Baker v. Schlesinger, 74-1679

• Decision Date: 03 October 1975
• Docket Number: No. 74-1679,74-1679
• Citation: 523 F.2d 1031
• Parties: Hobart A. BAKER, Plaintiff-Appellee, v. James A. SCHLESINGER, Secretary of Defense, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1031

523 F.2d 1031

Hobart A. BAKER, Plaintiff-Appellee, v. James A. SCHLESINGER, Secretary of Defense, Defendant-Appellant.

No. 74-1679.

United States Court of Appeals, Sixth Circuit.

Argued June 16, 1975.

Decided Oct. 3, 1975.

William W. Milligan, U. S. Atty., Columbus, Ohio, Robert E. Kopp, Carla Hills, Richard A. Olderman, Dept. of Justice, Washington, D. C., for defendant-appellant.

Willis Wolfe, Jr., Canal Winchester, Ohio, Robert T. Winston, Jr., Norton, Va., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal is from a supplemental opinion and order of the district court reinstating a previous order granting a writ of mandamus to compel the Secretary of Defense to vacate Baker's court-martial conviction and to take other appropriate corrective action. The court concluded that such relief was warranted because Baker had been denied the effective assistance of counsel, in violation of the Sixth Amendment, in connection with his 1946 General Court-Martial trial in Germany.

On this appeal the relevant issues are: (1) Whether the district court had jurisdiction to entertain a petition for a writ of mandamus pursuant to 28 U.S.C. Sec. 1361, seeking collateral review of a court-martial conviction ¹ and (2) Whether the district court properly found that there was sufficient evidence to support its finding that appellee was denied effective assistance of counsel, and to support its order directing the Secretary of Defense to overturn the decision of the Army Board for the Correction of Military Records in refusing to vacate Baker's court-martial conviction.

In 1964 appellee applied to the Army Board for the Correction of Military Records (ABCMR) ² to have his 1946 court-martial set aside and the character of his Army discharge changed from dishonorable to honorable. When this claim was rejected by the ABCMR, appellee brought the present action in 1968 in the district court, pursuant to 28 U.S.C. Sec. 1361, to compel the Secretary of Defense to grant him the relief requested. The district court heard evidence and entered judgment for appellee, ordering the Secretary to vacate appellee's court-martial conviction, to delete all record of appellee's dishonorable discharge, to grant appellee an honorable discharge, and to restore to him all back pay lost as a result of the conviction and sentence. ³ On appeal by the Secretary to this Court, the district court's order was vacated with directions to that court to remand the action to the ABCMR for consideration of evidence on the issue of deprivation of the right to effective assistance of counsel. After reconsideration, the ABCMR again rejected Baker's claim and the Secretary of the Army affirmed. Thereafter, the district court, having retained jurisdiction of the case, reinstated its previous order directing the annulment of Baker's court-martial conviction. This appeal by the Secretary of Defense ensued.

The General Court-Martial trial was held in Germany in 1946, shortly after the close of World War II. At that time appellee was serving as an enlisted man in the United States Army. He was charged with manslaughter arising from a collision between the Army truck which he was driving and a German vehicle whose driver was killed in the accident. Upon appellee's conviction for involuntary manslaughter, he was sentenced to dishonorable discharge, to confinement at hard labor for three years, and required to forfeit all pay and allowances for three years. The Judge Advocate General's office examined the records and found that the evidence was sufficient to support the conviction and sentence. In November, 1947, after service of approximately two years of the sentence, appellee was released on parole and dishonorably discharged.

The Secretary initially argued that the district court was without jurisdiction to review collaterally appellee's court-martial conviction by reason of the finality provision of Article 76 of the Uniform Code of Military Justice ⁴ which provides that actions taken pursuant to court-martial proceedings are final and binding on all agencies, including the courts. It was contended that the ABCMR statute, ⁵ providing a procedure for correcting military records, was not intended to create an exception to the finality rule of Article 76.

On October 22, 1974, this Court granted appellee's motion to hold oral argument in abeyance pending consideration by the Supreme Court of cases raising the issue of the federal courts' jurisdiction of collateral review, other than by habeas corpus, of court-martial convictions. The Supreme Court in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), reached the jurisdictional issue, holding that Article 76 is not a jurisdictional bar to a collateral attack in a civil court of court-martial convictions, other than by habeas corpus.

