Messina v. Commanding Officer, United States Naval Station

342 F. Supp. 1330, 1972 U.S. Dist. LEXIS 13727
CourtDistrict Court, S.D. California
DecidedMay 16, 1972
DocketCiv. 72-143-T
StatusPublished
Cited by5 cases

This text of 342 F. Supp. 1330 (Messina v. Commanding Officer, United States Naval Station) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messina v. Commanding Officer, United States Naval Station, 342 F. Supp. 1330, 1972 U.S. Dist. LEXIS 13727 (S.D. Cal. 1972).

Opinion

MEMORANDUM OF DECISION

TURRENTINE, District Judge.

This cause came on for hearing on May 1, 1972, at 10:00 A.M., upon the motion of petitioner to extend beyond 10:00 A.M. on said date the temporary restraining order previously issued by the Honorable Gordon Thompson enjoining respondents from transferring petitioner, a Hospital Corpsman, Third Class, from the United States Naval Correctional Custody Facility, San Diego, California, to the United States Naval Disciplinary Command, Portsmouth, New Hampshire, until such time as petitioner’s application for a writ of habeas corpus could be considered on its merits at an evidentiary hearing. Petitioner appeared by and through his counsel, David Unrot and George Haverstick, and respondents appeared by and through their counsel. Harry D. Steward, United States Attorney, by Frederick B. Holoboff, Assistant United States Attorney, and Commander A. J. Johns, J.A. G.C., U.S.N. At the hearing of petitioner’s motion the court also entertained the motion of respondents to dismiss the petition on the basis that the court lacked jurisdiction over the subject matter.

The court having considered the pleadings, papers and documents and having heard oral argument and being fully advised in the premises, hereby denies petitioner’s motion for extension of the temporary restraining order and dismisses his petition for the reasons set forth hereinafter:

In August of 1971, a married couple were arrested in their assigned quarters aboard the Naval Weapons Center, China Lake, California, for wrongful possession of marijuana. Upon being interrogated, these individuals stated that they had received the contraband from the petitioner on various occasions. Another individual was also implicated and he, likewise, stated that he had received illegal substances from petitioner in times past. On the basis of these statements, petitioner was charged on November 10, 1971, with a violation of Article 92, Uniform Code of Military Justice (10 U.S.C. § 892), said charge setting forth sixty-one specifications alleging unlawful sale, transfer, use, and possession of narcotics and dangerous drugs. On January 10, 1972, the charge and forty-three specifications thereunder, were referred to a general courts-martial by the convening authority, Commandant, Eleventh Naval District. Subsequently, on March 7, 1972, petitioner entered pleas of guilty to the charge and six of the specifications, the remaining specifications resulting in a finding of not guilty when the government failed to offer proof. Petitioner was then sentenced to a dishonorable discharge and confinement at hard labor for three years, total forfeitures of all pay and allowances, and reduction to pay grade E-l. However, this sentence was later modified by the convening authority, in accordance with the plea bargaining, to a bad conduct discharge and eighteen months confinement at hard labor, with forfeitures and reduction remaining unchanged.

On April 25, 1972, petitioner was scheduled to be transferred from the custodial facility in San Diego, California, to the naval penitentiary at Portsmouth, New Hampshire, as is required by United States Naval Bureau of Personnel Instruction 1640.5H. However, petitioner sought and obtained a temporary restraining order enjoining such movement. Simultaneous to this application for the temporary restraining order, petitioner filed a petition for writ of habeas corpus, arguing that his confinement was illegal since the United States Navy no longer had jurisdiction over his person when he was convicted and sentenced.

*1333 In an effort to support his contention, petitioner alleges that his term of enlistment expired on February 5, 1972. Apparently, cognizant of the authority of the military to extend a member’s term of service where action has been commenced with a view to trial for offenses committed while on active duty, petitioner further alleges that the statements made against him were wholly uncorroborated and that his own confession and plea of guilty were the product of a will overborne by multiplicious charges, confinement and interrogation. Petitioner then contends that in such a situation jurisdiction does not extend beyond the member’s normal expiration of his term of service. Also, petitioner complains of a denial of speedy trial, and, apparently, of a denial of counsel of his own choosing. Then, petitioner alludes to a lack of the military court’s jurisdiction over the offense, by intimating that these occurred only in the civilian community.

However, this court is of the opinion that the military court did have jurisdiction over both petitioner’s person and the offense. Accordingly, petitioner’s application is premature, and, therefore, should be dismissed.

With z’espect to this court’s threshold inquiz-y as to the jurisdiction of the military court over the person of the petitioner, it is noted that the mere expiration of a person’s term of service does not automatically terminate his military status. Dickenson v. Davis, 245 F.2d 317, 319 (10th Cir.1957) cert. denied, 355 U.S. 918, 78 S.Ct. 349, 2 L.Ed.2d 278 (1958); Roman v. Critz, 291 F.Supp. 99 (W.D.Tex.1968).

Indeed, the right of a serviceman to demand immediate release from active duty in such a case is contingent upon several factors, one of which is that no criminal proceedings be pending at the date his term of service is otherwise due to expire. In the event that charges are pending and some action with a view to trial has been taken, then the military has statutory authority to continue automatically the member on active duty until final resolution of such charges.

Thus, Article 2 of the Uniform Code of Military Justice (10 U.S.C. § 802) provides in pertinent part:

The following persons are subject to this chapter: (1) Members of a regular component of the armed forces including those awaiting discharge after expiration of their terms of enlistment. . . .

And, pursuant to the authority invested in him by 10 U.S.C. § 836, the President of the United States has prescribed a Manual for Courts-Martial by his executive Order 10214, dated February 8, 1951,, which, also in pertinent part, provides :

d. Effect of termination of term of service. Jurisdiction having attached by commencement of action with a view to trial — as by apprehension, arrest, confinement, or filing of charges — continues for all purposes of trial, sentence and punishment. If action is initiated with a view to trial because of an offense committed by an individual before his official discharge — even though the term of enlistment may have expired — he may be retained in the service for trial to be held after his period of service would otherwise have expired. See Article 2(1). MANUAL FOR COURTS-MARTIAL, 1970 (Revised Edition) para. lid.

Accordingly, where the offense charged allegedly took place while a service member was on active duty, the military’s jurisdiction over that individual automatically continues for purposes of trial and punishment.

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Related

United States v. Burston
2 M.J. 1015 (U.S. Army Court of Military Review, 1976)
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1 M.J. 498 (U S Air Force Court of Military Review, 1975)

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Bluebook (online)
342 F. Supp. 1330, 1972 U.S. Dist. LEXIS 13727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messina-v-commanding-officer-united-states-naval-station-casd-1972.