Petitioner, a physician educated at government expense and
beyond the usual draft age, was inducted into the Army under the
Doctors' Draft Law, 50 U.S.C.App. § 454(i), which authorizes
special conscription of certain "medical and allied specialist
categories." Because of his refusal, on grounds of possible
self-incrimination, to state in connection with his application for
a commission whether he was or had been a member of the Communist
Party, he was not commissioned or given the usual duties of an Army
doctor, but was assigned duties as a medical laboratory technician.
He applied to a federal court for a writ of habeas corpus and for
discharge from the Army, on the ground that he had not been
assigned the specialized duties or given the commissioned rank to
which he claims to be entitled by the circumstances of his
induction.
Held:
1. Although not bound by it, this Court agrees with the
Government's concession that the Act should be interpreted to
obligate the Army to classify specially inducted professional
personnel for duty within the categories which rendered them liable
for induction. Pp.
345 U. S.
87-88.
2. It cannot be found that petitioner is entitled to a
commission as a matter of law. Pp.
345 U. S.
88-92.
(a) Neither the Universal Military Training and Service Act nor
the Army Reorganization Act requires that all personnel inducted
under the Doctors' Draft Act and assigned to the Medical Corps be
either commissioned or discharged. Pp.
345 U. S.
88-89.
(b) The commissioning of officers in the Army is a matter of
discretion within the province of the President, as Commander in
Chief, over which the courts have no control. P.
345 U. S.
90.
(c) The President is not required to appoint to a position of
honor and trust any person who refuses, on grounds of
self-incrimination, to say whether he is or has been a member of
the Communist Party. Pp.
345 U. S.
89-92.
3. One lawfully inducted into the Army may not, through habeas
corpus proceedings, obtain a judicial review of his assignments to
duty. Pp.
345 U. S.
92-94.
Page 345 U. S. 84
4. Petitioner is not being held in the Army unlawfully, and the
courts may not require his discharge therefrom in a habeas corpus
proceeding. Pp.
345 U. S.
94-95.
195 F.2d 209 affirmed.
The District Court dismissed petitioner's application for a writ
of habeas corpus. 104 F. Supp. 14. The Court of Appeals affirmed.
195 F.2d 209. This Court granted certiorari. 344 U.S. 873.
Affirmed, p.
345 U. S.
95.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioner presents a novel case. Admitting that he was lawfully
inducted into the Army, he asks the courts, by habeas corpus, to
discharge him because he has not been assigned to the specialized
duties nor given the commissioned rank to which he claims to be
entitled by the circumstances of his induction. The petitioner had
passed the ages liable to induction except under the Universal
Military Training and Service Act, 50 U.S.C. App. § 454(i)(1)(A),
which authorizes conscription of certain "medical and allied
specialist categories." The statute sets up a priority system for
calling such specialists, the first liable being those who received
professional training at government expense during World War II and
who have served less than ninety days since completion of such
training. As a doctor who had received training under this program,
Orloff was subject to this provision and was called up pursuant to
it.
Page 345 U. S. 85
His petition alleged that he was illegally restrained of his
liberty because he was liable for service only as a doctor, but,
after induction, had been given neither rank nor duties appropriate
to that profession, and so was entitled to be discharged. He
alleged that, under Army regulations and practice, one can serve as
a doctor only as a commissioned officer, and that he applied for,
but had not received, such an appointment. He also alleged that he
had requested assignment of physician's duties, with or without a
commission, but that this also had been denied him.
The return to the order to show cause asserted that Orloff was
lawfully inducted, and therefore the court is without jurisdiction
of the subject matter. An affidavit by Colonel Willoughby set forth
that the petitioner, after sixteen weeks of army medical service
training following his induction, was awarded a "potential military
occupation specialty" as a medical laboratory technician.
Appointment as an officer in the Army Medical Corps Reserve, he
said, was still under consideration. It also asserted that, under
his induction, he was liable for training and service under
military jurisdiction, and was subject to military orders and
service the same as any other inducted person.
Answering the petition for habeas corpus, the respondent raised
as affirmative defenses that petitioner was subject to military
command, and that both the subject matter and the person of the
petitioner were under the exclusive jurisdiction of the President
of the United States as Commander in Chief of the Armed Forces, and
that petitioner had failed to exhaust his administrative remedies.
