Secretary of the Navy v. Avrech

PETITIONER: Secretary of the Navy
LOCATION: Detroit Public Schools

DOCKET NO.: 72-1713
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 418 US 676 (1974)
ARGUED: Feb 20, 1974
DECIDED: Jul 08, 1974

Dorian Bowman - for appellee
Robert H. Bork - for appellant

Facts of the case


Media for Secretary of the Navy v. Avrech

Audio Transcription for Oral Argument - February 20, 1974 in Secretary of the Navy v. Avrech

Warren E. Burger:

We will hear arguments next in 72-1713, Secretary of the Navy against Avrech.

Mr. Solicitor General you may proceed whenever you’re ready.

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

This case turns on the constitutionality of Article 134 of the Uniform Code of Military Justice.

That article punishes among other things, all disorders and neglects of the prejudice of good order and discipline in the Armed Forces.

In all conduct of a nature to bring this credit upon the Armed Forces.

The article entered our military jurisprudence that was enacted by the Congress in 1775 and has been reenacted repeatedly since then by Congress.

The first reenactment occurring in 1806, apparently the man who wrote the constitution had no doubt of its compatibility with this article.

It’s been in effect as an organic part of our military law now for just under 200 years and in our history millions and tons of millions of service man and woman have served under this Article.

It is a settled -- a piece of our jurisprudence, I suppose as there is at stake, in the issue of the constitutionality of this Article, of course are several fundamental values of our society.

Appellee here urges the values of fair warning in due process and free speech.

I will attempt to show that Article 134 is fully compatible with those values and does not threaten.

But must also be recognized, however, is that the judicial destruction of Article 134 would jeopardize two other important values in our society.

The first of course is the effect of those American Armed Forces upon which the safety of the nation rests.

The second, however, is a value which I think is not sufficiently recognized.

And that is the importance of Article 134 in confining the role of the military in our national political processes and decisions.

Should speech of the sort involved in this case and in Captain Levy’s case which we argue next, come to be permitted in the military?

There would be real danger that our military would become so unreliable as to frustrate civilian policy to be unable to carry out civilian policy.

But worst than that, it seems to me that there might be a danger of a politicized military establishment with all the dangers that prospect poses for the principle of civilian control of the military.

This speech in these cases in opposition to warnings and if its permissible for a PFC and a captain to make these publications or attempt these publications and make these speeches under these circumstances, then I do not see why it will not be permissible equally for general officers and admirals to address their troops about their political views and about their disagreement with the President of United States and about their disagreement with warnings.

We are not dealing with small issues in this case.

The appellee Mark Avrech brought this action in the District Court for the District of Columbia to expunge his court-martial conviction which was under Article 80 which punishes attempts, and the attempt was to violate Article 134 of the Uniform Code of Military Justice.

The District Court dismissed his suit but the Court of Appeals reversed holding that Article 134 as unconstitutionally vague.

The conduct underlying this court-martial conviction occurred at the Marble Mountain Air Facility in Da Nang in Vietnam where PFC Avrech was on active of duty with the Marine Corps in a combat zone.

While on night duty, in the group supply officers at his base, Avrech typed of a stencil of a statement entitled “The Truth” and marked volume 1, number 1.

This statement is set out in full at pages 4 and 5 of the Government’s brief.

And he intended to circulate it.

He said only to eight or 10 of his friends in the Marine Corps.

The statement is the denunciation of the United States military rule in Vietnam and it contained such sentences as these.

“Why should we go out and fight there in the South Vietnamese?