Gosa v. Mayden ( 1973 )

Mr. Justice Blackmun

announced the judgments of the Court and an opinion in which The Chief Justice, Mr. Justice White, and Mr. Justice Powell join.

In O’Callahan v. Parker, 395 U. S. 258, decided June 2, 1969, this Court, by a 5-3 vote, held that when a person in military service is charged with a crime that is not “service connected,” id., at 272, the defendant is entitled, despite his military status, to the benefit of “two important constitutional guarantees,” id., at 273, namely, indictment by a grand jury¹ and trial by jury in a civilian court.

The Court noted that O’Callahan was “properly absent from his military base when he committed the crimes with which he is charged,” ibid.; that there was no connection between his military duties and the crimes; that the offenses were committed off the military post or enclave; that the victim was not performing any duty relating to the military; that the situs of the crimes was not occupied territory or under military control; that they were peacetime offenses; that the civilian courts were open; and that the offenses involved no question of the flouting of military authority, post security, or the integrity of military property.

Later, in Relford v. Commandant, 397 U. S. 934 (1970), we granted certiorari “limited to retroactivity and scope of O'Callahan v. Parker.” When Relford was decided, 401 U. S. 355 (1971), we held that an offense committed on a military post by an individual in service, in violation of the security of another person or property on that post, was “service connected,” within O’Callahan’s language. Relford’s offenses so qualified. His case, thus, went off on the scope of O’Callahan and did not reach the issue of retroactivity. We concluded that the latter issue, although having “important dimensions, both direct and collateral,” was “better resolved in other litigation where, perhaps, it would be solely dispositive of the case.” Id., at 370. One of the cases, Cosa, now before us presents that issue solely. The other case, Flemings, presents the issue, but not solely.

I

No. 71-6814. In December 1966 petitioner James Roy Gosa, an airman third class, stationed at Warren Air Force Base in Wyoming, was tried by a court-martial and convicted of rape, in violation of Art. 120 of the Uniform Code of Military Justice, 10 U. S. C. § 920.

The offense took place the preceding August, in what the respondent has stated to be peacetime,² when Gosa was in the city of Cheyenne. At the time, he was officially off duty and absent from the base on authorized leave. He was not in uniform. The victim was not connected with the military or related to military personnel. Shortly after the incident Gosa was arrested by civilian authorities. He was unable to make bond and was detained pending a preliminary hearing. The complaining witness did not appear at the hearing. Gosa, accordingly, was released. He was taken into military custody, however, and charged with the Art. 120 violation. A general court-martial was convened. Gosa was tried and convicted. He was sentenced to 10 years’ imprisonment at hard labor, forfeiture of pay and allowances, reduction in rank to the lowest pay grade of airman basic, and a bad conduct discharge. As required by Art. 61 of the Code, 10 U. S. C. § 861, the convening authority then referred the case to his staff judge advocate for review. The staff judge advocate’s recommendation that the findings and sentence of the general court-martial be approved were adopted by the convening authority. Pursuant to Art. 66 of the Code, 10 U. S. C. § 866, the case was referred to an Air Force Board of Review. That Board affirmed the conviction and sentence. On August 16, 1967, the United States Court of Military Appeals denied a petition for review. 17 U. S. C. M. A. 648. The case thereupon became final, Art. 76 of the Code, 10 U. S. C. § 876, subject, of course, to the habeas corpus exception recognized in United States v. Augenblick, 393 U. S. 348, 349-350 (1969).

At no time throughout the trial and the review proceedings did Gosa raise any question as to the power of the military tribunal to try him.

Following the Court’s decision in O’Callahan, Gosa filed an application for a writ of habeas corpus in the United States District Court for the Northern District of Florida seeking his release from the Federal Correctional Institution at Tallahassee where he was then confined.³ Subsequently, he filed with the United States Court of Military Appeals a motion to vacate his sentence and conviction; this was treated as a petition for reconsideration and was denied by a divided vote with accompanying opinions. 19 U. S. C. M. A. 327, 41 C. M. R. 327 (1970). The habeas application also was denied by the District Court upon its determination that the standards promulgated in Stovall v. Denno, 388 U. S. 293, 297 (1967), and related cases, precluded retroactive application of O’Callahan. 305 F. Supp. 1186 (ND Fla. 1969). On appeal, in the face of a Government concession that the alleged offense was not service connected, the Court of Appeals for the Fifth Circuit, one judge dissenting, affirmed. 450 F. 2d 753 (1971).

