OPINION AND ORDER
NEWCOMER, District Judge.
Plaintiff Richard E. Brown enlisted in the United States Marine Corps on July 22, 1966, for a term of four years. On February 7, 1969, plaintiff Brown was sentenced to punitive discharge, confinement, and forfeiture of pay and allowances by a special court-martial convened by the Commanding Officer, Transient Facility, Camp Smedley D. Butler, Camp Hansen, Okinawa. This special court-martial was ostensibly convened pursuant to the authority of 10 U.S.C. § 823(a) (7) which grants special courts-martial convening authority to "the commanding officer or officer in charge of any . . . command when empowered by the Secretary concerned."
Plaintiff David L. Taylor enlisted in the Marine Corps on July 28, 1967, for a term of four years. On October 25, 1968, he too was sentenced, after trial and conviction by a court-martial also convened ostensibly pursuant to § 823(a) (7) by the Commanding Officer, Student Company, Schools Battalion, Marine Corps Base, Camp Pendleton, California. On September 10, 1969, he was sentenced by a second similar tribunal after a trial on a different alleged offense.
On May 28, 1970, the Court of Military Appeals held in U.S. v. Greenwell, 19 USCMA 460, 42 CMR 62, that the procedure used by the Secretary of the Navy to empower commanders to convene special courts-martial pursuant to 10 U.S.C. § 823(a) (7) constituted an illegal delegation of power, and that the courts convened pursuant to such a delegation were without authority.
Plaintiff Brown and plaintiff Taylor have sued, on behalf of themselves and all others tried by such courts-martial, for relief in the nature of mandamus to direct the Secretary of the Navy and the other defendants to correct the pertinent records to reflect the invalidity of such convictions, that is, to expunge any clerical reflections of such a court-martial, and also to recover the back pay and monetary value of the benefits of which persons were deprived as a result of such convictions. Both sides have moved for summary judgment.
The first issue presented by this case is the propriety of such relief in the nature of mandamus. This Court has general authority under 28 U.S.C. § 1361 to entertain an action in the nature of an action for an original writ of mandamus. It is clear that in appropriate circumstances this Court may mandamus any of the defendants in this case, including the Secretary of the Navy. Decatur v. Paulding, 14 (U.S.) Pet. 497, 39 U.S. 497, 10 L. Ed. 559 (1840). Plaintiffs claim that the courts-martial which tried them were without authority of any kind, that this has in principle been determined by the Court of Military Appeals, and that the Secretary of the Navy and the other named defendants have wrongly refused to give retroactive effect to the decision of the Court of Military Appeals. The Court agrees with plaintiffs that, in general, the Navy has no right to maintain records of wholly void court-martial convictions as if they were valid, and to continue bearing clerical and bureaucratic witness to their validity if they are not. To correct such a record is a purely ministerial act, which is a proper subject for a writ of mandamus.
The fact that plaintiffs' right of relief and defendants' ministerial duties are disputed by defendants does not, as defendants argue, render the rights of plaintiffs "unclear" so as to necessitate dismissal of the action, or destroy this Court's jurisdiction. The time at which plaintiffs must establish to the Court the clear nature of their entitlement is at the point of final decision, not at the filing of the suit. United States ex rel. Joy v. Resor, 342 F. Supp. 70 (D. Vt. 1972). Plaintiffs have stated in their complaint facts sufficient to make out an arguable right to mandamus. Such a pleading vests this Court, pursuant to 28 U.S.C. 1361, with the jurisdiction to determine the facts, hear the arguments, and decide the case on the merits.
The defendants have argued that this Court is without authority to entertain a collateral attack on a court-martial conviction by way of mandamus. The history of the limits on collateral review of court-martial convictions is a somewhat tangled web. The military court system has traditionally been viewed as being as wholly distinct from the federal civil courts as the courts of the state are. The opinions on its exact status have ranged, in recent years, from those of Mr. Justice Vinson and Mr. Justice Minton in Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953), granting the military system an aura of sovereignty even superior to that of a state,
to those of Mr. Justice Douglas in his concurring opinion in Parisi v. Davidson, 405 U.S. 34, 92 S. Ct. 815, 31 L. Ed. 2d 17, (1972), that the whole military "is simply another administrative agency, insofar as judicial review is concerned." Id. at 51, 92 S. Ct. at 825.
