorities, often
with devastating effect upon the life and livelihood of the
affected serviceman. Judge Edgerton, writing for the Court of
Appeals in Kauffman v. Secretary of the Air Force, supra, stated
the need for an alternative mechanism of review:
'To hold that collateral review is
contingent upon confinement in every case would arbitrarily
condition the serviceman's access to civilian review of
constitutional errors upon a factor unrelated to the gravity of the
offense, the punishment, and the violations of the serviceman's
rights.'
415 F.2d
996.
Moreover, refusal to entertain petitioner's lawsuit gives rise
to the substantial constitutional question posed by denial of
access to the federal courts. Whether the Constitution permits
Congress to forbid an Art. III court from reviewing constitutional
challenge to administrative penalties is a question the Court has
not addressed explicitly. Instead the Court has construed statutory
review provisions to permit a limited scrutiny to assure fair
proceedings, Estep v. United States,
327 U.S. 114 (1946);
Kessler v. Strecker,
307 U.S. 22, 59 S. Ct. 694
(1939), and, on occasion, de novo determination of facts bearing
upon constitutional claims, see Ng Fung Ho v. White,
259 U.S. 276 (1922); St.
Joseph Stockyards Co. v. United States,
298 U.S. 38 (1936);
Crowell v. Benson,
285
U.S. 22 (1932).
Page 419 U.S.
907 , 911
See also 4 Davis, Administrative Law Treatise 28.18. To hold
that petitioner here is not entitled to a judicial determination of
the constitutional objection is to impute to Congress a deliberate
exclusion of review for a class of convictions, a course fraught
with constitutional dangers which Congress has heretofore
eschewed.
I would grant certiorari.
Footnotes
Footnote 1 The fine had not
been fully paid when he filed the application for habeas
corpus.
Footnote 2 In addition, the
Court of Claims has reviewed alleged constitutional defects in a
court-martial conviction in adjudicating claims for backpay, 28
U.S.C. 1346, Augenblick v. United States, 180 Ct. Cl. 131,
377 F.2d
586, rev'd on other grounds,
393 U.S. 348 (1969). In
the two courts of appeals decisions to reject nonhabeas review, it
did not appear that the complainant was under a continuing
disability as a result of disciplinary action. In Davies v.
Clifford,
393 F.2d
496 (CA1 1968), the court dismissed a suit to set aside a
military conviction, but the dishonorable discharge it had produced
had already been changed to an honorable one, and the plaintiff
alleged no continuing penalty. In United States v. Carney,
406 F.2d
1328 (CA2 1969), the court dismissed a similar suit without
mentioning the penalty.
Footnote 3 A privilege
against self-incrimination is codified in Art. 31 of the Uniform
Code of Military Justice. By interpretation it has been expanded to
include the requirements of Miranda v. Arizona,
384 U.S. 436 (1966), by
the Court of Military Appeals. See United States v. Tempia, 16
U.S.C.M.A. 629, 37 C.M.R. 249 (1967).
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