UNITED STATES SUPREME COURT DECISIONS ON-LINE

Petitioner, an Air Force officer at Cannon Air Force Base, was found guilty by a court-martial of willfully disobeying a lawful order. He was sentenced, inter alia, to a year's confinement at hard labor and immediately ordered confined to his quarters. The convening authority approved the sentence and ordered petitioner confined in the U.S. Disciplinary Barracks at Fort Leavenworth, Kans., pending completion of appellate review. Petitioner (1) appealed on the merits to the military tribunals (where final review is pending) and (2) sought habeas corpus relief from the District Court, arguing that Articles 71(c) and 13 of the Uniform Code of Military Justice required his release pending the outcome of his military appeal. The District Court, overruling the Government's contention that petitioner should be required to exhaust his military remedies before seeking habeas corpus relief from the civilian courts, found petitioner's incarceration at Fort Leavenworth would be invalid under Article 71(c). That court refused to review the legality of petitioner's confinement at Cannon Air Force Base. The Court of Appeals, relying on Gusik v. Schilder, 340 U. S. 128, reversed, and held that the District Court could not grant petitioner relief until he had challenged the validity of his confinement before the military appellate tribunals. Shortly after the Court of Appeals decision, petitioner recognized that his sentence was scheduled to expire and he might be released from custody before this Court had an opportunity to pass on his claims regarding his confinement, and that his case might become moot. The Court of Appeals, on petitioner's request, agreed to stay its mandate, but refused to require petitioner's release from custody at the Cannon Air Force Base. MR. JUSTICE DOUGLAS, following petitioner's application to him during a recess of this Court, ordered that petitioner be placed in "a nonincarcerated status" until the full Court could pass on the matter, and petitioner was released two days before his sentence was to expire. The Government contended that petitioner's case had nevertheless become moot, arguing that MR. JUSTICE DOUGLAS' clubjuris

Page 395 U. S. 684

order did not come within the category of a "suspension," which, under Article 57(b), tolls the running of a sentence.

Held:

1. The case is not moot. MR. JUSTICE DOUGLAS' order, even if it did not constitute a "suspension" under Article 57(b), was sufficient to interrupt the running of petitioner's sentence under the rationale of § 97(c) of the Manual for Courts-Martial that a military prisoner who has been freed from confinement may not receive credit for time served during the period of his release. Pp. 395 U. S. 688-693.

2. Habeas corpus petitions from military prisoners should not be entertained by civilian courts until all available remedies within the military court system have been exhausted, Gusik v. Schilder, supra, and since this principle applies with equal force to ancillary matter such as the legality of petitioner's confinement pending completion of military review, petitioner's failure to exhaust his remedy in the Court of Military Appeals forecloses the relief requested here. Pp. 395 U. S. 693-698.

402 F.2d 441, affirmed.