Lead Opinion
Opinion of the Court
Our concern in this case is with the liability for trial by court-martial of a civilian employee of an Army contractor in the Republic of Vietnam. To decide the case we must consider whether the words “in time of war” as used in Article 2(10), Uniform Code of Military Justice, 10 USC § 802, mean a declared war.
A general court-martial at Long Binh, Vietnam, convicted Raymond G. Averette of conspiracy to commit larceny and attempted larceny of 36,000 United States Government-owned batteries. After earlier appellate review, with some modification of findings, his sentence now stands as confinement at hard labor for one year and a fine of $500.00.
The history of what is now Article 2(10), Code, supra, has been developed by Colonel William Winthrop. The British Articles of War in existence at the time of the Revolutionary War contained the precursor, which provided:
“All Suttlers and Retainers to a Camp, and all persons whatsoever serving with Our Armies in the Field, though no inlisted Soldiers, are to be subject to orders, according to the Rules and Discipline of War.” [Section XIV, Article XXIII, Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, page 941.]
The first Articles of War adopted in this country by the Provisional Congress of Massachusetts Bay in April 1775 included a provision nearly identical to the British counterpart. Article XXXII of the American Articles of War, enacted by the Continental Congress in June 1775 had a substantially similar coverage and became Article 23 of Section XIII of the American Articles of War of 1776.
“All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles. . . [Article 2(d) of the Articles of War of 1916.]
The concept of military jurisdiction over specified classes of civilians in time of peace and war was continued in the enactment of Article 2(10) and (11) of the Uniform Code of Military Justice.
Despite the existence of statutory provisions for the exercise of court-martial jurisdiction over civilians in certain circumstances, the Supreme Court in a series of cases beginning with Toth v Quarles,
Two cases decided in 1969 are urged upon us as bars to the exercise of court-martial jurisdiction over a civilian. The Fifth Amendment language excepting cases “arising in the land or naval forces” from the requirement for trial hy jury was construed in O’Callahan v Parker,
In Latney v Ignatius, 416 F2d 821 (CA DC Cir) (1969), the Court of Appeals for the District of Columbia referred to “the spirit of O’Callahan, and of the other Supreme Court precedents there reviewed,” and concluded that Article 2(10) of the Uniform Code of Military Justice could not be viewed so expansively as to reach a civilian seaman who lived on his ship while waiting for it to turn around in Da Nang, Vietnam, and who was not assimilated to military personnel in terms of living quarters or conditions. Averette, in contrast, was employed every day within Camp Davies, a United States Army installa
Several cases have been cited to us to support a contention that undeclared wars are included within the term “time of war.” Bas v Tingy,
In United States v Anderson,
We conclude that the words “in time of war” mean, for the purposes of Article 2 (10), Code, supra, a war formally declared by Congress. Pyramid Life Insurance Company v Masch, 134 Colo 56,
We do not presume to express an opinion on whether Congress may constitutionally provide for court-martial jurisdiction over civilians in time of a declared war when these civilians are accompanying the armed forces in the field. Our holding is limited — for a civilian to be triable by court-martial in “time of war,” Article 2(10) means a war formally declared by Congress. We emphasize our awareness that the fighting in Vietnam qualifies as a war as that word is generally used and understood. By almost any standard of comparison — -the number of persons involved, the level of casualties, the ferocity of the combat, the extent of the suffering, and the impact on our nation — the Vietnamese armed conflict is a major military action. But such a recognition should not serve as a shortcut for a formal declaration of war, at
The decision of the Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Army. The charges are ordered dismissed.
Notes
Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 941-981.
Dissenting Opinion
(dissenting):
In my opinion, there is no compelling or cogent reason to construe the phrase “time of war” as used in Article 2(10) of the Uniform Code differently from the construction we have accorded the same phrase in other Articles of the Code, such as Articles 43 and 85 (c). In fact, our disposition of the application for a Writ of Habeas Corpus in Latney v Ignatius,
Although there is some language in the opinion of the United States Court of Appeals for the District of Columbia in Latney v Ignatius, 416 F2d 821 (CA DC Cir) (1969), which appears to argue against jurisdiction in a case such as this, I agree with the Court of Military Review below that the decision was predicated on the absence of facts to show a sufficient connection between the accused and the armed forces. The facts in this case establish the requisite connection. A Federal district court in Kansas has denied the accused habeas corpus relief. In my view, that decision was correct, and the facts in this case support court-martial jurisdiction under Article 2(10) of the Uniform Code.
I would affirm the decision of the Court of Military Review.