Wickham v. Hall

• Decision Date: 10 June 1983
• Docket Number: No. 82-1084,82-1084
• Parties: Wendy L. WICKHAM, Plaintiff-Appellant, v. Alvin O. HALL, Colonel, U.S. Army, and United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 713

706 F.2d 713

Wendy L. WICKHAM, Plaintiff-Appellant, v. Alvin O. HALL, Colonel, U.S. Army, and United States,

Defendants-Appellees.

No. 82-1084.

United States Court of Appeals, Fifth Circuit.

June 10, 1983.

Stewart J. Alexander, San Antonio, Tex., for plaintiff-appellant.

Hugh P. Shovlin, Gordon D. Laws, Asst. U.S. Attys., San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, THORNBERRY and POLITZ, Circuit Judges.

CLARK, Chief Judge:

Wendy Wickham was discharged from active duty in the United States Army. Subsequently, her discharge was revoked on a claim that it had been gotten fraudulently. When court-martial proceedings were commenced against her, she claimed that Article 3(b) of the Uniform Code of Military Justice, ¹ the statute under which the court-martial court asserted jurisdiction, is unconstitutional. She appeals from the district court's grant of summary judgment to the United States Army. Finding the statute to withstand constitutional scrutiny, we affirm.

In late August, 1980, Wickham submitted a urine sample as part of a pregnancy test. The test results indicated that she was approximately seven weeks pregnant. On October 15, 1980 she was found eligible for a discharge from active duty based upon that finding. Since she had not completed her military service obligation, her discharge from active duty also resulted in her transfer to the Individual Ready Reserve. She was assigned to the Army Reserve Control Group with her military service obligation to run until April 9, 1984.

In early November, Army officials learned that Wickham was not pregnant and that she had submitted the urine of another servicewoman who she knew was pregnant. An investigation by agents of the Army Criminal Investigation Division resulted in sworn statements verifying this information.

The Army promptly lodged a formal charge against Wickham and on December 19, 1980 revoked the order which discharged her from active duty. Court-martial proceedings were then commenced against Wickham for fraudulently obtaining a discharge. Before her trial could begin, Wickham filed a petition with the United States Court of Military Appeals seeking to block the court-martial and to restore her to civilian status. A stay of the proceeding was granted, but a split three-judge panel of that court later dissolved the stay. Wickham sought collateral relief through a district court petition seeking a permanent injunction against further prosecution in the military court. In addition, Wickham's complaint sought release from military custody, the dismissal of the court-martial charge and damages. From the district court's grant of the Army's motion for summary judgment, Wickham appeals.

The issue presented is whether Article 3(b) may constitutionally confer court-martial jurisdiction over a person who has received a discharge that is later challenged by the issuing service on the ground it was fraudulently procured.

The Government urges that we avoid the constitutional question raised here on the basis that Wickham failed to exhaust her administrative remedies. It is basic to military claims that the petitioner must exhaust her military remedies before seeking federal court intervention. Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975); Gusik v. Schilder, 340 U.S. 128, 131-32, 71 S.Ct. 149, 151-152, 95 L.Ed. 146 (1950); Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir.1980). While the Government's court-martial tribunal has not yet heard this case on its merits, by her injunctive action challenging military jurisdiction, Wickham has exhausted her military remedies on the issue presented.

The Constitution, in article I, section 8, clause 14, empowers Congress "[t]o make Rules for the Government and Regulation of the land and naval Forces." Article I, section 8, clause 18, authorizes Congress "[t]o make all Laws which shall be necessary and proper" to execute all powers which the Constitution vests in the Congress. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 237, 80 S.Ct. 297, 298-299, 4 L.Ed.2d 268 (1960); Reid v. Covert, 354 U.S. 1, 19, 77 S.Ct. 1222, 1231, 1 L.Ed.2d 1148 (1957); Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L.Ed. 838 (1852). This is a limited grant of power to Congress to create exceptions to Article III courts. Trial by court-martial and the Uniform Code of Military Justice are manifestations of that congressional authority. Kinsella, 361 U.S. at 237, 80 S.Ct. at 298-299. In balancing the need to maintain discipline and order in the armed services and rights of citizens to be free of military obligations and control, the Supreme Court has held that congressional power to authorize trial by court-martial must be limited to "the least possible power adequate to the end proposed." United States ex rel. Toth v. Quarles, 350 U.S. 11, 23, 76 S.Ct. 1, 8, 100 L.Ed. 8 (1955) (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31, 5 L.Ed. 242 (1821)).

