Parrish v. Seamans

Citation343 F. Supp. 1087
Decision Date25 May 1972
Docket NumberCiv. A. No. 71-1260.
CourtU.S. District Court — District of South Carolina
PartiesBishop P. PARRISH, Plaintiff, v. Robert F. SEAMANS, United States Secretary of the Air Force, Defendant.

George W. Gregory, Jr., Cheraw, S. C., for plaintiff.

John K. Grisso, U. S. Atty., D. S. C., and Wistar D. Stuckey, Asst. U. S. Atty., Columbia, S. C., for defendant.

ORDER

HEMPHILL, District Judge.

The plaintiff, Bishop P. Parrish, while serving as a member of the United States Air Force, was tried by General Courts-Martial on March 7 through March 25, 1955, and found guilty of the following offenses, which were affirmed by the Air Force Board of Review and the United States Court of Military Appeals:1

Charge 1, Article 81, Specification 1:
As Amended: Did, at Tokyo, Japan, between about 1 Feb 54 and about 28 Feb 54, conspire with Captain Jerry M. Hartz to commit an offense under the UCMJ, to wit: Wrongfully and willfully loan to the said Colonel Bishop P. Parrish, Jr., in a manner not authorized by law, $2,500 of public monies of the U.S. intrusted to the said Captain Jerry M. Hartz, the said Captain Jerry M. Hartz then being FEAF Base Finance Officer, a disbursing officer of the U.S., and in order to effect the object of the conspiracy, the said Captain Jerry M. Hartz did, o/a 1 Mar 54, sign as a disbursing officer, USAF, and deliver to the said Colonel Bishop P. Parrish, Jr., a certain check drawn on The Treasurer of the U.S. in the amount of $2,500, payable to Bishop P. Parrish, Jr., and the said Colonel Bishop P. Parrish, Jr., did, o/a 1 Mar 54, accept said check and sign a WDAGO Form 14-48, Receipt for Funds Intrusted to Agent Officer.
Charge 3, Article 134, Specification 1:
Did, in conjunction with Captain Jerry M. Hartz, o/a 1 Mar 54, at Tokyo, Japan, wrongfully and willfully loan to the said Colonel Bishop P. Parrish, Jr., in a manner not authorized by law, $2,500 of public monies of the U. S. intrusted to the said Captain Jerry M. Hartz, the said Captain Jerry M. Hartz then being FEAF Base Finance Officer, a disbursing officer of the U.S.
Charge 3, Article 134, Specification 3:
Did at Tokyo, Japan, o/a 25 Aug 54, in his testimony given to Philip P. Benzell, a Special Agent of the OSI, duly detailed to conduct an investigation, upon being asked the question, "Did you personally deliver $2,500.00 in U.S. currency to Captain Hartz in exchange for this check on 1 March 1954?" wrongfully and unlawfully answer under lawful oath, "On or about that date, I personally gave Hartz $2,500.00 in exchange for the check", which answer he did not then believe to be true.

The General Courts-Martial sentenced plaintiff to dismissal from the service, total forfeitures of all pay and allowances, and confinement at hard labor for two years. The Air Force Board of Review reduced the period of confinement to one year, and upon completion of his sentence the plaintiff was dismissed from the service by order of the Secretary on October 26, 1956. In addition to appealing his conviction to the United States Air Force Board of Review and the United States Court of Military Appeals, the plaintiff appealed to the Air Force Board for Correction of Military Records on several occasions. Relief was granted on November 7, 1969, when upon recommendation of the Board, and under the authority of 10 U.S.C.A. § 1552, plaintiff's records were corrected to show that on October 26, 1956, he was administratively discharged pursuant to 10 U.S.C.A. § 874(b) with an honorable discharge certificate. At the time of the dismissal, plaintiff held the rank of Colonel and had accumulated some fifteen years of service in the military. Contending that his conviction and subsequent dismissal were in violation of his constitutional rights in that he was deprived of his right to be confronted with witnesses against him, denied his right to assistance of counsel, and compelled to be a witness against himself, plaintiff instituted this action on December 23, 1971. The specific relief sought is that the trial and conviction of the plaintiff be declared unconstitutional and null and void. Plaintiff further seeks a Writ of Mandamus compelling defendant to restore all rank, pay, allowances (including basic pay, flight pay, dependents' quarters allowances, and subsistence), reimbursement for medical care for himself and his dependents that he would have received from the date of his unlawful discharge until the date he would have retired, and all entitlements and privileges forfeited by him as a result of his conviction.

