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Levy v. Parker

April 18, 1973

HOWARD B. LEVY, APPELLANT
v.
JACOB J. PARKER, AS WARDEN OF THE UNITED STATES PENITENTIARY, LEWISBURG, PENNSYLVANIA, AND STANLEY R. RESOR, AS SECRETARY OF THE ARMY.



(D.C. Habeas Corpus No. 1057) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Author: Aldisert

Before SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges

Opinion OF THE COURT

ALDISERT, Circuit Judge.

This appeal requires us to decide whether Articles 133 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 933, 934, fail to satisfy the standards of precision required by the due process clause, and, hence, are void for vagueness. The question arises in the context of an appeal from the denial of a petition for habeas corpus brought by appellant Levy when he was confined in the United States Penitentiary at Lewisburg, Pennsylvania, following conviction by a general court-martial.

Captain Howard B. Levy, an Army doctor on active duty at Fort Jackson, South Carolina, was charged with violating Articles 90, 133 and 134 of the Uniform Code of Military Justice. Article 90, 10 U.S.C. § 890, provides in pertinent part: "Any person subject to this chapter who... willfully disobeys a lawful command of his superior commissioned officer: shall be punished... by such punishment other than death as the court-martial may direct." The specification under the Article 90 charge read:

In that Captain Howard B. Levy, U.S. Army, Headquarters & Headquarters Company, United States Army Hospital, Fort Jackson, South Carolina, having received a lawful command from Colonel Henry F. Fancy, his superior officer, to establish and operate a Phase II Training Program for Special Forces AidMen in dermatology in accordance with Special Forces AidMen (Airborne), 8-R-F16, Dermatology Training, did, at the United States Army Hospital, Fort Jackson, South Carolina, on or about 11 October 1966 to 25 November 1966, willfully disobey the same.

Article 133, 10 U.S.C. § 933, states in pertinent part: "Any commissioned officer... who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct." Article 134, 10 U.S.C. § 934, provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

The charges under Articles 133 and 134 emanated from public statements made by Levy to enlisted personnel, of which the following is illustrative:

The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam; They should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.*fn1

Captain Levy was convicted of (1) wilful disobedience of the lawful command of his superior officer, (2) uttering public statements designed to promote disloyalty and disaffection among the troops, and (3) "wrongfully and dishonorably making intemperate, defamatory, provoking, contemptuous, disrespectful and disloyal statements" to enlisted personnel, the latter two offenses constituting "conduct unbecoming an officer and a gentleman," and "disorders and neglects to the prejudice of good order and discipline in the armed forces." 10 U.S.C. §§ 933, 934. He was sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. Thereafter, Levy exhausted his appeals within the military.*fn2 Moreover, before, during and after the military proceedings he sought relief in the federal civilian courts.*fn3 Finally, he filed a petition for habeas corpus alleging constitutional deprivations in the court-martial proceeding.

Preliminarily, we observe that although the court-martial found appellant guilty of charges and specifications under three articles, the court announced one general sentence for the combined charges. The general rule governing a single sentence imposed upon convictions on several charges is that the sentence will be upheld on appeal if any one of the convictions is valid, and the sentence imposed is within the statutorily authorized maximum for the valid conviction, despite the fact that convictions on the other charges may not be valid. Claassen v. United States, 142 U.S. 140, 35 L. Ed. 966, 12 S. Ct. 169 (1891). This rule is applicable to federal habeas corpus review of a court-martial conviction and sentence. Carter v. McClaughry, 183 U.S. 365, 384-85, 46 L. Ed. 236, 22 S. Ct. 181 (1902); Hunsaker v. Ridgely, 85 F. Supp. 757 (D.Maine 1949). However, the rule is not jurisdictional in nature. Rather, its application is discretionary. Benton v. Maryland, 395 U.S. 784, 789-92, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969); Smith v. United States, 118 U.S. App. D.C. 235, 335 F.2d 270, 272 n.2 (D.C. Cir. 1964). Indeed, in Benton, the Supreme Court recognized that application of the general sentence rule has been "somewhat haphazard," and this court has observed that Benton "put into doubt" the continuing validity of that rule. United States v. McKenzie, 414 F.2d 808, 811 (3d Cir. 1969). In any case, the peculiarities associated with a sentence imposed by a military court render this case appropriate for discretionary refusal to apply the Claasen general sentence rule.*fn4 Because detention was mandated as a result of a general sentence under all three articles, it is impossible to isolate the sentence pronounced under a constitutionally valid provision from one announced under an invalid one. Therefore, we have the responsibility of inquiring whether one or more of these articles are defective.

