The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
This is an action to overturn a 1944 court-martial conviction for automobile theft and to compel the correction of military records from a dishonorable discharge to a general discharge under honorable conditions. Both parties have moved for summary judgment. Since the crime was not service related, the court-martial had no jurisdiction, the conviction was void, and the discharge records must be corrected.
The material facts are undisputed. In August, 1944, plaintiff, then eighteen years old, was a seaman second class in the United States Naval Reserve. He was granted permission to leave his base, the Naval Ammunition Depot, Earle, New Jersey, for 72 hours but failed to return on time. While absent without official leave, he was arrested for automobile theft by Pennsylvania State Troopers near Hallidaysburg, Pennsylvania.
Transferred to military custody, plaintiff was incarcerated at Harts Island, New York. Court-martial proceedings were held at the Brooklyn Navy Yard before a court of retired senior naval officers. On advice of military counsel, he pled guilty to the charges of automobile theft and of being absent without leave for thirteen days. He was sentenced to three years incarceration, loss of pay and a dishonorable discharge. The maximum punishment at that time for a two week unauthorized absence was confinement for six months plus the period of absence, loss of all pay and allowances during a like period, reduction to the lowest enlisted pay grade, and a bad conduct discharge. After 26 months of confinement, during which he was repeatedly disciplined for infractions, plaintiff was released and dishonorably discharged.
The automobile had been stolen while it was parked on a street in Trenton, New Jersey, the day before plaintiff was arrested. The owner, a member of the United States Signal Corps, did not witness the theft; he lived off base and received no compensation from the military for the car's use. He was on a personal errand in Trenton when the vehicle was stolen. The court-martial specification itself charges plaintiff with stealing an automobile "from the possession of a civilian."
Plaintiff alleges that he had been hitchhiking -- in civilian clothes according to his own supplemental affidavit -- when he was picked up by another sailor in the automobile; that he was merely a passenger; and that he was not aware that it was stolen. According to him, the driver stopped beside the highway to visit a friend in a nearby farmhouse. While plaintiff was waiting in the car the arresting state troopers stopped to investigate. He alleges that as they talked with him the troopers saw the other sailor running away. It is his contention that his version of the story was corroborated by the state troopers' interview of a gas station attendant shortly after the arrest.
Both parties agree that all administrative remedies have been exhausted. The Judge Advocate General has ruled that no action to modify the sentence is warranted. The Board for Correction of Naval Records has denied plaintiff's request for reconsideration of his application for correction of his military records. The case is ripe for adjudication.
Defendant does not now contest this Court's jurisdiction to review the refusal of the Board for Correction of Naval Records to grant the petition for a change in the form of plaintiff's discharge. 28 U.S.C. § 1361; Ashe v. McNamara, 355 F.2d 277, 282 (1st Cir. 1965). Cf. Smith v. Resor, 406 F.2d 141, 146-147 (2d Cir. 1969).
Though not raised in the answer, lack of venue has been asserted in a subsequent motion to dismiss.
Venue is properly laid, among other places, in the judicial district where the "cause of action arose." 28 U.S.C. § 1391(e). The "cause of action" in this case may, as defendant asserts, have arisen in Washington, D.C., the district where the Board for the Correction of Naval Records refused to grant plaintiff's petition; but it also had its roots in this district where the courtmartial proceeding was held. The cause of action for venue purposes can be said to arise wherever substantial material events took place. Cf. Alameda Oil Company v. Ideal Basic Indus., Inc., 313 F. Supp. 164, 168-169 (W.D. Mo. 1970).
In any event, defendant waived the objection by failing to raise the venue issue in its answer or by pre-pleading motion. Fed. R. Civ. P. 12(b)(h); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 (2d Cir. 1966); United Rubber C., L. & P. W., Local 102 v. Lee Rubber & Tire Corp., 269 F. Supp. 708, 713-714 (D.N.J. 1967), aff'd, 394 F.2d 362, cert. denied, 393 U.S. 835, 89 S. Ct. 108, 21 L. Ed. 2d 105 (1968); 1 J. Moore, Federal Practice para. 0.146   (1964).
III. CONTENTIONS OF PARTIES
Plaintiff's legal and factual submission can be summarized in the following syllogism:
1. A court without subject matter jurisdiction has no power to affect the status of a person before it because its purported decisions are void.
