Noyd v. Bond, 13-68
| Citation | 402 F.2d 441 |
| Decision Date | 20 January 1969 |
| Docket Number | No. 13-68,14-68.,13-68 |
| Parties | Captain Dale E. NOYD, Appellant, v. Major General Charles R. BOND, Jr., Commander, Twelfth Air Force, United States Air Force, Colonel George R. Doerr, Commander, 832nd Combat Support Group, and Commander, Cannon Air Force Base, New Mexico, Colonel Robert R. Scott, Commander, 832nd Air Division, Cannon Air Force Base, New Mexico, Colonel Jimmy J. Jumper, Commander, 27th Tactical Fighter Wing, Cannon Air Force Base, New Mexico, Lieutenant Colonel James L. Glessner, Jr., Commander, 524th Tactical Fighter Squadron, Cannon Air Force Base, New Mexico, Captain Charles Thompson, Commander, 832nd Security Police Squadron, Cannon Air Force Base, New Mexico, Appellees. Captain Dale E. NOYD, Cross-Appellee, v. Major General Charles R. BOND, Jr., Commander, Twelfth Air Force, United States Air Force, Colonel George R. Doerr, Commander, 832nd Combat Support Group, and Commander, Cannon Air Force Base, New Mexico, Colonel Robert R. Scott, Commander, 832nd Air Division, Cannon Air Force Base, New Mexico, Colonel Jimmy J. Jumper, Commander, 27th Tactical Fighter Wing, Cannon Air Force Base, New Mexico, Lieutenant Colonel James L. Glessner, Jr., Commander, 524th Tactical Fighter Squadron, Cannon Air Force Base, New Mexico, Captain Charles Thompson, Commander, 832nd Security Police Squadron, Cannon Air Force Base, New Mexico, Cross-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Marvin M. Karpatkin, New York City, for appellant and cross-appellee.
John Quinn, U.S. Atty., Albuquerque, N.M., (John A. Babington, Asst. U.S. Atty., Albuquerque, N.M., on the brief) for appellees and cross-appellants.
Before PHILLIPS, HILL and SETH, Circuit Judges.
Certiorari Granted January 20, 1969. See 89 S.Ct. 692.
On March 8, 1968, Dale E. Noyd, a captain in the United States Air Force, was convicted by a general court-martial of violating Article 90 of the Uniform Code of Military Justice in that he wilfully disobeyed a lawful military order. He was sentenced to dismissal from the service, forfeiture of all pay and allowances and confinement for one year at hard labor. On May 10, 1968, the general court-martial convening authority, General Charles R. Bond, approved the conviction and ordered Noyd removed to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, pending completion of military appellate review. Before the transfer order could be carried out, this petition for habeas corpus was filed in the federal district court of New Mexico. The petition asserted the foregoing facts and sought either release on bail or, in the alternative, maintenance of the pre-existing condition of confinement, namely, arrest in quarters at Cannon Air Force Base, Clovis, New Mexico.
The district court determined that to allow the transfer to Fort Leavenworth would be tantamount to an execution of the sentence prior to the completion of military review procedures. This being prohibited by Article 71(c) of the Uniform Code of Military Justice (UCMJ),1 it was decreed that appellant be relieved from said order. Pursuant to the court's directive, the Air Force rescinded the transfer order and directed that appellant be placed under guard and restricted to a room in the Visiting Officers' Quarters at Cannon Air Force Base. Both parties being dissatisfied with the disposition of the matter as it presently stands, this appeal followed.
At the outset we are faced with the familiar question of exhaustion of military remedies. Under well established military appellate procedure, appellant is entitled to obtain a review of his conviction by an Air Force Board of Review and, if a petition for review is granted, by the United States Court of Military Appeals. At the present time, the Board of Review has heard oral argument although no decision has yet been rendered. Thus, it is apparent that the military appellate procedures have not been pursued to finality.
It is well established, not only in this court2 but by the United States Supreme Court3 that habeas corpus is not available to review military confinement until after all remedies afforded by the UCMJ have first been exhausted. The policy underlying the requirement of exhaustion of state remedies applies with equal force to attacks upon the propriety of military confinement. Military law and state law both exist substantially independent and apart from the law governing the federal courts. All three separate judicial establishments necessarily reflect the effects of diverse functions. For this court to intervene in military matters prior to the full utilization of all means of rectification provided by that separate entity might well constitute a needless interference with the procedures established to police the errors of that tribunal. Accordingly, if an available procedure has not been employed to permit the military to correct an alleged deficiency it is not for this court to undertake an untimely intervention.
Admittedly, appellant does not now attempt to collaterally attack the judgment of the court-martial on the merits....
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