Homcy v. Resor, 23954.

• Decision Date: 16 December 1971
• Docket Number: No. 23954.,23954.
• Citation: 455 F.2d 1345
• Parties: Albert C. HOMCY v. Stanley R. RESOR, Secretary of the Army, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

455 F.2d 1345 (1971)

Albert C. HOMCY v. Stanley R. RESOR, Secretary of the Army, Appellant.

No. 23954.

United States Court of Appeals, District of Columbia Circuit.

Argued November 4, 1970.

Decided December 16, 1971.

COPYRIGHT MATERIAL OMITTED

Mr. Thomas Jay Press, Atty., U. S. Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Alan S. Rosenthal, Atty., Department of Justice, were on the brief, for appellant. Messrs. John A. Terry and Nathan Dodell, Asst. U. S. Attys., and Michael C. Farrar, Atty., Department of Justice, also entered appearances for appellant.

Mr. Bingham B. Leverich, Washington, D. C., for appellee.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

MacKINNON, Circuit Judge:

During World War II appellee (Homcy) was convicted by a military court martial in France. Since that time he has made a number of attacks upon the trial and his sentence. He here seeks a declaratory judgment (1) that the court martial which tried him on October 19, 1944 was without jurisdiction and void and that as a result his military record should be corrected to show that his discharge from the United States Army on December 5, 1944 was honorable or under honorable conditions; and (2) that a mandatory injunction should issue ordering the Secretary of the Army (appellant) to cause the Army Board for the Correction of Military Records (the Correction Board) to reconsider his application submitted on March 1, 1967 and change his military record to conform to the relief requested.

The District Court granted appellee's cross motion for summary judgment on the ground that the court martial was subjected to improper command influence, that appellee was denied effective assistance of counsel in the proceedings before said court martial, and that he was also denied his constitutional right to a fair trial. The court accordingly held appellee was entitled to have his record corrected to show that his discharge from the United States Army on December 5, 1944 was honorable and remanded the cause to the Correction Board with directions to take appropriate action. We affirm the judgment solely upon the ground that improper command influence was exerted upon the court martial.

Facts and Background

Albert C. Homcy's initial enlistment into the Army was on January 24, 1938, and six and one-half years of continuous honorable service followed, including successful completion of Officer Candidate School in November 1942 and receipt of a commendation for "exceptionally meritorious conduct" during the Italian campaign on December 15, 1943 while under "almost constant enemy artillery and mortar fire."

On August 27, 1944, near Concourdia, France, Homcy refused an order from his Battalion Commander to lead a patrol of what he alleges were unqualified and inexperienced men (cooks and bakers) to seek out and destroy enemy tanks or self-propelled guns that were firing into the battalion's position. Homcy was tried by general court martial on October 19, 1944 and found guilty of misbehavior before the enemy—one of the most serious offenses that can be committed by a military man. The court martial sentenced him to be dismissed from the service, to total forfeiture of all pay and allowances, and to be confined at hard labor for fifty years. Four days later all five members of his court martial signed a clemency petition recommending that the period of confinement be reduced to ten years, and that the entire sentence be suspended and Homcy returned to duty. The convening authority reduced the confinement to ten years, but did not suspend any portion of the resulting sentence. Homcy was dishonorably discharged on December 5, 1944.

After fourteen months of confinement, on January 7, 1946 the remainder of Homcy's sentence was vacated to permit him to reenlist. This enlistment terminated on August 24, 1946 with an honorable discharge and appellee has, on a number of grounds, more or less continuously since that time, sought correction of his records to eliminate the dishonorable discharge resulting from his court martial. Numerous requests for correction were denied by the Army between 1947 and 1961. In 1961 he was finally accorded a complete evidentiary hearing before the Correction Board, but the Board's recommendation for denial of his application was approved by the Under Secretary of the Army.

