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October 12, 1973

Houston L. MELVIN, Plaintiff,
Melvin R. LAIRD, as Secretary of Defense, Department of Defense, Robert F. Froehlke, as Secretary of the Army, Department of the Army, Defendants

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Plaintiff, a former captain, asserts that his 1954 conviction by general court-martial on charges of larceny in Japan was obtained through the deprivation of several of his constitutional rights. He seeks declaratory and injunctive relief. Specifically, he claims he was denied (1) his right to be present, to be represented by counsel, to cross-examine witnesses and to call witnesses of his own at the pretrial investigation conducted pursuant to Article 32 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 832; (2) the opportunity during his trial to confront the executive officer of his unit whose testimony plaintiff claims was vital to his case; and (3) the effective assistance of counsel by the failure of his assigned military counsel to conduct an adequate pretrial investigation, to present necessary witnesses and documentary evidence, or to argue at the close of the case.

 Appearing pro se, plaintiff requested that the court appoint an attorney to represent him because he could not afford one. Through the office of the Council of New York Law Associates, W. Dennis Cross, Esq., volunteered his services. Mr. Cross and associate counsel, Vincent A. Moccio, Esq., as well as counsel for the government have conducted the litigation with great skill.

 Plaintiff has moved for summary judgment on his affidavit, the transcript of the court-martial proceedings, and extensive military records. Defendants have moved (1) to dismiss the complaint on the ground that the Court of Claims has exclusive jurisdiction, and (2) for summary judgment on the merits.

 Upon oral argument it was stipulated that, if judgment was not granted on the motions, the court could try the case on the record as supplemented by other material counsel might wish to present. Defendant did supplement the record by an affidavit of Melville C. Wilson, Jr., dated May 26, 1973. Mr. Wilson had acted as defense counsel at the court-martial. Independent inquiry of the court revealed that Mr. Wilson had been admitted to the bar in South Carolina in 1951.

 For the reasons indicated below: (1) this court has jurisdiction; (2) summary judgment for defendant does lie; and (3) if summary judgment is inappropriate, the complaint must be dismissed for failure of proof.


 Enlisted in the Army as a private in April of 1943, plaintiff rose through the ranks to sergeant. He participated in the 1944 invasion of France, and in May of 1945 was awarded a field commission as a second lieutenant. While he was a rifle company commander during the Korean War, he was captured and escaped with three enlisted men, killing two Chinese guards. He was wounded in combat four times during his Army service, for which he received the purple heart with three clusters. As a result of one of his wounds by mortar fire when he was knocked unconscious, he was hospitalized for months, receiving psychiatric treatment for anxiety reaction and "temporary insanity." He was also awarded theater ribbons for the European and Philippines operations in World War II, for the Korean War and for the occupation of Japan, the Army Commendation Medal, the Good Conduct Medal, the American Theater of Operations Ribbon, the Combat Infantry Badge and the Parachutist's Badge. His record includes seven letters of appreciation and commendation for outstanding service.

 By 1954, plaintiff had reached the rank of captain. He was ordered to Japan to assume the duties of officer in charge of the Supply Division of the Transportation Section, Camp Tokyo. It was the first time he had been assigned to supply duties and he was generally unfamiliar with Army supply procedures.

 When he assumed his new duties his unit was in the throes of last minute preparations for two important inspections scheduled to take place within the following month. A physical inventory of the Supply Division, the first in two years, was underway under the active supervision of Lieutenant Colonel Charlie W. Johnson, Jr., the executive officer, who had held the job of supply officer about 18 months earlier.

 Almost immediately, plaintiff claimed, he discovered that the supply of Class X clothing -- clothing that was no longer fit for military purposes -- was in excess of the amount authorized. When he brought that fact to Lieutenant Colonel Johnson's attention, Johnson, according to plaintiff, told him to remove the clothing from the warehouse until after the inspection. According to his allegations, plaintiff arranged for the rental of storage space in civilian quarters until after the inspection, at which time he intended to retrieve the clothing for future use to outfit civilian drivers. He transported the clothing to the new location in government vehicles.

 The testimony at the court-martial, however, also supported a contrary interpretation. It indicated that plaintiff was short of money due to gambling and that he arranged to sell Army uniforms to Japanese civilians and to deliver them with Army trucks, receiving substantial amounts of yen in exchange. Details of the transactions might, depending upon point of view, be interpreted as surreptitious and indicative of criminal intent or open and naive, reflecting an attempt to save American taxpayer's money and cut red tape.

 Following an investigation by the Provost Marshal Investigative Division, Major James W. Moore informed plaintiff that he had been appointed to conduct a pretrial investigation as required by Article 32 of the UCMJ, 10 U.S.C. § 832. Psychiatric examinations indicated some mental problems but none sufficient to prevent a trial or to suggest insanity as a defense. Plaintiff's tendered resignation to avoid trial was refused. Some time thereafter, plaintiff was told that the pretrial investigation had been completed and the results forwarded to the convening authority with a recommendation that a general court-martial be convened. Plaintiff only then determined, according to his allegations, that he needed counsel.

