Ashe v. McNamara, 6580.

• Decision Date: 14 December 1965
• Docket Number: No. 6580.,6580.
• Parties: Hubert ASHE, Plaintiff, Appellant, v. Robert S. McNAMARA, Secretary of Defense, Appellee.
• Court: U.S. Court of Appeals — First Circuit

355 F.2d 277 (1965)

Hubert ASHE, Plaintiff, Appellant, v. Robert S. McNAMARA, Secretary of Defense, Appellee.

No. 6580.

United States Court of Appeals First Circuit.

Heard November 1, 1965.

Decided December 14, 1965.

Richard W. Murphy, Braintree, Mass., for appellant.

Edward Berlin, Atty., Dept. of Justice, with whom John W. Douglas, Asst. Atty. Gen., W. Arthur Garrity, Jr., U. S. Atty., and Morton Hollander, Atty., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, and HASTIE^* and McENTEE, Circuit Judges.

HASTIE, Circuit Judge.

The appellant is a former Steward in the United States Navy who served a term in prison and was dishonorably discharged from the naval service in 1948 pursuant to the sentence of a general court-martial. In 1959, several years after the completion of his prison sentence, he petitioned the Board of Correction of Naval Records (hereinafter called the Correction Board) to exercise its authority under section 1552 of title 10, United States Code, to change his discharge to one under honorable conditions. The Board denied his petition and the Secretary of the Navy approved that action. Thereafter, the United States Court of Military Appeals dismissed a petition to review this administrative action and the sentence it confirmed.

As plaintiff, the appellant then brought this action in the District Court for the District of Massachusetts, the place of his residence, against the Secretary of Defense¹ to compel favorable action on his petition to change the dishonorable character of his discharge. The Secretary filed a motion for summary judgment. The essential facts were not in dispute. In this posture of the case, the court granted summary judgment for the defendant, ruling that "this court does not have jurisdiction of the subject matter." This appeal followed.

At the outset, it merits mention that this action is brought under section 1361 of title 28, United States Code, part of a 1962 enactment which enlarged the jurisdiction of the district courts and liberalized venue. 76 Stat. 744. That statute explicitly gives all district courts now for the first time "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States * * * to perform a duty owed to the plaintiff." Moreover, an additional provision of the 1962 enactment, which is now section 1391 of title 28, creates venue for such an action at several places, among them the district in which the plaintiff resides, and in so doing expressly makes the defendant amenable to service by certified mail beyond the territorial limits of the district in which the action is brought. Thus, obstacles which until recently might have impeded this suit in any district other than the District of Columbia,² no longer exist.

We come now to the substance of the appellant's claim as disclosed without substantial dispute by affidavits and naval records which were before the court below. The appellant was one of three sailors who were tried together on a charge of assaulting a fourth sailor and wounding him with a knife. A single officer, Commander H. M. Hart, was assigned as defense counsel for the three accused and represented them throughout the trial.

Before the trial, both the appellant and one of his codefendants, Mancy Brown, had told their counsel that the appellant had not struck the victim of the alleged assault. Brown also admitted to counsel that he himself had struck blows, though not with a knife. However, when placed on the stand at trial Brown testified that the appellant had struck the victim. Indeed, he pictured the appellant as striking the first blow and continuing the affray after Brown had withdrawn from it. Defense counsel immediately informed the court that this unexpected testimony, contradictory to the advice upon the basis of which he had undertaken to act for both Brown and the appellant, placed him in the position of being unable to defend either without attacking the other. His exact words as they appear in the trial transcript were as follows:

"If the court please, since the interests of the two accused are so antagonistic I hardly know how to proceed. It\'s as difficult a position as I have ever been placed in. I don\'t think I should continue to represent the two defendants. I would like to ask the judge advocate as to his advice for the proper procedure so that one of these accused can obtain counsel who can properly represent him. I don\'t think I can represent them both properly."

Nevertheless, the court required defense counsel to proceed on behalf of all defendants and all were ultimately convicted and sentenced to terms in prison and to dishonorable discharges from the Navy.

Also noteworthy is an occurrence during the course of a departmental reexamination of the record of these convictions made in response to a protestation of innocence which the appellant, during his incarceration and after his conviction had become final, addressed to the Judge Advocate General. An officer of the Judge Advocate General's review section placed in the file a memorandum in which he discussed briefly the position into which the court had forced defense counsel and concluded that "such action on the part of the court, in effect, denied the accused, Ashe, his right to have effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution."

We find this conclusion so obviously correct that it requires no discussion beyond the citation of relevant authorities. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. King, 1954, 17 C.M.R. 423, cf. United States v. Eskridge, 1957, 24 C.M.R. 71. Once co-defendant Brown had contradicted appellant's contention that he did not participate in the alleged assault, and despite an equivocal retraction by Brown on further questioning after counsel's request to withdraw had been denied, it was simply impossible for Commander Hart to function effectively as counsel and advocate for both men.

It follows that appellant's conviction was the product of court-martial procedure so fundamentally unfair that, upon a proper petition, a district court at the place of his incarceration would have been obligated to grant him a writ of habeas corpus, find his sentence invalid and order his release from imprisonment.³ However, pursuant to administrative action by the Secretary of the Navy in August 1949, appellant's sentence, originally five years, was reduced to two and one-half years, and he was released on parole a few days later. Thereafter, he suffered no deprivation of liberty upon which a petition for habeas corpus could have been based.

This brings us to the question concerning the availability of another remedy upon which decision turned in the district court. Given administrative power to set aside a dishonorable discharge — the existence of which will be shown — is there a judicially enforceable duty to do so where it appears that constitutional rights of the accused were violated in the military trial which eventuated in the long since final sentence ordering such a discharge? The district court thought not.

Our analysis of this problem in the context of this case begins with section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 837, 10 U.S.C. § 1552, which in terms provided that the "Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice." This statute enabled the Secretary, acting through a civilian Correction Board, to change the kind of discharge a former service man had received and relieved Congress of the burden of the great number of private bills theretofore introduced at each session to accomplish such changes. Moreover, this power of review was conferred in sufficient generality to cover discharges pursuant to court-martial sentences as well as administrative discharges.⁴ To this extent Congress created an exception to or authorized relief from the mandate of the 76th Article of the Uniform Code of Military Justice that "all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive." 10 U.S.C. § 876, art. 76.

As originally enacted, the 1946 statute said nothing about the finality of the authorized administrative action. Shortly thereafter, the Comptroller General refused to recognize a change in the type of a discharge thus accomplished as affecting forfeiture of monetary benefits which attended the original discharge. 27 Decs.Comp.Gen. 665 (1958). In the light of this experience, an amendatory bill was introduced in Congress providing that monetary settlements attending administrative correction of records under the statute in question "shall be final and conclusive on all officers of the Government, including review by the courts of the United States, except when procured by means of fraud." See H.Rep.No. 449, 82d Cong., 1st Sess., 6 U.S.Code Congressional and Administrative Service p. 2469. However, at the subcommittee hearings on this bill, members of the subcommittee expressed disapproval of the provision precluding judicial review. See Hearings Before a Subcommittee of the House Committee on Armed Services on H. R. 1181, 82d Cong., 1st Sess. 191-93. Accordingly, the subcommittee eliminated from the bill the words "including review by the courts of the United States" and explained to the full committee that this was done "so that under appropriate circumstances the courts of the United States may review these matters." Id. at 450; and see H.Rep.No. 449, 82d Cong., 1st Sess. 3. In addition, the finality provision was made...