393 U.S. 348 (1969), 45, United States v. Augenblick

Docket Nº:No. 45
Citation:393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537
Party Name:United States v. Augenblick
Case Date:January 14, 1969
Court:United States Supreme Court

Page 348

393 U.S. 348 (1969)

89 S.Ct. 528, 21 L.Ed.2d 537

United States



No. 45

United States Supreme Court

Jan. 14, 1969

Argued November 21, 1968



Even if it is assumed, arguendo, despite the enactment of Article 76 of the Uniform Code of Military Justice (which provides that military review of court-martial convictions shall be "final and conclusive" and "binding upon all . . . courts . . . of the United States") that collateral attack on a court-martial judgment may be made in the Court of Claims through a back-pay suit alleging a "constitutional" defect in the military decision, the claims herein, which involve a rule of evidence concerning accomplice testimony, and the possible application of the Jencks Act, do not, on their facts, rise to the constitutional level. Pp. 349-356.

180 Ct.Cl. 131, 377 F.2d 586; 181 Ct.Cl. 210, 383 F.2d 1009, reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Respondents, who had been convicted by courts-martial, brought these suits for back pay. Augenblick, though charged with sodomy, was convicted of a lesser offense, an indecent act, and Juhl was convicted of selling overseas merchandise of an Air Force Exchange. Augenblick was sentenced to dismissal from the service; Juhl was sentenced to reduction in rank, partial forfeiture of pay, and confinement for six months. Each exhausted

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the remedies available to him1 and, not having obtained relief, brought suit [89 S.Ct. 530] in the Court of Claims to recover back pay2 on the ground that the court-martial infringed on his constitutional rights. The Court of Claims undertook to review the judgments of the courts-martial for constitutional defects, and rendered judgments for respondents. 180 Ct.Cl. 131, 377 F.2d 586; 181 Ct.Cl. 210, 383 F.2d 1009. The case is here on petition for writs of certiorari which we granted because of the importance of the question concerning the jurisdiction of the Court of Claims to review judgments of courts-martial. 390 U.S. 1038.

Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, provides that military review of court-martial convictions shall be "final and conclusive" and "binding upon all . . . courts . . . of the United States." The legislative history of the provision makes clear that

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relief by way of habeas corpus3 was an implied exception to that finality clause (S.Rep. No. 486, 81st Cong., 1st Sess., 32; H.R.Rep. No. 491, 81st Cong., 1st Sess., 35) -- an exception not available to respondent Augenblick because he was discharged from the service, not imprisoned, and a remedy apparently not invoked by respondent Juhl during his short period of detention.

An additional remedy, apparently now available but not clearly known at the time of these court-martial convictions, is review by the Court of Military Appeals. In United States v. Bevilacqua, 18 U.S.C.M.A. 10, 11-12, 39 C.M.R. 10, 11-12, decided November 8, 1968, that court held that it has jurisdiction

to accord relief to an accused who has palpably been denied constitutional rights in any court-martial, and that an accused who has been deprived of his rights need not go outside the military justice system to find relief in the civilian courts of the Federal judiciary.4

Prior to the enactment of Article 76, the Court of Claims had entertained suits for back pay brought by servicemen who had been convicted by courts-martial. See, e.g., Keyes v. United States, 109 U.S. 336; Runkle v. United States, 122 U.S. 543; Swaim v. United States, 165 U.S. 553; [89 S.Ct. 531] United States v. Brown, 206 U.S. 240. These decisions, it is argued, were based on the theory that the Court of Claims had jurisdiction over back-pay suits where the courts-martial lacked "jurisdiction" in the traditional sense, viz., where

there is no law authorizing

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the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed.

Keyes v. United States, supra, at 340. From this premise, it is urged that when, in review of state convictions by way of federal habeas corpus, the concept of "jurisdiction" was broadened to include deprivation by the trial tribunal of the constitutional rights of a defendant (Moore v. Dempsey, 261 U.S. 86; Johnson v. Zerbst, 304 U.S. 458), the scope of collateral review of court-martial convictions was also broadened. That is the position of the Court of Claims which rejected the view that the adoption of Article 76 introduced a new regime and that 10 U.S.C. § 1552, which provides a remedy to correct a military record in order to "remove an injustice,"5 see Ashe v. McNamara, 355...

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