41 439 Parker v. Levy 8212 206

Citation41 L.Ed.2d 439,417 U.S. 733,94 S.Ct. 2547
Decision Date19 June 1974
Docket NumberNo. 73,73
Parties. 41 L.Ed.2d 439 Jocob J. PARKER, Warden, et al., Appellants, v. Howard B. LEVY. —206
CourtUnited States Supreme Court

Article 90(2) of the Uniform Code of Military Justice (Code) provides for punishment of any person subject to the Code who 'willfully disobeys a lawful command of his superior commissioned officer'; Art. 133 punishes a commissioned officer for 'conduct unbecoming an officer and a gentleman'; and Art. 134 (the general article) punishes any person subject to the Code for, inter alia, 'all disorders and neglects to the prejudice of good order and discipline in the armed forces,' though not specifically mentioned in the Code. Appellee, an Army physician assigned to a hospital, was convicted by a general court-martial of violating Art. 90(2) for disobeying the hospital commandant's order to establish a training program for Special Forces aide men, and of violating Arts. 133 and 134 for making public statements urging Negro enlisted men to refuse to obey orders to go to Vietnam and referring to Special Forces personnel as 'liars and thieves,' 'killers of peasants,' and 'murders of women and children.' After his conviction was sustained within the military and he exhausted this avenue of relief, appellee sought habeas corpus relief in the District Court, challenging his conviction on the ground that both Art. 133 and Art. 134 are 'void for vagueness' under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. The District Court denied relief, but the Court of Appeals reversed, holding that Arts. 133 and 134 are void for vagueness, that while appellee's conduct fell within an example of Art. 134 violations contained in the Manual for Courts-Martial, the possibility that the articles would be applied to others' future conduct as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give appellee standing to challenge both articles on their face, and that the joint consideration of the Art. 90 charges gave rise to a 'reasonable possibility' that appellee's right to a fair trial was prejudiced, so that a new trial was required. Held:

1. Articles 133 and 134 are not unconstitutionally vague under the Due Process Clause of the Fifth Amendment. Pp. 752—757.

(a) Each article has been construed by the United States Court of Military Appeals or by other military authorities, such as the Manual for Courts-Martial, so as to limit its scope, thus narrowing the very broad reach of the literal language of the articles, and at the same time supplying considerable specificity by way of examples of the conduct that they cover. Pp. 752—755.

(b) The articles are not subject to being condemned for specifying no standard of conduct at all, but are of the type of statutes which 'by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain,' Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605. Pp. 755—756.

(c) Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter, and the proper standard of review for a vagueness challenge to Code articles is the standard that applies to criminal statutes regulating economic affairs, and that standard was met here, since appellee could have had no reasonable doubt that his statements urging Negro enlisted men not to go to Vietnam if ordered to do so was both 'unbecoming an officer and gentleman' and 'to the prejudice of good order and discipline in the armed forces,' in violation of Arts. 133 and 134, respectively. Pp. 756—757.

2. Nor are Arts. 133 and 134 facially invalid because of overbreadth. Pp. 757—761.

(a) Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of the principles that while military personnel are not excluded from First Amendment protection, the fundamental necessity for obedience, and the consequent necessity for discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Pp. 758—759.

(b) There is a wide range of conduct to which Arts. 133 and 134 may be applied without infringing the First Amendment, and while there may be marginal applications in which First Amendment values would be infringed, this is insufficient to invalidate either article at appellee's behest. His conduct in publicly urging enlisted personnel to refuse to obey orders which might send them into combat was unprotected under the most expansive notions of the First Amendment, and Arts. 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. Pp. 760—761.

3. Appellee's contention that even if Arts. 133 and 134 are constitutional, his conviction under Art. 90 should be invalidated because to carry out the hospital commandant's order would have constituted participation in a war crime and because the commandant gave the order, knowing it would be disobeyed, for the sole purpose of increasing appellee's punishment, is not of constitutional significance and is beyond the scope of review, since such defenses were resolved against appellee on a factual basis by the court-martial that convicted him. P. 761.

3 Cir., 478 F.2d 772, reversed.

Sol. Gen. Robert H. Bork, for appellants.

Charles Morgan, Jr., Atlanta, Ga., for appellee.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. He had entered the Army under the so-called 'Berry Plan,'1 under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor.

The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out.

During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative:

'The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.'

Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, but later determined that courtmartial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who 'willfully disobeys a lawful command of his superior commissioned officer.'2 Statements to enlisted personnel were listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of 'conduct unbecoming an officer and a gentleman,' 3 while Art. 134 proscribes, inter alia, 'all disorders and neglects to the prejudice of good order and discipline in the armed forces.'4

The specification under Art. 134 alleged that appellee 'did, at Fort Jackson, South Carolina, . . . with design to promote disloyalty and disaffection among the troops, publicly utter (certain) statements to divers enlisted personnel at divers times . . ..'5 The specification under Art. 133 alleged that appellee did 'while in the performance of his duties at the United States Army Hospital . . . wrongfully and dishonorably' make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision.6 Appellee...

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