No. 71-1398. In 1944, when the United States was formally at war, respondent James W. Flemings, then age 18 and a seaman second class, was stationed at the Naval Ammunition Depot in New Jersey. On August 7 of that year Flemings failed to return on time from an authorized three-day leave. He was apprehended by Pennsylvania police while he was in an automobile stolen two days earlier in Trenton, New Jersey. Flemings was turned over to military authorities. He was charged with unauthorized absence from his duty station during wartime and with theft of an automobile “from the possession of ... a civilian.” ⁴

A court-martial was convened at the Brooklyn Navy Yard. Flemings, represented by a reserve lieutenant, pleaded guilty to the two charges. He was sentenced to three years’ imprisonment, reduction in rank to apprentice seaman, and dishonorable discharge. After two years’ confinement he was released and was dishonorably discharged in October 1946.

In 1970, Flemings instituted suit in the United States District Court for the Eastern District of New York, relying on O’Callahan and seeking to compel the Secretary of the Navy to overturn the 1944 court-martial conviction for auto theft and to correct his military records with respect to the dishonorable discharge. He did not challenge the validity of his conviction for being absent without leave.

The District Court held that the auto theft offense was not service connected in the O’Callahan sense and that O’Gallahan was to be applied retroactively to invalidate the court-martial conviction on that charge. 330 F. Supp. 193 (1971). The Court of Appeals for the Second Circuit affirmed. 458 F. 2d 544 (1972).

We granted certiorari in both cases to resolve the conflict. 407 U. S. 920 and 919 (1972).⁵

II

O’Callahan v. Parker, to use the words Mr. Justice Stewart employed in Desist v. United States, 394 U. S. 244, 248 (1969), was “a clear break with the past.” In O’Callahan the Court concluded that, in harmonizing the express guarantees of the Fifth and Sixth Amendments, with respect to grand jury indictment and trial by a civilian jury, with the power of Congress, under Art. I, | 8, cl. 14, of the Constitution, “To make Rules for the Government and Regulation of the land and naval Forces,” a military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection. Although the Court in O’Callahan did not expressly overrule any prior decision, it did announce a new constitutional principle, and it effected a decisional change in attitude that had prevailed for many decades. The Court long and consistently had recognized that military status in itself was sufficient for the exercise of court-martial jurisdiction. Kinsella v. Singleton, 361 U. S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U. S. 1, 22-23 (1957); Grafton v. United States, 206 U. S. 333, 348 (1907); Johnson v. Sayre, 158 U. S. 109, 114 (1895); Smith v. Whitney, 116 U. S. 167, 184-185 (1886); Coleman v. Tennessee, 97 U. S. 509 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866). Indeed, in Grafton, 206 U. S., at 348, the Court observed, “While . . . the jurisdiction of general courts-martial extends to all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory in which he is serving, this jurisdiction is not exclusive, but only concurrent with that of the civil courts.”

The new approach announced in O’Callahan was cast, to be sure, in “jurisdictional” terms, but this was “lest 'cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger/ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers” (footnote omitted). 395 U. S., at 272-273. The Court went on to emphasize that the “power of Congress to make 'Rules for the Government and Regulation of the land and naval Forces,’ Art. I, § 8, cl. 14, need not be sparingly read in order to preserve those two important constitutional guarantees. For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights.” Id., at 273. The basis for the “jurisdictional” holding in O’Callahan obviously was the increasing awareness and recognition of the important constitutional values embodied in the Fifth and Sixth Amendments. Faced with the need to extend the protection of those Amendments as widely as possible, while at the same time respecting the power of Congress to make “Rules for the Government and Regulation of the land and naval Forces,” the Court, id., at 265, heeded the necessity for restricting the exercise of jurisdiction by military tribunals to those crimes with a service connection as an appropriate and beneficial limitation “to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.” Toth v. Quarles, 350 U. S. 11, 22 (1955).

