Fly v. United States, 48692.

• Decision Date: 02 October 1951
• Docket Number: No. 48692.,48692.
• Citation: 100 F. Supp. 440
• Parties: FLY v. UNITED STATES.
• Court: U.S. Claims Court

100 F. Supp. 440

FLY v. UNITED STATES.

No. 48692.

United States Court of Claims.

October 2, 1951.

George W. Neville, Washington, D. C., for plaintiff.

Francis X. Daly, Boston, Mass., Newell A. Clapp, Acting Asst. Atty. Gen., Holmes Baldridge, Asst. Atty. Gen., on the brief, for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

HOWELL, Judge.

This is a suit by William Anthony Fly for pay and allowances which he alleges have been wrongfully withheld pursuant to a purported court-martial sentence of dismissal from the United States Naval Service. Plaintiff, who held the rank of Captain at the time of his dismissal, further alleges his sentence to be void in that the court martial which sentenced him was without jurisdiction as to his person or as to the offenses for which he was tried, and contends that he remains a member of the United States Navy. The Government contends that the naval court martial which tried, convicted, and sentenced plaintiff had proper jurisdiction and that this court may neither review nor collaterally attack the court-martial decision.

The law is well settled that this court, regardless of errors of law committed, cannot grant plaintiff relief from the consequences of his court-martial sentence if the court martial had jurisdiction of the case. Sima v. United States, Ct.Cl., 96 F.Supp. 932. It is equally well settled that if the court martial lacked jurisdiction, its action is void in its entirety and plaintiff remains in the naval service and is entitled to his pay and allowances for the period since his purported dismissal. United States v. Brown, 206 U.S. 240, 27 S.Ct. 620, 51 L.Ed. 1046; Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650.

We are of the opinion that plaintiff was tried and convicted by a court martial having jurisdiction of his person and of the offenses charged and that, no other question being properly before this court, his petition must be dismissed.

The plaintiff concedes that, as a member of the naval service, he was subject to naval court-martial jurisdiction. It is contended, however, that the particular court that tried Captain Fly never acquired jurisdiction of him and that its action as to him was a nullity. Plaintiff's position is based upon certain procedural errors allegedly committed in bringing him to trial. The errors set forth are (1) that the "order for trial" did not specify with particularity the court before which plaintiff was to be tried, i. e., it did not refer plaintiff to the court which tried him;¹ and (2) that the precept was drawn subsequent to the order for trial.² Objection to both the above errors was timely made. The first error was corrected before the trial proceeded by the insertion of a date identifying the court before which trial was to be had and by adding a "saving clause" to the precept allowing that court to try cases previously assigned to other courts but not yet tried. It was ruled, as to the second error alleged, that the court before which Captain Fly was tried had superseded earlier courts and had taken over their case loads and that the precept through an unbroken documentary chain antedated the order for trial. Further objections to these same alleged errors were overruled by court-martial authorities, and these rulings were sustained on review by the Secretary of the Navy.

While it is obvious that the manner in which Captain Fly was brought to trial left something to be desired in the way of orderly procedure, it is not within the power of this court to correct every error committed in the conduct of a court martial. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; Humphrey v. Smith, 336 U.S. 695, 69 S.Ct. 830, 93 L.Ed. 986; Ex parte Dickey, D.C., 204 F. 322. To do so would be to constitute this court an appellate tribunal in the field of military justice. Only when the errors committed are so gross as to amount to a denial of due process does the erring court martial lose its jurisdiction and its power to issue a valid decree. Compare Sima v. United States, with Shapiro v. United States, both supra.

The errors cited to us here do not amount to a denial of due process. Plaintiff was promptly and fully informed of the charges and specifications to be pressed against him. He was given notice of the time and place of trial and the assistance of counsel of his own choice aided by assigned naval counsel in ample time to prepare his defense. He was accorded a trial on the merits before a court to which he made no objection. No objection has been made to the conduct of the trial itself. The charges and specifications and the court before which plaintiff was tried were all set forth with sufficient definiteness to assure him the protection of res adjudicata. The plaintiff having been within naval court-martial jurisdiction, the errors made in bringing him before the particular court, taken at their worst, amount to no more than errors of procedure subject to correction. The errors were properly reviewed and corrected within the naval service, Cf. Hiatt v. Brown, supra, 339 U.S. at page 111, 70 S.Ct. 495, and fall short of amounting to a denial of a constitutional right such as would justify this court in holding the court martial to have lost jurisdiction.

As a further basis for his suit, plaintiff now advances a contention not made at the court-martial trial. That contention is that the court martial which tried him did not have jurisdiction over the offenses of which he was convicted, viz. "embezzlement" and "neglect of duty," both charged as violations of Art. 22 (a), Articles for the Government of the Navy, 34 U.S.C.A. § 1200.³ Plaintiff contends that the charge of embezzlement cannot lawfully be laid under Art. 22 (a), inasmuch as courts martial are courts of statutory jurisdiction and embezzlement of Government property having been specifically provided for under Art. 14, Par. 8,⁴ the embezzlement of other property or money not being mentioned, it must have been the intention of Congress to exclude all other forms of embezzlement from the crimes over which courts martial have jurisdiction. The official Navy publication, Naval Courts and Boards, 1937, takes a contrary position, providing in part that: "Embezzlement of money, or other property, etc., intended for the military or naval service is provided for under the 14th A. G. N., paragraph 8, and is properly charged as shown in Section 89. Embezzlement of any other money or property, public or private, is provided for under the 22d A. G. N."

It seems clear that the latter interpretation is the correct one. It is elementary that the charge of embezzlement of Government property would have to be laid under Art. 14, par. 8, rather than under Art. 22 (a). But as embezzlement of property other than Government property is clearly a crime, and a crime distinct from the embezzlement of Government property, Compare 18 U.S.C. § 641 with 18 U.S.C. § 654, it cannot be other than an offense punishable under Art. 22 (a) "as a court-martial may direct." The case of Rosborough v. Rossell, 1 Cir., 150 F.2d 809, cited by plaintiff for the proposition that the enumeration of a specific offense in one of "the foregoing articles" prevents...