Hironimus v. Durant

• Decision Date: 04 May 1948
• Docket Number: No. 5713.,5713.
• Citation: 168 F.2d 288
• Parties: HIRONIMUS v. DURANT.
• Court: U.S. Court of Appeals — Fourth Circuit

168 F.2d 288 (1948)

HIRONIMUS v. DURANT.

No. 5713.

Circuit Court of Appeals, Fourth Circuit.

May 4, 1948.

Nicholas R. Voorhis, Lieutenant Colonel, JAGD, of Washington, D. C. (Thayer Chapman, Major, JAGD, of Washington, D. C., Leslie E. Given, U. S. Atty., and A. Garnett Thompson, Asst. U. S. Atty., both of Charlestown, W. Va., on the brief), for appellant.

Hugh H. Obear, of Washington, D. C. (John C. Morrison, of Charleston, W. Va., Orville H. Walburn, of Washington D. C., Jackson, Kelly, Morrison & Moxley, of Charleston W. Va., and Douglas, Obear & Campbell, of Washington, D. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

On September 30, 1946, Captain Kathleen B. Nash Durant, Women's Army Corps, United States Army, was convicted by a general court martial of the larceny in Kronberg, Germany on November 6, 1945, of numerous articles of jewelry and other property belonging to Prince Wolfgang of Hesse and Prince August Wilhelm of Prussia, which had been placed for safe keeping in Kronberg Castle and had come into her possession while she was the officer in charge of the building. She was sentenced to be confined at hard labor for five years, and pursuant to the sentence, was confined in the Federal Reformatory for Women at Alderson, West Virginia. From this imprisonment she was released on September 10, 1947, upon her petition for a writ of habeas corpus by order of the District Judge who was of the opinion that the court martial was without jurisdiction to try the case. D. C., 73 F. Supp. 79. The question on this appeal is whether a commissioned officer in the Army of the United States, who is on so-called terminal leave, is amenable to military jurisdiction and may be tried and convicted by a general court martial for a violation of the Articles of War, 10 U.S.C.A. § 1471 et seq. committed during his active service, if the terminal leave is revoked before it expires, and the prosecution is thereafter begun.

Captain Durant entered the Army as a private on July 17, 1942; in February of 1943 she became an officer, and on September 4, 1944, she was promoted to the rank of captain. She served in the European theatre from July 1945 to February 1946, and in March 1946, after her return to the United States, she was sent to Camp Beale, California, a separation center. On March 9, 1946, the commanding officer at Camp Beale delivered to her terminal leave orders which stated that she was granted 81 days' leave and 2 days' travel time, at the expiration of which she would be relieved from active duty. They also provided that her appointment as captain in the Army of the United States would continue in force "during the period of present emergency plus 6 months unless sooner terminated." The orders also authorized petitioner to visit Canada and Mexico during her period of terminal leave. The Government concedes that these orders were self-executing and that if nothing further had been done the petitioner would have been relieved automatically from active duty on May 30, 1946.

On May 24, 1946, the War Department, by order of the Secretary of War, issued an order wherein the petitioner's terminal leave was terminated effective May 28, 1946; that portion of the original terminal leave orders which provided that she would revert to inactive service May 30, 1946, was revoked; and she was relieved from assignment to Camp Beale and directed to report to Fort Sheridan, Illinois, on May 29, 1946. Notice of this order was telegraphed to Camp Beale on May 24. Copies of the order were placed in the usual channels for delivery by mail to the petitioner's address in Hudson, Wisconsin, but at the hearing she denied that she received them. She did receive a telegram which was sent on May 24 from the office of the Adjutant General in the War Department to her at the same address and which stated that War Department orders were being mailed to her recalling her to active duty May 29, 1946, and assigning her to Fort Sheridan, Illinois. On May 29 and May 31, 1946, she responded with two telegrams in which she indicated that she did not desire to be recalled to active duty. She did not report to Fort Sheridan, as ordered, and at 2 A.M. on June 3, 1946, she was arrested by military police in Chicago. Thereafter she was taken to Germany where she was tried and convicted by the court martial as above set out.

