Shaw v. United States

• Decision Date: 18 March 1966
• Docket Number: No. 489-54.,489-54.
• Parties: Royal Barry SHAW v. The UNITED STATES.
• Court: U.S. Claims Court

174 Ct. Cl. 899, 357 F.2d 949 (1966)

Royal Barry SHAW v. The UNITED STATES.

No. 489-54.

United States Court of Claims.

March 18, 1966.

COPYRIGHT MATERIAL OMITTED

Robert H. Reiter, Washington, D. C., attorney of record, for plaintiff. Spaulding, Reiter & Rose, Washington, D. C., of counsel.

John R. Franklin, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, and COLLINS, Judges.

DAVIS, Judge.

A former naval disbursing officer, Lieutenant (j. g.) Royal Barry Shaw, brings this action to recover back pay and allowances under 28 U.S.C. § 1491 on the ground of wrongful dismissal, as well as to obtain "relief from responsibility for the loss" of Government funds under the special provisions of 28 U.S.C. §§ 1496 and 2512.¹ Before his dismissal, Lieutenant Shaw was in the Supply Corps, United States Naval Reserve, serving on active duty at the Naval Air Station, Willow Grove, Pennsylvania. On October 4, 1948, he was to be relieved as the disbursing officer by another naval officer. Prior to effecting this changeover, plaintiff discovered that his cash account was not in order, and that he was apparently short $5,614.01. This shortage was immediately brought to the attention of the Air Station's Commanding Officer who suspended Lieut. Shaw, according to Navy regulations. An informal auditing board and, later, a formal inspection board investigated the deficiency and reaffirmed the earlier findings. Throughout this period of discovery and investigation, plaintiff acknowledged the existence of the apparent shortage, but often expressed his inability to understand how it might have developed.

On November 20, 1948, the Navy lodged four court-martial charges against him: — for "embezzling money of the United States intended for the naval service thereof"; "neglect of duty"; "culpable inefficiency in the performance of duty"; and "violation of a lawful regulation issued by the Secretary of the Navy." On December 2nd, a General Court-Martial was convened. After a 21-day trial the court-martial found Lieut. Shaw guilty on all charges, and sentenced him to be dismissed from the naval service, and to be imprisoned at hard labor for three years. A series of appeals and reviews followed. On February 3, 1949, the convening authority approved the proceedings, findings, and sentence, with immaterial exceptions. The Navy Judge Advocate General recommended, in September 1949, that the convening authority's findings and actions on the several specifications of the second, third, and fourth charges be set aside, and that Shaw's embezzlement conviction (the first charge) be approved. The Under Secretary of the Navy accepted this recommendation, affirming plaintiff's embezzlement conviction and the dismissal. Lieut. Shaw was dismissed on February 8, 1950. Attempts to have the conviction and dismissal reviewed by the Court of Military Appeals were unavailing.²

Plaintiff urges a number of constitutional grounds for holding his conviction void. The Government denies any invalidity in the military proceedings, and also asserts that this court should not reweigh and reassess the evidence or inquire into possible errors of law in the court-martial. Stated broadly, the two questions before us are (1) whether we can look into any of the challenges to the court-martial conviction, and (2) whether, if such an examination is warranted, we can find adequate ground for holding that plaintiff's dismissal from the service, as a result of his conviction, was void.

I

Although our jurisdiction to reexamine court-martial decisions has not been defined broadly, that it exists is beyond question. Almost two decades ago, we unequivocally declared that a court-martial's denial of a plaintiff's fundamental constitutional rights operated to deprive it of jurisdiction and vested us with the power to grant relief by way of a money judgment if the serviceman had been removed from the service by the sentence of the court-martial. Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650 (1947).³ A conviction was held no bar to recovery "if the verdict of the court martial was absolutely void and, therefore, forms no foundation for plaintiff's dismissal." Id. 69 F.Supp. at 207, 107 Ct.Cl. at 654. Some years later, Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), held that civil courts could "determine whether the military have given fair consideration" to claims of fundamental unfairness, but that they could not "reexamine and reweigh each item of evidence * * *." Id. at 144, 73 S.Ct. at 1050. A majority of the Supreme Court agreed that the scope of collateral review by habeas corpus went beyond limited traditional notions of "jurisdiction". Id. at 142, 148, 154, 73 S.Ct. 1045. We have never held that the scope of our "review" by way of a proceeding for a money judgment was any more restrictive. On the contrary, our opinions have consistently stated or assumed that denial of significant constitutional rights would render the military conviction invalid, and permit this court to award back-pay.⁴ Other courts have also been willing to look beneath final court-martial convictions (and dismissals) to search for fundamental unfairness, and to order corrective action when the service has refused to do so. A recent example is Ashe v. McNamara, 355 F.2d 277 (C.A. 1, Dec. 14, 1965).⁵

