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STOLTE v. LAIRD

December 22, 1972

Kenneth W. STOLTE, Jr., Donald F. Amick, Plaintiffs,
v.
Melvin R. LAIRD, Secretary of Defense, Stanley R. Resor, Secretary of the Army, Defendants


Aubrey E. Robinson, Jr., District Judge.


The opinion of the court was delivered by: ROBINSON, JR.

Aubrey E. Robinson, Jr., District Judge.

 This action, initiated as a habeas corpus petition, seeks review of the constitutionality of plaintiffs' convictions of certain offenses by general military court-martial. The case is now before the Court on cross motions for summary judgment.

 Plaintiffs are two former members of the United States Army, draftees, who were stationed in February, 1968, at Fort Ord, California. *fn1" That installation served, inter alia, as a basic training center for new troops. On or about the evening of February 21, 1968, plaintiffs distributed at Fort Ord about one hundred and fifty copies of a leaflet they had previously prepared expressing their disapproval of the war in Vietnam. *fn2" Plaintiffs were subsequently charged and convicted of violating Articles 134 *fn3" and 81 *fn4" of the Uniform Code of Military Justice *fn5" in that they publicly uttered a statement disloyal to the United States with design to promote disloyalty and disaffection among the troops and the civilian populace, and further that they had conspired to utter that statement. The disloyal statement in question is the leaflet described above.

 Plaintiffs were sentenced to dishonorable discharges, forfeiture of all pay and allowances, and confinement at hard labor for three years. *fn6" The convictions were affirmed by the Army Board of Review. *fn7" Petition for grant of review by the Court of Military Appeals was denied, *fn8" as was application to the Board for Correction of Military Records. *fn9"

 Jurisdiction

 It is well settled that federal civilian courts have jurisdiction to review by writ of habeas corpus the validity of a court-martial conviction. Burns v. Wilson, 346 U.S. 137, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953). *fn10" There is no contention here that this Court lacks jurisdiction in the present case. Although plaintiffs were not actually in custody at the time this action was instituted, they were then subject to conditions of parole. Further, their dishonorable discharges resulted from the convictions here in issue. It is settled in this circuit that even absent a habeas corpus petition court-martial proceedings are subject to review by way of declaratory judgment or other form of civil action provided that the scope of review is confined to that comparable to habeas corpus scrutiny. Kauffman v. Secretary of Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (1969). *fn11" Kauffman further held that the standard of review to be applied was that "military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule." *fn12" It is in this light that plaintiffs' military convictions must be examined for their conformity to prevailing constitutional standards.

 Vagueness

 It should be noted at the outset that plaintiffs are not here challenging Article 134 as unconstitutionally vague on its face. *fn13" They attack the facial vagueness of the "specifications" *fn14" enunciated in the charges against them. *fn15"

 The constitutional standard for vagueness is clear and well established. A criminal law must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954). The due process clause of the Fifth Amendment is offended by anything less than such fair notice. The Supreme Court has repeatedly indicated that the purposes of its constitutional holdings on this point are two-fold: to assure adequate notice to the potential violator that the contemplated conduct is proscribed and to minimize the possibility of arbitrary and discriminatory enforcement of the law. *fn16" While the need for "ascertainable standards of guilt" *fn17" is even greater in a context involving First Amendment rights, that aspect of the case will be deferred until the later discussion of overbreadth and the First Amendment.

 Having recognized the standard generally applicable in evaluating alleged statutory vagueness it is necessary to examine whether that same statutory standard is applicable to military law or whether conditions peculiar to military life require a different rule. The Court of Military Appeals has aided in this task by its acceptance of general Supreme Court standards on vagueness without indicating any need for a departure from those standards in the name of military necessity. United States v. Howe, 17 U.S.C.M.A. 165, 168-69 (1967). *fn18" The Government here concedes that the proper standard is one which would not "leave them bereft of fair notice as to how to conform themselves or their behavior to the demands of post life." *fn19" The Court likewise has been unable to discern a rationale which would properly dispense with the necessity of fair notice of proscribed conduct, although a determination as to what constitutes fair notice in a given context should be subject to consideration of all the circumstances, including military necessity.

 The Court of Military Appeals has held that Article 134 of the UCMJ is not void for vagueness on its face. United States v. Frantz; 2 U.S.C.M.A. 161 (1953). There the Court held that Article 134

 
must be judged, . . . not in vacuo, but in the context in which the years have placed it. . . . That the clauses under scrutiny have acquired the core of a settled and understandable content of meaning is clear from the no less than forty-seven different offenses cognizable thereunder explicitly included in the Table of Maximum Punishments of the Manual [for Courts-Martial, 1951]. . . . Accordingly, we conclude that the Article establishes a standard 'well enough known to enable ...

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