402 F.2d 441 | 10th Cir. | 1968
On March 8,1968, Dale E. Noyd, a captain in the United States Air Force, was convicted by a general court-martial of violating Article 90 of the Uniform Code of Military Justice in that he wilfully disobeyed a lawful military order. He was sentenced to dismissal from the service, forfeiture of all pay and allowances and confinement for one year at hard labor. On May 10, 1968, the general court-martial convening authority, General Charles R. Bond, approved the conviction and ordered Noyd removed to the United States
The district court determined that to allow the transfer to Fort Leavenworth would be tantamount to an execution of the sentence prior to the completion of military review procedures. This being prohibited by Article 71(c) of the Uniform Code of Military Justice (UCMJ),
At the outset we are faced with the familiar question of exhaustion of military remedies. Under well established military appellate procedure, appellant is entitled to obtain a review of his conviction by an Air Force Board of Review and, if a petition for review is granted, by the United States Court of Military Appeals. At the present time, the Board of Review has heard oral argument although no decision has yet been rendered. Thus, it is apparent that the military appellate procedures have not been pursued to finality.
It is well established, not only in this court
Admittedly, appellant does not now attempt to collaterally attack the judgment of the court-martial on the merits. He seeks instead to obtain relief from his detention pending military appeal. Nonetheless, it is clear that this issue can be raised in the same manner on appeal to the proper military tribunal as if it related to any other failure to fully comply with the UCMJ.
The order of the district court in granting partial relief is therefore vacated and the judgment is reversed.
. Article 71(c) of the Uniform Code of Military Justice provides:
“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 Appeals.” 10 U.S.C. § 871(c).
. Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967), cert. den. 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667; Gorko v. Commanding Officer, etc., 314 F.2d 858 (10th Cir. 1963) ; McKinney v. Finletter, 205 F.2d 761 (10th Cir. 1953); Hunter v. Beets, 180 F.2d 101 (10th Cir. 1950), cert. den. 339 U.S. 963, 70 S.Ct. 997, 94 L.Ed. 1372, and McMahan v. Hunter, 179 F.2d 661 (10th Cir. 1950), cert. den. 339 U.S. 968, 70 S.Ct. 985, 94 L.Ed. 1376. See Annot., 15 A.L.R.2d 387 (1949).
. Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950).
. E. g., United States v. Smith, 2 CMR 817 (1952); United States v. Ranes, 3 CMR 550 (1952); United States v. Lucero, 18 CMR 942 (1955); and United States v. Lock, 36 CMR 72 (1965).
. Levy v. Resor, 37 CMR 399 (1967).
. This court in requiring that appellant first exhaust all available military remedies, does so after fully recognizing that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment.” Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953).