Smith v. McNamara, 9761

• Decision Date: 12 June 1968
• Docket Number: No. 9761,9754.,9761
• Citation: 395 F.2d 896
• Parties: James Wm. SMITH, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Gilbert Esco ANGLE, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

395 F.2d 896 (1968)

James Wm. SMITH, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee.

Gilbert Esco ANGLE, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee.

Nos. 9761, 9754.

United States Court of Appeals Tenth Circuit.

June 12, 1968.

William M. Allison, Denver, Colo. (each petitioner pro se on separate briefs) for appellants.

Benjamin E. Franklin, Topeka, Kan. (Newell A. George, Topeka, Kan., with him on brief) for appellee.

Before MURRAH, Chief Judge, JONES,^* Court of Claims, and BREITENSTEIN, Circuit Judge.

MURRAH, Chief Judge.

By separate petitions to the District Court of Kansas, Smith and Angle sought in effect to mandamus the Secretary of Defense to remove from their records dishonorable discharges resulting from court martial convictions in 1945 and 1948, respectively. The salient contention in both petitions seems to be that the court martials were void because petitioners were denied their constitutional right to counsel. On the authority of Ashe v. McNamara, 1 Cir., 355 F.2d 277, Judge Stanley entertained jurisdiction under 28 U.S.C. § 1361 to judicially review administrative orders of the Secretary acting through the Army Board for Correction of Military Records pursuant to 10 U.S.C. § 1552.¹ He denied the writ of mandamus, holding that the court martials were not constitutionally void and the Secretary was not legally required to grant the honorable discharges.

For the first time on appeal the Secretary suggests the failure of jurisdiction in the Angle case for want of proper service. Public law 87-748 (1962), 28 U.S.C. §§ 1361, 1391(e), which confers jurisdiction on the District Courts to entertain actions in the nature of mandamus against government officers² provides for service of summons and complaint in accordance with the Federal Rules of Civil Procedure "except that delivery of the summons and complaint to such officer * * * may be made by certified mail outside the district in which the action is brought." 28 U.S.C. § 1391(e). Rule 4(d) (4) and (5), F.R.Civ.P., significantly provides that in suits against officers of the United States a copy of the summons and complaint must be delivered to the officer and to the United States, i. e. the United States Attorney and the Attorney General. See Messenger v. United States, 2 Cir., 231 F.2d 328; Wallach v. Cannon, 8 Cir., 357 F.2d 557. Angle admits that no such delivery was made on either the officer sued, i. e. the Secretary of Defense, or on the United States as provided in the rules. Nor did the Secretary or the United States waive the lack of service by pleading or appearance. It follows that the court never acquired jurisdiction in Angle's case and the action must be dismissed on that ground.

A different situation obtains with regard to Smith where the Secretary entered his appearance in response to an order to show cause. It now seems to be conceded that by such appearance the lack of proper service was waived, and we proceed to consider the Smith case on its merits.

Smith was convicted in 1945 of the crimes of Absence Without Leave and Robbery in violation of Articles of War 61 and 93 and sentenced to a term of imprisonment at hard labor, forfeiture of pay and allowances and dishonorable discharge. At trial he was represented by a member of the Military Police admittedly not trained in the law; the prosecuting officer was a member of the Transportation Corps and there is no record indication that he was legally trained. The convening authority approved the findings of guilt but reduced the term of confinement and suspended the dishonorable discharge. The record of trial was then reviewed by the office of the Judge Advocate General and found legally sufficient to support the sentence. Smith escaped from detention in the Phillipines and was recaptured five years later in the United States, at which time he was returned to confinement and suspension of the dishonorable discharge was revoked. Through legally trained, non-military counsel, Smith petitioned the office of the Judge Advocate General for a new trial raising some of the issues urged here, but not complaining of lack of counsel. The petition was denied but the term of imprisonment was subsequently reduced. On completion of the sentence, he petitioned the Army Board three times to grant him an honorable discharge and payment of all sums previously withheld; his requests were denied without a hearing.³ He brought the present action by petition pro se while in the custody of the State of Kansas on an unrelated conviction. The record before the court included one page of the transcript of testimony at the court martial and numerous documents summarizing the proceedings including both the brief and decision on the petition for new trial. In denying relief the trial court was of the opinion that all of Smith's asserted claims had been fully investigated on the petition for new trial and found meritless by the military authorities.

The Secretary's initial contention on appeal is that, notwithstanding Ashe, the District Court had no jurisdiction to review the court martial and consequently the denial of the writ of mandamus should have been made to rest on that ground alone. The Secretary invokes the finality provisions of two statutes: (1) 10 U.S.C. § 876 which makes the decisions of court martials "final" and "binding upon all * * * courts"; and (2) 10 U.S.C. § 1552 which makes corrections of military records thereunder by the Secretary "final and conclusive on all officers of the United States". It is sufficient to say that the contention with respect to Section 1552 was squarely met and conclusively answered in Ashe, supra, where, upon painstaking review of the legislative history, the First Circuit was of the opinion that the statute "was not intended to preclude any otherwise proper judicial review of departmental action upon a petition to change the type of a discharge." Id. 355 F.2d 281. As to Section 876, it is well settled that the section "does not deprive civil courts of jurisdiction of habeas corpus jurisdiction in proper cases." Easley v. Hunter, 10 Cir., 209 F.2d 483; and see Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. And, notwithstanding the finality language of section 876, the Court of Claims has continuously entertained suits by military personnel claiming that their court martial convictions were void. Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131; and see Shaw v. United States, 357 F.2d 949, 953, 174 Ct.Cl. 899 and cases cited in footnote 4. The court in Augenblick, supra, 377 F.2d 592, reasoned that "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 * * * who have not been sentenced to jail or who have been released." For like reasons we conclude that the trial court was vested with jurisdiction to review by mandamus, as in habeas corpus, the "final" court martial decision even though Smith had completed the term of imprisonment imposed as a result of that conviction.

It follows that where the "conviction was the product of court-martial procedure so fundamentally unfair that, upon a proper petition, a district court at the place of incarceration would have been obliged to grant * * * a writ of habeas corpus", it would be "as much the duty of the Secretary and the Correction Board, as it would have been of a court * * *, to treat as void a sentence thus unconstitutionally imposed" and "the matter of changing the type of discharge would therefore involve a plain duty to grant relief, enforceable by an action in the nature of...