The opinion of the court was delivered by: MCGARRAGHY
Plaintiff seeks to have a court-martial conviction and sentence declared void due to alleged violation of his constitutional rights. He also requests restoration to active duty with full rank and seniority from June 30, 1964, and all back pay and allowances which he would have received if he had not been discharged. The case is before the court on cross motions for summary judgment, and defendant's alternative motion to dismiss.
In September, 1960, plaintiff was a captain in the United States Air Force. He completed a tour of duty in Greenland, and received orders authorizing a thirty day delay en route for purposes of travel in Europe, before reporting to his next duty station at Castle Air Force Base, California.
During the course of his travels, plaintiff purchased a train ticket for a trip from Hamburg, Germany to West Berlin. As the train was travelling through East Germany, East German officials passed through plaintiff's car checking the travel papers of the passengers. Plaintiff presented his travel orders and military identification card. Subsequently, he was removed from the train by the East German authorities and detained over night.
The following day he was driven to East Berlin, where he was interrogated, through an interpreter, regarding a variety of personal and military matters. He was again detained over night and the interrogation continued through the following day.
At the conclusion of the second day of interrogation, he was granted leave to go to West Berlin for the night, upon giving his word that he would return to East Berlin the next day. He did return on October 1, 2 and 3, for further sessions with the East Germans.
On October 3, he was asked to sign an agreement to supply information to the East German Political Secret Service. Upon his refusal, the East Germans wrote the name and address of Klara Weiss, a resident of West Berlin, in plaintiff's pocket notebook. He was told that Klara Weiss would be his contact for communicating information to East Germany.
Plaintiff left West Berlin on October 4, 1960, and proceeded to Castle Air Force Base, California.
An investigation of Maennel's allegations was initiated and pursued by the Air Force Office of Special Investigations (OSI). On November 7, 1961, plaintiff was assigned to Travis Air Force Base on temporary duty. That night, OSI agents broke into his off-base residence in Atwater, California, in the vicinity of Castle Air Force Base, and proceeded to search the premises. Subsequent searches were conducted on November 8, 10, and 28, 1961.
Based on the information gathered in these searches, the OSI procured a search warrant for plaintiff's home from a United States Commissioner who was not apprised of the prior entries. Upon executing the warrant, in the company of a Deputy United States Marshal, the OSI agents seized the notebook containing Klara Weiss' name and address, and they photographed other documents establishing plaintiff's presence in Germany in September and October, 1960.
Plaintiff was taken into custody by Air Force authorities on November 19, 1961, and confined in the base hospital at Castle Air Force Base. The OSI placed a listening device in a room adjoining the room where plaintiff was confined and where he had access to a telephone. Plaintiff's communications to his lawyer and others interested in the case were recorded. There was also an Air Policeman posted at his door who eavesdropped on his conversations and reported his observations.
Plaintiff alleges that during interrogations by OSI agents, he was urged to discharge the attorney of his choice, Benjamin Dreyfus of San Francisco, because Dreyfus had represented persons with purported Communist affiliations and because he was active in the National Lawyers Guild.
The defendant contends that the agents did not specifically urge plaintiff to discharge his attorney, but that they made comments about the lawyer's background and told plaintiff it was his choice to make. Defendant concedes that this is not a material issue of fact.
In December, 1961, the plaintiff was transferred, over his objection, to Weisbaden Air Base, Germany, for pretrial investigation and trial. Plaintiff urges that there was no compelling reason for conducting the trial in this locale, and that it was particularly prejudicial to him because of the international crisis which attended the erection of the Berlin wall.
Further, plaintiff alleges that the transfer was prejudicial because counsel of his choice, Benjamin Dreyfus, was unable to leave his practice for the period required to complete the proceedings in Germany. It is noted from the record that plaintiff was represented throughout the court-martial and appellate proceedings by distinguished counsel who previously had served as a judge on the Court of Military Appeals for ten years and also had been a member of the Supreme Court of Utah.
In the court-martial proceeding, four charges were lodged against plaintiff alleging violation of various articles of the Uniform Code of Military Justice (UCMJ).
The first charge alleged a conspiracy with persons known to be members of the East German Secret Police to communicate information relating to the national defense of the United States.
The second charge alleged violation of an Air Force Regulation in that plaintiff failed to notify his superiors of attempts by persons known to be representatives of the Union of Soviet Socialist Republics and of the so-called German Democratic Republic to secure information contrary to the security and best interests of the United States, and to cultivate him socially.
The fourth charge alleged communication to Gunter Maennel, as representative of the Union of Soviet Socialist Republics and the so-called German Democratic Republic, of information relating to the defense of the United States.
The court-martial began on April 10, 1962, and was terminated on April 18, 1962. Plaintiff was convicted as charged, except for specification 1 of Charge II, which was dismissed prior to trial. On April 18, 1962, he was sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement at hard labor for twenty years.
Pursuant to the provisions of the UCMJ, the court-martial record was reviewed by the Staff Judge Advocate of the convening authority, and approved by the convening authority. The record was then forwarded to the Judge Advocate General of the Air Force for review by a Board of Review.
The plaintiff, by his attorneys, filed an extensive assignment of errors before the Board of Review. After considering the case, the Board of Review set aside the finding of guilty on Charge IV and reduced the period ...