United States v. Keating, 49 C 1771.
| Decision Date | 06 December 1949 |
| Docket Number | No. 49 C 1771.,49 C 1771. |
| Citation | 121 F.Supp. 477 |
| Parties | UNITED STATES ex rel. ROBERSON v. KEATING et al. |
| Court | U.S. District Court — Northern District of Illinois |
Abner F. Bond and Irving Goldstein, Chicago, Ill., for plaintiff.
Otto Kerner, Jr., U. S. Atty., Chicago, Ill., for defendant.
James Joseph Roberson by petition for habeas corpus complains that he is illegally detained and deprived of his liberty by commanding officers of the Great Lakes Naval Training Station. It is his contention that he is a civilian and not a member of the United States Navy. He bases his claim upon an honorable discharge issued to him on December 1, 1947, by an officer duly authorized to issue such discharges and that this discharge was duly recorded twenty-six days later in the office of the County Recorder of Cherokee County, Iowa. This is admitted, as are all other facts pertaining to this matter.
Before this discharge was issued, or simultaneously with its issuance, an oath of reenlistment was administered to the relator pursuant to an understanding that he was to have the benefit of an early discharge plus various benefits by way of special leave, transportation expenses, and so forth, if he would reenlist for an additional period of time. The relator fully performed his part of this transaction, and for a period of three days nothing happened that appears of record, so far as this record shows. On the 4th of December, three days after the issuance of the honorable discharge, relator was summoned to the administrative office and informed that he was not eligible for the administrative discharge and the reenlistment, notwithstanding the fact that the transaction had been completed as far as the relator was concerned, and notwithstanding the fact that he had received his certificate of honorable discharge and that the oath of reenlistment had been administered to him. At that point the officer of the Navy who had previously administered to the relator his oath of allegiance for his new enlistment destroyed the oath and told the relator that he was still in the Navy.
It is admitted of record that some three or four months after that the relator was charged with various violations of Navy regulations and for which he was given severe punishment by Navy court martial. He was sentenced to four years confinement, to be dishonorably discharged and suffer all the consequences following such action. At that time he interposed a plea to the jurisdiction based upon his discharge, which plea was overruled and thereafter overruled by the highest Naval authority. Inasmuch as I consider that everything that happened after December 1, 1947, is immaterial in this case, no further recital of the record is necessary at this time.
The point to be decided is extremely narrow. If the discharge of December 1, 1947, was valid or only voidable it would deprive the Navy court martial of any jurisdiction whatsoever, and nothing that happened after that date by way of Naval procedure could possibly be valid. If that discharge was nonexistent or entirely void ab initio then this court would have no jurisdiction. Nothing more is to be decided here in these proceedings than this single question.
The question of whether an individual is in the armed forces or has been discharged is of serious import. The rights and privileges of one in the armed services vary greatly from the rights and privileges of a civilian. In the armed forces all persons are governed by naval or military law and are subject to the Articles of War, every act of Congress passed pursuant thereto and all lawful regulations passed by the heads of departments under the authority of the commander-in-chief. It is perhaps needless to say that this status is far different from that of a civilian. The civilian retains all of his rights under the Constitution, while the soldier, sailor or marine has been deprived of many, if not most, of them.
For example: the First Amendment grants civilians freedom of speech and assembly, which is denied to members of the armed forces.
The Fourth Amendment grants a civilian the right to be secure in his person, house, papers and effects, which are denied members of the armed forces.
The Fifth Amendment provides that no person shall be held to answer for a capital or otherwise infamous offense unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty or property without due process of law. A member of the armed forces has no such rights.
The Sixth Amendment grants the right to a speedy and public trial by impartial jury, whereas no such thing exists in the armed forces.
The Fourteenth Amendment...
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...1956), and a preliminary holding in Berstein v. Herren, 136 F.Supp. 493, 496 (S.D.N.Y.1955); see also United States ex rel. Roberson v. Keating, 121 F.Supp. 477, 479 (N.D.Ill.1949), where it is held that "an honorable discharge is an extremely valuable property right as well as a personal r......
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...he is a soldier or a civilian, and thus, whether he is subject to military jurisdiction at all. See United States ex rel. Roberson v. Keating, 121 F.Supp. 477, 479 (N.D.Ill.1949) ("when we come to the question of whether or not a citizen is or is not a member of the [armed forces], the poin......
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