Noyd v. Bond

• Decision Date: 16 June 1969
• Docket Number: No. 830,830
• Citation: 89 S.Ct. 1876,395 U.S. 683,23 L.Ed.2d 631
• Parties: Captain Dale E. NOYD, Petitioner, v. Major General Charles R. BOND, Jr., et al
• Court: U.S. Supreme Court

395 U.S. 683

89 S.Ct. 1876

23 L.Ed.2d 631

Captain Dale E. NOYD, Petitioner,

v Major General Charles R. BOND, Jr., et al.

No. 830.

Argued April 24, 1969.

Decided June 16, 1969.

Marvin M. Karpatkin, New York City, for petitioner.

James van R. Springer, Washington, D.C., for respondents.

Mr. Justice HARLAN delivered the opinion of the Court.

Petitioner is a career officer in the Air Force who has come to believe that this country's participation in the Vietnamese conflict is unjust and immoral. Having decided that he would do nothing to further the Nation's military effort in Southeast Asia, Captain Noyd refused to obey an order, issued December 5, 1967, requiring him to teach one of the junior officers at the Cannon Air Force Base, New Mexico, to fly a military airplane.¹

In response, Major General Charles Bond, Jr., the Commander of the Twelfth Air Force, convened a general court-martial at the Cannon Base. On March 8, 1968, the court-martial found Noyd guilty of wilfully disobeying a lawful order; on the following day petitioner was sentenced to one year's confinement at hard labor, forfeiture of all pay and allowances, and dismissal from the Air Force. As soon as the court-martial announced its sentence, Captain Noyd was ordered confined to his quarters. The court-martial's judgment was then forwarded to General Bond for the review required by 10 U.S.C. § 864, and on May 10, 1968, the General approved the sentence, ordering that: 'Pending completion of appellate review, the accused will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.'

At this point, petitioner's attorneys undertook two courses of action. On the one hand, they appealed the merits of petitioner's conviction to the Air Force Board of Review, which is the appellate military tribunal Congress has established to oversee the administration of criminal justice in petitioner's branch of the Armed Forces. On the other hand, they sought habeas corpus relief from the civilian courts, arguing that the Uniform Code of Military Justice required that petitioner be released from confinement pending the outcome of his military appeal.

At the present time, petitioner's appeal from his conviction is still pending in the higher reaches of the military court system. While the Air Force Board of Review has now affirmed the judgment of the court-martial, the Court of Military Appeals, the highest military tribunal, has agreed to review Captain Noyd's case. Petitioner does not suggest that we may properly interfere with the orderly process of military review by considering the merits of his conviction at this juncture. Rather, we are now only asked to vindicate his asserted right to remain free from confinement while the validity of his conviction is still being litigated in the appellate military courts.

I.

Captain Noyd's effort to invoke the assistance of the civilian courts was precipitated by General Bond's order transferring petitioner to the disciplinary barracks at Fort Leavenworth. Shortly after the order was issued, and before it was carried out, petitioner sought a writ of habeas corpus from the United States District Court for the District of New Mexico, arguing that both his confinement at the Cannon Air Force Base and his proposed transfer to Fort Leavenworth were in violation of two provisions of the Uniform Code of Military Justice. First, petitioner contended that his confinement constituted an attempt to 'execute' his sentence in violation of Article 71(c) of the Code, which provides:

'No sentence which includes, unsuspended, a dishonorable or bad-conduct discharge, or confinement for one year or more, may be executed until affirmed by a board of review and, in cases reviewed by it, the Court of Military Appeals.' 10 U.S.C. § 871(c). (Emphasis supplied.)

Second, petitioner argued that Article 13 of the Code² only authorized confinement of a convicted serviceman pending his appeal after the military has found that restraint is necessary to prevent the serviceman's flight from the jurisdiction. Since no such finding has been made in this case, petitioner argued that the civilian court should require his complete releas.

