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JACKSON v. MCELROY

June 9, 1958

Wade Mosby JACKSON, Plaintiff,
v.
Neil H. McELROY, Secretary of Defense, Defendant



The opinion of the court was delivered by: CHRISTENSON

The plaintiff asks this Court to determine through declaratory judgment under 28 U.S.C. sec. 2201 that his sentence by general court-martial was invalid. The case turns upon whether the convening authority was an 'accuser' as defined by section 1(11) of the Uniform Code of Military Justice, 50 U.S.C.A. sec. 551(11).*

Now on the retired list but then an officer of the Fourth Marine Regiment of the Third Marine Division stationed at Nara, Japan, plaintiff was convicted in December, 1953, of violating Articles 92, 93, 98 and 133 of the Uniform Code of Military Justice, 50 U.S.C.A. secs. 686, 687, 692, 717.** He was sentenced to forfeit pay of $ 350 per month for a period of twelve months and to lose 250 unrestricted numbers. The sentence was approved by the Commanding General, R. H. Pepper, who had convened the court, and by the Judge Advocate General, who declined to refer the case to a Board of Review as he had the discretion to do. *fn1" The Secretary of the Navy, although reducing the sentence, approved the findings and conviction and found them to be supported by law.

 Having exhausted, without satisfaction to him, remedies available through the military, plaintiff filed his complaint here, in which he challenged the jurisdiction of the general court-martial which tried him because of alleged disqualification of General Pepper to convene it, and also asserted failure of the convening authority to accomplish a fair and impartial review, and the refusal of the Department of the Navy to afford plaintiff appellate review in alleged denial of due process. Motions were filed by the defendant for summary judgment and dismissal of the complaint. Each was denied by Judge Morris, who held that there existed a genuine issue of fact for trial: whether General Pepper, the convening authority, was also the 'accuser'. *fn2"

 Considerations of comity should incline me to follow Judge Morris' decision as the law of the case unless clearly persuaded that as to jurisdiction it was erroneous. *fn3" I am not so persuaded and, indeed, find general recognition among the authorities that the question of jurisdiction may be inquired into here. *fn4" Nor, in view of the recent case of Harmon v. Brucker, *fn5" indicating a negative answer need we pause to debate the old question of whether habeas corpus is the only proceeding in which it is competent to raise the question of jurisdiction. It will be assumed not only that the question of jurisdiction may be inquired into but that it should be done in this proceeding.

 Plaintiff's original contentions that the sentence is vulnerable because of failure of the convening authority to accomplish a fair and impartial review and the refusal of the Department of the Navy to accord plaintiff review through a Board of Review, except as these are connected with the matter next mentioned, do not require comment except to note that no point was made of them at the trial and no irregularity can be perceived.

 Plaintiff's major position is founded on the contention that General Pepper was an 'accuser' and thus incompetent to convene a valid court-martial. It is expressly provided in The Manual for Courts-Martial that it is unlawful for an 'accuser' to convene a general court-martial for the trial of a person so accused, *fn6" and this is implicit in the Uniform Code of Military Justice, which in Article 22, 50 U.S.C.A. sec. 586(b), dagger provides in respect to those who may convene a general court-martial, 'When any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority when deemed desirable by him.' Article 1(11) of the Uniform Code of Military Justice, 50 U.S.C.A. Sec. 551(11), contains the following definition:

 "Accuser' shall be construed to refer to a person who signs and swears to charges, to any person who directs that charges nominally be signed and sworn by another, and to any other person who has an interest other than an official interest in the prosecution of the accused.'

 The plaintiff claims that General Pepper had an interest other than an official interest in the prosecution of the accused because he displayed personal animus, because the offenses charged against Jackson arose under such circumstances as to constitute a personal affront to General Pepper, and because he directed the charges to be sworn to by another.

 There is no indication here from the testimony of plaintiff, that of the General, or anyone else that General Pepper entertained personal animus against plaintiff. In fact, some of the evidence gives reason to infer that the General's connection with the prosecution was an unpleasant task for him, reluctantly undertaken in the performance of his duties. I find that there was no actual personal animosity on the part of General Pepper toward the plaintiff.

 It is further urged that unusual actions of the Commanding General in ordering the arrest of the plaintiff pending disposition of charges, relieving plaintiff of his assignment and restricting his consultation with superior officers, indicate malice, or establish constructive malice at least sufficient to vitiate the court-martial. The evidence shows that while such arrests were unusual, they were not unprecedented. A reference to the code itself discloses discretion on the part of commanding officers to do what was done. That the order of arrest was not delivered in accordance with the code *fn7" would not indicate personal animus any more than it would indicate mere carelessness in discharging official duties. Of course, the validity of the arrest as such is not an issue.

 Plaintiff relies further upon the principle that actual ill will or even implied ill will is not the only disqualification, but that the convening authority must be so entirely unconnected with the transactions giving rise to the charges that reasonable persons will not impute to him any personal feeling or interest in the matter. *fn8"

 It is said that the Commanding General when he convened the court-martial was smarting from a real or supposed abuse by Jackson of the records of his command and thus was personally interested from this standpoint. Pointed to are the circumstances reflected in the record of United States v. Charles E. Ingalls *fn9" out of which these charges against plaintiff grew. Attention also is directed to a letter of reprimand which General Pepper directed to one Lieutenant Colonel Chester L. Christenson because of his part in the Ingalls affair. The record was such as naturally would cause concern to any commanding officer; but such concern would not necessarily be anything other than an official one. There is no showing here that any interest evidenced or felt by General Pepper was other than properly official. There is the additional consideration that the Ingalls decision was not issued by the Board of Review until after General Pepper had written his letter with respect to additional charges and had convened the court.

 The reprimand of Christenson, following the findings of the Board of Inquiry, which was appropriate under the circumstances, did not disqualify the General from convening the court-martial any more than appropriate official action in one case in and of itself disqualifies a commanding officer from taking official action in related cases. In the Gordon case, the house of the general who convened the court-martial had been involved in an attempted burglary by the same defendant then being prosecuted for the burglary of another house, and the general had been interviewed in the investigation of the burglary. His presumed personal concern for his own house and personal belongings clearly is different than a purely official interest of a commanding officer that general laws or orders of the service be obeyed.

 It is most strenuously and persuasively insisted that General Pepper was an 'accuser' because he was a person who directed that charges be nominally signed and sworn to by another within the purview of Article 1(11) of the code, supra.

 Upon the completion of the investigation of the Board of Inquiry which had recommended that two charges be filed against the plaintiff *fn10" General Pepper directed the following memorandum to Colonel Harold D. Hansen, president of the Board of Inquiry, who signed the original charges and who responded to the memorandum and enclosure as indicated by the endorsement:

 'Headquarters 3D Marine Division, FMF c/o Fleet Post Office San Francisco, California

 17/327/tbd A17-1/1 54967 27 Oct 1953

 From: Commanding General

 To: Colonel Harold D. Hansen, ...


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