Hooper v. Laird

Opinion of the Court Darden, Judge: This petition for a writ of coram no-bis is in substance a request for retroactive application by this Court of the opinion of the Supreme Court of the United States in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969). Until December 1948, the petitioner served on active duty as a Captain in the United States Navy. When he voluntarily retired he was advanced on the retired list to the rank of Rear Admiral, we assume as a result of his having received the kind of combat commendation that at the time qualified a member of the naval service for such a privilege. His retired pay and other monetary benefits were those of an officer retired in the pay grade of a Navy Captain. In May 1957, more than nine years after his retirement, the petitioner was directed to appear before a court-martial1 at the Naval Base in San Diego, California, on charges of sodomy, publicly associating with persons known to be sexual deviates, and committing an indecent, lewd, and lascivious act, in' violation of Articles 125, 133, and 134, Uniform Code of Military Justice, 10 USC §§ 925, 933, and 934. He challenged the jurisdiction of the court-martial to try him for the offenses but was found guilty and sentenced to dismissal and forfeiture of all pay and allowances. On September 26, 1958, this Court reversed a board of review decision that had affirmed the findings and sentence and remanded the record to the Judge Advocate General of the Navy for reference to another reviewing authority. United States v Hooper, 9 USCMA 637, 26 CMR 417 (1958). After another review by a different convening authority and another affirmation of the findings and sentence by a board of review, this Court reviewed the record and affirmed the board of review decision. United States v Hooper, 11 USCMA 128, 28 CMR 352 (1960). The President ordered the sentence executed on January 7, 1961. The constitutionality of Article 2 (4)2 of the Uniform Code of Military Justice, 10 USC § 802, as it applies in this case to the court-martial of a retired officer, was sustained by the United States Court of Appeals for the Ninth Circuit, 274 F 2d 429 (CA 9th Cir) (1959), and by the United States Court of Claims, 326 F 2d 982 (1964), certiorari denied, 377 US 977, 12 L Ed 2d 746, 84 S Ct 1882 (1964). The petitioner filed a civil action for a declaratory judgment in the United States District Court for the District of Columbia asking that the court-martial conviction be declared null and void for the reason, inter alia, that it was inconsistent with the decision of the Supreme Court in O’Callahan v Parker, supra. Although the petitioner does not concede that exhaustion of military remedies is required before the District Court may act on his suit for a declaratory judgment, he nonetheless petitioned this Court for relief. The Government urges us to hold that the offenses of which the petitioner was convicted were service-connected within the meaning of O’Callahan v Parker, supra, because the other participants in the offenses were members of the armed forces and this Court has held that offenses against other servicemen are service-connected. United States v Rego, 19 USCMA 9, 41 CMR 9 (1969); [331] United States v Camacho, 19 USCMA 11, 41 CMR 11 (1969); United States v Cook, 19 USCMA 13, 41 CMR 13 (1969) ; United States v Plamondon, 19 USCMA 22, 41 CMR 22 (1969); United States v Nichols, 19 USCMA 43, 41 CMR 43 (1969) ; United States v Huff, 19 USCMA 56, 41 CMR 56 (1969); United States v Everson, 19 USCMA 70, 41 CMR 70 (1969). The petitioner, on the other hand, urges that the offenses with which he was charged are not crimes against anyone and that they are the classic “crimes without victims.” We do not decide this issue, since our decision rests on other grounds. As in Mercer v Dillon, 19 USCMA 264, 41 CMR 264 (1970), the Court is not unanimous in viewing the consideration of extraordinary relief in this instance as being in aid of its jurisdiction, as section 1651 of Title 28, United States Code, requires, but the majority position on that issue has resulted in our addressing the petition on its merits. For the reasons outlined in Mercer, we held that the decision in O’Callahan applied only to those cases still subject to direct review by this Court on June 2, 1969, the date of the O’Callahan opinion. The Mercer decision controls our decision in this case. Accordingly, the petition is denied. Chief Judge Quinn concurs. Footnotes [1] WG NCM 57-00988. [2] 802. Art. 2. Persons to this chapter. “The following persons are subject to this chapter: “(4) Retired members of a regular componenent of the armed forces who are entitled to pay.”