The Government, in addition to opposing Captain Noyd's claims on the merits, argued that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts. The District Court, however, refused to apply the exhaustion principle in the present case, finding that the military court system did not provide petitioner with an adequate remedy by which he could test the validity of his confinement, pending appeal, in an expedited man- ner. Turning to the merits, the District Judge granted petitioner part of the relief he requested. While the court refused to review the legality of Noyd's confinement at the Cannon Air Force Base, the court did find that petitioner's incarceration at Fort Leavenworth would constitute an 'execution' of his sentence in violation of Article 71(c), and so declared General Bond's order invalid.³

Both sides appealed to the Court of Appeals for the Tenth Circuit, which reversed the District Court's grant of partial relief. Relying on this Court's decision in Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950), a unanimous panel held that the District Court could not properly grant petitioner any form of relief until he had first challenged the validity of his confinement before the appellate tribunals within the military system. The court emphasized that 'the Court of Military Appeals has recently held that it possesses the power to issue a habeas corpus writ' if a serviceman could demonstrate that he was illegally restrained pending appeal, and it could perceive no justification for petitioner's failure to seek the military court's assistance. 402 F.2d 441, 442—443. We granted certiorari to consider the propriety of the application of the rule of Gusik v. Schilder in the circumstances of this case. 393 U.S. 1048, 89 S.Ct. 692, 21 L.Ed.2d 690 (1969).

II.

Shortly after the Court of Appeals announced its decision, petitioner recognized that since his sentence was scheduled to expire on December 26, 1968,⁴ he might well be released from custody before this Court would have an opportunity to pass upon his claims for relief pending his appeal to the military courts. In order to avoid the possibility of mootness, petitioner promptly requested the Court of Appeals to stay its mandate and order his release pending this Court's decision on his petition for certiorari. On December 6, the Court of Appeals agreed to stay its mandate, thereby keeping the District Court's order in effect, but refused to require the military to release Captain Noyd from custody at the Cannon Air Force Base.

Petitioner then applied to Mr. Justice White, Circuit Justice for the Tet h Circuit, for temporary release from all confinement pending this Court's action on his certiorari petition. When the Circuit Justice denied this application on December 18, 1968, a second motion of the same tenor was made to Mr. Justice Douglas on the following day. Noting that the Court was then in recess and would not meet again until January 10, 1969, Mr. Justice Douglas ordered that 'petitioner * * * be placed in a non-incarcerated status' until the full Court could have an opportunity to pass on the issues raised in a considered manner. 89 S.Ct. 478, 21 L.Ed.2d 554. Pursuant to Mr. Justice Douglas' order, petitioner was released from confinement on Christmas Eve, two days before his sentence was scheduled to expire.⁵

Despite Mr. Justice Douglas' order of release, the Government now suggests that this case has become moot. It claims that under the applicable military law, a judicial order that petitioner be placed in a 'non-incarcerated status' was insufficient to toll petitioner's sentence, which continued to run until it expired of its own force on December 26. The Government bases this claim upon its reading of Article 57(b) of the Uniform Code of Military Justice:

'Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended shall be excluded in computing the service of the term of confinement.' 10 U.S.C. § 857(b).

Citing interpretive military regulations, the Government understands the statute to establish the general rule that '(t)he date the sentence of a court-martial is adjudged will mark the beginning of a sentence to confinement whether or not the accused had then been placed in confinement.' Apprehension and Confinement: Military Sentences to Confinement, AR 633—30; AFR 125 30. (Emphasis supplied.)

Petitioner does not disagree with the Government's understanding of the general rule, but relies on that part of the statute which expressly provides that a sentence may be tolled if it is 'suspended' and the serviceman is placed on probation. Petitioner argues that since Mr. Justice Douglas' order, and this Court's confirmance of it, had the obvious purpose to preserve the status quo pending the full Court's consideration of the merits of his certiorari petition, the order should be understood to have 'suspended' petitioner's sentence within the meaning of the statutory exception to the general rule. In response, the Government emphasizes that Mr. Justice Douglas' order did not expressly 'suspend' petitioner's sentence and so contends that the statutory exception is not applicable in this instance.

We find it unnecessary to decide this question. For even if Mr. Justice Douglas' order did not satisfy the statutory exception, we hold that it was sufficient to interrupt the running of petitioner's sentence. Like the Court of Military Appeals, we do not believe that Congress intended that the general rule stated in Article 57(b) be inexorably applied in all situations which do not fall...