Respondent further stated that his application for a commission
still was being processed by military authorities
"because of particular statements made by petitioner in his
application concerning prior membership or association with certain
organizations designated
Page 345 U. S. 86
by the Attorney General of the United States on October 30,
1950, pursuant to Executive Order 9835,"
that the court was without jurisdiction, and that habeas corpus
does not lie for the purpose of the case.
By way of traverse, Orloff set forth in detail his
qualifications as a physician and psychiatrist, and alleged that
the medical laboratory technician status was not a doctor's work,
and required no more than a four-month training of a layman in the
medical field service school. This, he claims, is not within the
medical specialist category for which he was conscripted. He
asserted that he was willing to serve as a medical specialist, that
is, as a medical doctor, and had offered his services as a doctor
in the grade or rank of private, but had been advised that he could
serve as a doctor only upon being commissioned.
Upon such pleadings, the cause proceeded to hearing.
Petitioner's counsel told the trial court that no question was
involved as to the Army's granting or not granting a commission,
and that petitioner was not asking anybody to give anybody else a
commission, but he claimed to be entitled to discharge until the
Army was prepared to use his services as a doctor. It was admitted
that petitioner had made no request of respondent for a discharge.
Evidence was taken indicating that the specialty to which Orloff
had been assigned was not that usual for a physician. The trial
judge concluded that the law does not require a person drafted
under the "medical and allied specialist categories" to be assigned
doctor's functions and those only, and interpreted the law that a
doctor inducted under the statute was in the same status, so far as
his obedience to orders is concerned, as if he had been inducted
under other conscription statutes, and could not insist on being
used in the medical category. He therefore denied the writ. 104 F.
Supp. 14.
Page 345 U. S. 87
On appeal, as the Court of Appeals pointed out, the case was
argued and briefed by the Government on the broad theory that,
under the statute, doctors could be drafted and used for any
purpose the Army saw fit, that duty assignment for such inductees
was a matter of military discretion. The court agreed, and, on that
ground, affirmed. [
Footnote
1]
We granted certiorari, [
Footnote
2] and in this Court the parties changed positions as nimbly as
if dancing a quadrille. The Government here admits that the
petitioner is entitled to duties generally within a doctor's field,
and says that he now has been assigned to such. The petitioner
denies that he yet has duties that fully satisfy that requirement.
Notwithstanding his position before the trial court, he further
says that, anyway, he must be commissioned, and wants this Court to
order him commissioned or discharged.
In its present posture, questions presented are, first, whether
to accept the Government's concession that one inducted as a
medical specialist must be used as such; second, whether
petitioner, as matter of law, is entitled to a commission; third,
whether the federal courts, by habeas corpus, have power to
discharge a lawfully mustered member of the Armed Forces because of
alleged discriminatory or illegal treatment in assignment of
duties.
1. This Court, of course, is not bound to accept the
Government's concession that the courts below erred on a question
of law. They accepted the Government's argument as then made and,
if they were right in doing so, we should affirm. We think,
however, that the Government is well advised in confessing error,
and that candid reversal of its position is commendable. We
Page 345 U. S. 88
understand that the Army accepts and is governing itself by the
Government's present interpretation of its duty toward those
conscripted because of professional skills. To separate particular
professional groups from the generality of the citizenship and
render them liable to military service only because of their expert
callings and, after induction, to divert them form the class of
work for which they were conscripted would raise questions not only
of bad faith, but of unlawful discrimination. We agree that the
statute should be interpreted to obligate the Army to classify
specially inducted professional personnel for duty within the
categories which rendered them liable to induction. It is not
conceded, however, that particular duty orders within the general
field are subject to judicial review by habeas corpus.
2. We cannot comply with the appellant's insistence that we
order him to be commissioned or discharged. We assume that he is
correct in stating that it has been a uniform practice to
commission Army doctors; indeed, until 1950, Congress provided that
the Army Medical Corps should consist of ." . . commissioned
officers below the grade of brigadier general." 10 U.S.C. § 91.