A new application, presenting new evidence and new allegations of improper conduct of the court martial was denied without a hearing on April 12, 1967. Thereafter this suit was filed in the District Court on December 22, 1967 and, upon reconsideration, the Army ordered a formal hearing before the Correction Board on Homcy's application. Such hearing was held on July 10, 1968, but the Board again recommended denial of Homcy's application and the Under Secretary of the Army so directed on August 20, 1968. This case had been stayed in the District Court during the Correction Board's hearing, and following the Secretary's affirmation of the Board's recommendation the record of those proceedings was offered by appellants here in support of motions for dismissal or, in the alternative, for summary judgment. Homcy's cross motion for summary judgment was similarly based on the record of the Correction Board hearing. Oral argument was heard on the respective motions, and motions of appellant (Secretary of the Army) were denied and summary judgment was entered in favor of Homcy.

The Jurisdiction of the Court

The "primary position" of appellant in this appeal is "that the court below had no jurisdiction to review a court martial conviction, except by habeas corpus." Brief for appellant, at 6. Appellant concedes that this court, Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969); Gallagher v. Quinn, 124 U.S.App.D.C. 172, 363 F.2d 301, cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966), and the First Circuit, Ashe v. McNamara, 355 F.2d 277 (1965),¹ have denied this contention, but he urges that we reexamine the basis of our prior decisions. Appellant's argument for reconsideration turns primarily on his interpretation of the legislative history of three statutes² that were considered either independently or in combination in the three challenged cases. He has not demonstrated, nor has our independent examination revealed, any judicial expression of disapproval of the Ashe, Gallagher or Kauffman decisions. In Kauffman this court reserved judgment pending decision by the Supreme Court in its review of Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131 (1967). In Augenblick the Court of Claims cited our Gallagher decision and held:

To deny collateral attack to one not in confinement—the consequence of saying that habeas corpus is the only remedy—would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen like plaintiff who have not been sentenced to jail or who have been released. (Id., 377 F.2d at 592.)

The Supreme Court reversed Augenblick,³ but did so on the merits and without reaching the jurisdictional issue raised both there and here. Subsequently we held in Kauffman that the District Court did have jurisdiction to review alleged constitutional defects in the appellant's court martial conviction. We pointed out that "the deprivation of liberty under an invalid conviction is a grievous injury, but a military discharge under other than honorable conditions imposes a lifelong disability of greater consequence for persons unlawfully convicted by courts martial." Kauffman, supra, 135 U.S.App.D.C. at 5, 415 F.2d at 995. Homcy's 26-year effort to lift the disgrace of his dishonorable discharge from his record amply demonstrates the "lifelong disability" we alluded to in Kauffman. We find nothing in appellant's interpretation of the legislative history to convince us that our decisions in Gallagher and Kauffman were wrong; the District Court properly read these cases as authorizing its jurisdiction over this review of the Correction Board's determination of the constitutionality of Homcy's court martial conviction.

The Composition of the Court Martial

Appellant also contends that even if the jurisdiction of the District Court were proper there were no irregularities in Homcy's court martial that warrant a finding of constitutional deprivation of a fair trial. Three such irregularities were alleged by Homcy in the District Court, and although the order granting summary judgment for appellee mentioned only two of them, all three were argued on this appeal. The point not discussed by the District Court was that the court martial which convicted appellee was improperly constituted because the "law member" specifically detailed to sit as a member thereof was excused during the trial because of other urgent military duties.

Article 8 of the Articles of War, 41 Stat. 788 (1920), in effect during World War II, required that one of the members of a general court martial be a "law member, who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member." Id. The history of this Article is aptly summarized by the appellee:

It is thus evident, both from the explicit language of Article 8 itself, as well as its legislative history, that the whole purpose of the requirement that there be a "law member" appointed or "detailed" to each general court-martial was to be sure that there was present at the trial someone who would have both some qualifications and the explicit responsibility to supervise the trial and to advise on questions of law. (Brief for appellee, at 59-60 (emphasis added).)

Appellee argues that his c...