2. The court-martial had, under the holding of O'Callahan v. Parker, 395 U.S. 258, 89 S. Ct. 1683, 23 L. Ed. 2d 291 (1969), no subject matter jurisdiction.
3. The court-martial's decision that he was guilty of automobile theft was void and the dishonorable discharge predicated upon this decision must be set aside.
The government's response is:
1. When the Supreme Court spoke of lack of jurisdiction in O'Callahan it did not mean lack of power over the subject matter, or, if it did,
2. O'Callahan, as interpreted in Relford v. Commandant, U.S. Disc. Barracks, Ft. Leavenworth, 401 U.S. 355, 91 S. Ct. 649, 28 L. Ed. 2d 102 (1971), does not exclude a case such as plaintiff's from court-martial jurisdiction, or, if it does,
3. O'Callahan may not be applied to court-martial convictions which became final before 1969.
IV. JURISDICTION RATONALE OF O'CALLAHAN
The adjudicatory power of a court is called its jurisdiction. The term, in its primary sense, signifies power to speak the law by applying it to particular cases. If a body lacks jurisdiction over the subject matter or the parties its purported judgments are void. Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1879); McClaughry v. Deming, 186 U.S. 49, 22 S. Ct. 786, 46 L. Ed. 1049 (1902); Rosenberg et al., Elements of Civil Procedure, 143-145 (1970); Restatement (Second), Conflict of Laws, chap. 3, Introductory Note (c), 127-128 (P.O.D. Draft, Part 1, May 2, 1967) ("competence"). In recent years the term has acquired a secondary meaning: courts have been said to lack jurisdiction not because they lacked adjudicatory power but because they failed to exercise their power in a proper manner. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) (right to counsel).
In criminal law this second usage has expanded greatly, in part because the remedy of habeas corpus was originally based on lack of jurisdiction. See Developments in the Law, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1045-1055, 1209-1216 (1970). As habeas corpus was increasingly used to collaterally attack state and federal convictions on the ground of unconstitutional procedures leading to conviction, much of the new criminal constitutional law took on a jurisdictional cast. This new usage included such diverse matters as the right to counsel, to suppress illegally obtained evidence, to a jury trial and to confrontation.
Lack of precision in the use of the word "jurisdiction" creates part of the difficulty with retroactivity which is discussed in VI, infra. Use of the word "competence" when lack of adjudicatory power is meant, as suggested in the Restatement of Conflicts, Second, supra, would avoid some of the confusion but this terminology has not yet been adopted by the Supreme Court.
In analyzing the retroactivity problem some have suggested that the limitations on the exercise of court-martial power in O'Callahan were "functional" rather than "jurisdictional" -- that is to say, the decision was based on procedural deficiencies rather than lack of power. See, e.g., Schlomann v. Moseley, No. L-1003, p. 2 (D.C. Kansas, May 19 1970); United States v. King, A.C.M. 20361 (July 30, 1969). The language of the Supreme Court makes that conclusion doubtful.
O'Callahan involved a habeas corpus proceeding challenging the jurisdiction of a court-martial to try a soldier who assaulted a girl on private property while he was on leave and in civilian clothes. The grant of certiorari was ambiguous in its use of the term jurisdiction, since the question posed was:
"Does a court-martial * * * have jurisdiction * * * thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?" 393 U.S. 822, 89 S. Ct. 177, 21 L. Ed. 2d 93 (1968).
It is not clear that the question was whether the court-martial lacked power over the subject matter and person of the soldier before it because this type of case should go to a different kind of court (classic competence jurisdiction) or whether denial of the right to a grand and petit jury without waiver caused potential jurisdiction to be lost (procedural-constitutional jurisdiction).
The majority opinion is not completely lucid on the point, but a fair reading suggests that it used the phrase lack of jurisdiction to mean lack of power over the subject matter. Its major thrust is directed to the basic differences between systems of military and civilian courts rather than to a few defects of procedure. For example, the court speaks of "development of a system of military justice with fundamental differences from the practices in the civilian courts." O'Callahan v. Parker, 395 U.S. 258, 262, 89 S. Ct. 1683, 1685, 23 L. Ed. 2d 291 (1969). The lack of juries is relied upon primarily as an illustration of these "fundamental differences." The court quoted at length from its own decision in United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18, 76 S. Ct. 1, 5-6, 100 L. Ed. 8 (1955), to further demonstrate such differences with respect to tenure of judges and command influence. Id. at ...