I.

Initially, it is necessary to identify the limited contours of a civilian court's jurisdiction when presented with a habeas corpus petition from a federal prisoner whose incarceration was ordered by a court-martial. Our statement of this issue is deliberate, for we avoid the imprecise label "review."*fn5 Title 10 U.S.C. § 876 provides that military criminal proceedings shall be "final and conclusive," and "binding upon all departments, courts, agencies, and officers of the United States." That is, as in the case of petitions for habeas corpus filed by state prisoners under 28 U.S.C. § 2254, where there is no jurisdiction to review the state judgment, here there can be no review of the final judgment of the court-martial. Naturally, however, a federal court has jurisdiction to examine state prisoner habeas corpus cases, and the basis of this jurisdiction was made clear in Fay v. Noia, 372 U.S. 391, 430-31, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963): "The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter.... Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot review the state court judgment; it can act only on the body of the petitioner. Medley, Petitioner, 134 U.S. 160, 173, 33 L. Ed. 835, 10 S. Ct. 384 ." Thus the federal court inquiry into "detention simpliciter" is not, jurisprudentially speaking, a review of the state judgment, but an inquiry into whether the constitutional rights of the prisoner were properly vindicated in the proceedings which caused his detention.

Accordingly, the Supreme Court has held that the rigid proscription of 10 U.S.C. § 876 erects no bar to a civilian court's habeas corpus jurisdiction in the case of a federal prisoner incarcerated under the sentence of a court-martial. Gusik v. Schilder, 340 U.S. 128, 95 L. Ed. 146, 71 S. Ct. 149 (1950).*fn6 But unlike the extensive authority conferred in state prisoner habeas cases by Fay v. Noia, supra, and Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), the contours of civilian court jurisdiction in court-martial cases still remain ill-defined. The most instructive treatment on this issue is the Supreme Court's decision in Burns v. Wilson, 346 U.S. 137, 97 L. Ed. 1508, 73 S. Ct. 1045 (1953), where the Court stated that the duty of a federal court to protect individual constitutional rights is not diminished merely because a judicial proceeding has been conducted by the military:*fn7

In military habeas corpus cases, even more than in state habeas corpus cases, it would be in disregard of the statutory scheme if the federal civil courts failed to take account of the prior proceedings - of the fair determinations of the military tribunals after all military remedies have been exhausted. Congress has provided that these determinations are "final" and "binding" upon all courts. We have held before that this does not displace the civil courts' jurisdiction over an application for habeas corpus from the military prisoner. Gusik v. Schilder, 340 U.S. 128, 95 L. Ed. 146, 71 S. Ct. 149 (1950). But these provisions do mean that when a military decicision has dealt fully and fairly with an allegation raised in that application, it is not open to a federal civil court to grant the writ simply to reevaluate the evidence. Whelchel v. McDonald, 340 U.S. 122, 95 L. Ed. 141, 71 S. Ct. 146 (1950).

346 U.S. at 142.

The government would have us interpret Burns to stand for the proposition that collateral review of military proceedings by federal civilian courts extends only to the traditional elements of jurisdiction, that is, whether the court-martial was properly constituted, possessed jurisdiction over the person and the offense, and had power to impose the sentence, but not to constitutional errors which would oust the military of jurisdiction. Furthermore, the government continues, even if this court's jurisdiction extends to an examination of constitutional errors, our review is complete upon a finding that the military court has considered appellant's constitutional claims, even if its conclusions are erroneous.