But, in 1950, Congress repealed § 91 and substituted in its place
the following language:
"[The Medical Corps] . . . shall consist of Regular Army
officers appointed and commissioned therein and such other members
of the Army as may be assigned thereto by the Secretary of the
Army. . . ."
10 U.S.C. § 81-1. 10 U.S.C. § 94 provides that medical officers
of the Army may be assigned by the Secretary of the Army to such
duties as the interests of the service demand. Thus, neither in the
language of the Universal Military Training and Service Act nor of
the Army Reorganization Act referred to above is there any
implication that all personnel inducted under the Doctor's Draft
Act and assigned
Page 345 U. S. 89
to the Medical Corps be either commissioned or discharged.
Petitioner, by his concessions on the hearing to the effect that
the question of a commission was not involved, may have avoided a
full litigation of the facts which lie back of his noncommissioned
status, but enough appears to make plain that there was cause for
refusing him a commission.
It appears that, just before petitioner was inducted, he applied
for and was granted a commission as captain in the Medical Corps,
United States Air Force Reserve. When he refused to execute the
loyalty certificate prescribed for commissioned officers, his
appointment was revoked and he was discharged. This petitioner
refused information as to his membership in or association with
organizations designated by the Attorney General as subversive or
which advocated overthrow of the Government by force and violence.
He gave as his reason that,
"as a matter of conscience, I object to filling out the loyalty
certificate, because it involves an inquisition into my personal
beliefs and views. Moreover, the inquiry into organizational
affiliations employs the principle of guilt by association, to
which I am vigorously opposed. Further, it is my understanding that
all the organizations were listed by the Attorney General without
notice or hearing, which has caused the Supreme Court to invalidate
it."
After he was inducted, petitioner applied for another commission
and filed the required loyalty certificate, but again refused to
supply the requested information. He stated,
"I have attended public meetings of the Civil Rights Congress
and the National Council of American-Soviet Friendship. In 1943, I
co-authored a radio play for the latter organization. Over a period
of 7 1/2 months, I attended classes at the Jefferson School of
Social Sciences (ending in the Spring of 1950). With respect to any
other organizations contained on the annexed list, I am
Page 345 U. S. 90
compelled to claim my Federal Constitutional Privilege. However,
I have never considered myself an organizational member of any of
the aforesaid."
As to the question "Are you now or have you ever been a member
of the Communist Party, U.S.A. or any Communist Organization?" he
said, "Federal constitutional privilege is claimed."
The petitioner appears to be under the misconception that a
commission is not only a matter of right, but is to be had upon his
own terms.
The President commissions all Army officers. 5 U.S.C. § 11. We
have held that, except one hold his appointment by virtue of a
commission from the President, he is not an Officer of the Army.
United States v. Mouat, 124 U. S. 303.
Congress has authorized the President alone to appoint Army
officers in grades up to and including that of colonel, above which
the advice and consent of the Senate is required. 55 Stat. 728, as
amended, 57 Stat. 380.
It is obvious that the commissioning of officers in the Army is
a matter of discretion within the province of the President as
Commander in Chief. Whatever control courts have exerted over
tenure or compensation under an appointment, they have never
assumed by any process to control the appointing power either in
civilian or military positions.
Petitioner, like every conscript, was inducted as a private. To
obtain a change of that status requires appointment by or under
authority of the President. It is true that the appointment he
seeks is one that long and consistent practice seems never to have
denied to one serving as an Army doctor -- one, too, that Congress,
in authorizing the draft of doctors, probably contemplated normally
would be forthcoming. But, if he is the first to be denied a
commission, it may also be that he is the first doctor to haggle
about questions concerning
Page 345 U. S. 91
his loyalty. It does not appear to us that it is the President
who breaks faith with Congress and the doctors of America. We are
not easily convinced that the whole military establishment is out
of step except Orloff.
The President's commission to Army officers recites that
"reposing special trust and confidence in the patriotism, valor,
fidelity and abilities" of the appointee, he is named to the
specified rank during the pleasure of the President. Could this
Court, whatever power it might have in the matter, rationally hold
that the President must, or even ought to, issue the certificate to
one who will not answer whether he is a member of the Communist
Party?
