The opinion of the court was delivered by: RYAN
Petitioner, by a writ of habeas corpus, seeks to have declared null and void the proceedings and resulting conviction by a general court-martial of the United States Army, which was convened at Regensburg, Germany, on May 21 and 28, and on June 3 and 4, 1947, pursuant to paragraph 13, Special Orders No. 112, Headquarters United States Constabulary, APO 46, US Army, May 16, 1947, as amended.
Petitioner enlisted in the Army of the United States on December 17, 1942. He served as an enlisted man until September 14, 1943, when he received a commission as a second lieutenant. He had a record of honorable, faithful and creditable service until his conviction at which time he held the rank of captain.
It was charged that the petitioner had violated the 93rd Article of War, 10 U.S.C. § 1565, 10 U.S.C.A. § 1565, and the 96th Article of War, 10 U.S.C.A. § 1568.
The specifications as to the charge of the violation of the 93rd Article of War were that petitioner, while a first lieutenant, in Company D., Third Military Government Regiment at Waldmunchen, Germany, during the latter part of January, 1946 feloniously embezzled by fraudulently converting to his own use approximately 115 kilograms of silver bullion of a value of over $ 50, which had been entrusted to him by the United States Government by virtue of his position as a Military Government officer.
The specifications as to the violation of the 96th Article of War charged that while still an officer in the same command and at the same place, on or about May 20, 1946, he wrongfully and unlawfully authorized the use of government transportation to a German civilian employee of the United States Military Government to his own use and benefit.
The general court-martial found the petitioner not guilty of the charge and specifications under the latter violation, and guilty of the charge and specifications alleging a violating of the 93rd Article of War. Upon this conviction, the court sentenced the petitioner to be dishonorably dismissed from service, to forfeit all pay and allowances due and to become due and to be confined at hard labor for three years. The sentence was approved by the Commanding General, but after review by the Department of the Army in Washington pursuant to the provisions of Article of War 48, 10 U.S.C.A. § 1519, the Secretary of the Army approved only so much of the findings of guilty of the charge and specifications as charged that the petitioner fraudulently converted to his own use the silver bullion in violation of Article of War 96. The sentence was confirmed but the period of confinement was reduced to one year. By virtue of this sentence as modified and its execution, the petitioner ceased to be an officer of the United States Army and is now confined in a military prison at Fort Jay, New York, within this district.
The petitioner challenges the jurisdiction of the General Court-Martial at which he was tried, convicted and sentenced. He alleges that the provisions of Article of War 70 and 80, 10 U.S.C.A. §§ 1542, 1552, were not complied with prior to trial and that this failure to comply with these provisions rendered the General Court-Martial without jurisdiction and trial and sentence null and void.
The petitioner urges that the court was without jurisdiction for the following reasons:
'1. Petitioner did not receive the benefit of a 'thorough and impartial investigation' without which no charge can be referred to a general court-martial for trial under Article of War 70 (U.S.C.A. § 1542);
'2. The pre-trial investigator to call witnesses requested by petitioner in violation of petitioner's rights as guaranteed by Article of War 70, and it does not appear that the petitioner was given an opportunity to cross examine witnesses or otherwise avail himself of the rights given him by this statute or Article of War;
'3. The court was improperly constituted and the provisions of Article of War 8 were violated (Title 10, Section 1479 U.S.Code, 10 U.S.C.A. § 1479) in that the officer designated as the law member was not a member of the Judge Advocate General's Department although a member of such department was available for the purpose.'
The power of the court in this proceeding is limited. It may examine the record only to determine whether or not the detention complained of is lawful. United States v. Spar, 2 Cir., 1945, 149 F.2d 881. The only errors, if they exist, which it may consider are those affecting the jurisdiction of the court-martial or the fixing of a penalty beyond statutory provisions. The district court has no general supervisory or corrective powers over court-martial proceedings. That power is lodged by Congress with the military courts and review boards, where military jurisdiction attaches, and not with the civil courts. In re Yamashita, 1945, 327 U.S. 1, 66 S. Ct. 340, 90 L. Ed. 499; United States v. Crystal, 2 Cir., 1943, 131 F.2d 576, certiorari denied 319 U.S. 755, 63 S. Ct. 1164, 87 L. Ed. 1708, rehearing denied 319 U.S. 783, 63 S. Ct. 1173, 87 L. Ed. 1727.
That portion of Article of War 70 applicable to the question involved reads as follows:
'No charge will be referred to a general court martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides.'
Passing upon the merits of petitioner's first objection we are not met with any issue of fact.
It is conceded by stipulation that the writ of habeas corpus and the general court-martial records shall constitute the entire record on this proceeding. An examination of the court-martial record shows that when the matter of the shortage of silver bullion first arose, Lt. Col. H., the commanding officer of Company D, Third Military Government Regiment by verbal order detailed, assigned and directed one Capt. M. to make a general precharge survey and investigation. This assignment of Captain M. was made during the latter part of the month of September, 1946, and it appears that he did conduct a general survey of the entire matter. The details of this survey were set forth in a written report, signed by Capt. M., dated October 10, 1946 and consisting of eight typewritten pages. This report is found in the court-martial record as Prosecution's Exhibit 14, and is part of the record.
An examination of the report shows that Capt. M. interrogated eleven German civilians whose names are set forth in the report. He also took the testimony of petitioner and of a former sergeant of the Military Government of the United States Army then in Germany. After detailing at length the facts as he believed them to exist as the result of his investigation, Capt. M. in his report stated his conclusions. Among them it is important to note the following:
' * * * 2. A large number of witnesses have been interviewed in connection with this case. From a review of their testimony, it can be seen that there are certain discrepancies in regards to sizes and quantities.
'4. From the testimony and evidence presented the following general conclusions are drawn:
'a. Silver plate was illegally cut and taken by several MG Officers.
'c. Capt. Henry appears to be the main figure in the affair, although it is apparent that Lt. * * * shared to a great extent in the spoils. While Capt. Henry admits to having only a few small articles made, the evidence bills from the firms of Pleyer and Lees indicate that, in fact, there was a substantial amount of various articles produced. * * *'
After this report had been made by Capt. M., the commanding officer of the Third Military Government Regiment prepared the charges upon which petitioner was tried; and then appointed Capt. M. as the investigating officer pursuant to the provisions of Article of War 70 to conduct the required pre-trial investigation.
Such procedure has in the past been the subject of adverse comment and criticism by the Secretary of War. In the Digest of Opinions of The Judge Advocate General of The Army, 1912-1940 (p. 293), the following is recorded:
'(2) Investigation by accuser-Several records of trial by general court-martial received in the office of the Judge Advocate General indicated that some confusion existed in the service as to the requirements of A.W. 70 regarding the 'thorough and impartial investigation' of charges. The validity of the sentence in each of the cases covered by those records was brought into question by reason of the fact that the investigation conducted under the second paragraph of A.W. 70 had been made by the officer signing the charges under the oath prescribed by the first paragraph of that article. The course ...