This interpretation reflects the view taken in Ex Parte Reed, 100 U.S. 13, 25 L. Ed. 538 (1879), where the Court held that the writ was limited to an inquiry into whether the court-martial had jurisdiction to try the matter and the power to impose sentence. Under such an approach, constitutional errors were deemed to oust the court of jurisdiction. However, this approach has been rejected in Kauffman v. Secretary of the Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (D.C. Cir. 1969), cert. denied, 396 U.S. 1013, 24 L. Ed. 2d 505, 90 S. Ct. 572 (1970), and it is clear to this court that the law has progressed a long way from Reed.*fn8

Undaunted, the government suggests that its position is vindicated by our decision in United States ex rel. Thompson v. Parker, 399 F.2d 774, 776 (3d Cir. 1968), cert. denied, 393 U.S. 1059, 21 L. Ed. 2d 701, 89 S. Ct. 701 (1969): "Under the principle announced in Burns, therefore, the district court, after determining that the military courts had given due consideration to petitioner's contentions, quite correctly refused to review and reevaluate the facts surrounding petitioner's allegations." The government's reliance is misplaced for this argument overlooks the critical word "due" in the expression "due consideration." Indeed, any suggestion that Thompson imposes a standard of review different from that devised by Burns, ignores the language in Thompson immediately following that court's statement of the controlling rule: "'Burns is the law of the land.' And both this court and the district courts must abide by its teaching." 399 F.2d at 777. Thus, a fair reading of Thompson compels the conclusion that "due consideration" is but a paraphrase of the Burns requirement that the civilian court must be satisfied that the military courts have "dealt fully and fairly" with the allegations of constitutional deprivation.*fn9

We are persuaded, therefore, that the district court had sufficient authority to meet the constitutional challenges to Articles 133 and 134 presented by appellant. Several reasons support this conclusion. First, if we accept the contention that a civilian court can only review the proceedings to determine whether the court-martial had "jurisdiction," recourse can be had to the Supreme Court's development of this concept when jurisdiction vel non was the sole test in a state prisoner's habeas inquiry. Ex Parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1879), held that although the writ would issue only if the court that committed the prisoner lacked "jurisdiction" to do so, the state court did lack such jurisdiction if the statute creating the offense for which the prisoner was tried was unconstitutional.

Siebold saw a degree of expansion in Moore v. Dempsey, 261 U.S. 86, 67 L. Ed. 543, 43 S. Ct. 265 (1923), where, although the statute under which appellant was tried was constitutional, the trial court nevertheless lost jurisdiction where the proceedings, though formally proper, were held under the sway of mob rule. Therefore, a prisoner convicted and sentenced at a trial in which "counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion," was entitled to federal habeas corpus relief. Much to the same effect was Mooney v. Holohan, 294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340 (1935), where the Court granted the writ to an individual convicted in state court on the basis of testimony known by the prosecution to be perjured, thereby causing the court to lose jurisdiction.

The judicial fiction of loss of jurisdiction during the course of a proceeding was extended to the federal arena by the landmark decision of Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). There, the Supreme Court found that the trial court "lost" jurisdiction as a result of its failure to provide counsel for the accused. Thus, the Court indicated that collateral review of substantial constitutional deprivations was within the purview of the writ. Finally, in a brief per curiam opinion in Waley v. Johnston, 316 U.S. 101, 104-05, 86 L. Ed. 1302, 62 S. Ct. 964 (1942), the Court deserted this forced jurisdictional construction, holding:

[The] use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights. [Citing Moore and Mooney, supra.]

This departure by Waley is crucial because it announced that although there exists no defect in the court's jurisdiction, violations of constitutional rights are nevertheless within the scope of habeas review. The decision becomes significant in the present context because the same statute which vests federal courts with jurisdiction over civilian prisoners also provides for federal jurisdiction where the individual is confined by the military. 28 U.S.C. § 2241(c). Indeed, since the Waley decision, only in Hiatt v. Brown, 339 U.S. 103, 94 L. Ed. 691, 70 S. Ct. 495 (1950), has the Supreme Court indicated that the original view of Siebold and Reed controls, that is, when examining a petition for a writ of habeas corpus the reviewing court will conduct only the narrow inquiry into whether the court had jurisdiction:

The single inquiry, the test, is jurisdiction.... The correction of any errors [the court-martial] may have committed is for the military authorities which are alone authorized to review its decision.

339 U.S. at 111.

Obviously, Waley and Hiatt, although emanating from the same note, struck divergent chords. Harmony, however, was forthcoming from Burns. Although Burns did not parallel the expanding scope of collateral review from civilian courts - noting that "in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civilian cases"*fn10 - the decision clearly modified Hiatt. Indeed, the unswerving statement of Hiatt that military authorities "alone" are authorized to review any errors which may have occurred during a court-martial, was tempered in Burns to require a federal court to determine whether the "military decision has dealt fully and fairly" with the allegations of the petition. 346 U.S. at 142.*fn11 Only Justice Minton, in his concurring opinion, was willing to affirm dismissal of the petition on the basis of Hiatt's narrow jurisdictional test. Thus, this statement of the "fully and fairly" test in Burns represents the military analogue of the maturation of Siebold's "loss of jurisdiction" rationale. See Moore, Mooney, Johnson, and Waley, supra.

