DOCKET NO.: 830
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Tenth Circuit
CITATION: 395 US 683 (1969)
ARGUED: Apr 24, 1969
DECIDED: Jun 16, 1969
Facts of the case
Media for Noyd v. Bond
Audio Transcription for Oral Argument - April 24, 1969 in Noyd v. Bond
Number 830, Dale E. Noyd, petitioner versus Charles R. Bond Jr., et al.
Marvin M. Karpatkin:
Mr. Chief Justice, may it please the Court.
The essential question of this case concerns the right of a convicted serviceman to a meaningful appeal.
More specifically, it concerns the power of a military commander to order the immediate confinement of a serviceman convicted by general court-martial and sentenced to a bad conduct dismissal from the service or confinement of one year or more and in title thereby to certain valuable appellate rights to sentence -- to order his immediate confinement not withstanding the explicit provision of Article 71 (c) of the Uniform Code of Military Justice which prohibits execution of such sentences prior to the completion of military appellate review.
Under the existing practice of confinement, pending completion of appellate review, the entire sentence may be served prior to final appellate action and the guaranteed right of appeal from serious convictions in the military will be rendered meaningless.
The military and the Government assert this power on the basis of an overstrained conceptual distinction between confinement, pending completion of review and confinement after final approval of sentence.
This right is asserted further in violation of military law without regard to whether or not confinement is necessary to ensure the prisoner's presence after completion of appellate review.
This is a habeas corpus case and it presents the question of a power to confine a military prisoner prior to the completion of military review in two contexts.
First, the power to confine him at the United States Disciplinary Barracks at Fort Leavenworth, Kansas, a maximum security institution.
And second, the power to confine in a unique status of confinement at Cannon Air Force Base, New Mexico which was especially devised with petitioner after an order attempting to transfer him for confinement of Leavenworth was declared unlawful by the district judge in New Mexico.
There is however a threshold question of habeas corpus jurisdiction raised by the Tenth Circuit's reversal of the District Court on grounds of alleged failure to exhaust military remedies.
After the decision of the Tenth Circuit when certiorari application was pending in this Court, an application was made to the Circuit Justice for release from confinement pending certiorari.
It was denied first by the Circuit Justice, further application was made in Mr. Justice Douglas and it was granted on December 24, 1968.
In his order, granting the application for release from confinement pending certiorari, Mr. Justice Douglas specified two issues related to exhaustion.
First, whether the doctrine of exhaustion of military remedies applies where the habeas corpus petitioner does not challenge any purported error in the court-martial proceedings themselves.
But rather whether the question -- where the question is whether the court-martial convening authority, in this case, the respondent General Bond acted beyond his jurisdiction in attempting to order confinement prior to completion of military appellate review and violation of Article 71 (c) UCMJ.
Also specified by Mr. Justice Douglas in his opinion is the question of the respective scope of review by the Court of Military Appeals and the federal courts on military habeas corpus applications of this nature.
It is necessary to state the facts a bit, may it please the Court in order to indicate the dimensions of the problems involved in this case.
Petitioner, a captain in the Air Force was convicted by a general court-martial at Cannon Air Force Base in New Mexico on March 8, 1968 for violation of Article 90 of the UCMJ.
He was accused and convicted of willful disobedience of a lawful order.
The order he was convicted of violating was that he fly an instructional mission with the student pilot being trained for combat duty in Vietnam.
The principle defense which was sought to be raised of general court-martial was that he had previously applied for classification as a conscientious objector and either separation from the service or reassignment to duties not inconsistent with this conscience that his application was denied because of an error of law on the part of the Secretary of the Air Force and those officers acting in the name of the Secretary of the Air Force.
The error which was alleged was the secretary's denial of a claim because Captain Noyd was a selective conscientious objector and not a universal pacifist.
I must observed that even though this issue wasn't before the Court that this is not a wholly frivolous contention as demonstrated by the recent decision of Judge Wyzanski in the Sisson case in the District of Massachusetts which I understand the Solicitor General was taking a direct appeal on to this Court.
However, petitioner was unable to raise that defense that is general court-martial.
The law officer held that the general court-martial was without jurisdiction and the board of review which heard the first appeal from the conviction specifically held that only federal courts had jurisdiction.
The case is now pending in the Court of Military Appeals and will be argued sometime next month.
The criminal proceedings at the general court-martial and the futile attempt to appeal there from where Captain Noyd second unsuccessful attempt to obtain judicial review on whether the secretary's denial of his conscientious objector application was lawful or unlawful.
The prior attempt was in the case of Noyd against McNamara where the District Court of Colorado and the Tenth Circuit held without reaching the merits that they were jurisdictionally barred from ruling because again the doctrine of exhaustion of military remedies barred them, they so held.