It is argued that Orloff is being punished for having claimed a
privilege which the Constitution guarantees No one, at least no one
on this Court, which has repeatedly sustained assertion by
Communists of the privilege against self-incrimination, questions
or doubts Orloff's right to withhold facts about himself on this
ground. No one believes he can be punished for doing so. But the
question is whether he can, at the same time, take the position
that to tell the truth about himself might incriminate him, and
that, even so, the President must appoint him to a post of honor
and trust. We have no hesitation in answering that question
"No."
It is not our view of Orloff's fitness that governs. Regardless
of what we individually may think of the usefulness of loyalty
oaths or the validity of the Attorney General's list of subversive
organizations, we cannot doubt that the President of the United
States, before certifying his confidence in an officer and
appointing him to a commissioned rank, has the right to learn
whatever facts the President thinks may affect his fitness. Perhaps
we would not ask some of these questions, or we might ask others,
but if there had never been an
Page 345 U. S. 92
Attorney General's list, the President would be within his
rights in asking any questions he saw fit about the habits,
associations, and attitudes of the applicant for his trust and
honor. Whether Orloff deserves appointment is not for judges to
say, and it would be idle, or worse, to remand this case to the
lower courts on any question concerning his claim to a
commission.
3. This leaves the question as to whether one lawfully inducted
may have habeas corpus to obtain a judicial review of his
assignments to duty. The Government has conceded that it was the
legal duty of the Army to assign Orloff to duties falling within
"medical and allied specialist categories." However, within the
area covered by this concession there are many varieties of
particular duties. The classification to which petitioner belonged
for inductive purposes was defined by statute to be "medical and
allied specialist categories." This class includes not merely
doctors and psychiatrists, but other medical technicians, and,
while the duties must be within this category, a large area of
discretion as to particular duties must be left to commanding
officers. The petitioner obtained basic medical education at the
expense of the Government. In private life, he has pursued a
specialty. But the very essence of compulsory service is the
subordination of the desires and interests of the individual to the
needs of the service. A conscripted doctor may have pursued the
specialty of obstetrics, but, in the Army, which might have limited
use for his specialty, could he refuse other service within the
general medical category?
Each doctor in the Army cannot be entitled to choose his own
duties, and the Government concession does not extend to an
admission that duties cannot be prescribed by the military
authorities, or that they are subject to review and determination
by the judiciary.
Page 345 U. S. 93
The nature of this issue is pointed up by the controversy that
survives the changes the parties have made in their positions in
this Court. It is admitted that Orloff is now assigned to medical
duties in the treatment of patients within the psychiatric field.
He is not allowed functions that pertain to commissioned officers,
but, apart from that, he is restricted from administering certain
drugs and treatments said to induce or facilitate a state of
hypnotism. Orloff claims this as is professional prerogative,
because, in private practice, he would be free to administer such
treatments. The Government says, however, that, because of doubts
about his loyalty, he is not allowed to administer such drugs,
since his patients may be officers in possession of important
military information which he could draw out from them while they
were under the influence of the drugs. Of course, if it were the
function or duty of the judiciary to resolve such a controversy,
this case should be returned to the District Court to take evidence
as to all issues involved.
However, we are convinced that it is not within the power of
this Court, by habeas corpus, to determine whether specific
assignments to duty fall within the basic classification of
petitioner. It is surely not necessary that one physician be
permitted to cover the whole field within the medical
classification, nor would we expect that a physician is exempt from
occasional or incidental duties not strictly medical. In these,
there must be a wide latitude allowed to those in command.
We know that, from top to bottom of the Army, the complaint is
often made, and sometimes with justification, that there is
discrimination, favoritism, or other objectionable handling of men.
But judges are not given the task of running the Army. The
responsibility for setting up channels through which such
grievances can
Page 345 U. S. 94
be considered and fairly settled rests upon the Congress and
upon the President of the United States and his subordinates. The
military constitutes a specialized community governed by a separate
discipline from that of the civilian. Orderly government requires
that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not to
intervene in judicial matters. While the courts have found occasion
to determine whether one has been lawfully inducted, and is
therefore within the jurisdiction of the Army and subject to its
orders, we have found no case where this Court has assumed to
revise duty orders as to one lawfully in the service.