To be sure, where the plaintiff was "accorded a full and fair hearing" (emphasis supplied) within the military system, we have said, following Burns v. Wilson, that we would refuse to cover the same ground by reconsidering the plaintiff's objections anew. Begalke v. United States, supra, 286 F.2d at 608-610, 148 Ct.Cl. at 401, 403. In that case the constitutional issues (involving alleged illegal searches and seizures, police interrogation, criticism of the accused's counsel during the trial, and claimed interference with the right to appeal) all turned on an evaluation of the particular facts; this court was unwilling to reassess those circumstances for itself, once the military had done so with care. Whether or not this rule of deference to the military findings has been modified or refined by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), we think that such abstinence is not to be practiced where the serviceman presents pure issues of constitutional law, unentangled with an appraisal of a special set of facts. That type of unmixed legal question this court has always decided for itself. See the cases cited in fn. 4, supra. The problem we consider in Part II, infra, is of this order. We must face the claim that, on the Navy's own factual findings, plaintiff could not constitutionally be held to have committed any crime.

Furthermore, our reluctance to consider Begalke's contentions de novo was prompted, in part, by the fact that he had had the opportunity to bring his conviction to the Court of Military Appeals whose action was by statute "final and conclusive". Id. 286 F.2d at 607-608, 148 Ct.Cl. at 399, 403.⁶ See, also Moses v. United States, 137 Ct.Cl. 374, 379-380 (1957); Narum v. United States, supra, 287 F.2d at 907, 151 Ct.Cl. at 330 (1960) (dissenting opinion). In other cases, the right to review here has been clouded by doubt as to whether the plaintiff had timely raised his constitutional claims before the military tribunals (Narum v. United States, supra, 287 F.2d at 901-903, 151 Ct.Cl. at 319-322 (1960)), or had objected to the alleged unconstitutional treatment he received. Fly v. United States, supra, 100 F.Supp. at 442, 120 Ct.Cl. at 498 (1951); Krivoski v. United States, supra, 145 F.Supp. at 241, 243, 136 Ct.Cl. at 455, 458 (1956). These considerations play no part in Lieut. Shaw's case, since the Court of Military Appeals ruled it lacked jurisdiction of his appeal (see fn. 2), and he has vigorously asserted his constitutional rights throughout.

II

At the end of the successive reviews within the military hierarchy, the only surviving charge against plaintiff was the first, "embezzling money of the United States intended for the naval service thereof." All the other accusations were quashed. This count of "embezzlement" specified that Lieut. Shaw, while a disbursing officer, did

during the period of April 19, 1948 to October 4, 1948, fail safely to keep all monies received in his possession and under his control in the execution and under color of his office as aforesaid, namely, a sum of public money of about five thousand six hundred fourteen dollars and one cent ($5,614.01), property of the United States intended for the naval service thereof, and did, therein and thereby, then and there embezzle the said sum of money.

Although the charge was sustained, the Navy expressly found (i) (through a formal opinion of the Judge Advocate General) that "the evidence fails to show any neglect or culpable inefficiency on the part of the accused, but on the contrary contains considerable testimony of prosecution and defense witnesses indicating that the accused exercised due caution and care in his handling of public money in his custody", and (ii) (through a dispositive memorandum of the Under Secretary) that Shaw's conviction was of "statutory embezzlement, which requires no proof of criminal intent" and that "the record does not disclose evidence to the effect that he converted any of the funds to his own use." The only issue we need reach is whether the Navy could constitutionally convict the plaintiff of "failing safely to keep" Navy funds when the Navy itself has affirmatively found that he had no criminal intent to convert, and did not convert, and was not negligent, inefficient, or careless. On the Navy's own findings, we hold that it could not constitutionally make the shortage of money, in these circumstances, a crime punishable by dismissal from the service....