This matter is now ripe for consideration by the court pursuant to defendant's motion to dismiss and plaintiff's motion for summary judgment.

The plaintiff claims jurisdiction pursuant to 28 U.S.C.A. § 1361, which provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

This action seeks to require the defendant to act under his authority as set forth in 10 U.S.C.A. § 1552, which provides, in relevant part:

(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. . . . Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

The defendant contends that this court is without jurisdiction in that any collateral review, except by habeas corpus, is barred by Article 76 of the Uniform Code of Military Justice (UCMJ) which declares that action taken by a courts-martial is final and binding upon the courts of the United States. Article 76 provides:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as provided in section 874 of this title (article 74) and the authority of the President. 10 U.S.C.A. § 876.

The plaintiff contends that Section 1552 is an exception to the "final and conclusive" provision of Article 76. In Ashe v. McNamara, 355 F.2d 277 (1965), the First Circuit reversed the district court, which had granted summary judgment for the Secretary of Defense, ruling that it had no jurisdiction of the subject matter. The First Circuit held that 10 U.S.C.A. § 1552 was an exception to, or authorized relief from, Article 76 of the U.C.M.J. Congress gave the Secretary the right to review courts-martials and, in so doing, specifically eliminated words from the bill which would have limited review by the courts.

Our analysis of this problem in the context of this case begins with section 207 of the Legislative Reorganization Act of 1946, 60 Stat. 837, 10 U.S.C. § 1552, which in terms provided that the "Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice." This statute enabled the Secretary, acting through a civilian Correction Board, to change the kind of discharge a former service man had received and relieved Congress of the burden of the great number of private bills theretofore introduced at each session to accomplish such changes. Moreover, this power of review was conferred in sufficient generality to cover discharges pursuant to court-martial sentences as well as administrative discharges. To this extent Congress created an exception to or authorized relief from the mandate of the 76th Article of the Uniform Code of Military Justice that "all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive."
As originally enacted, the 1946 statute said nothing about the finality of the authorized administrative action. Shortly thereafter, the Comptroller General refused to recognize a change in the type of a discharge thus accomplished as affecting forfeiture of monetary benefits which attended the original discharge. 27 Decs.Comp. Gen. 665 (1958). In the light of this experience, an amendatory bill was introduced in Congress providing that monetary settlements attending administrative correction of records under the statute in question "shall be final and conclusive on all officers of the Government, including review by the courts of the United States, except when procured by means of fraud." * * * However, at the subcommittee hearings on this bill, members of the subcommittee expressed disapproval of the provision precluding judicial review. * * * the subcommittee eliminated from the bill the words "including review by the courts of the United States" and explained to the full committee that this was done "so that under appropriate circumstances the courts of the United States may review these matters." Ashe v. McNamara, pp. 280-281, supra.
* * * * * *
Congress having authorized administrative reconsideration and change of sentences that had become final, we
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    ...moot. 9 See also 28 U.S.C. §§ 507, 1402, 1491, 1496, 1497, 1501, 1503, 2071, 2072, 2411, 2501, and 2512. 10 See also, Parrish v. Seamans, 343 F.Supp. 1087 (D.S.C.1972), aff'd, 485 F.2d 571 (4th Cir. 1973); Mathis v. Laird, 483 F.2d 943 (9th Cir. 11 Carter had previously filed a petition see......
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