But, the proceeding being in habeas corpus, petitioner urges
that, if we may not order him commissioned or his duties redefined,
we may hold that, in default of granting his requests, he may be
discharged from the Army. Nothing appears to convince us that he is
held in the Army unlawfully, and, that being the case, we cannot go
into the discriminatory character of his orders. Discrimination is
unavoidable in the Army. Some must be assigned to dangerous
missions; others find soft spots. Courts are presumably under as
great a duty to entertain the complaints of any of the thousands of
soldiers as we are to entertain those of Orloff. The effect of
entertaining a proceeding for judicial discharge from the Army is
shown from this case. Orloff was ordered sent to the Far East
Command, where the United States is now engaged in combat. By
reason of these proceedings, he has remained in the United States
and successfully avoided foreign service until his period of
induction is almost past. Presumably, some doctor willing to tell
whether he was a member of the Communist Party has been required to
go to the Far East in his place. It is not difficult to see that
the exercise of such jurisdiction
Page 345 U. S. 95
as is here urged would be a disruptive force as to affairs
peculiarly within the jurisdiction of the military authorities.
We see nothing to be accomplished by returning this case for
further litigation. The judgment is
Affirmed.
[
Footnote 1]
195 F.2d 209.
[
Footnote 2]
344 U.S. 873.
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER and MR.
JUSTICE DOUGLAS concur, dissenting.
I agree with MR. JUSTICE FRANKFURTER's dissent.
The United States confesses error in this case, and then tells
us that, since the District Court rendered its erroneous judgment,
Dr. Orloff has been assigned to some duties that fall within the
range of medical activities. This is denied by Dr. Orloff.
Apparently admitting that Orloff could not be retained in the Army
to do something other than the performance of medical services, the
Court nevertheless refuses to send the case back to have this
factual controversy determined by the District Court. This Court is
usually exceedingly reluctant to resolve disputed facts. I cannot
understand why it feels called on to affirm this admittedly
erroneous judgment by deciding disputed facts on mere unsworn
statements of parties here. And there are other reasons why I think
the case should be reversed.
I believe the United States was right when it stipulated in the
District Court that it could not lawfully utilize Orloff's services
as a physician without giving him a commission. It is true the
United States has here backed away from this stipulation. It now
claims a right to utilize Orloff as a doctor without granting him a
commission and this Court agrees. I do not agree.
Since 1847, one hundred and six years ago, Army doctors have
served only when they have been commissioned
Page 345 U. S. 96
to do so as officers.
* This longstanding
Army practice is in harmony with the law as it exists today. 10
U.S.C. (Supp. IV) § 81-1 and § 91a. The congressional hearings and
discussions of the special draft act under which Dr. Orloff was
inducted indicate that the law probably never would have been
passed but for repeated assurances given the Congress that all
doctors drafted and held for service under it would be granted
commissions. This because the law was admitted by its sponsors to
be "discriminatory legislation," singling out the medical
profession and its allies, and providing for their induction up to
50 years of age, although other people of this age group could not
be called into Army service. This discrimination was justified to
Congress only on the ground that doctors made to serve under that
law would be given at least a first lieutenant's grade in
accordance with the century-old practice of the Army. 96 Cong.Rec.
13861. I think the Government breaks faith with the Congress and
with the doctors of America in drafting a doctor without granting
him a commission.
It is difficult to think of any sound reason why the Army claims
power to use this doctor while denying him the privileges of all
other Army doctors. He will be the only doctor denied a commission
out of 3,989 doctors drafted under the special law up to last
October. And, if there was any genuine question about his loyalty
to our country, it seems unthinkable that any responsible person in
the armed forces would be willing to let him have any part in the
treatment of sick and wounded soldiers. If, therefore Dr. Orloff is
being used as a doctor, the Army must believe that he is dependable
despite his failure to answer the question about his past
associations.
Page 345 U. S. 97
If he is being used, the law entitles him to a commission.
