418 U.S. 676 (1974), 72-1713, Secretary of the Navy v. Avrech

Docket Nº:No. 72-1713
Citation:418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033
Party Name:Secretary of the Navy v. Avrech
Case Date:July 08, 1974
Court:United States Supreme Court
 
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Page 676

418 U.S. 676 (1974)

94 S.Ct. 3039, 41 L.Ed.2d 1033

Secretary of the Navy

v.

Avrech

No. 72-1713

United States Supreme Court

July 8, 1974

Argued February 20, 1974

APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

This Court will not decide whether the District Court had jurisdiction of an action challenging a court-martial conviction under Art. 80 of the Uniform Code of Military Justice of an attempt to commit an offense under Art. 134, on the ground, inter alia, that Art. 134 is unconstitutionally vague, since, assuming, arguendo, that the District Court did have jurisdiction, the decision in Parker v. Levy, 417 U.S. 733, requires reversal of the Court of Appeals' decision on the merits reversing the District Court's denial of relief and holding that Art. 134 is unconstitutionally vague.

155 U.S.App.D.C. 352, 477 F.2d 1237, reversed.

Per curiam opinion.

PER CURIAM.

Appellee Mark Avrech was convicted by a special court-martial on charges of having violated Art. 80 of the Uniform Code of Military Justice, 10 U.S.C. § 880. The specification under Art. 80, which punishes attempts to commit offenses otherwise punishable under the UCMJ, charged an attempt to commit an offense under the first and second clauses of Art. 134, 10 U.S.C. § 934, namely, an attempt to publish a statement disloyal

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to the United States to members of the Armed Forces "with design to promote disloyalty and disaffection among the troops."

Upon conviction, appellee was sentenced to reduction in rank to the lowest enlisted grade, forfeiture of three months' pay, and confinement at hard labor for one month. The commanding officer suspended the confinement, but the remainder of the sentence was sustained by the Staff Judge Advocate and the Judge Advocate General of the Navy. Appellee was subsequently given a bad-conduct discharge after an unrelated second court-martial conviction.

In December, 1970, appellee brought this action in the United States District Court for the District of Columbia, asserting jurisdiction under 5 U.S.C. §§ 701-706, 28 U.S.C. § 1331, and 28 U.S.C. § 1361. He claimed that Art. 134 was unconstitutionally vague and overbroad on its face and as applied, that his statement was protected speech, and that he was convicted without sufficient evidence of criminal intent. He sought an order declaring his Art. 80 conviction invalid and requiring the Secretary of the Navy to expunge any record of his conviction and to restore all pay and benefits lost because of the conviction. After the District Court denied relief, the Court of Appeals reversed, holding that Art. 134 is unconstitutionally [94 S.Ct. 3040] vague. 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973). We noted probable jurisdiction. 414 U.S. 816 (1973). Following oral argument on the merits, we directed counsel to file...

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