involved. Murder is murder and whether it is done with the savagery of a Hun or the finesse of a storybook thriller is of no consequence.
Final termination of a state of war with the Axis powers was effected April 28, 1952. While it is true the Korean conflict began in June 1950 and ended in July 1953 ( United States v. Shell, 7 U.S.C.M.A. 646, 23 C.M.R. 110) and the Korean conflict has been held to constitute a state of war for the purpose of the administration of military justice ( United States v. Bancroft, 3 U.S.C.M.A. 3, 11 C.M.R. 3; United States v. Gann, 3 U.S.C.M.A. 12, 11 C.M.R. 12; United States v. Ayers, 4 U.S.C.M.A. 220, 15 C.M.R. 220; United States v. Taylor, 4 U.S.C.M.A. 232, 15 C.M.R. 232), the fact remains the offense involved here did not take place at or near a field during time of war or in the face of an actively hostile enemy or in an area where actual hostilities were under way.
In Covert, supra (354 U.S. at pages 22, 23, 77 S. Ct. at page 1233) Mr. Justice Black stated:
'* * * We recognize that there might be circumstances where a person could be 'in' the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. * * *'
It may well be argued that there is not the urgency for strict military discipline at a time and in an area of peace as in a hostile area. Certainly, it would seem that the army is still charged with a heavy responsibility in connection with the conduct and behavior of its personnel, army and civilian, while on foreign soil and whether in war or in peace.
In the light of the divergent opinions in Covert and the self-defeating alternatives, enumerated and evaluated by Mr. Justice Harlan in Covert (Note 12, Page 76), I conclude, paraphrasing Mr. Justice Black, Covert supra, that this is a circumstance where petitioner was in the armed services for purposes of Clause 14 even though he had not been formally inducted into the military and did not wear a uniform.
I further conclude, in the light of the above observations, that civilian employees attached to the armed forces of the United States abroad may be subjected to trial by court-martial, even in capital cases, and that Article 2, subsection (11) of the Uniform Code of Military Justice in so far as it relates to the facts of the instant case is constitutional; that the court-martial by which petitioner was tried had jurisdiction over him and that, consequently, the petitioner is not unlawfully restrained of his liberty.
The Rule to Show Cause will be discharged and the petition for a Writ of Habeas Corpus will be denied.