This record indicates to me, however, that Dr. Orloff is being
held in the Army not to be used as a medical practitioner, but to
be treated as a kind of pariah in order to punish him for having
claimed a privilege which the Constitution guarantees. Doubtless
there are some who would make it a crime for a person to claim this
privilege. If an attempt is to be made to punish draftees for
asserting constitutional claims, as I can hardly believe it would,
it should be done only by an act of Congress. Should such be
attempted, I would hope that this Court would promptly declare an
act to that effect unconstitutional. And if some kind of punishment
is to be imposed for asserting constitutional rights, it should not
be imposed without a trial according to due process of law.
I think it only fair to state that I see nothing in this record
from which the slightest inference should be drawn that Dr. Orloff
has taken the course he did in order to avoid service in the Army
here or abroad.
This whole episode appears to me to be one of a too-rapidly
increasing number to which Americans in a calmer future are not
likely to point with much pride.
* The Government admits that such has been the practice since
the Act of February 11, 1847, 9 Stat. 123, 124-125.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK and MR. JUSTICE
DOUGLAS join, dissenting.
Of course, the commissioning of officers in the Army lies
entirely within the President's discretion, and is not subject to
judicial control. Although there can be no doubt about that, it
does not follow that Congress is precluded from drafting a special
group into the Army on condition that they will be commissioned.
Receiving a commission is clearly not a matter of right, but
granting it may be a condition for retaining a person in the Army.
The commissioning of officers in the
Page 345 U. S. 98
Army is, no doubt, a matter of discretion within the province of
the President as Commander in Chief. But whether we can or cannot
hold the President's lawful exercise of his discretion to be a
ground for discharge of one he fails to commission depends on the
conditions under which Congress authorized him to be drafted.
And so, for me, the central question in this case is whether one
who is drafted under the doctors draft statute, 64 Stat. 826, 50
U.S.C. App. (Supp. IV) § 454(i)(1), but who does not, in due
course, obtain a commission, of whatever rank, must, as a matter of
statutory construction, be discharged from the Army because
Congress imposed the condition of such a commission on drafting
doctors above the general draft age and the condition has not been
fulfilled. That view would be strongly supported by the admission
of the Government in the trial court that the
"regulations and practice of the United States Army provide that
an individual can serve as a doctor of medicine in the United
States Army only if he holds a rank of a commissioned officer."
Further, if the statements that were made at the hearings and on
the floor of the Congress by those who were in charge of the
legislation had been made in a formal committee report, this Court
could hardly have held that the receipt of a commission was not a
condition on keeping in the Army a doctor drafted under these
special provisions. Whatever we may think about the loose use of
legislative history, it has never been questioned that reports of
committees and utterances of those in charge of legislation
constitute authoritative exposition of the meaning of legislation.
It is hard to believe that the powerful American Medical
Association would have failed to oppose
Page 345 U. S. 99
vigorously any provisions under which the Army could draft
doctors not otherwise draftable as noncommissioned personnel, or
that the Congress would have adopted any such provision in the face
of professional opposition.
An independent investigation of all the relevant factors bearing
on the legislation, beyond what was brought to our attention,
see Hearings before House Committee on Armed Services on
H.R. 9554, 81st Cong., 2d Sess. 7164, 7166-7167, 7189, 7223; 96
Cong.Rec. 13861, would be necessary to enable one to be confident
in rejecting the contention that doctors who were drafted were to
obtain a commission. I do not mean to say that mandamus would lie
to compel the grant of a commission. That is not the only
alternative. The obvious
tertium quid is the release of a
doctor-draftee who is found unfit for a commission. On the basis of
what has been put before us, I do not see how we can dispose of the
case with complete indifference to this crucial issue. This seems
to me the more inadmissible in view of the shifting arguments of
the Government, as it has been driven from position to position.
Only in its purpose to keep this man in the Army has the Government
been undeviating. He could not be drafted under the general draft
law, and if a pledge was given to the medical profession, as
apparently it was, that a special class of drafted doctors would be
duly commissioned, Orloff ought not to be retained in disregard of
that pledge. In that case, it is immaterial what quirky notions
petitioner may have as to the reasons why a commission has been
withheld from him.
*
Compare Petition for Writ of Habeas Corpus, par. 7,
T.R. 2,
with Answer to Petition for Writ of Habeas Corpus,
par. 7, T.R. 8-9;
see T.R. 23-24.