Avrech v. Secretary of Navy, 71-1841.

• Decision Date: 20 March 1973
• Docket Number: No. 71-1841.,71-1841.
• Citation: 477 F.2d 1237
• Parties: Mark AVRECH, Appellant, v. The SECRETARY OF the NAVY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

477 F.2d 1237 (1973)

Mark AVRECH, Appellant, v. The SECRETARY OF the NAVY.

No. 71-1841.

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 1972.

Decided March 20, 1973.

Dorian Bowman, New York City, and David Rein, Washington, D. C., for appellant.

Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Michael A. Katz and James F. McMullin, Asst. U. S. Attys., for appellee.

Before Mr. Justice CLARK,^* and WRIGHT and WILKEY, Circuit Judges.

Mr. Justice CLARK:

Appellant, Mark Avrech, brought this suit seeking a declaration that his 1969 court-martial conviction was constitutionally invalid under the First and Fifth Amendments and an order that the conviction be expunged from his military record and that he recover all pay and benefits lost by reason of the conviction.¹ Avrech was convicted of violating Article 134 of of the Uniform Code of Military Justice, known as the "General Article,"² which imposes criminal sanctions on "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces."³ More specifically, Avrech was charged with attempting to publish and publishing a statement disloyal to the United States, with design to promote disloyalty and disaffection among the troops. After pleading not guilty, he was acquitted of publishing but found guilty of attempting to publish the statement. He complains that the language of Article 134 is unconstitutionally vague and overbroad under the Fifth Amendment in that the Article did not give him fair notice that his contemplated statement was forbidden; he also urges that his statement was protected free speech under the First Amendment. The District Court upheld his conviction. We reverse on the Fifth Amendment ground.

1. Background of the Prosecution:

Avrech enlisted in the Marines in 1967 and was sent to Vietnam in February, 1969, with the rank of private first class. While stationed at Danang and on night duty with the group supply offices, Avrech typed up a stencil criticizing American involvement in Vietnam. It stated:

"I\'ve been in this country now for 40 days and I still don\'t know why I\'m here. I\'ve heard all the arguments about communist aggression and helping the poor defenseless people. I\'ve also heard this three years ago. The entire Vietnamese Army will switch to a pacification role in 1967 and leave major fighting to the American troops. (Statement of South Vietnamese Foreign Minister, L. A. Times, Nov. 18, 1966.) It seems to me that the South Vietnamese people could do a little for the defense of their country. Why should we go out and fight their battles while they sit home and complain about communist aggression. What are we cannon fodder or human beings? If South Vietnam was willing to go it on their own back in 1964 what the hell is the matter with them now? The United States has no business over here. This is a conflict between two different politically minded groups. Not a direct attack on the United States. It\'s not worth killing American boys to have Vietnam have free elections. (Former Vice President Richard M. Nixon, L. A. Times, December 31, 1967.) That was our present leader of this country and now he has the chance to do something about the situation and what happens. We have peace talks with North Vietnam and the V.C. That\'s just fine and dandy except how many men died in Vietnam the week they argued over the shape of the table? Why does this country think that it can play games with peoples lives and use them to fight their foolish wars, I say foolish because how can you possibly win anything like a war by destroying human lives. Human lives that have no relation at all to the cause of the conflict. Do we dare express our feelings and opinions with the threat of court-martial perpetually hanging over our heads? Are your opinions worth risking a court-martial? We must strive for peace and if not peace then a complete U.S. withdrawal. We\'ve been sitting ducks for too long. ***** *SAM*"

Sometime thereafter Avrech asked his immediate superior, Corporal William R. Jackson, who was operating the mimeograph machine in their office, to duplicate the statement or permit him to do so. When Jackson inquired as to the content of the stencil, Avrech replied: "If I tell you that you won't let me run it off." Jackson then refused. Later Avrech let Jackson read the stencil; the latter reproached Avrech and subsequently turned it over to a superior officer. This prosecution folllowed.