 Civilian counsel, M.A. Braun, was retained. Plaintiff had two or three conferences with Mr. Braun of short duration during which the only matters discussed were general questions of court-martial procedure and an offer from the Trial Judge Advocate's office for a one year sentence in return for a guilty plea, an offer which was declined.

 Several days after retaining civilian counsel, plaintiff met Captain Melville C. Wilson for the first time. Captain Wilson visited plaintiff in his quarters and, according to plaintiff, advised him to dismiss his civilian counsel on the ground that the retention of a non-military lawyer might be considered "disloyal". Plaintiff dismissed his civilian counsel by a letter dated August 31, 1954, drafted by Captain Wilson.

 Plaintiff states that at no time prior to or during the Article 32 investigation was he advised of his right to be present, to be represented by counsel, to cross-examine witnesses or to call witnesses in his behalf. Defendants dispute this, relying on the detailed recitations in the Article 32 report, indicating which witnesses were examined in defendant's presence and in which instances he waived the right to be present and the affidavit of Major Moore that, although he has no independent recollection, the report he prepared is correct. The affidavit of Melville C. Wilson was very specific. He swears that "Captain Melvin was physically present at the Article 32 investigation." He says he is positive of this because it was his invariable practice, because the case, involving as it did an officer, was so unusual, and because of the frequent discussions he had with the accused.

 According to plaintiff, he had only two conferences with Captain Wilson before the trial. Other than these conferences and review of the investigative reports, Captain Wilson, according to plaintiff, made no further preparation; specifically, it is claimed that his counsel declined to interview Lieutenant Colonel Johnson or any other potential witness, or to examine records suggested by plaintiff as supporting his version of the events. Lieutenant Colonel Johnson was never called as a witness.

 The claims as to lack of preparation are denied by Mr. Wilson under oath; his affidavit speaks of being billeted in the same building with plaintiff and meeting plaintiff on numerous occasions when the case was discussed. A reading of the record of the trial shows a detailed cross-examination of the twenty prosecution witnesses and one court witness and a good grasp of the facts in the direct examination of the seven defense witnesses, including plaintiff. With the trial itself taking four days and the introduction of many documents by both sides, preparation before and during trial must have been extensive. This is particularly true since both plaintiff and his counsel attended, the court finds, examination of witnesses in the Article 32 investigation.

 Following conviction, plaintiff was sentenced to dismissal (equivalent to a dishonorable discharge), forfeiture of all pay and allowances, and confinement to hard labor for five years. A full appeal before the Army's Board of Review was heard, plaintiff being represented by a civilian attorney; the findings and sentence were affirmed. A petition -- prepared by civilian counsel -- for review by the Court of Military Appeals was denied. Also denied was a petition to the Army's Judge Advocate General for a new trial. The term of confinement was subsequently reduced to three years by the Assistant Secretary of the Army. After 18 months confinement plaintiff was paroled.

 In 1968, plaintiff applied to the Army Board for the Correction of Military Records for correction of his record to show that his court-martial was illegally conducted and the conviction that resulted was a nullity; he requested a hearing. All relief was denied by the Board.

 Plaintiff commenced this action in November of 1971, seeking a determination that his conviction was obtained in violation of his rights and should be set aside. There have been excusable delays in obtaining records and the deposition of Mr. Wilson. No contention is made that plaintiff has not exhausted his administrative remedies.


 As defendants acknowledge, persuasive authority supports the proposition that the courts will not shut the judicial door on one who alleges he has been deprived of a constitutional right by the military justice system. See, e. g., Homcy v. Resor, 147 U.S.App.D.C. 277, 455 F.2d 1345 (1971) (improper command pressure World War II); Ragoni v. United States, 424 F.2d 261 (3d Cir. 1970) (mandamus jurisdiction based on claim of mental incompetence; relief denied on merits); Kauffman v. Secretary of the Air Force, 135 U.S. App.D.C. 1, 415 F.2d 991 (1969), cert. denied, 396 U.S. 1013, 90 S. Ct. 572, 24 L. Ed. 2d 505, reh. denied, 397 U.S. 1031, 90 S. Ct. 1255, 25 L. Ed. 2d 546 (1970) (habeas corpus jurisdiction over plaintiff not in custody; claim of illegally obtained evidence denied on merits); Smith v. McNamara, 395 F.2d 896 (10th Cir. 1968) cert. denied, 394 U.S. 934, 89 S. Ct. 1211, 22 L. Ed. 2d 466, reh. denied, 394 U.S. 995, 89 S. Ct. 1477, 22 L. Ed. 2d 773 (1969) (mandamus jurisdiction; claim of lack of counsel denied on merits); Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965) (mandamus jurisdiction; lack of counsel). Utilizing, as appropriate, the remedies of habeas, mandamus, declaratory judgment, and awards of back pay, injustices will, to the extent possible, be corrected. See, e. g., Judicial Review of Military Action with respect to Type of Discharge Given Servicemen, 4 A.L.R. Fed. 343 (1970); Slattery, Federal Court Review of ...

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