Moreover, we find much guidance in the specific language of Burns emphasizing "the fair determinations of the military tribunals," and the requirement that the court-martial "has dealt fully and fairly" with the constitutional allegations. Had the Supreme Court intended to deprive the district courts of jurisdiction where the constitutional issue was merely "fully" presented at court-martial, it would not have added "fair" and "fairly" to the test. Rather, the very premise of Burns is that servicemen as well as civilians are constitutionally protected from arbitrary or unlawful treatment.*fn12

Another approach to federal habeas corpus review of military proceedings is characterized by the law-fact dichotomy articulated most precisely by the Court of Claims: issues of fact are not reviewable; issues of law are. In Shaw v. United States, 174 Ct. Cl. 899, 357 F.2d 949, 953-54 (Ct. Cl. 1966), after announcing a general rule that it would abstain from reviewing court-martial proceedings, the court stated "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." It is significant that this lawfact dichotomy comports with the admonition of Burns that it is "not open to a federal court to grant the writ simply to reevaluate the evidence." 346 U.S. at 142. Moreover, Burns itself chose to treat the only "legal" issue raised by appellant there: whether the rule of McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943), rendered his confession inadmissible. The plurality opinion stated that it did not because McNabb announced a rule of evidence for federal courts, and "its source is not due process of law." 346 U.S. at 145 n.12. Because appellant Levy's attack on Articles 133 and 134 is not dependent upon any evidentiary or factual construction, his argument represents the type contemplated by the traditional Court of Claims' approach.

We reject, therefore, the contention that Full presentation of the constitutional issues to a court-martial precludes subsequent consideration of those issues by a civilian court. At the very least, where it is unnecessary to "reevaluate the evidence" adduced at the court-martial because the alleged infirmity is the facial unconstitutionality of the statute under which appellant was charged, a federal court has jurisdiction to inquire whether there existed an infirmity of constitutional dimension in the court-martial proceeding responsible for the detention of the petitioner.

II.

Articles 133 and 134*fn13 were originally enacted by the Second Continental Congress on June 30, 1775. As enacted in the colonies, these articles derived from the British Articles of War, which, in turn, trace their ancestry from the Articles of War of James II, in 1688. After nearly three hundred years, the incredible similarity between the language of the present articles and their forebearers is astonishing. Article 64 of the Articles of War promulgated by James II, provided that "[all] other faults, misdemeanours and Disorders not mentioned in these Articles, shall be punished according to the Laws and Customs of War, and discretion of the Court-Martial." Approximately eighty years later, the substance of this provision was incorporated into the British Articles of War of 1765, which were in effect at the beginning of the American Revolution. Article 3 of Section 20 of the British Articles read: "All Crimes not Capital, and all Disorders or Neglects, which Officers and Soldiers may be guilty of, to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War, are to be taken Cognizance of by a Court-martial, and be punished at their Discretion." This article, which was altered ever so slightly by the Second Continental Congress, and enacted as Article 50 of the American Articles of War, remains virtually unchanged today.

More of the same is true for Article 133. Originally enacted by the Second Continental Congress as Article 47 of the American Articles of War, the text was identical to Article 23 of Section 15 of the British Articles: "Whatsoever commissioned officer shall be convicted before a general court-martial, of behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman, shall be discharged from the service." As the United States Court of Military Appeals pointed out in United States v. Howe, 17 U.S.C.M.A. 165, 175-76 (1967), the scope of this provision was enlarged when the articles were reenacted in 1806, by omitting the original phrase "scandalous, infamous," and providing simply, "Any commissioned officer convicted before a feneral court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service." Since that time, this article, like Article 134, has remained unchanged.*fn14

We now embark upon an examination of the constitutionality of these two articles, mindful of Justice Holmes' sage admonition,*fn15 "[if] a thing has been practised for two hundred years by common consent, it will need a strong case of the Fourteenth Amendment to affect it."*fn16

III.

