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February 27, 1956

UNITED STATES of America ex rel. Robert A. PARSLEY, Relator,
Lloyd R. MOSES, Brigadier General, U.S.A., Commanding Officer at Fort Dix, New Jersey, and/or Any Other Officer or Personnel of the United States Army at Fort Dix, New Jersey, Having Custody of the Relator, Respondent

The opinion of the court was delivered by: FORMAN

Relator, Robert A. Parsley, enlisted in the United States Army on August 15, 1950 for a term of three years. On January 3, 1951 relator absented himself without leave from the Army and made his way from his station at Fort Knox, Kentucky to Reno, Nevada. Reno was his destination because he had conceived a scheme which he thought would enable him to accumulate a fortune at roulette.

 Relator obtained a few menial jobs in the Reno vicinity and eventually reached Seattle, Washington, where he resumed his civilian occupation of ship's radio officer.

 On September 16, 1955, while relator was serving aboard a ship docked in New York harbor Army personnel took him into custody and transported him to Fort Dix, New Jersey. On November 18, 1955 relator was tried by a general court-martial at Fort Dix on a charge that he deserted on January 3, 1951. He pleaded guilty to the lesser charge of being absent without leave from January 3, 1951 to January 7, 1951, the day he surrendered himself to the Reno police. After trial he was found guilty of being absent without leave from January 3, 1951 to September 16, 1955. *fn1" Relator was sentenced to serve 30 days at hard labor and to forfeit $ 55. The sentence has been served.

 During the period of his absence from the Army relator made no effort to conceal either his identity or his whereabouts.

 Under 10 U.S.C.A. § 629 the Army has authority to add to a soldier's term of enlistment so-called 'bad time' -- time during which the enlistee has unauthorizedly absented himself from duty. *fn2" However, the total amount of service that can be required may not exceed in length the original term of enlistment. Thus, relator is presently being required to serve the time that remained in his enlistment term after he absented himself from the Army on January 3, 1951. Relator's 'bad time' amounts to about two years and seven months, since his original term expired on August 15, 1953.

 It is relator's position that the Army lacks legal authority to hold him until he finishes the remainder of his three-year enlistment term. Upon the submission of a petition containing substantially all of the above facts, which the Army concedes to be an accurate description of the course of events, a writ of habeas corpus was issued, testimony taken and oral argument heard.


 The first issue that must be met is whether the Army had jurisdiction to reacquire custody of relator and thus to apply 10 U.S.C.A. § 629 to him.

 In United States ex rel. Toth v. Quarles, 1955, 350 U.S. 11, 76 S. Ct. 1, the Supreme Court held, in dealing with a discharged soldier, that Congress lacks constitutional power to provide for military trial of civilians for crimes committed while in their former status as servicemen. Once a soldier's status has changed from soldier to civilian there is no courts-martial jurisdiction for the trial of crimes committed prior to the status-changing separation from the Armed Services. Future prosecution of civilians for their crimes committed while in the military must be by civilian courts subject to all the provisions of the Bill of Rights. United States ex rel. Toth v. Quarles, supra.

 The Toth case stands for the proposition that once a solider's status changes from that of soldier to that of civilian, military jurisdiction is lost and cannot be regained. It is apparent that that case will apply to relator only if at the time of the reacquisition of custody over him by the Army his status had changed to that of civilian. The issue becomes: Dis his status change to that of civilian upon the expiration of his original term of enlistment? This requires an examination of the relationship between an enlisted man and the Army.

 'Enlistment is a contract, but it is one of those contracts which changes the status, and where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes.' In re Grimley, 1890, 137 U.S. 147, 151, 11 S. Ct. 54, 55, 34 L. Ed. 636. Discharge, of course, changes the status and turns a soldier into a civilian. Can it be said that the simple passage of time beyond the expiration date of the original term of enlistment creates the same effect?

 In 1876 Attorney General Taft, in an opinion addressed to the then Secretary of War, construed the military contract of enlistment (absent statutory directions to the contrary) to impose a duty to serve only during the specific years covered by the contract. There was thought to be no duty to serve beyond the terminal date of the contractual period even if the enlistee deserted during his term and remained a deserter when the terminal date of the enlistment period was reached. 15 Op.Atty.Gen. 152, 161-163. Accord: NCM 133, Taylor, 4 CMR 450, 452 (1952).

 In 1922 Attorney General Daugherty disagreed with his predecessor. In an opinion addressed to the then Secretary of the Navy he examined the contract of enlistment and found that 'The contract is to serve for a certain period, and the status established is that of a soldier or sailor in the military service of the United States. * * * It is a contradiction is terms to say that this contract of service can be performed by desertion; that this status can be dissolved at the will of the enlisted man. The obligation can only be ended by complete performance, and the status is only satisfied by the prescribed continuous relationship of service.' 33 Op.Atty.Gen. 121, 127-128. He further held that 'There must be, in my ...

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