Councilman does not, of course, open the door to collateral attacks on court-martial convictions indiscriminately. The Supreme Court specifically stated that reviewability may turn on the nature of the alleged defect in the proceedings and the gravity of the harm for which relief is sought. Approval was expressed of the construction given Article 76 by other courts limiting review to cases involving a lack of jurisdiction or fundamental or constitutional defects. See, e. g., Davies v. Resor, 445 F.2d 1331 (1st Cir. 1971); Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969), Cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970); Gallagher v. Quinn, 124 U.S.App.D.C. 172, 363 F.2d 301, Cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966). It is conceded here, as indeed it must be, that assistance of counsel is of constitutional magnitude.

Councilman was an action filed in the district court to enjoin court-martial proceedings against an army captain on a charge of possession, transfer and sale of marijuana. Federal court jurisdiction was invoked under the general federal-question statute, it being claimed that the court-martial proceedings were void because the charges against the Captain were not "service connected." The specific decision in Councilman Was that Article 76 does not stand as a bar to an action challenging court-martial convictions where jurisdiction exists under 28 U.S.C. Sec. 1331. We are convinced, however, that the Supreme Court's opinion may properly be read to support jurisdiction of actions challenging court-martial convictions under 28 U.S.C. Sec. 1361. The Court speaks in general terms in reaching the conclusion that the finality clause of Article 76 was not intended to confine collateral attack on court-martial proceedings in Article III courts exclusively to petitions for habeas corpus. Our view that the Court's pronouncement should be read as having wider application is reinforced by the fact that every circuit which has considered the question has held that civil courts have jurisdiction upon allegations of fundamental defects to entertain civil actions under Sec. 1361, challenging the validity of court-martial convictions. Homcy v. Resor, 147 U.S.App.D.C. 277, 455 F.2d 1345 (1971); Haines v. United States, 453 F.2d 233 (3d Cir. 1971); Angle v. Laird, 429 F.2d 892 (10th Cir. 1970), Cert. denied, 401 U.S. 918, 91 S.Ct. 90, 27 L.Ed.2d 819 (1971); Ragoni v. United States, 424 F.2d 261 (3d Cir. 1970); Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969), Cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970); Smith v. McNamara, 395 F.2d 896 (10th Cir. 1968), Cert. denied, 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965). We therefore hold that the district court had jurisdiction under 28 U.S.C. Sec. 1361 to entertain the action for mandamus.

Turning to the merits, we observe that Article III courts must assess the case "in light of the deference that should be accorded the judgments of the carefully designed military justice system established by Congress." Schlesinger v. Councilman, 420 U.S. 738, 753, 95 S.Ct. 1300, p. 1310, 43 L.Ed.2d 591 (1975). As the Supreme Court further stated in Councilman, 420 U.S. at 746, 95 S.Ct. at 1307:

This Court repeatedly has recognized that, of necessity, "(m)ilitary law . . . is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508, (1953); Parker v. Levy, 417 U.S. 733, 744, 94 S.Ct. 2547, 2556, 41 L.Ed.2d 439, (1974).

Generally, no relief is available from findings of the ABCMR absent a showing that its action was arbitrary or capricious or unsupported by substantial evidence. Sanford v. United States, 399 F.2d 693 (9th Cir. 1968); Hoorwitz v. Reasor, 329 F.Supp. 1050 (D.Conn.1970), Aff'd, 445 F.2d 1407 (2d Cir. 1971); Denton v. Seamans, 315 F.Supp. 279 (N.D.Cal.1970), Aff'd, 483 F.2d 21 (9th Cir. 1973), Cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974).

The only deficiency in the court-martial proceeding raised on appeal is the alleged ineffective assistance of counsel. In determining whether appellee was denied effective assistance of counsel, it is not necessary to determine whether we are required to apply the "farce and mockery of justice test" obtaining at the time of the appellee's court-martial, See Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, Cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945), or the standard as recently formulated by this Court in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). This is true because, as we find, under either standard appellee was not deprived of his right to the effective assistance of counsel.

The alleged shortcomings in appellee's defense were, as far as the record indicates, due to unavoidable conditions prevailing at the time. While a court...