That O’Callahan dealt with the appropriate exercise of jurisdiction by military tribunals is apparent from Kinsella v. Singleton, supra, where the Court ruled that the Necessary and Proper Clause, Art. I, § 8, cl. 18, does not enable Congress to broaden the term “land and naval Forces” in Art. I, § 8, cl. 14, to include a civilian dependent accompanying a member of the Armed Forces overseas. In such a case, it was held, a civilian dependent is entitled to the safeguards of Art. Ill and of the Fifth and Sixth Amendments, and conviction by court-martial is not constitutionally permissible:

“But the power to 'make Rules for the Government and Regulation of the land and naval Forces’ bears no limitation as to offenses. The power there granted includes not only the creation of offenses but the fixing of the punishment therefor. If civilian dependents are included in the term ‘land and naval Forces’ at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the safeguards of Article III and the Fifth and Sixth Amendments. Due process cannot create or enlarge power. ... It deals neither with power nor with jurisdiction, but with their exercise.” 361 U. S., at 246.

Although the decision in O’Callahan emphasizes the difference in procedural protections respectively afforded by the military and the civilian tribunals, the Court certainly did not hold, or even intimate, that the prosecution in a military court of a member of the Armed Services for a nonservice-connected crime was so unfair as to be void ab initio. Rather, the prophylactic rule there formulated “created a protective umbrella serving to enhance” a newly recognized constitutional principle. Michigan v. Payne, 412 U. S. 47, 54 (1973). That recognition and effect are given to a theretofore unrecognized and uneffectuated constitutional principle does not, of course, automatically mandate retroactivity. In Williams v. United States, 401 U. S. 646, 651 (1971), Mr. Justice White made it clear, citing Linkletter v. Walker, 381 U. S. 618 (1965), that the Court has “firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored.” See Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371, 374 (1940). And in Johnson v. New Jersey, 384 U. S. 719, 728 (1966), it was said that “the choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved.”

Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), are illustrative of the context of the O’Callahan decision. In Duncan, the Court held that since “trial by jury in criminal cases is fundamental to the American scheme of justice, . . . the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee” (footnote omitted). 391 U. S., at 149. In Bloom the Court held that serious criminal contempts may not be summarily punished and that they are subject to the Constitution’s jury trial provision. 391 U. S., at 201-210. In those two cases the Court ruled that a state court exercising jurisdiction over a defendant in a serious criminal or criminal contempt case, but failing to honor a request for a jury trial, in effect was without jurisdiction. Yet in DeStefano v. Woods, 392 U. S. 631 (1968), the Court by a per curiam opinion, denied retroactive application to those new constitutional holdings. The Court thus concluded that it did not follow that every judgment rendered in a Duncan or in a Bloom situation, prior to the decisions in those cases, was so infected by unfairness as to be null and void.

The same analysis has pertinent application to these very similar cases, and it leads us to the conclusion that the validity of convictions by military tribunals, now said to have exercised jurisdiction inappropriately over non-service-connected offenses'is not sufficiently in doubt so as to require the reversal of all such convictions rendered since 1916 when Congress provided for military trials for civilian offenses committed by persons in the Armed Services. Act of Aug. 29, 1916, c. 418, 39 Stat. 652.

The clearly opposing and contrasting situation is provided by the argument made by respondent Flemings to the effect that the retroactivity of O’Callahan is to be determined and is controlled by United States v. U. S. Coin & Currency, 401 U. S. 715 (1971). In that case the Court held that its decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968), precluding the criminal conviction of a gambler who properly asserted his Fifth Amendment privilege against self-incrimination as a reason for his failure to register and to pay the federal gambling tax, would be applied retroactively so as to invalidate forfeiture proceedings under 26 U. S. C. § 7302 ensuing upon the. invalid conviction. To suggest that Coin ■& Currency is controlling is to ignore the important distinction between that case and these. There the Court determined that retrospective application of Marchetti and Crosso was required because they “dealt with the kind of conduct that cannot constitutionally be punished in the first instance,” 401 U. S., at 723; it was conduct “constitutionally immune from punishment” in any court. Id., at 724.

In O’Callahan, on the other hand, the offense was one for which the defendant was not so immune in any court. The question was not whether O’Callahan could have been prosecuted; it was, instead, one related to the forum, that is, whether, as we have said, the exercise of jurisdiction by a military tribunal, pursuant to an act of Congress, over his nonservice-connected offense was appropriate when balanced against the important guarantees of the Fifth and Sixth Amendments. The Court concluded that in the circumstances there presented the exercise of jurisdiction was not appropriate, and fashioned a rule limiting the exercise of court-martial jurisdiction in order to protect the rights to indictment and jury trial. The Court did not hold that a military tribunal was and always had been without authority to exercise jurisdiction over a nonservice-connected offense.