In the court below, it was conceded that the general court martial was without jurisdiction of the petitioner's case if she had been separated from the armed forces after the commission of the crime and before the prosecution was begun and the trial took place. Certain opinions of the Judge Advocate General and of the federal courts, hereinafter mentioned, were cited as holding that an officer on inactive duty is not subject to the jurisdiction of a military court and may not be recalled to active duty for the sole purpose of court martial proceedings. Accordingly, the inquiry in the District Court was confined to the question whether the petitioner was on active service during her terminal leave and prior to its expiration on May 30, 1946. The District Judge reached the conclusion, which we think to have been erroneous, that her active status came to an end on March 9, 1946, when her terminal leave began, and therefore discharged her from custody.

The Judge Advocate General of the Army has consistently held, as the orders given the petitioner on March 9 themselves indicated, that an officer, while on terminal leave, remains on active duty. SPJGA 1945/13,372, 14 December 1945. Such an officer is held subject to all the provisions of the Army regulations in respect to discipline; and accordingly, although such an officer who is not a member of the regular army may become a candidate for public office, nevertheless since he is on active duty it is held that he remains subject in the conduct of his campaign to laws and regulations applicable to officers on active duty. SPJGA 1946/2188, 1 March 1946. In his opinion in this case the Judge Advocate General said: "Prior to the expiration of his terminal leave, an Army officer remains an officer on active duty. Consequently, during such leave he remains subject to the laws and regulations governing political activity by officers on active duty."¹

Again it is established that an officer on terminal leave is entitled to receive the hospital benefits and medical treatment which are available to officers on active duty under the statutes and regulations. See 10 U.S.C.A. § 96; Army Regulations 40-405, par. 2b(1); 600-115, paragraphs 15 and 18, (effective November 9, 1945).² These regulations declare that terminal leave is an administrative term applied to leave granted a officer immediately prior to separation from active service and that admission to an Army hospital will automatically rescind so much of the officer's orders as pertains to separation from active duty. In this connection the Judge Advocate General said, JAGA 1946/7249, 9 December 1946: "The mere fact that an officer is on terminal leave and is pursuing a private avocation does not per se remove him from the line of duty or overcome the presumption that an injury incurred by a person in the military service was incurred in line of duty."

So also an officer on terminal leave is entitled during such leave to accrue leave at the rate of 2½ days per month like any other officer on active duty. See SPJGA 1944/6985, 6 July 1944 where the Judge Advocate General said: "The phrase `terminal leave' is not known either to statutes or Army Regulations³ but has come generally to be regarded as descriptive of ordinary leave of absence granted officers about to conclude their active service. * * * The mere fact that it is anticipated that a particular officer may shortly be separated from the service or relieved from active duty does not change his duty status prior to such a separation or relief, nor does it alter the character of any leave which may be granted to him."

So also SPJGA 1945/10842, 10 October 1945, where the Judge Advocate General said that "Although an officer of the Army on terminal leave is normally not called upon to perform duty, he is nevertheless in an active duty status and is not, technically speaking, separated from the service or relieved from active duty, as the case may be, until the expiration of his terminal leave."

In addition to these repeated rulings by Army authority consistently promulgated under a variety of circumstances, there is the significant fact that an officer on terminal leave is accorded the full pay and allowances of an officer on active duty. In the instant case, the petitioner drew full pay and allowances as a captain of the Army of the United States on active duty during the month of March, when her terminal leave orders were issued and for each month thereafter through March 1947, when the court martial proceedings were completed and approved in review. These payments were made in accordance with the provisions of 10 U.S. C.A. §§ 841, 842, which provided that officers on duty may be allowed leave of absence in the discretion of the Secretary of War and that officers, when absent from duty with leave, shall receive full pay. See United States v. Williamson, 23 Wall. 411, 90 U.S. 411, 23 L.Ed. 89. The propriety of these payments to an officer on terminal leave was recognized by Congress in the passage of the Act of November 21, 1945, Ch. 489, 59 Stat. 584, 5 U.S.C.A. § 61a — 1, which amended the Act of August 1, 1941, as amended April 7, 1942, 56 Stat. 200, 5 U.S.C.A. § 61a. These enactments permitted a person who had performed active service in the armed forces to enter the employment of the United States while on terminal leave pending separation or release from active duty, and provided that in addition to compensation for such employment such person should be entitled to receive pay and allowances from the armed forces...