JONES v. U.S. - 419 U.S. 907 (1974)

U.S. Supreme Court

JONES v. U.S. , 419 U.S. 907 (1974)

October 21, 1974

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

Petitioner, a Lieutenant in the Air Force, was convicted by court- martial under Art. 92 (Failure to obey order or regulation) and 134 ( General article) of the Uniform Code of Military Justice.

Page 419 U.S. 907 , 908

His Offense was 'failure to do monitor duty.' Petitioner's punishment was a fine of $1500, to be paid in six monthly installments to be deducted from his paycheck. [Footnote 1] After exhausting his appeals, petitioner sought a writ of habeas corpus from the District Court, 28 U.S.C. 2241, on the ground that Art. 92 is unconstitutionally vague. The writ was denied below on the sole ground that petitioner was not in 'custody' as required by 2241.

In my view, the District Court should have treated petitioner's complaint as either one seeking a declaration that his punishment was not lawfully imposed, 28 U.S.C. 2201, or one to compel expungement of his conviction, 28 U.S.C. 1361, and reached the merits. Several courts of appeals have entertained actions to remove penalties imposed by military tribunals where the aggrieved plaintiffs were not confined, but presented constitutional challenges to the imposition of punishment. See Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991 (1969) (suit protesting discharge and forfeiture of all pay and allowances); Ashe v. McNamara, 355 F.2d 277 (CA1 1965) (suit to compel correction of dishonorable discharge); Smith v. McNamara, 395 F.2d 896 (CA10 1968) ( dishonorable discharge); Mindes v. Seaman, 453 F.2d 197 (CA5 1971) ( protesting involuntary transfer to reserve status). See also Ragoni v. United States, 424 F.2d 261 (CA3 1970) (bad conduct discharge).2 [419 U.S. 907 , 909]