Dickenson v. Davis, 2187.
| Decision Date | 06 August 1956 |
| Docket Number | No. 2187.,2187. |
| Citation | 143 F. Supp. 421 |
| Parties | Edward S. DICKENSON, Petitioner, v. Colonel James W. DAVIS, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Respondent. |
| Court | U.S. District Court — District of Kansas |
Homer Thomas Davis, Leavenworth, Kan., and Guy Emery, Washington, D. C., for petitioner.
William C. Farmer, U. S. Atty., Topeka, Kan., Milton P. Beach, Asst. U. S. Atty., Kansas City, Kan., and Lt. Col. Cecil L. Forinash, J.A.G.C., U. S. Army, Washington, D. C. (Lt. Col. Peter S. Wondolowski, J.A.G.C., U. S. Army, Washington, D. C., on brief), for respondent.
Petitioner assails the validity of his detention by the Commandant of the United States Disciplinary Barracks at Fort Leavenworth, Kansas. This court has jurisdiction under Title 28 U.S.C.A. § 2241 et seq.
No factual issue is raised. The voluminous record of trial of petitioner by a general court-martial and the subsequent proceedings based thereon have been made a part of the record in this proceeding and are referred to at length in the application for the writ, the return and the briefs. They disclose the following facts:
Petitioner enlisted in the army on March 31, 1950, for three years. After a period of basic training, he was transferred to Korea on September 22, 1950. On November 4, 1950, he was captured by the enemy. After the armistice, he refused to return to the United Nations forces during operation "Big Switch," which provided for the exchange of prisoners who desired to be repatriated. Some two months later he requested repatriation and was returned to military control on October 21, 1953. On November 21, 1953, he was returned to the United States and attached to the Medical Holding Detachment, Walter Reed Hospital, Washington, D. C. He was granted thirty days sick leave, plus three extensions of fourteen days, ten days and ten days, and six days were spent in the Veterans Administration Hospital at Mountain Home, Tennessee. On January 21, 1954, he returned to duty. While on leave, he received full pay and allowances.
Under normal conditions, petitioner's term of enlistment would have expired on or about April 1, 1953. However, on or about April 23, 1952, by Executive Order 10345, 10 U.S.C.A. § 628 note, enlistments expiring between July 1, 1952 and June 30, 1953, were extended for nine months. The involuntary extension of petitioner's enlistment, therefore, made him eligible for discharge on or about the 1st of January, 1954. The Department of the Army, by Circular 38, dated 15 May 1952, provided for the reduction of involuntary extensions of enlistment. The portion of the Circular, alleged in the petition to be applicable to petitioner, provided that overseas commanders would return individuals affected by the Circular, who were serving on active duty and who did not desire to re-enlist or voluntarily extend their enlistments, so as to arrive in the United States "no later than the first day of the period specified in Column 3, paragraph 9." The petition further alleges that the class to which petitioner belonged would have been discharged on April 30, 1953, and "presumably the Order would have been obeyed in April, 1953, had the accused not been a Prisoner of War at the time." Also, that when petitioner was returned to Washington, "nothing then remained to be done except the issuance of his discharge"; but such discharge was not issued. A dishonorable discharge was issued, however, on January 4, 1956, after approval of the conviction of the prisoner by the United States Court of Military Appeals, referred to in the next paragraph.
On January 22, 1954, court-martial charges were preferred against petitioner, alleging that he, while a prisoner of war, had committed the offenses of communicating with the enemy and informing on other prisoners, in violation of Articles 104 and 105 Uniform Code of Military Justice, 50 U.S.C.A. §§ 698 and 699. Appropriate steps were taken for the constitution of a court-martial. The trial lasted several days; and upon conviction of most of the specifications of the two charges, petitioner was sentenced to dishonorable discharge from the service, forfeiture of all pay and allowances, and confinement at hard labor for ten years. The record of trial, accompanied by the review of the Staff Judge Advocate, was forwarded to the convening authority, who approved the sentence on July 13, 1954. Upon review by a Board of Review, one part of the finding of guilty under the Specification of Charge I was set aside; but the other findings of guilty and the sentence were approved. The United States Court of Military Appeals granted the petitioner a review and, in an opinion dated September 30, 1955, affirmed the decision of the Board of Review. Thereafter, petitioner filed two motions for reconsideration by the Court of Military Appeals. The first was denied on November 9, 1955, and the second on December 19, 1955, after the instant proceeding had been instituted.
The principal point discussed by counsel upon brief is that petitioner was entitled to a discharge soon after his return to the United States on November 21, 1953, and, while "not formally discharged from the military service prior to his arraignment and trial," that he had been "arbitrarily and unlawfully held in service for sixty days after the expiration of his term of service primarily, if not solely, for the purpose of using him as a lure to induce the twenty-two American `non-repatriate' prisoners to return to United States control." Specifically, it is contended that Article 2(1) of the Uniform Code of Military Justice, Title 50 U.S.C.A. § 552(1), especially if examined in the light of United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. ___, and the legislative history as disclosed by the Congressional Reports, did not confer upon the court-martial jurisdiction to try petitioner under the circumstances shown by this record; that he was not, on the date charges were preferred against him, subject to court-martial as a member of the Army because: (a) his term of enlistment had ended upon his return to United States on November 21, 1953, and on that date he was entitled to his discharge; (b) that no charges having been preferred or action taken to place him in arrest or confinement for two months after his return to the United States, he could be prosecuted only in a court of general jurisdiction and could not be brought to trial by court-martial; and (c) that Section 2(1) as amended "is merely a restatement of what has always been the law— that a man may be held for trial after expiration of his enlistment, and before discharge * * * only if he has been arrested, confined or charged on or before the last day of his term of enlistment."
At the threshold, this court is confronted with numerous decisions by the Supreme Court and Courts of Appeal, pointing out the limitations upon its power to grant relief, by habeas corpus, to those convicted by courts-martial. Some of the most recent are: Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; and Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508. Cf. Day v. Davis, 10 Cir., 235 F.2d 379, and Colepaugh v. Looney, 10 Cir., 235 F.2d 429. It would serve no useful purpose to quote at length from these decisions. Collectively, as pointed out in the Day v. Davis case, supra, they seem to hold that review by a court such as this is limited to the question whether petitioner was denied any basic right guaranteed by the Constitution.
At the time of petitioner's appeal to the United States Court of Military Appeals, he did not deny that he was subject to the provisions of the Uniform Code of Military Justice. It was asserted in his behalf, however, that "grave doubt" on that point existed. The Court of Military Appeals seems not to have had any doubt. It stated:
Subsequently, the Supreme Court entered its decision in United States ex rel. Toth v. Quarles, supra. Thereafter petitioner filed a motion for reconsideration in the Court of Military Appeals in which he undertook "to substantiate the doubt of which the court has previously been warned," raising the precise question now urged: that he was not subject to trial by court-martial on the date he was arraigned. It was urged that, while "Article 2(1) of the Code provides that persons awaiting discharge after expiration of their term of enlistment are subject to the Code," still there must be read into that section a requirement that, before expiration of the term of enlistment, proceedings with a view to trial must have been duly commenced against such person by arrest or service of formal charges. Reconsideration was granted by the Court of Military Appeals; but it did not recede from the position which it had taken in its opinion. It declined to release petitioner, notwithstanding his contention that "he was entitled, in the absence of charges served upon him beforehand, to his discharge upon the expiration of his...
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Dickenson v. Davis
...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 Dickenson enlis......
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