Although Article 133 successfully withstood a constitutional attack predicated upon the First Amendment in United States v. Howe, 17 U.S.C.M.A. 165 (1967), we are aware of no decision of the Court of Military Appeals which dealt with that article on the precise issue lodged here: unconstitutionality because of vagueness.

Article 134, however, the government informs us, has twice been vindicated in bouts with the vagueness doctrine. United States v. Frantz, 2 U.S.C.M.A. 161 (1953); United States v. Sadinsky, 14 U.S.C.M.A. 563 (1964). In Frantz, the court virtually conceded "the conceivable presence of uncertainty in the first two clauses" of Article 134, but nevertheless experienced such ease in finding the article not void for vagueness that it could state: "[to] put the question is to answer it in all reasonable minds." 2 U.S.C.M.A. at 163. Indeed, the court even assumed that civilian standards "are applicable in full force to the military community," but reasoned that because the article has been part of our military law since 1775, it must be judged "not in vacuo, but in the context in which the years have placed it. Musser v. Utah, 333 U.S. 95, 97, 92 L. Ed. 562, 565, 68 S. Ct. 397. That the clauses under scrutiny have acquired the core of a settled and understandable content of meaning is clear from the no less than forty-seven different offenses cognizable thereunder explicitly included in the Table of Maximum Punishments of the Manual...." 2 U.S.C.M.A. at 163. The court concluded that Article 134 was of "entirely defensible character," and that it established "a standard 'well enough known to enable those within... [its] reach to correctly apply [it].'" See Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926).

Besides Frantz, the government would have us accept the constitutionality of Article 134 on the rationale of United States v. Sadinsky, supra. We decline to do so. Prescinding from the fact that Sadinsky did not entertain a challenge to the constitutionality of that article, the decision rests on Frantz and Dynes v. Hoover, 61 U.S. (20 (How.)65(1858), which we discuss, infra.

It is well settled that the statute [Article 134] is not void for vagueness. See United States v. Frantz, 2 USCMA 161, 7 CMR 37, and authorities therein collected. See also Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L. Ed. 838 (U.S. 1858). Nor does the defense counsel contend otherwise. (Emphasis supplied.)

14 U.S.C.M.A. at 565.

Thus, it was on the authority of these decisions of the Court of Military Appeals that the district court sustained the constitutionality of these articles. Additionally, the government relies upon "a line of cases dating from 1858 [in which] the Supreme Court has recognized that the... Articles... are not too vague and are not unconstitutional. Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L. Ed. 838 (1858); Carter v. McClaughry, 183 U.S. 365, 46 L. Ed. 236, 22 S. Ct. 181 (1902); Grafton v. United States, 206 U.S. 333, 51 L. Ed. 1084, 27 S. Ct. 749 (1907); see also Ex Parte Mason, 105 U.S. 696, 698, 26 L. Ed. 1213 (1882)." Because these cases form the basis of the government's argument before this court, we examine them seriatim.

IV.

In Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L. Ed. 838 (1858), a seaman sought habeas relief after being convicted by a court-martial of attempting to desert. Petitioner contended that there existed no specific military offense of "attempting to desert," and that the court-martial was, therefore, without jurisdiction to try him. The Court rejected this argument, stating that "when offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article,*fn17 of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations...." 61 U.S. (20 How.) at 82. The Court went on to indicate that such a provision was not subject to abuse despite its "apparent indeterminateness," because it "is well known by practical men in the navy and army, and by those who have studied the law of courts martial," precisely what such crimes are and how they may be punished. Id. It must be conceded, therefore, that Article 134 weathered the challenge of vagueness in the Supreme Court in 1858 for substantially the same reasons adopted by the Court of Military Appeals in 1953 in Frantz.

The parade of cases following Dynes approving these "general articles" commenced with the Supreme Court's decision in Smith v. Whitney, 116 U.S. 167, 29 L. Ed. 601, 6 S. Ct. 570 (1886). There the Court dealt with a Navy provision manager and paymaster who falsified and illegally extended various government contracts, "to the great scandal and disgrace of the service, and the injury of the United States." Specifically, the Court held that it was not prepared to "declare that an officer of the navy, who, while serving by appointment of the President as chief of a bureau in the Navy Department, makes contracts or payments, in violation of law, in disregard of the interests of the government, and to promote the interests of contractors, cannot lawfully be tried by a court martial composed of naval officers, and by them convicted of scandalous conduct, tending to the destruction of good morals, and to the dishonor of the naval service." 166 U.S. at 186. There, the Court upheld the validity of Articles 8 and 22 of the "Articles for the Government of the Navy." Article 8 provided:

Such punishment as a court martial may adjudge may be inflicted on any person in the Navy -

First. Who is guilty of profane swearing, falsehood, drunkenness, gambling, fraud, theft, or any other scandalous conduct tending to the destruction of good morals.

