Sima v. United States

• Decision Date: 01 May 1951
• Docket Number: No. 48533.,48533.
• Citation: 96 F. Supp. 932
• Parties: SIMA v. UNITED STATES.
• Court: U.S. Claims Court

96 F. Supp. 932

SIMA v. UNITED STATES.

No. 48533.

United States Court of Claims.

Decided May 1, 1951.

Norman C. Melvin, Jr., Baltimore, Md. (Cook, Ruzicka, Veazey & Gans, Baltimore, Md., on the briefs), for the plaintiff.

Robert E. Mitchell, Washington, D. C., H. G. Morison, Asst. Atty. Gen., and Newell A. Clapp, Acting Asst. Atty. Gen., for the defendant.

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

HOWELL, Judge.

The plaintiff, formerly a Lieutenant, United States Navy and Leader of the United States Naval Academy Band, was dismissed from the service on January 9, 1947, pursuant to the judgment and sentence of a Navy general court-martial. By this suit plaintiff seeks to recover the pay and allowance allegedly due him from January 9, 1947 to January 28, 1948, the date his petition was filed herein, on the grounds that the sentence of dismissal was void because not legally reached, and because such sentence of dismissal was never confirmed. He therefore asks for judgment in the amount of $7,324.80 with interest as provided by law and costs of this proceeding.

Plaintiff enlisted in the Navy as a musician in 1910 and served continuously thereafter as a member of the United States Naval Academy Band. In 1933 he was appointed Leader of the Band with the rank of Lieutenant. He was suspended from the position in February 1946, and was dismissed from the service on January 9, 1947, pursuant to conviction and sentence by a Navy general court-martial which tried him at the Naval Academy from August 14 to 29, 1946, upon charges and specifications preferred June 27, 1946, by the Acting Secretary of the Navy.

A consideration of whether plaintiff has been denied his constitutional rights in the manner in which he was arrested, furnished the charges, and brought to trial, and whether or not the sentence of dismissal was validly confirmed are now before this court.

Plaintiff says that his dismissal from the United States Naval Service, effective January 9, 1947, was improper and without warrant of law for the following reasons: That the general court-martial was without jurisdiction because of noncompliance with the provisions of Articles 24, 43, and 44 of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Arts. 24, 43, and 44, as a result of which he was denied the due process of law guaranteed by the Fifth Amendment to the Constitution; that he was denied his right to a speedy trial guaranteed by the Sixth Amendment to the Constitution; and that the sentence of the general court-martial was not confirmed by the President of the United States as required by Article 53 of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Art. 53.

Various grounds based on certain circumstances, some of which occurred before, some during, and some after, the general court-martial, are advanced by plaintiff in support of his contention that he was deprived of his constitutional right to due process of law. These grounds will be separately considered.

From the stipulation of facts filed herein by the parties, it appears that on February 13, 1946, the Superintendent, U. S. Naval Academy, called plaintiff to his office and advised him that he had received reports of alleged misconduct on his part, as a result of which an investigation would be undertaken. Whereupon, plaintiff was put in the custody of Commander W. F. Morrison, U. S. N., who on that date escorted plaintiff to his home and then to the U. S. S. Reina Mercedes, the U. S. Naval Academy station ship. On February 14, 1946, the Superintendent appointed a Board of Investigation for the purpose of inquiring into and reporting upon the alleged misconduct of various persons, including plaintiff. The Board convened February 16, 1946, and conducted hearings until February 26, 1946. On February 27, 1946, the Board delivered its findings of fact, opinion, and recommendations to the Superintendent. While plaintiff alleges that these findings were never made known to him, the stipulation of facts filed herein by the parties admits that the Board's findings were not made public, in accordance with the prescribed naval procedure in such cases. It follows that plaintiff was not entitled to be informed of the Board's findings.

It also appears that on February 28, 1946, the Superintendent, U. S. Naval Academy, directed the Commanding Officer, U. S. S. Reina Mercedes, to place plaintiff under arrest pending trial by general court-martial, in accordance with the recommendation of the Board of Investigation. In a letter from the Commanding Officer, U. S. S. Reina Mercedes, dated February 28, 1946, plaintiff was advised, in part, as follows: "Subj: Arrest — pending trial by General Court-Martial. * * * 1. By direction of the Superintendent, U. S. Naval Academy, you are hereby placed under arrest pending your trial by General Court-Martial."