Ill

The foregoing conclusion, of course, does not end our inquiry as to whether O’Callahan should be accorded retroactive application.

In two cases decided earlier this Term, retrospectivity of a new constitutional decision was also an issue. Robinson v. Neil, 409 U. S. 505 (1973), concerned successive municipal and state prosecutions for alleged offenses arising from the same circumstances, and a claim of double jeopardy, based on this Court’s intervening decisions in Benton v. Maryland, 395 U. S. 784 (1969), and Waller v. Florida, 397 U. S. 387 (1970). We recognized that in Linkletter the Court was “charting new ground” in the retrospectivity area, 409 U. S., at 507, that “Linkletter and succeeding cases,” ibid., obviously including Stovall v. Denno, 388 U. S., at 297, established standards for determining retroactivity; that Robinson, however, did not readily lend itself to the Linkletter analysis; that Linkletter and its related cases dealt with procedural rights and trial methods; and that guarantees not related to procedural rules “cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis.” Robinson v. Neil, 409 U. S., at 508.

In Michigan v. Payne, 412 U. S. 47 (1973), we were concerned with the retroactivity of North Carolina v. Pearce, 395 U. S. 711 (1969), and the standards it promulgated with respect to an increased judge-imposed sentence on retrial after a successful appeal. We there employed the Stovall criteria and held that Pearce was not to be applied retroactively.

In the present cases we are not concerned, of course, with procedural rights or trial methods, as is exemplified by the decisions concerning the exclusionary rule (Link-letter), the right of confrontation (Stovall), adverse comment on a defendant's failure to take the stand (Tehan v. Shott, 382 U. S. 406 (1966)), and a confession's admissibility (Johnson v. New Jersey, 384 U. S. 719 (1966)). But neither are we concerned, as we were in Robinson, with a constitutional right that operates to prevent another trial from taking place at all. Our concern, instead, is with the appropriateness of the exercise of jurisdiction by a military forum.

These cases, therefore, closely parallel DeStefano v. Woods, supra, where the Court denied retroactive application to Duncan v. Louisiana, supra, and Bloom v. Illinois, supra, in each of which a right to a jury trial had been enunciated. In denying retroactivity, the integrity of each of the earlier proceedings, without a jury, was recognized. The test applied in DeStefano was the Stovall test. 392 U. S., at 633-635. Similarly here, then, the three-prong test of Stovall has pertinency, and we proceed to measure Gosa’s and Flemings' claims by that test directed to “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” 388 U. S., at 297.

A. Purpose. “Foremost among these factors is the purpose to be served by the new constitutional rule.” Desist v. United States, 394 U. S. 244, 249 (1969). In his opinion for the plurality in Williams v. United States, 401 U. S., at 653, Mr. Justice White emphasized that where “the major purpose of new constitutional doctrine is to overcome” a trial aspect “that substantially impairs its truth-finding function,” the new rule is given complete retroactive effect, and “[n] either good-faith reliance” nor “severe impact on the administration of justice” suffices to require prospectivity.

Our initial concern, therefore, is whether the major purpose of the holding in O’Callahan was to overcome an aspect of military trials which substantially impaired the truth-finding process and brought into question the accuracy of all the guilty verdicts rendered by military tribunals. At the same time, however, the fact that a new rule tends incidentally to improve or enhance reliability does not in itself mandate the rule’s retroactive application. The Court in Johnson v. New Jersey, 384 U. S., at 728, repeated what had been suggested in Link-letter and Tehan, that “we must determine retroactivity ‘in each case’ by looking to the peculiar traits of the specific ‘rule in question’ ” and

“ [f]inally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. . . . We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.” 384 U. S., at 728-729.

See Michigan v. Payne, 412 U. S., at 55. Thus, retro-activity is not required by a determination that the old standard was not the most effective vehicle for ascertaining the truth, or that the truth-determining process has been aided somewhat by the new standard, or that one of several purposes in formulating the new standard was to prevent distortion in the process.