Still it must be admitted that the problems of administering justice within the military setting are special problems, and their solution has been given to Congress in the first instance by the Constitution. Congress has seen fit to create a system of military justice wholly apart from the civil system. But it has long been recognized that the Constitution does not, a priori, prevent the subjects of courts-martial from resorting to the civil courts for the vindication of certain rights. The most important avenue of resort is, of course, the writ of habeas corpus, specifically protected by the Constitution, traditionally capable of reaching issues concerning military jurisdiction, and protected from legislative encroachment as a matter of course. See Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149, 95 L. Ed. 146 (1950). More will be said on the shifting scope of habeas corpus presently. But now it should be noted that habeas corpus was not the sole method of collateral attack available in the early years of the Republic. In Wise v. Withers, 7 U.S. (3 Cranch) 331, 2 L. Ed. 457 (1806), the Supreme Court held that the decision of a court-martial that a certain justice of the peace in the District of Columbia was not an officer of the United States, and was therefore a proper subject for Militia duty, was not binding in an action for trespass di bonis asportatis against the members of the court and the officer whom they sent to seize goods to pay a fine for failure to report which had been levied by the court-martial. The argument was made by counsel for the defendant that the decisions of a court-martial were "final and conclusive like those of an ecclesiastical court . . .", but the Supreme Court, through Marshall, C.J., held that in any action the Court may review the jurisdiction of a court-martial, and if it has acted without any jurisdiction, the Court may so decide and enter judgment accordingly. The Supreme Court found that "the court and the officer are all trespassers", that "the court and the officer are all trespassers", id. at 337. While it is true that this case involved the federal militia, and not the regular armed forces, there is no legal reason for distinguishing the cases, as the power of Congress over the federal militia was as great as over the Army. See also, Houston v. Moore, 5 (U.S.) Wheat 1, 18 U.S. 1, 5 L. Ed. 19 (1820) (Review of state militia court-martial jurisdiction through trespass); Martin v. Mott, 12 (U.S.) Wheat 19, 25 U.S. 19, 6 L. Ed. 537 (1827) (Review of federal court-martial jurisdiction over state militia man called to federal service, through replevin).
The above cases dealt with challenges to the jurisdiction of courts-martial over persons who alleged that they were not really in service when tried at all. In Dynes v. Hoover, 20 (U.S.) How. 65, 61 U.S. 65, 15 L. Ed. 838 (1857), the Supreme Court reviewed an assault and battery-false imprisonment action by a Navy seaman against his jailors. He had been sentenced to imprisonment by a court-martial, and though the Court affirmed the actions of the court-martial in Dynes' particular case, it held that such an action would lie if the court-martial had been without either subject matter or personal jurisdiction as had been alleged, even though Dynes was clearly in service at the time. It is interesting to note that Dynes' sentence had apparently been served prior to the bringing of the action, so that habeas corpus would not have been available, but this was not seen by the Court as any impediment to collateral attack on the court-martial conviction.
In Ex parte Reed, 100 U.S. 13, 25 L. Ed. 538 (1879), the Supreme Court affirmed, surprisingly for the first time, the availability of habeas corpus to a serviceman imprisoned by a court-martial lacking subject matter or personal jurisdiction, although such jurisdiction was found to be present in Reed's particular case. Just three years later, in Ex parte Mason, 105 U.S. 696, 26 L. Ed. 1213 (1882), some members of the Court doubted the power of the federal courts to issue habeas corpus in such a situation, though all agreed that it could only be issued on the basis of a lack of jurisdiction in the court-martial in question, which jurisdiction was found to exist in Mason's particular case as well.
Keyes v. United States, 109 U.S. 336, 3 S. Ct. 202, 27 L. Ed. 954 (1883), is the next important case, dealing as it does with the first review by the Supreme Court of what has become a fairly common method of collateral attack on the validity of a court-martial, the suit for back pay. There the Court recognized the validity of such a suit "[where] there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, [or] there is no tribunal authorized by law to render the judgment." id. at 340, 3 S. Ct. at 204. All these are ancient antecedents of the traditional concept of jurisdiction.
In Wales v. Whitney, 114 U.S. 564, 5 S. Ct. 1050, 29 L. Ed. 277 (1884), the Court's previous doubts as to the availability of habeas corpus seem to have vanished. In holding that actual custody was necessary for the issuance of habeas corpus, the court said
"In thus deciding, we are not leaving the appellant without remedy if his counsel are right in believing the court-martial has no jurisdiction of the offense of which he is charged. He can make that objection to the court before trial. He can make it before judgment after the facts are all before the court. He can make it before the reviewing tribunal."
"If that court finds him guilty, and imposes imprisonment as a part of a sentence, he can then have a writ to relieve him of that imprisonment. If he should be deprived of office, he can sue for his pay and have the question of the jurisdiction of the court which made such an order inquired into in that suit. If his pay is stopped, in whole or in part, he can do the same thing. In all these modes he can have relief if the court is without jurisdiction . . .." Id. at 575, 5 S. Ct. at 1055.