Opinion of the Court
Petitioner’s application for a writ of prohibition, injunction, and other appropriate relief, is premised on the contention that he is not subject to military jurisdiction and that consequently he may not be required to undergo a rehearing directed by the convening authority following this Court’s reversal of petitioner's first conviction.
. On March 28, 1970, petitioner was tried by general court-martial in Vietnam and convicted of several offenses. He was sentenced to a dishonorable discharge, total forfeitures, confinement at hard labor for 10 years, and reduction to the lowest enlisted grade. On July 23, 1970, the convening authority approved the findings and sentence and directed that the accused be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.
On May 20, 1971, the petitioner was convicted by general court-martial at Fort Leavenworth of escape from confinement and sentenced to a dishonorable discharge, total forfeitures, and confinement at hard labor for 14 months. On July 19,1971, the convening authority approved the findings and the sen
On March 13, 1972, the petitioner was dishonorably discharged from the Army pursuant to this second sentence and, on April 26, 1972, he completed its term of confinement. On April 27, he resumed service of his original sentence.
In the meantime, this Court had granted the accused’s petition for review of his first conviction. On June 23, 1972, we set aside the findings of guilty and authorized a rehearing. United States v Peebles,
Acceding to the convening authority's instructions, the military judge reversed his earlier ruling and denied the defense motion to dismiss for want of jurisdiction. The trial was set for January 16,1973.
On December 6, 1972, in compliance with a request by defense counsel, the convening authority released the petitioner from confinement and permitted him to return to his home, pending trial. On February 1, 1973, Peebles filed his petition in this Court, contending that the Army had no jurisdiction over him and praying for relief against its attempt to retry him. On February 9, 1973, we stayed the proceedings against the petitioner, and ordered the United States to show cause why the relief sought should not be granted.
The petitioner’s claim of lack of jurisdiction to rehear is that, as a result of his later conviction and sentence for escape from confinement, he was dishonorably discharged from the Army and is now a civilian. He argues that any military jurisdiction that existed over him after that discharge resulted from his status as a prisoner serving the sentence adjudged in the case with which we are presently concerned. And when this Court set aside the findings and the sentence in this case, the petitioner arguably was no longer serving a sentence of a court-martial, and, since he was a civilian, by reason of his prior discharge, the Army has lost all power to retry him. As support for this proposition, he relies principally on United States ex rel. Toth v Quarles,
In Toth, the petitioner had been honorably discharged from the service without any attempt to commence criminal proceedings against him. He was subsequently arrested in Pittsburgh and returned to Korea at a time when “he had no relationship of any kind with the military.”
The petitioner is not a civilian like Toth. Cf. United States v Gallagher,
. Nor does our action in reversing the conviction and sentence prevent petitioner’s retrial even though his discharge occurred before the reversal. In Carter v McClaughry,
The accused was proceeded against as an officer of the army, and jurisdiction attached in respect of him as such, which included, not only the power to hear and determine the case, but the power to execute and enforce the sentence of the law.
It may be added that the principle that where jurisdiction has attached it cannot be devested by mere subsequent change of status has been applied as justifying the trial and sentence of an enlisted man after expiration of the term of enlistment (Barrett v Hopkins,2 McCrary, 129 , 7 Fed 312), and the execution of sentence after the lapse of many years, and the severance of all connection with the Army. Coleman v Tennessee,97 US 509 ,24 L Ed 1118 .
Toth and related cases establish that jurisdiction to try a person by court-martial depends upon the person’s status as a member of the armed forces. But that status is fixed at the time the proceedings begin. Carter v McClaughry, supra; United States v Rubenstein,
In Reid v Covert,
Nor is jurisdiction defeated by reversal of Mrs. Covert’s conviction and the ordering of a rehearing. The military courts have recognized rehearings to be but continuations of the original proceedings . . and the legislative history of Article 63 of the Code . . . bears out the fact that they were so intended by Congress. HR Rep No. 491, 81st Cong, 1st Sess 30; S Rep No. 486, 81st Cong, 1st Sess 27.
In this case we hold only that military jurisdiction, once validly attached, continues until final disposition of the case.
Finally, the petitioner’s release from pretrial confinement and return to his home pending resolution of the issue before us did not affect jurisdiction over him. The action was taken at the request of his counsel and the petition concedes that his return for trial was contemplated. In this connection, counsel’s reliance on United States v Aletky,
We hold therefore that jurisdiction to retry the petitioner was not terminated by the intervening dishonorable discharge that he received in his second trial, by this Court’s reversal of his first conviction, or by his release from pretrial confinement and return to his home.
The order staying the proceedings on rehearing is vacated and the petition for extraordinary relief is denied.
Notes
The accused’s sentence to confinement began to run on the date it was adjudged. Article 57(b), Uniform Code of Military Justice, 10 USC § 857 (b).
United States v Bryant,
See Article 62, Uniform Code of Military Justice, 10 USC § 862; United States v Boehm,