Although the opinion in O’Callahan was not uncritical of the military system of justice, and stressed possible command influence and the lack of certain procedural safeguards, 395 U. S., at 263-266, the decision there, as has been pointed out above, certainly was not based on any conviction that the court-martial lacks fundamental integrity in its truth-determining process.⁶ Indeed, our subsequent ruling in Retford itself indicates our conclusion that military criminal proceedings are not basically unfair, for Relford clearly approves prosecution in a military court, of what is otherwise a civilian crime, when factors are present that establish the offense’s “service connection.” 401 U. S., at 364-365. See Mr. Chief Justice Warren’s paper, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188-189 (1962).

It, of course, would demean the constitutional rights to indictment and trial by a jury to assert that those guarantees do not play some role in assuring the integrity of the truth-determining process. “[T]he right to jury trial generally tends to prevent arbitrariness and repression.” DeStefano v. Woods, 392 U. S., at 633. The same mission is fulfilled by the indictment right. But a policy directed at the prevention of arbitrariness and repression is not confined to the truth-determining process. It is concerned, as well, with a larger range of possible evils: prosecution that is malicious, prosecutorial overzealousness, excessiveness of sentence, and the like. These very ingredients were also present in the background in Duncan and Bloom. Yet, the Court did not find it necessary to hold retroactive the rights newly established by those cases.

Nothing said in O’Callahan indicates that the major purpose of that decision was to remedy a defect in the truth-determining process in the military trial. Rather, the broad guarantees of the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to jury trial weighed heavily in the limitation of the exercise of court-martial jurisdiction to “ ‘the least possible power adequate to the end proposed,’ ” Toth v. Quarles, 350 U. S. 11, 23 (1955), a phrase taken from Anderson v. Dunn, 6 Wheat. 204, 231 (1821).

The purpose behind the rule enunciated in O’Callahan thus does not mandate retroactivity.

B. Reliance. With respect to this factor, we repeat what has been emphasized above, namely, that, before O’Callahan, the law was settled that the exercise of military jurisdiction over an offense allegedly committed by a member of the Armed Forces was appropriately based on the military status of the defendant and was not dependent on the situs or nature of the offense. There was justifiable and extensive reliance by the military and by all others on the specific rulings of this Court. Military authorities were acting appropriately pursuant to provisions of the Uniform Code of Military Justice, Art. 2, 10 U. S. C. § 802, and its predecessors, and could not be said to be attempting to usurp civilian authority. The military is not to be faulted for its reliance on the law as it stood before O’Callahan and for not anticipating the "clear break with the past” that O’Callahan entailed. The reliance factor, too, favors prospectivity.

C. Effect on the Administration of Justice. In DeStefano v. Woods, 392 U. S., at 634, the Court, in considering the retroactivity of Duncan and Bloom, attached special significance to the fact that “the effect of a holding of general retroactivity on law enforcement and the administration of justice would be significant, because the denial of jury trial has occurred in a very great number of cases.” The very same factor is present with like significance here, for the military courts have been functioning in this area since 1916, appropriately assuming from this Court’s successive holdings, that they were properly exercising jurisdiction in cases concerning nonservice-connected offenses allegedly committed by servicemen.

A mere glance at the reports of the United States Court of Military Appeals discloses the volume of prosecutions in military tribunals. Retrospective application of O’Callahan would not only affect the validity of many criminal convictions but would result in adjustments and controversy over back pay, veterans’ benefits, retirement pay, pensions, and other matters. In addition, the task of establishing a service connection on the basis of a stale record or in a new trial would prove formidable if not impossible in many cases, since at the time the record was made the question whether there was a service connection was of no importance.

Gosa and Flemings press upon us a recent law review article. Blumenfeld, Retroactivity After O’Callahan: An Analytical and Statistical Approach, 60 Geo. L. J. 551 (1972). The author of that article concludes: (1) On the basis of a sampling of cases reviewed by the Court of Military Appeals and the Army Court of Military Review between June 2, 1969 (the date of O’Callahan), and December 31, 1970, only about 1% of the general court-martial cases were service connected. Id., at 580 n. 147. (2) “[V]ery few” servicemen have sought collateral review of their convictions since O’Callahan was decided. Id., at 578 n. 141. The author asserts, however: “Even if the number of requests for relief sent to military departments should exceed expectations, the Defense Department, with an abundance of personnel and computers, could develop procedures to insure a quick review.” Id., at 572. (3) The military has necessary machinery to process claims and petitions for review. Id., at 571-575. (4) The financial impact of a ruling of retroactivity would not be great since most servicemen convicted of nonservice-connected crimes would not be entitled to retirement or pension pay and, in any event, the average return should not exceed $1,500. Id., at 574-575.

