United States ex rel. Hirshberg v. Malanaphy

SWAN, Circuit Judge.

This is an appeal from an order sustaining a writ of habeas corpus and, releasing the relator from the custody of the appellant, who held him in detention after his conviction by a naval general court-martial of violations of Article 8 of the Articles, for the Government of the Navy, 34 U.S. C.A. § 1200, Art. 8 Second. The relator’s petition for the writ challenged the juris' diction of the court-martial on two-grounds: (1) that when the alleged offenses were committed he was not subject to the jurisdiction of the United States Navy because he was then a prisoner of war of the Japanese in the Philippine Islands, and (2) that after commission of the alleged offenses his term of enlistment ended and he received an honorable discharge, and was thereby released from any liability for acts done during that enlistment, despite the fact that he reenlisted the-following day. In an opinion reported in: 73 F.Supp. 990, the district'court overruled the first contention but sustained the second.

The facts are not in dispute. The relator-enlisted in the United States Navy in 1936- and by reenlistment in 1941 was still in such service, being stationed in the Philippine-Islands, when the United States forces onCorregidor surrendered in May 1942. He-thereby became a Japanese prisoner of war and remained such until he was liberated in. September 1945. During this period his. rating was that of Chief Signalman, which made him a Chief Petty Officer in the-Navy.¹ After his liberation he was returned to the United States and received an-honorable discharge by reason of the termination of his enlistment, effective at midnight on March 26, 1946. On the afternoon, of the following day he reenlisted for a. term of four years. Thereafter, in February, 1947, he was served with charges directing his trial -before a general court-martial convened by the Commandant, Third. Naval District, for offenses alleged to have been committed between November 10, 1942' and March 1, 1944, while he was a prisoner-of war of the Japanese. The trial was concluded on August 12, 1947; it resulted in. ■his conviction on two specifications, and he-was sentenced to 10 months’ confinement,, to reduction in grade to apprentice seaman, and -to dishonorable discharge from the; Navy. His petition for a writ of habeas corpus was filed August 18, 1947.

The relator’s contention that the court-martial lacked jurisdiction because the offenses with which he was charged were committed while he was a prisoner of war, was correctly overruled by the district judge and there is no need to add to his opinion on this point.

Less easy of solution is the relat- or’s other contention, namely, that the court-martial lacked jurisdiction to try him for offenses committed during an enlistment from which he had been honorably discharged. It has long been the rule that a member of the Navy or the Army who has received an honorable discharge from service and been returned to civilian life cannot be tried by court-martial for offenses committed during his enlistment, except such offenses as are specifically withdrawn from the general rule by Article 14 of the Articles for Government of the Navy, 34 U.S.C.A. § 1200, Art. 14 or Article 94 of the Articles of War, 10 U.S.C.A. § 1566, Art. 94.² The offenses of which the relator was convicted were not of those specified in Article 14. And a subsequent reenlistment, no matter how soon after the discharge, does not revive the lost jurisdiction. See Winthrop, Military Law and Precedents, 1920 ed., 93; CMO 22 — 1917, page 7; CMO 12 — 1921, page 11; CMO 1 —1926, page 9; CMO 12 — 1929, page 7. These rulings would be conclusive against the jurisdiction of the court-martial in the case at bar, were it not for section 334, Naval Courts and Boards, 1937.³ This volume was issued by the Secretary of the Navy March 4, 1937 and approved by the President March 5, 1937. Above the Secretary’s signature appears the following direction:

“Naval Courts and Boards, 1937, is issued for the government of all persons attached to the naval service. It is hereby required and directed that all officers and other persons belonging to the Navy, so far as the duties of each are concerned, make themselves acquainted with, observe and comply with the provisions contained herein.”

Section 591 of 34 U.S.C.A. provides that “The orders, regulations, and instructions issued by the Secretary of the Navy * * * with the approval of the President, shall be recognized as the regulations of the Navy * * Although section 334 of Naval Courts and Boards, 1937, is not in form an imperative declaration, it is, we submit, an “instruction” for the direction of naval personnel, for otherwise it would be meaningless to include it in a volume “issued for the government of all persons attached to the naval service,” and so it has been construed in CMO 7— 1938, page 42, and in the cou'rt-martial record of the case at bar. Section 334 is part of Chapter IV entitled “Instructions for Court Martial.” The introductory section to this chapter, § 325, provides that “The provisions of this chapter are to be observed by general and summary courts martial, and * * * by deck courts.” Being an “instruction,” § 334 must be considered a “regulation” to which 34 U.S. C.A. § 591 “gives the force of law.” Denby v. Berry, 263 U.S. 29, 37, 44 S.Ct. 74, 77, 68 L.Ed. 148. So considered, it does not conflict with Article 14 Eleventh (Trial of offender after discharge), 34 U.S.C.A. § 1200 Art. 14. That provision subjects persons after discharge to prosecution for the ten offenses enumerated in Article 14, regardless of reenlistment; but this does not imply that persons who have committed other crimes and have thereafter reenlisted may not be subject to prosecution, if the “regulations” so provide.

An enlistment is a contract. In re Grimley, 137 U.S. 147, 151, 11 S.Ct. 54, 34 L.Ed. 636. In reenlisting on March 27, 1946 the relator signed a paper which read in part as follows:

“I also oblige myself, during such service, to comply with and be subject to such laws, regulations and Articles for the Government of the Navy as are or shall be established by * * * competent authority

Thus section 334 of Naval Courts and Boards, 1937, which we have shown to be a “regulation” was expressly incorporated into his enlistment contract. Even without such express incorporation of existing regulations, we cannot doubt that by his enlistment he became subject to them. While the record does not appear to contain the paper signed by the relator at the time of his enlistment in 1941, we do not regard that as important since § 334 had already been promulgated. Hence the relator’s honorable discharge on March 26, 1946 did not terminate the jurisdiction of the Navy to call him to account for offenses during that enlistment if he should reenlist, as he did the following afternoon. His consent to “subject” himself to all existing regulations answers any constitutional objection which can be raised.

As for the argument that a discharge is equivalent to an adjudication that he had not committed any offense, the case of United States v. Landers, 92 U.S. 77, 23 L.Ed. 603, shows that United States v. Kelly, 15 Wall. 34, 82 U.S. 34, 21 L.Ed. 106, did not go so far as that.

Order reversed with directions to dismiss the writ and remand the relator to the custody of the appellant.

1 34 U.S.C.A. 1176; Bureau of Naval Personnel Manual, p. 82A, Art. D-5102.

2 See Ex parte Wilson, D.C.E.D.Va., 33 F.2d 214; Ex parte Drainer, D.C.N. D.Cal., 65 F.Supp. 410, 411, affirmed sub nom. Gould v. Drainer, 9 Cir., 158 F.2d 981; United States ex rel. Viscardi v. MacDonald, D.C.E.D.N.Y., 265 F. 695, 697; Durant v. Hironimus, D.C.S.D.W. Va., 73 F.Supp. 79, 85.

3 “ * * * Except for offenses provided for in article 14, A.G.N., a court martial may not try an individual who has been formally separated from the Navy and is no longer in the service unless proceedings were instituted against him while he was in the service. However, if an officer reenters the service and his trial is not barred by the statute of limitations, it has been judicially decided that he may be tried by court martial and punished for an offense committed during Ms previous service, whether or not the offense is one for which trial by court martial after separation from the service is specifically authorized by statute. Similarly, the Navy Department has passed cases as legal in which enlisted men have been convicted by court martial of offenses committed in a previous enlistment, although such offenses were not provided for in article 14, A.Q.N.”