Wickham v. Hall

¶1(dissenting):

¶2I

¶3At the threshold the Government contends that, regardless of the answer that might be given on the jurisdictional issue raised by petitioner, her extraordinary relief petition should be dismissed. In that event, the issue would initially be decided by the trial court, which can consider the relevant facts and make appropriate findings; thereafter petitioner can appeal any adverse decision.1 For several reasons, dismissal of the petition on such grounds appears inappropriate in this case.

¶4Of course, excessive use of this Court’s extraordinary relief powers is undesirable; extraordinary remedies should be reserved for extraordinary cases. However, the case at bar falls into that category. For one thing, the issue presented here of the constitutionality of Article 3(b), Uniform Code of Military Justice, 10 U.S.C. § 803(b), has apparently not been adjudicated during the thirty years of the Code’s existence. More important, the issue raised here is of a type which the Supreme Court has considered distinctive enough to warrant relaxation of the usual requirement that military remedies be exhausted. See Schlesinger v. Councilman, 420 U.S. 738, 759, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975); Noyd v. Bond, 395 U.S. 683, 696 n.8, 89 S.Ct. 1876, 1884, 23 L.Ed.2d 631 (1969). Thus, Toth was not required to undergo trial before he could contest court-martial jurisdiction by means of a habeas corpus proceeding in a federal district court. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Nor was such a requirement imposed on Mrs. Covert in connection with her challenge of military jurisdiction. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). Cf. McElroy v. United States ex rel. Guagliardo and Wilson v. Bohlender, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 270 (1960); Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). Likewise, a writ of habeas corpus in a Federal district court could be utilized by an accused facing trial by court-martial who claimed that he had never been “actually inducted” into the Army. Billings v. Truesdell, 321 U.S. 542, 543, 64 S.Ct. 737, 739, 88 L.Ed. 917 (1944); cf. Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972). Since the Supreme Court treats as unique for purposes of exhaustion of remedies those cases in which an accused attacks the jurisdiction of a court-martial on the ground that he is not a member of the “land and naval Forces,” U.S.Const. art. I, § 8, cl. 14, such cases should also pass muster as “extraordinary” for our purposes.

¶5Often a petition for extraordinary relief raises factual issues; under those circumstances it may be desirable to have the benefit of determinations that can be made by the court-martial at trial.2 However, in the case at bar, resolution of the underlying legal issue — the constitutionality of the Army’s endeavor to try petitioner by court-martial — does not require resolution of disputed facts. Moreover, a need exists for our Court to provide authoritative guidance as to the scope and validity of Article 3(b) —a statutory provision as to which precedent is lacking. If, however, we dismiss the *155petition without considering the merits, and petitioner is tried by court-martial and acquitted, our opportunity to provide guidance will be lost, for the case will never reach our Court on appeal. In the event of an acquittal, it is unclear when the jurisdictional issue will reach us in some other case.

¶6Of course, should we dismiss the petition without reaching the merits, the issue now presented to us will probably be decided by a federal district court in some future collateral attack. Cf. Parisi v. Davidson, supra.According to one view, this provides another reason for us to avoid the problem by dismissing the petition. My view, however, is exactly to the contrary, for I infer that, in creating our Court, Congress sought to reduce, if not eliminate, the occasions for a service member to resort to a federal district court for relief in matters involving military justice. When we fail to rule on the merits in a case like this and thereby invite resort to the federal district courts, we are negating the very purpose for which this Court was established.

¶7II

¶8Despite Judge Cook’s persuasive opinion to the contrary, I conclude that petitioner is not subject to court-martial at this time. While Article 3(b) was enacted by Congress to deal with the very type of misconduct with which petitioner is charged,3 the decision in Toth v. Quarles, supra,is a barrier to the use of that provision of the Uniform Code. Even if procured by petitioner’s misrepresentation that she was pregnant, her separation from the Army precludes her prosecution in a military tribunal until the separation has been invalidated in a federal civil court.

¶9If the signature of the person who attested to petitioner’s Department of Defense (DD) Form 214, which evidenced her separation, had been forged, the document would have no legal effect and prosecution by court-martial could proceed. However, when the separation has been procured by fraud — as allegedly occurred in the case at hand — the import of the separation is quite different: it is voidable, rather than void. Thus, if the Government so chose, it could waive the fraud and treat the fraudulent separation as valid; in that event no new DD Form 214 or other document would be necessary in order to place petitioner outside the military community.4

¶10In this case, petitioner’s separation orders have apparently been revoked ex parte by a military commander, and the Army insists that now she is again a member of the military community. Accordingly, the Army claims the right to take petitioner into custody, if necessary, so that she may be brought before a court-martial for trial on a charge of violating Article 83, UCMJ, 10 U.S.C. § 883; but if she were seized by military authorities, it is unclear what hearing, if any, would be available to test the existence of probable cause to hold her in custody. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Moreover, under the Army’s theory, it is somewhat unclear whether her status was civilian or military before her separation orders were revoked. Thus, if she is tried by court-martial and acquitted, will the findings also imply that she has really been a civilian all along, even though the Army has attempted to exercise control over her? *156In that event, would she be entitled to military pay for the period of time subsequent to her receipt of the contested discharge when it finally appears that she actually was a civilian? If the charges prove groundless, is petitioner entitled to damages for having been deprived of her liberty while awaiting trial?

¶11The Supreme Court has displayed great reluctance to allow trial by court-martial of persons who are civilians. See, e. g., McElroy v. Guagliardo, and Wilson v. Bohlender, supra; Grisham v. Hagan, supra; Kinsella v. Singleton, supra; Reid v. Covert, supra; Toth v. Quarles, supra.Thus, as noted earlier, the exhaustion-of-remedies doctrine has not hindered the access to habeas corpus relief in such cases. In view of the Supreme Court’s emphasis on restricting military jurisdiction to persons who are clearly members of the armed forces, no room is left for the procedure which Congress authorized in Article 3(b), where-under, in a trial by court-martial for alleged violation of Article 83 of the Uniform Code, it is determined whether a discharge certificate was procured by fraud. Ironically, the very act which consummates the violation of Article 83 changes petitioner’s status from military to civilian and acts as a bar to trial by court-martial, unless the discharge has been for purposes of reenlistment.5

¶12Of course, the Government should not be left remediless; fortunately several remedies do seem to be available in this situation. Criminal prosecution in a federal district court may be one possibility. See, e. g., 18 U.S.C. §§ 287, 1001. Secondly, in a civil action, where the requirement of proof beyond a reasonable doubt would not apply, the Government could seek a judgment that the discharge had been fraudulently obtained and so should be set aside. Once the discharge had been set aside because of its fraudulent procurement, petitioner would be subject to trial by court-martial under Article 83, as well as on any other charges of misconduct occurring either before or after the fraudulent discharge had originally been issued. Moreover, the absence from military duties pursuant to the discharge that later had been set aside by decree of a civil court would be unauthorized.

¶13The availability of alternative remedies which do not raise constitutional questions helps convince me that Article 3(b) does not comply with the test of limitation to “the least possible power adequate to the end proposed.” Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242, 248 (1821). See Toth v. Quarles, supra, 350 U.S. at 23, 76 S.Ct. at 8. Furthermore, the military necessity for upholding Article 3(b) is difficult to discern, since prior to this case the Armed Services seem to have gotten along for three decades without invoking this provision of the Code. On the other hand, to allow the exercise of military jurisdiction in this case places over the head of every veteran a threat that, without a hearing, he may be seized by military authorities to face trial by court-martial on the charge that his discharge from the Armed Services was procured by fraud.