Article 22, which was Article 32 in Dynes, provided that all offenses committed by Navy personnel, "which are not specified in the foregoing articles, shall be punished as a court martial may direct." This latter article had been interpreted to mean that "when the offense is a disorder or neglect not specifically provided for, it should be charged as 'scandalous conduct tending to the destruction of good morals.'" Orders, Regulations and Instructions for the Administration of Law and Justice in the United States Navy, § 126 (1870). The Court approved the right of the military to so charge, analogizing that the case was similar to "conduct unbecoming an officer and a gentleman," which the Court, in dicta, likewise considered permissible. Unfortunately, however, the opinion contains no searching analysis of such an article's possibility for overbreadth, and, generally speaking, does not constitute a persuasive offering.

United States v. Fletcher, 148 U.S. 84, 37 L. Ed. 378, 13 S. Ct. 552 (1893), decided only seven years after Whitney, involved the court-martial of a retired Army captain under Article 83: "Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service." Specifically, this charge resulted from Captain Fletcher's incurring and non-payment of certain indebtedness. Before the Supreme Court, appellant argued that the court-martial was without jurisdiction because "the charge and specifications stated no offence whatever 'within any Rules and Articles of War, or known to the military law and custom of the United States.'" In what can only be characterized as an incredibly conclusory manner, the Court brushed aside this contention, noting only that it could not say "[the] specifications were... incapable of sustaining the charge." 148 U.S. at 192. Like Whitney, therefore, Fletcher's insight into the validity of these articles hardly rises to the statute of unshakable constitutional dogma.

Predictably, however, subsequent decisions found little difficulty in sanctifying the confusing and conclusory treatment offered by Whitney and Fletcher. When it was suggested to the Court in Swaim v. United States, 165 U.S. 553, 41 L. Ed. 823, 17 S. Ct. 448 (1897), that a charge of conduct unbecoming an officer and a gentleman failed to set forth an offense on the facts of that case, the Court merely cited to both Whitney and Fletcher, and added: "If this position were well taken it would throw upon the civil courts the duty of considering all the evidence adduced before the courts-martial and of determining whether the accused was guilty of conduct to the prejudice of good order and military discipline in violation of the articles of war." 165 U.S. at 561.

There was no contention that the general articles were too vague to support a conviction in Carter v. McClaughry, supra, but rather that charged violations under those articles were contained in previous charges. The opinion of Chief Justice Fuller, therefore, is not illuminating on the issue before us. Nevertheless, the Court found it opportune to refer to Swaim, Whitney and Fletcher, supra, as general support for these articles.*fn18

V.

That, then, is the picture. The predominant judicial supports for the proposition that the "general articles" are not void for vagueness consist of Frantz, supra, from the Court of Military Appeals, and Dyne, supra, from the Supreme Court. Notwithstanding these precedents, such as they are, we are persuaded that we are not precluded from reexamining the constitutional question of due process.

Initially, we recognize that before us for interpretation is a relatively new Uniform Code of Military Justice, effective January 1, 1957, 10 U.S.C. § 801 et seq. Although, as heretofore observed, the general articles today are basically the same as their historical precedents, they must be construed in conjunction with a comprehensive Military Justice Code of which they are now a component. This code concededly extends to military defendants a broad spectrum of court-martial rights theretofore unaccorded. For example, the new code requires the President to prescribe court-martial procedures which "apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter." 10 U.S.C. § 836.

We are also conscious of Justice Brennan's observation in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), that "[obviously,] concepts of justice change," (concurring opinion at 304), and that, at least insofar as capital punishment is concerned, "the cruel and unusual language 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today.... stare decisis [should] bow to changing values." (Marshall, J., concurring opinion at 329-30.)