In Mercer v. Dillon, 19 U. S. C. M. A. 264, 41 C. M. R. 264 (1970), the United States Court of Military Appeals, a tribunal composed of civilian judges, 10 U. S. C. § 867, but uniquely familiar with the military system of justice, spoke in another vein.⁷ A pertinent factor, too, is that until Flemings’ case emerged in the Second Circuit, the civilian and the military courts had ruled against applying O’Callahan retroactively; thus there was no decisional impetus to encourage litigation.

We must necessarily also consider the impact of a retroactivity holding on the interests of society when the new constitutional standard promulgated does not bring into question the accuracy of prior adjudications of guilt. Wholesale invalidation of convictions rendered years ago could well mean that convicted persons would be freed without retrial, for witnesses, particularly military ones, no longer may be readily available, memories may have faded, records may be incomplete or missing, and physical evidence may have disappeared. Society must not be made to tolerate a result of that kind when there is no significant question concerning the accuracy of the process by which judgment was rendered or, in other words, when essential justice is not involved.

We conclude that the purpose to be served by O’Callahan, the reliance on the law as it stood before that decision, and the effect of a holding of retroactivity, all require that O’Callahan be accorded prospective application only. We so hold.⁸

IV

Flemings also urges that, because his court-martial proceeding was convened in Brooklyn, whereas the auto theft took place in New Jersey and his arrest in Pennsylvania, he was deprived of the right to a trial in the vicinage, as guaranteed by Art. Ill, § 2, cl. 3, of the Constitution. This claim was not raised before the military court. Moreover, a military tribunal is an Article I legislative court with jurisdiction independent of the judicial power created and defined by Article III. Ex parte Quirin, 317 U. S. 1, 39 (1942); Whelchel v. McDonald, 340 U. S. 122, 127 (1950); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 165 (1963). General court-martial jurisdiction is not restricted territorially to the limits of a particular State or district. 1 W. Winthrop, Military Law and Precedents 104-105 (2d ed. 1896). And the vicinage requirement has primary relevance to trial by jury. In any event, Flemings has demonstrated no prejudice.

The judgment in No. 71-6314 is affirmed; that in No. 71-1398 is reversed.

It is so ordered.

1 The Court, of course, has not yet held the indictment requirement of the Fifth Amendment to be binding upon the States. Hurtado v. California, 110 U. S. 516 (1884); Gaines v. Washington, 277 U. S. 81, 86 (1928); Branzburg v. Hayes, 408 U. S. 665, 688 n. 25 (1972).

2 Tr. of Oral Arg. 16.

3 Gosa has since been released. Inasmuch as the District Court possessed federal habeas jurisdiction when Gosa’s application was filed, that jurisdiction was not defeated by his release prior to the completion of proceedings on the application. Carafas v. LaVallee, 391 U. S. 234, 238-240 (1968).

4 It appears that the automobile was owned by a member of the Signal Corps but that the car was being used by him on a purely personal errand when it was stolen. The owner was not compensated by the military for its use.

5 See also Schlomann v. Moseley, 457 F. 2d 1223 (CA10 1972), cert. denied, post, p. 919; Thompson v. Parker, 308 F. Supp. 904, 907-908 (MD Pa.), appeal dismissed (No. 18868, CA3 1970); and Mercer v. Dillon, 19 U. S. C. M. A. 264, 265, 41 C. M. R. 264, 265 (1970), where the Court of Military Appeals confined the application of O’Callahan to those convictions that were not final when O’Callahan was decided on June 2, 1969.

