United States v. Martin

10 C.M.A. 636, 10 USCMA 636, 28 C.M.R. 202, 1959 CMA LEXIS 224, 1959 WL 3440

• Court: United States Court of Military Appeals
• Decided: September 30, 1959
• Docket: No. 12,856
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

A general court-martial convicted the accused of presenting false claims for purported travel by dependents from Medford, Massachusetts, to Long Beach, California, in violation of Article 132, Uniform Code of Military Justice, 10 USC § 932, and adjudged a sentence of forfeiture of $100.00 per month for six months. On review, The Judge Advocate General of the Army referred the record of trial to a board of review for consideration.¹ In part, the board of review held that the accused was subject to trial and punishment on specification 1 of Charge I notwithstanding that he had received a discharge between the commission of the offense and the time of trial. Pursuant to the provisions of Article 67 (b) (2) of the Uniform Code, supra, 10 USC § 867, the Acting The Judge Advocate General certified the following question to this Court:

“WAS THE BOARD OP REVIEW CORRECT IN DETERMINING THAT THE court-martial HAD JURISDICTION TO TRY THE ACCUSED FOR SPECIFICATION I, OF CHARGE I, AN OFFENSE COMMITTED DURING THE ACCUSED’S PRIOR, INDEFINITE ENLISTMENT, WHERE THE ACCUSED HAD BEEN ENTITLED TO SECURE HIS UNCONDITIONAL RESIGNATION FROM THE ARMY BUT CHOSE INSTEAD TO RESIGN AND EFFECT AN IMMEDIATE REENLISTMENT?”

Specification 1 of Charge I alleges that the offense was committed in June 1955. At that time the accused was serving under an “indefinite” enlistment effected in December 1950 under the provisions of Section 27 of the National Defense Act, 10 USC § 628 (now 10 USC § 3256 (b)) which provided for certain re-enlistments for specified periods on a career basis. On January 4, 1957, the accused applied for a discharge under the provisions of Army Regulations 635-205 and immediate re-enlistment for a six-year period “to fill [his] own vacancy.” The application was approved on January 7, and the accused was given an honorable discharge certificate dated January 9, under the stated authority of AR 635-220.² The accused re-enlisted on January 10.

In Toth v Quarles, 350 US 11, 100 L ed 8, 76 S Ct 1 (1955), the Supreme Court held that a person who is completely separated from the service and returns to the civilian community cannot, while still in a civilian status, be tried by court-martial for an offense committed before his discharge. Here, however, the accused was subject to military law both at the time of the offense and at the time of trial. He is not, therefore, like Toth. However, the accused contends that his situation is like that of Hirshberg in Hirshberg v Cooke, 336 US 210, 69 S Ct 530, 93 L ed 621. Hirshberg was in the Navy. At the outbreak of World War II he was on Corregidor and became a war prisoner of Japan. After his release and a period of hospitalization, he was discharged because of the expiration of his enlistment; the next day he reenlisted. Later he was tried by court-martial and convicted of charges of maltreatment of fellow-prisoners of war during his period of internment. Under Navy regulations, Hirshberg was subject to trial for the offense charged but the Supreme Court held that the regulations were in conflict with existing statutes providing for court-martial jurisdiction. The Government maintains that the Hirshberg decision is inapplicable and that the court-martial had jurisdiction over the accused because there was no break or hiatus in his term of service so that he was continuously subject to military law despite the issuance of a discharge. United States v Solinsky, 2 USCMA 153, 7 CMR 29.

Whether the accused’s discharge was, under the statutes and regulations, conditioned upon immediate reenlistment, or whether there was a gap or hiatus in the accused’s service need not give us pause. In our opinion, the Hirshberg ruling is inapplicable.

The United States Supreme Court expressly based its decision in the Hirshberg case upon the “long-accepted understanding” of the services that under the statutes they had no “statutory court-martial power” to try discharged persons, “whether re-enlisted or not,” for an offense committed before discharge. 336 US 210, 218, 219. The court gave “little weight” to the separate effort of the Navy to change that understanding. However, the hearings on the Uniform Code before the House Committee on Armed Services show clearly that Congress intended to enlarge the “statutory foundations” of court-martial jurisdiction. Congressman Elston suggested that the Committee “reach the whole subject” of the effect of discharge before discovery of an offense. Hearings before House Armed Services Committee, 81st Congress, 1st Session, on H. R. 2498, page 881. The Committee’s working hypothesis was the following statement by Mr. Smart, its professional staff member: “Try everything in the civil courts you can if the accused is not on active duty and limit prosecutions to major offenses.”

The Congressional intention was not realized on constitutional grounds as far as Article 3 (a) purports to apply to persons who, after discharge, remain wholly and completely in a civilian status. Toth v Quarles, supra. But the Article is still important as an indication of the intention of Congress to expand the “statutory” jurisdiction of court-martial beyond the confines of the Hirshberg opinion.

It is contended, however, that since the offense in issue is triable in a Federal district court as a violation of either 18 USC § 287 or § 1001, Article 3(a) prohibits the exercise of court-martial jurisdiction. The argument disregards the fundamental purpose of the Article. The Article was intended to enlarge jurisdiction, not to restrict it.

Frauds against the Government were made the basis for continuing court-martial jurisdiction as early as 1863. See discussion in the Hirshberg case, pages 214-216. For almost a century before Hirshberg, therefore, a court-martial had statutory authorization to try an accused for fraud against the Government, even though he had received a discharge between commission of the offense and the institution of proceedings against him. The Hirsh-berg case did not strike down that authority and the hearings on the Uniform Code demonstrate that Congress did not intend to change it.

What I said in my separate opinion in United States v Gallagher, 7 USCMA 506, 513, 22 CMR 296, bears repetition here.

“One who re-enlists in the service after a discharge is not ‘like Toth.’ [a civilian] On the contrary, his position is like that of a person who leaves the country after committing a crime. During the time he is outside the jurisdiction he cannot he tried. But if he returns, he can, subject to the Statute of Limitations, be tried and convicted for an offense committed by him before his departure.”

In my opinion, the court-martial had power to try the accused. I would, therefore, answer the certified question in the affirmative and affirm the decision of the board of review.

1 Article 69, Uniform Code of Military Justice, 10 USC § 869.

2 Although there is some language in AR 635-205 (PERSONNEL SEPARATIONS — Convenience of the Government), which pertains to the discharge of “individuals serving in unspecified enlistments” (paragraph 3 (6)), it is apparent that the accused’s application was actually covered by AR 635-220, which is expressly made applicable to “individuals [as the accused] who have served S or more years of an enlistment for an unspecified period of time.” AR 635-220, paragraph 2. Evidently the accused’s purpose in effecting his discharge and re-enlistment was to secure a somewhat better bonus payment for continued service than was allowed under his indefinite enlistment. Appellant’s Brief, page 22, footnote 14.