Dickenson v. Davis

• Decision Date: 05 June 1957
• Docket Number: No. 5521.,5521.
• Citation: 245 F.2d 317
• Parties: Edward S. DICKENSON, Appellant, v. Colonel James W. DAVIS, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

245 F.2d 317 (1957)

Edward S. DICKENSON, Appellant, v. Colonel James W. DAVIS, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Appellee.

No. 5521.

United States Court of Appeals Tenth Circuit.

May 16, 1957.

Rehearing Denied June 5, 1957.

Homer Davis, Leavenworth, Kan. (Guy Emery, Washington, D. C., on the brief), for appellant.

Cecil L. Forinash, Lieutenant Colonel, J.A.G.C., Washington, D. C. (William C. Farmer, U. S. Atty., Topeka, Kan., Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., and Peter S. Wondolowski, Lieutenant Colonel, J.A.G.C., Washington, D. C., on the brief), for appellee.

Before BRATTON, Chief Judge, and MURRAH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appeal is taken from the order of the United States District Court for the District of Kansas quashing a writ of habeas corpus after full hearing. Appellant is detained by the Commandant of the United States Disciplinary Barracks at Fort Leavenworth, Kansas, after conviction by a court martial of violation of Articles 104 and 105, Uniform Code of Military Justice (50 U.S. C.A. 698, 699^*). The offenses consisted of unlawful communication with the enemy and informing on other prisoners of war while appellant was held by the Chinese Communists as a prisoner of war in Korea. Appellant's conviction has been reviewed and affirmed by the United States Court of Military Appeals. United States v. Dickenson, 6 U.S.C.M.A. 438, 6 C.M.R. 154. In support of his petition for habeas corpus he now urges that (a) the military lacked jurisdiction of his person at the time he was charged and tried for the offenses, (b) Article 104 of the Uniform Code of Military Justice is unconstitutional, and (c) he was denied due process in the conduct of his trial before the military. Each of appellant's contentions was considered and rejected by the trial court in a careful and comprehensive opinion, 143 F.Supp. 421, wherein Dickenson's military history is detailed and the arguments of counsel fully set forth. As a consequence, we need only summarize.

Dickenson enlisted in the Army on March 31, 1950, for a term of three years and would have been eligible for discharge in April, 1953. At such time he was a prisoner of war and had been for over two years. After initially refusing repatriation during "Operation Big Switch", Dickenson appeared at a United Nations camp on October 21, 1953, and requested return to the United States. On November 21, 1953, he was returned to this country, granted various periods of leave until January 21, 1954, and then returned to duty. This date coincides with the expiration of the period provided by the truce agreement between Communist China and the United States during which prisoners of war could determine which country commanded their loyalties. Charges were preferred against Dickenson on January 22.

Appellant recognizes that he was subject to full military control up to the date of return to continental United States and for a sufficient time thereafter for the Army to routinely effectuate a discharge. He contends however that the lapse of sixty days during which his requested discharge was not granted and no charges were preferred constitutes an unreasonable length of time occasioned by the Army for reasons other than the benefit of appellant; that his acceptance of leave and various pay allowances during the period was routine upon his part and did not indicate acquiescence to the procedure; that at some date prior to January 22, 1954, he regained civilian status as a matter of law and was no longer subject to military control for the purpose of court martial.

Appellant's argument in this regard, promulgated as it is against a sympathetic background, is deemed by us to be ingenious but unsound. Service in the military, whether by enlistment or otherwise, creates a status which is not and cannot be severed by breach of contract unfortified by a proper authoritative action. U. S. v. Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636; see also Morrissey v. Perry, 137 U.S. 157, 11 S.Ct. 57, 34 L.Ed. 644; U. S. v. Williams, 302 U.S. 46, 58 S.Ct. 81, 82 L.Ed. 39. At the time appellant was accused he had neither been discharged in accordance with 10 U.S.C.A. § 1580 (transferred to 652a for future codification)¹ nor had his military status been severed under other authority or by judicial action. He was a soldier, subject to the rules, discipline and jurisdiction of the Army and squarely within the provisions of Article 2 of the Uniform Code of Military Justice, 50 U.S.C.A. § 552(1)^** which describes as subject:

"All persons belonging to a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; * * *."

Nothing in U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L. Ed. 8, impels a different conclusion for in that case the accused had received his discharge and become a civilian prior to the institution of military charges. Likewise, the problem which may lurk in the interpretation of Article 3 as to jurisdiction over a serviceman who is discharged, re-enlists and then is tried for an offense committed within his first term, has no bearing upon this case. Cf. U. S. ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621 and U. S. v. Gallagher, 7 U.S.C.M.A. 506, 22 C.M. R. 296. In the present case, the status of the accused as a soldier was unbroken and the charge against him was based upon an offense committed by him during his term of enlistment. See U. S. ex rel. Parsley v. Moses, D.C.N.J., 138 F.Supp. 799; Pinkney v. Hillenkoetter, D.C.N.Y., 132 F.Supp. 625.

The Constitutionality of Article 104

The petitioner was convicted of a violation of Article 104 of the Uniform Code of Military Justice, 50 U.S.C.A. § 698, and also Article 105. Article 104, which he contends is unconsitutional because by its terms it applies to persons other than those subject to the Military Code under Article 2, reads:

"Any person who —

"(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other thing; or

"(2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punlishment as a court-martial or military commission may direct."

Articles 104 and 106^† are the only two articles of the Uniform Code of Military Justice which apply by their terms to "all persons" regardless of the categories of persons subject to the Code by Article 2. Articles 104 and 106 were formerly the 81st and 82nd Articles of War and, although the question of constitutionality of those articles as applied to a citizen not in uniform was presented to the Supreme Court in Ex parte Quirin, 317 U.S. 1, 46, 63 S.Ct. 2, 87 L.Ed. 3, the Court declined to pass upon the contention for the same reason which we now reject it.

Appellant was convicted under Article 105, as well as 104, and Article 105, 50 U.S.C.A. § 699, is limited to "any...