Plaintiff says that on February 28, 1946, he was put under arrest within the meaning of Article 43 of the Articles for the Government of the Navy, 34 U.S.C.A. § 1200, Art. 43 and therefore, at that time, should have been furnished with a true copy of the charges with the specifications. It is conceded that a copy of the charges with the specifications was not served upon plaintiff on February 28, 1946. The stipulation of facts, however, concedes that the Superintendent, U. S. Naval Academy, had no authority either as Superintendent or as Commandant of the Severn River Naval Command to order a general court-martial. It is noted that plaintiff was present at the hearings of the Board of Investigation, was read the convening order, and was represented by counsel at said hearings. In view of the lack of authority of the Superintendent, U. S. Naval Academy, to order a general court-martial, it is apparent that the aforementioned letter to plaintiff, dated February 28, 1946, erroneously described the arrest as one "pending trial by General Court-Martial." The arrest should have been described as one pending the decision and action of higher authority upon the case.

Article 43 of the Articles for the Government of the Navy reads as follows: "The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charge had not reached the officer ordering the court when the accused was put under arrest, or that some witness material to the support of such charge was at that time absent and can be produced at the trial; in which case reasonable time shall be given to the accused to make his defense against such new charge."

The arrest mentioned in Article 43 of the Articles for the Government of the Navy refers to the formal arrest for trial. In this connection, the Attorney General has held:

"Construing Articles 24, 43, and 44 together, it is, in my opinion, clear that there may be two arrests; first, an arrest in an emergency, or upon the discovery of the alleged wrong-doing, with a view to a preliminary examination, and if necessary the formulation and specification of charges; and, second, in the language of Article 44, `an arrest for trial.' I think it equally clear that Article 43, providing that `the person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest,' has reference to the second and formal arrest for trial, as referred to in Article 44." 19 Op. Atty. Gen. 472, 475 (1890). See also Johnson v. Sayre, 158 U.S. 109, 117, 15 S.Ct. 773, 39 L.Ed. 914; United States v. Smith, 197 U.S. 386, 391-392, 25 S.Ct. 489, 49 L. Ed. 801; Bishop v. United States, 197 U.S. 334, 339, 25 S.Ct. 440, 49 L.Ed. 780.

In a case involving somewhat similar facts, Ex parte Webb, D.C.D.Hawaii, 84 F.Supp. 568, 569, Webb, a Navy seaman suspected of arson, was originally arrested for "safekeeping." Nine days later, following an investigation and a recommendation by his commanding officer that he be court-martialed, he was committed to the brig. At the direction of the commanding officer, the commitment papers stated that Webb was to be confined "awaiting trial by general court-martial." One hundred and seventeen days later the proper convening authority issued an order for trial, preferred the charge of arson with three specifications, and Webb was thereupon placed under arrest for trial and served with the charge and specifications. After trial and conviction, Webb petitioned for a writ of habeas corpus, contending that his confinement to the brig had been an arrest for trial under Article 43, Articles for the Government of the Navy, which should have been accompanied by delivery of the charge and specifications. The court, in denying the petition, held in part as follows: "Art. 43 was not violated. Obviously a description in Webb's service record to the effect he was being confined (from September 17 to January 5) `awaiting trial by general court-martial' was a mistake. No one can be held in this status until one having the authority to order a person charged and tried before a court martial has so directed. In this instance that event did not occur until January 4, following which for the first time Webb was arrested for trial and served with a copy of the charge and specifications. The fact of the matter is, as revealed by the evidence, that between September 8 and September 17 Webb was confined for `safekeeping' * * * while thereafter, his commanding officer having recommended that he be court martialed, the commitment papers should have properly described his confinement as `pending action by higher authority,' to wit, the action of the Admiral upon the recommendation." 84 F. Supp. at page 569.

The parties herein have stipulated that on June 27, 1946, Acting Secretary of the Navy John L. Sullivan issued a precept for plaintiff's...