Scholarly comment on O’Callahan retrospectivity is divided. The following predict or favor nonretroactivity: Everett, O’Callahan v. Parker — Milestone or Millstone in Military Justice?, 1969 Duke L. J. 853, 886-889; Nelson & Westbrook, Court-Martial Jurisdiction Over Servicemen for “Civilian” Offenses: An Analysis of O’Callahan v. Parker, 54 Minn. L. Rev. 1, 39-46 (1969); Note, Military Law-Constitutional Law-Court-Martial Jurisdiction Limited to “Service-Connected” cases, 44 Tulane L. Rev. 417, 423-424 (1970); Note, RETROACTivmr-Military Jurisdiction-Military Convictions for Nonservice-Connected Offenses Should Be Vacated Retroactively, 50 Tex. L. Rev. 405 (1972); Note, CONSTITUTIONAL LAW-Retroactivity of O’Callahan v. Parker, 47 St. John’s L. Rev. 235 (1972); Note, The Sword and Nice Subtleties of Constitutional Law: O’Callahan v. Parker, 3 Loyola U. (L. A.) L. Rev. 188, 198 n. 67 (1970); Comment, Courts Martial-Jurisdiction-Service-Connected Crime, 21 S. C. L. Rev. 781, 793-794 (1969). The following predict or favor retroactivity: Blumenfeld, Retroactivity After O’Callahan: An Analytical and Statistical Approach, 60 Geo. L. J. 551 (1972); Wilkinson, The Narrowing Scope of Court-Martial Jurisdiction: O’Callahan v. Parker, 9 Washburn L. J. 193, 197-201 (1970); Higley, O’Callahan Retroactivity: An Argument for the Proposition, 27 JAG J. 85, 96-97 (1972); Note, O’Callahan v. Parker, A Military Jurisdictional Dilemma, 22 Baylor L. Rev. 64, 75 (1970); Note, Denial of Military Jurisdiction over Servicemen’s Crimes Having No Military Significance and Cognizable in Civilian Courts, 64 Nw. U. L. Rev. 930, 938 (1970). See Birnbaum & Fowler, O’Callahan v. Parker: The Reljord Decision and Further Developments in Military Justice, 39 Ford. L. Rev. 729, 739-742 (1971).

A compilation of general comments on O’Callahan appears in RelFord v. Commandant, 401 U. S. 355, 356 n. 1 (1971).

6 There are some protections in the military system not afforded the accused in the civilian counterpart. For example, Art. 32 of the Code, 10 U. S. C. § 832, requires “thorough and impartial investigation” prior to trial, and prescribes for the accused the rights to be advised of the charge, to have counsel present at the investigation, to cross-examine adverse witnesses there, and to present exonerating evidence. It is not difficult to imagine, also, the situation where a defendant, who is in service, may well receive a more objective hearing in a court-martial than from a local jury of a community that resents the military presence.

The Uniform Code of Military Justice was not in effect when Flemings was charged and pleaded guilty. But the fact that his proceeding took place under the present Code’s predecessor is no inevitable indication of basic unfairness. See Burns v. Wilson, 346 U. S. 137 (1953).

7 “We recognize that not all the persons possibly entitled to review and relief would have the initiative or a sufficient financial interest to justify the time and expense of bringing suits or applications. A reliable estimate of the number of court-martial convictions that could be overturned by a retroactive application of O’Callahan is nearly impossible to secure. For the one fiscal year of 1968, the Army, the Navy, and the Air Force conducted approximately 74,000 special and general courts-martial. If only the smallest fraction of these courts-martial and those conducted in the other years since 1916 involved an O’Callahan issue, it is an understatement that thousands of courts-martial would still be subject to review. The range of relief could be extensive, involving such actions as determinations by the military departments of whether the character of discharges must be changed, and consideration of retroactive entitlement to pay, retired pay, pensions, compensation, and other veterans’ benefits. Among the difficulties would be the necessity of reconstructing the pay grade that a member of the armed forces would have attained except for the sentence of the invalidated court-martial, a task complicated by the existence of a personnel system involving selection of only the best qualified eligibles and providing for the elimination of others after specified years of service.” 19 U. S. C. M. A., at 267-268, 41 C. M. R., at 267-268.

8 In Flemings’ case, the Secretary argues, in the alternative, that O’Callahan does not require the invalidation of the auto theft conviction because the offense was committed while the respondent was absent without leave during wartime. For that reason, it is said, the offense was service connected under the rationale of Relford. In view of our holding on the issue of retroactivity, we do not reach, and need not resolve, this alternative argument.