298 F. Supp. 1164 | D.S.C. | 1969
ORDER
The petitioners are legally inducted members of the military forces of the United States, presently involved in court-martial proceedings arising out of conduct committed by them on March 20, 1969, while regularly stationed at Fort Jackson, South Carolina. All were placed in confinement or under restraint at various times between March 21 and March 28, 1969, pending the disposition of such proceedings. Four of the petitioners were confined in the prison stockade
Promptly after such confinement or restraint, Article 32(b) investigations— a necessary preliminary to court-martial under the Uniform Code of Military Justice — were authorized as to petitioners Rudder, Pulley, Cole and Thomas and set to begin April 15. At the request of civilian counsel for the petitioners, submitted on April 8, such investigation was continued until April 22 and is now proceeding without delay.
In the meantime, contending that their pre-trial confinement or restraint violates the provisions of the Uniform Code of Military Justice and the regulations issued thereunder, the petitioners have applied to this Court for a writ of habeas corpus to secure their release from confinement or restraint pending the completion of their court-martial proceedings. This is the matter now before me.
It should be noted at the outset that, although the petition sets forth fairly extensive claims of constitutional infirmities in the pending court-martial proceedings, the petitioners at the hearing before this Court, expressly disclaimed any purpose, by this action, to assail the proceedings in court-martial or to seek to by-pass the military procedures applicable thereto. Moreover, they do not assert that their confinement or restraint is under conditions violative of any constitutional rights of persons under restraint,
The sole complaint of the petitioners is that their pre-trial confinement and restraint violate and go beyond the terms of Section 13 of the Uniform Code of Military Justice.
“It must be remembered that the only valid ground for ordering confinement prior to trial is to insure the continued presence of the accused, as where he has earlier indicated that his obligation to remain with his unit weighs lightly with him, or where the seriousness of the offense alleged is likely to tempt him to take leave of his surroundings.” (p. 90)
The petitioners seemingly assume that, since they have been denied release by the Secretary of the Army, they have exhausted all remedies within the “hierarchy within the military establishment”. This is not true. A plain and clear remedy remains by application in habeas corpus to the Court of Military Appeals. As the letter of Colonel Mel-nick, writing on behalf of the Secretary of Army, in reply to counsel for the petitioners (Petitioners’ Exhibit D) pointed out, the Uniform Code of Military Justice and the Manual for Court-Martial, 1969, “provide complete protection remedies and procedures for military persons”. The Court of Military Appeals, provided for in the Uniform Code of Military Justice, was expressly created “to enforce the procedural safeguards which Congress determined to guarantee to those in the Nation’s armed services”. Burns v. Wilson (1952) 346 U.S. 137, 141, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508, reh. den. 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363. Such Court has demonstrated, as the Court indicated in Levy v. Corcoran (1967) 128 U.S.App.D.C. 388, 389 F.2d 929, 930-931, both a readiness to protect, and an effectiveness in protecting, the rights of men in the military service. See, also, Chief Justice Warren, “The Bill of Rights and the Military in the Great Rights” (1963). Under “its general supervisory power over the administration of military justice,” it can entertain jurisdiction and grant relief on an extraordinary basis in the nature of habeas corpus in order to safeguard accused military personnel in all their legal and constitutional rights, both during and “pending court-martial proceedings” (Italics included). United States v. Bevilacqua, 18 USCMA 10, 11-2 (1968). Thus, in Lowe v. Laird, USCMA, filed March 4, 1969, it, on a petition for a writ of habeas corpus, reviewed the right of military personnel involved in court-martial proceedings for relief from pre-trial confinement, exactly the question raised by the petitioners.
Petitioners thus have a plain remedy, if their confinement or restraint is invalid, before the Court of Military Appeals. Until such remedy has been exhausted, any application to this Court for relief is untimely.
The petition is accordingly dismissed.
And it is so ordered.
. The petitioners confined in the prison stockade are Cole, Pulley, Rudder and Thomas.
. Petitioners Woodfin and Mays have been so restricted. “Such restriction permits free movement in the company area. This is a moral restraint. There is no guard on the men.” See affidavit of Colonel Maertens, April 23, 1969.
. Petitioner Chaparro, who is to be discharged, is so restricted.
. Petitioner Duddle has been granted emergency leave.
. See affidavit of Colonel Maertens, April 23, 1969.
. See the two affidavits of Colonel Charles R. Counts, Staff Judge Advocate of Headquarters, dated April 23, 1969, and April 24, 1969, together with attachments.
. Cf. Ex parte Hull (1941) 312 U.S. 546, 549, 61 S.Ct. 640, 85 L.Ed. 1034, reh. den. 312 U.S. 716, 61 S.Ct. 823, 85 L. Ed. 1146.
. Cf. Gorko v. Commanding Officer, Second Air Force, Shreveport, La. (C.C.A. 10, 1963) 314 F.2d 858, 860:
“From the inception of the prosecution the proceedings were carried out in conformity with the Uniform Code of Military Justice and without any purposeful or oppressive delay. The time reasonably consumed in the use of the procedures which are designed to protect the rights of the accused and to which no objection is raised forms no basis for a claim of undue delay.”
. 10 U.S.O.A. Section 813.
. 10 U.S.O.A. Section 836.
. Cf. United States v. Augenblick (1969) 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537; and Heilman v. United States (C.C.A.7 1969) 406 F.2d 1011, 1013.
. Gusik v. Schilder (1950) 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146.
. Smith v. Resor (C.C.A.2 1969) 406 F.2d 141, 145.
. Burns v. Wilson (1952) 346 U.S. 137, 141, 73 S.Ct. 1045, 97 L.Ed. 1508, reh. den. 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363.
. Noyd v. Bond (C.C.A.10 1968) 402 F.2d 441, 442.