Wickham contends that once she received her discharge from active duty, she became a civilian. Therefore, under the teachings of Toth v. Quarles, supra, Congress cannot authorize a military court to exert jurisdiction over her because of her nonmilitary status. Since Article 3(b) is the basis upon which the military has asserted jurisdiction to revoke her discharge and return her to active duty, she argues that this portion of the UCMJ is unconstitutional.

In Toth, the Supreme Court found that "[i]t has never been contended by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions." 350 U.S. at 14, 76 S.Ct. at 4. The Army had predicated court-martial jurisdiction over Toth on Article 3(a) which subjected servicemen and former servicemen to trial by court-martial for certain offenses committed while in the service. The Court held that Congress could not constitutionally confer upon a military court jurisdiction over an exserviceman, who at the time he was accused of crime had absolutely no military connections. Wickham asserts Article 3(b) is facially unconstitutional since it also subjects "civilians" to the jurisdiction of the military courts.

In Toth v. Quarles, the Court identified three factors which control the extent of military court jurisdiction over discharged servicemen. All are met in the instance of Article 3(b).

The Court asked whether the trial of this defendant would further the " 'primary' function of the military to 'fight' or be ready to fight wars, rather than the 'incidental' purpose of maintaining discipline within the service." 350 U.S. at 17, 22-23, 76 S.Ct. at 5, 8-9. While the exercise of jurisdiction to deter fraud certainly has the effect of maintaining discipline, limiting the initial inquiry to fraud in procuring a discharge makes the power impact directly on the military's readiness to fight. Fraudulent separation, like desertion, places the power to thin the ranks of those ready for combat in the hands of the soldier not the service.

The Court next asked if the extension of military jurisdiction would "sweep under military jurisdiction a great number of persons not otherwise subject to military law." Id. at 19-20, 22-23, 76 S.Ct. at 6-7, 8-9. The reach of Article 3(b) in this respect is minimal. It only subjects to jurisdiction those who in the midst of a legal period of service fraudulently procure a discharge. See Wickham v. Hall, 12 M.J. 145, 151 (C.M.A.1981 Cook, J.).

Finally, the Court asked whether "the scope of the extension of court-martial jurisdiction ² [is] limited to 'the least possible power adequate to the end proposed.' " 350 U.S. at 23, 76 S.Ct. at 8 (emphasis in original). Article 3(b) meets this requirement. It is a narrowly drawn jurisdictional statute designed to maintain order and discipline in the service. It only asserts power over those who seek fraudulently to terminate their lawful period of service. Finally, it acts to preserve an active, full, prepared military fighting force. Toth does not condemn Article 3(b).

The enforcement of service obligations is critical for the continued orderly governance of America's land and naval forces. The choice to accomplish that end by authorizing the armed forces to try and punish those who seek to abbreviate their lawful active duty commitments is a constitutionally reasonable exercise of congressional authority. Such a power is akin to the unquestioned power vested in the military to try and punish deserters. Art. 85, UCMJ, 10 U.S.C. Sec. 885.

The legislative history of Article 3(b) reveals that Congress was reacting to cases arising after World War II in which servicemen had fraudulently procured discharges. The former servicemen then used their fraudulently obtained discharges to block military court action. See Hearings on the Uniform Code of Military Justice before a House Subcommittee of the Committee on Armed Services, 81st Cong., 1st Sess. 885 (March 18, 1949) (Comments of Felix Larkin, Assistant General Counsel, Office of The Secretary of Defense). Recognizing the seriousness of the problem, Congress gave military tribunals the authority to deal with an offense that would strike at the very heart of the individual's military commitment.

A cardinal tenet of military law is that a serviceman, upon enlisting, has changed his status. In re Grimley, 137 U.S. 147, 150, 11 S.Ct. 54, 34 L.Ed. 636 (1890). In Grimley, the Supreme Court stated that "the taking of the oath of allegiance is the pivotal fact which changes the status from that of a civilian to that of soldier." Id. at 156-57, 11 S.Ct. at 56. Once that civilian becomes a soldier, his status as a member of the armed forces can only be honorably terminated by a completion of the service obligation or a valid discharge. A soldier may...