Avrech was sentenced to confinement at hard labor for one month, reduction in rank, and forfeiture of pay for three months. 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. On June 26, 1970, Avrech received a bad conduct discharge after a second and unrelated special court-martial conviction for having stolen a camera from the Navy Exchange. The Navy Court of Military Review, in ordering the discharge, took into account Avrech's conviction here under attack.

The District Court granted the Government's motion for summary judgment, holding that Avrech's statement was not protected by the First Amendment and that Article 134 provides a sufficiently definite warning as to the proscribed conduct and a sufficiently ascertainable standard of guilt to survive the constitutional vagueness challenge.

2. History and Components of Article 134:

We need not pause to detail the history of Article 134. Its antecedents go back to British military sources prior to American Independence. In this country the Constitution entrusted to the Congress the power "to make Rules for the Government and Regulation of the land and naval Forces," Article I, § 8, Cl. 14. In 1950, pursuant to this grant, the Congress adopted the Uniform Code of Military Justice. Article 134 of the Code includes three clauses which prohibit (1) "all disorders and neglects to the prejudice of good order and discipline in the armed forces;" (2) "all conduct of a nature to bring discredit upon the armed forces;" and, (3) crimes and offenses not capital (this last clause not being here in issue). The General Article is the American version of an older provision of military law known by the British as the "Devil's Article." A distinguished commentator and leading authority in the field, William Hough, made no attempt to define the "disorders" proscribed in the Article's antecedents, only characterizing them as acts that "more usually take place under circumstances unconnected with duty and are esteemed disorderly or insubordinate conduct." The Practice of Courts-Martial (1825) at 634. Hough's examples of "disorders" included habitual insubordinate language and conduct at the mess, drunkenness, abusing and striking a sentry on duty, and adultery with the wife of a soldier. Id. at 642. Hough defined "neglect" to mean "neglecting to observe standing orders and regns., or, those orders which are issued and intended to be carried into immediate execution or shortly after." Id. at 633. His examples of "neglect" included keeping the books in a negligent manner, not reporting infectious diseases to the proper authority, and allowing government goods to be stolen. Id. at 641. The second clause of Article 134, prohibiting "all conduct of a nature to bring discredit upon the armed forces," was originally enacted for the "single purpose" of subjecting retired enlisted men to court-martial punishment for conduct similar to that proscribed under Article 133 for retired officers. Both clauses have been expanded beyond recognition and now encompass the residue of offenses that have sprung up with what were thought to be the necessities of disciplining the ever-increasing population of the armed forces. While the United States Court of Military Appeals has held that conduct condemned by the General Article must be "directly and palpably—as distinguished from indirectly and remotely —prejudicial to good order and discipline," United States v. Holiday, 4 USCMA 454, 456 (1954), the Article now encompasses over seventy specific offenses. The listed offenses range from "abusing a public animal" to "disloyalty to the United States" with such offenses as dishonorably failing to pay a debt, straggling, pandering, and assault with intent to commit murder in between. This crazy quilt of offenses is patched together in the Manual for Court-Martial, issued as an Executive Order of the President under Article 36 of the Code, which authorizes the President to prescribe "procedure, including modes of proof, in cases before courts-martial." The latest manual, promulgated by an Executive Order of the President, is dated June 19, 1969 and known as Manual for Courts-Martial, United States, 1969 (Revised edition). The military forces have "amplified" (to use a word employed in the Government's brief) the General Article by including in Appendix 6—Forms for Charges and Specifications —the seventy-odd charges described above. The Executive Order "prescribing" the Manual has saving clauses covering prior investigations, trial after arraignment or other actions begun before its effective date. A further proviso excludes "any act done or omitted prior to the effective date of this manual which was not punishable when done or omitted."

3. The Theory of the Armed Forces:

(1) The Government argues that the Article 134 language here under scrutiny has acquired a core of settled and understandable content through long tradition and the listing of specific offenses in the Manual. United States v. Frantz, 2 USCMA 161 (1953). In the Frantz case the Court of Military Appeals assumed that civilian vagueness standards apply to the military but concluded that the Article had achieved a meaning sufficiently settled and definite to overcome the vagueness claim. The Government also points to Dynes v. Hoover, 20...