An even more impressive suggestion for the reconsideration of these articles is the specific reference to Article 134 in O'Callahan v. Parker, 395 U.S. 258, 265-66, 23 L. Ed. 2d 291, 89 S. Ct. 1683 (1968), where the Court itself expressed doubts as to the constitutionality of that article:

While the Court of Military Appeals takes cognizance of some constitutional rights of the accused who are court-martialed, courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. Article 134, already quoted, punishes as a crime "all disorders and neglects to the prejudice of good order and discipline in the armed forces." Does this satisfy the standards of vagueness as developed by the civil courts?

Such a statement of the issue compels the conclusion that the Supreme Court has invited the federal courts to reexamine this due process question in the context of current constitutional teachings. We turn now to a consideration of those principles.*fn19

A.

Initially, we encounter extreme difficulty in reconciling the Court of Military Appeals' "settled and understandable content of meaning" of Article 134, and its "no less than forty-seven different offenses cognizable thereunder,"*fn20 with the principle that a lack of fair warning in a criminal statute of what conduct is prohibited offends due process. Our examination begins with the basic concept that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.... [The] decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them,... or a well settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ." In each such case "a standard of some sort was afforded." Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1927); Cline v. Frink Dairy Co., 274 U.S. 445, 71 L. Ed. 1146, 47 S. Ct. 681 (1927).

The most recent articulation of the vagueness doctrine, representing a synthesis of past teachings, is found in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972):

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "[abuts] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone'... than if the boundaries of the forbidden areas were clearly marked." (Citations omitted.)*fn21

Failing to pass constitutional muster have been statutes penalizing "misconduct," Giaccio v. Pennsylvania, 382 U.S. 399, 15 L. Ed. 2d 447, 86 S. Ct. 518 (1969); conduct that was "annoying," Coates v. City of Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); "reprehensible," Giaccio v. Pennsylvania, supra; and "prejudicial to the best interest" of a city, Gelling v. Texas, 343 U.S. 960, 96 L. Ed. 1359, 72 S. Ct. 1002 (1952). Other federal courts have voided prohibitions of conduct that "reflects discredit," Flynn v. Giarrusso, 321 F. Supp. 1295 (E.D.La. 1971); or is "offensive," Oestreich v. Hale, 321 F. Supp. 445 (E.D.Wis. 1970).

For our purposes then, the following questions must be answered: Do Articles 133 and 134 give to a commissioned officer of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute? Do these articles encourage erratic arrests and convictions?

Article 133 fails to explain what conduct "unbecomes" an officer or a gentleman. The Officer's Guide offers little assistance in this direction for it merely advises that "[an] officer is expected to be a gentleman and a gentleman has been defined as a man who is never intentionally rude."*fn22 Winthrop, in his classic treatise, Military Law and Precedents, defined "unbecoming" as "morally unbefitting and unworthy," and described a gentleman as a "man of honor... of high sense of justice, of an elevated standard of morals and manners, and of a corresponding general deportment."*fn23 Thus, included within the scope of proscribed conduct under Article 133 is official conduct that "in dishonoring or otherwise disgracing the individual as an officer, seriously compromises his character as a gentleman;" or private conduct that "in dishonoring or disgracing the individual personally as a gentleman, seriously compromises his position as an officer and exhibits him as morally unworthy to remain a member of the honorable profession of arms."*fn24

Thus, we are far from satisfied that the amorphous phrase, "a gentleman," replete with its capacity for subjective interpretation as set forth in the Manual for Courts-Martial, note 24, supra, can even remotely be said to employ "words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them." Connally v. General Construction Co., supra, 269 U.S. at 391.

Article 134 deserves the same criticism. The Manual, relied upon by the court in Frantz, was the subject of extensive reference in the dissenting opinion of Chief Judge Bazelon in Levy v. Corcoran, 128 U.S. App. D.C. 388, 389 F.2d 929, 932 (D.C. Cir. 1967): "A simple reading of the Articles shows that they are quite broad. Indeed, the Manual for Courts-Martial interprets Article 134 to include more than fifty different offenses ranging from abusing public animals to wearing an unauthorized insignia."*fn25

Indeed, the history of prosecutions under this article shows that it has served as an unwritten criminal code, a catchall receptacle designed as a statutory basis for prosecutions that run the gamut from impersonating an officer and possession of drugs, to failure to pay debts, gambling with a subordinate, and straggling. Thus, "disorders and neglects to the prejudice of good order and discipline in the armed forces" has provided the statutory authority for ...


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